NUMBER 13-17-00619-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
ODETTE GITTINS D/B/A MAGIC PHONE, Appellant,
v.
METROPCS TEXAS, LLC, JACKSON WIRELESS, LLC,
JAVIER PENA AND JUAN CASTILLO, Appellees.
____________________________________________________________
On appeal from the 92nd District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Rodriguez
Appellant Odette Gittins d/b/a Magic Phone has attempted to appeal an order
signed on October 4, 2017 which granted a motion to compel arbitration and to abate the
suit pending arbitration filed by MetroPCS Texas, LLC (MetroPCS). MetroPCS and
defendants Javier Pena and Juan Castillo have now filed an opposed motion to dismiss
this appeal on grounds that the order subject to review is interlocutory and this Court lacks
jurisdiction over the appeal. See TEX. R. APP. P. 42.3. More than ten days have passed
since the opposed motion to dismiss was filed and appellant has not filed a response to
the motion to dismiss. See TEX. R. APP. P. 10.3. We dismiss this appeal for lack of
jurisdiction.
Generally, appeals may be taken only from final judgments. Lehmann v. Har–
Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final if it disposes of all
pending parties and claims. Id. When an order does not dispose of all pending parties
and claims, the order remains interlocutory and unappealable until a final judgment is
rendered, unless a statute provides for interlocutory review. Bally Total Fitness Corp. v.
Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d
266, 272 (Tex. 1992) (orig. proceeding). An order compelling arbitration and staying
proceedings pending arbitration does not dispose of all claims and parties. In re Gulf
Exploration, LLC, 289 S.W.3d 836, 840–41 (Tex. 2009) (orig. proceeding).
Here, the arbitration provision at issue states that the Federal Arbitration Act (FAA)
applies to the parties’ dispute. Under the FAA, an order compelling arbitration and
granting a stay is not immediately reviewable. In re Gulf Exploration, LLC, 289 S.W.3d
at 842; see 9 U.S.C.A. § 16(b)(1),(3) (West, Westlaw through P.L. 115–84; 115–86 to
115–89) (providing that an appeal may not be taken from an interlocutory order which
grants a stay of any action or which compels arbitration); see also Chambers v. O’Quinn,
242 S.W.3d 30, 31 (Tex. 2007) (per curiam). Because such an order is not appealable
under the FAA, it is not appealable under Section 51.016 of the Texas Civil Practice and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West, Westlaw
through 2017 1st C.S.) (stating that in matters subject to the FAA, an appeal is available
only under the same circumstances that an appeal from a federal district court’s order
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would be permitted). Further, even if the Texas General Arbitration Act (TGAA) were to
apply in this case rather than the FAA, an order compelling arbitration under the TGAA is
likewise not subject to immediate review. In re Gulf Exploration, LLC, 289 S.W.3d at
842; Chambers, 242 S.W.3d at 31; see TEX. CIV. PRAC. & REM .CODE ANN. §
171.098(a)(1)-(5)(West, Westlaw through 2017 1st C.S.) (allowing appeals from orders
which deny motions to compel arbitration, grant applications to stay arbitration, confirming
or denying confirmation of an arbitration award, modifying or correcting an award, and
vacating an award without directing a rehearing); see also TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a) (West, Westlaw through 2017 1st C.S.) (providing for statutory
interlocutory appeals). However, an order compelling arbitration may be reviewed by
interlocutory appeal if the order also dismisses the underlying litigation because in such
cases the order is final rather than interlocutory. In re Gulf Exploration, LLC, 289 S.W.3d
at 840.
Here, our review of the clerk’s record reveals that no final judgment has been
entered in this case. Appellant is attempting to appeal from the trial court’s order, signed
on October 4, 2017, which granted MetroPCS’s motion to compel arbitration and to abate
the litigation, but which did not dismiss the case. Because the trial court’s order
compelling arbitration did not also dismiss the case, it is an interlocutory order for which
we lack jurisdiction, and we must dismiss this appeal. See In re Gulf Exploration, 289
S.W.3d at 840; see also Brown v. Horizon Owners Ass’n, Inc., No. 04-17-00159-CV, 2017
WL 3159442, at *1 (Tex. App.—San Antonio July 26, 2017, no pet.) (mem. op. per
curiam); Petrolia Group, LLC v. Zimmerman, Axelrad, Meyer, Stern & Wise, PC, No. 14-
16-00468-CV, 2016 WL 3743029, at *1 (Tex. App.—Houston [14th Dist.] July 12, 2016,
no pet.) (mem. op. per curiam); Whitfield v. Big Star Honda, No. 01-15-00448-CV, 2015
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WL 7300349, at *1 (Tex. App.—Houston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op. per
curiam); Tice v. El Paso Educ. Initiative, Inc., No. 08-13-00014-CV, 2013 WL 1032254,
at *1 (Tex. App.—El Paso Mar. 13, 2013, no pet.) (mem. op.).
The Court, having examined and fully considered the documents on file and the
opposed motion to dismiss filed by MetroPCS, is of the opinion that we lack jurisdiction
over this appeal. The trial court’s order compelling arbitration and abating the
proceedings pending arbitration is not reviewable by interlocutory appeal. Accordingly,
we grant the opposed motion to dismiss this appeal and we dismiss the appeal. See
TEX. R. APP. P. 42.3(a). The costs of appeal are taxed against appellant. See id. R.
42.1(d).
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 14th
day of December, 2017.
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