COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00423-CV
KELLY THOMAS APPELLANT
V.
CARL PUGLIESE; SETH JOHNS, APPELLEES
CMO OF CARL'S HANDYMAN;
AND CULPEPPER PLUMBING &
AIR CONDITIONING, INC.
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FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
TRIAL COURT NO. CV-2016-01764
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MEMORANDUM OPINION1
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This is the third appeal brought by appellant Kelly Thomas regarding her
pending lawsuit against appellees Carl Pugliese, Seth Johns, and Culpepper
1
See Tex. R. App. P. 47.4.
Plumbing & Air Conditioning, Inc. As we have with her two prior appeals, we
dismiss this appeal.
In 2016, Thomas filed suit against the appellees, alleging that they
performed defective plumbing services at her home.2 On October 27, 2017, the
trial court entered a docket-control order, setting deadlines for discovery,
dispositive motions, and trial. Thomas filed a notice of appeal from that order,
but we dismissed it for want of jurisdiction because the order was not a final
judgment or appealable interlocutory order. Thomas v. Pugliese, No. 02-17-
00407-CV, 2017 WL 6616243, at *1 (Tex. App.—Fort Worth Dec. 21, 2017, no
pet. h.) (mem. op.). Meanwhile, the trial court signed a second docket-control
order on November 22, 2017. Thomas noticed her intent to appeal the second
order, but voluntarily dismissed her appeal. Thomas v. Pugliese, No. 02-17-
00422-CV, 2017 WL 6759039, at *1 (Tex. App.—Fort Worth Dec. 28, 2017, no
pet. h.) (mem. op.).
On November 30, 2017, Thomas filed a third notice of appeal again
challenging the November 22 docket-control order but additionally complaining of
several trial court orders that were signed November 28, 2017: (1) the order
2
In 2017, Thomas also filed a separate suit against her homeowners’
insurance company in a district court, alleging that the company mishandled her
claims for damages to her home. She appealed from the trial court’s denial of
her motion to arbitrate brought under insurance code section 541.161; however,
we dismissed her appeal for want of jurisdiction because her motion had not
been brought under section 171.021 of the civil practices and remedies code.
Thomas v. Standard Cas. Co., No. 02-17-00335-CV, 2017 WL 6376659, at *1–2
(Tex. App.—Fort Worth Dec. 14, 2017, no pet. h.) (mem. op.).
2
denying Thomas’s motion to compel arbitration; (2) the order denying Thomas’s
motion to transfer her case to the district court hearing her claims against her
homeowners’ insurance company; (3) the order granting the appellees’ motions
for sanctions against Thomas; (4) the order granting the appellees’ special
exceptions to Thomas’s petition and directing her to replead; and (5) the order
denying Thomas’s motion to compel discovery and deem her requests for
admissions admitted. She also complains of the abatement of her case from July
27, 2017, to October 7, 2017, which was required by section 17.505 of the
Deceptive Trade Practices Act.3
We have jurisdiction to consider appeals from final judgments or from
interlocutory orders made immediately appealable by statute. See Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). An order denying a motion to
compel arbitration “made under Section 171.021” of the civil practices and
remedies code is immediately appealable. Tex. Civ. Prac. & Rem. Code Ann.
§ 171.098(a)(1) (West 2011); see also id. § 171.021 (West 2011). Thomas
argued in her motion to compel that arbitration was required “based on violations
of laws and codes of Texas State Board of Plumbing Examiners” and under
section 171.021 because the appellees refused to arbitrate. At no point did she
rely on the existence of a valid arbitration agreement between her and the
appellees. See Ellis v. Schlimmer, 337 S.W.3d 860, 861–62 (Tex. 2011) (noting
3
The basis of the appellees’ motion for sanctions was Thomas’s continual
filings during the abatement.
3
party seeking to compel arbitration under section 171.021(a) “must first establish
the existence of a valid arbitration agreement”); Schlumberger Tech. Corp. v.
Baker Hughes Inc., 355 S.W.3d 791, 797 (Tex. App.—Houston [1st Dist.] 2011,
no pet.) (“[I]t is the substance and function of the application [to compel
arbitration] viewed in the context of the record that controls our interlocutory
jurisdiction.”). We conclude that Thomas failed to allege the existence of an
applicable agreement to arbitrate and, therefore, failed to seek arbitration under
section 171.021. Cf. Schlumberger, 355 S.W.3d at 799 (“Viewing the motion in
the context of the record, we conclude that the substance and function of
Schlumberger’s motion was to allege the existence of an agreement to arbitrate
that applied to the parties’ dispute . . . and that Baker Hughes refused to arbitrate
in accordance with that agreement.”). Accordingly, her attempted interlocutory
appeal of the trial court’s denial is not authorized under section 171.098(a)(1).
The remainder of the orders challenged by Thomas on appeal are
interlocutory and are not immediately appealable. See, e.g., Thomas, 2017 WL
6616243, at *1; In re N.L., No. 02-17-00205-CV, 2017 WL 3634015, at *1 (Tex.
App.—Fort Worth Aug. 24, 2017, no pet.) (mem. op.); Rudder v. Hannah, No. 2-
04-112-CV, 2004 WL 1176655, at *1 (Tex. App.—Fort Worth May 27, 2004, no
pet.) (mem. op.); Pelt v. State Bd. of Ins., 802 S.W.2d 822, 827 (Tex. App.—
Austin 1990, no writ). We notified Thomas of our jurisdictional concerns. See
Tex. R. App. P. 44.3. And although Thomas responded, she did not establish
4
our jurisdiction over her attempted appeal.4 We dismiss Thomas’s appeal for
want of jurisdiction. See Tex. R. App. P. 42.3, 43.2(f).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GABRIEL, KERR, and PITTMAN, JJ.
DELIVERED: January 25, 2018
4
The crux of her argument was that because she is indigent and because
the appellees have insurance, they should be compelled to arbitrate Thomas’s
claims.
5
Kelly Thomas v. Carl Pugliese Seth Johns, CMO of Carl's Handyman And Culpepper Plumbing & Air Conditioning, Inc.
Combined Opinion