Brian Nguyen v. Fan Chen ( 2023 )

Dismissed and Memorandum Opinion filed January 12, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00783-CV
BRIAN NGUYEN, Appellant
V.
FAN CHEN, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2022-63128
MEMORANDUM OPINION
This is an attempted appeal from two different interlocutory orders.
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). When orders do not dispose of all pending
parties and claims, the orders remain interlocutory and unappealable until final
judgment is rendered unless a statutory exception applies. 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).
Appellant is attempting to appeal (1) an October 18 order granting a motion
to compel arbitration and (2) an October 12 order granting a temporary injunction.
On October 24, 2022, appellant filed a notice of appeal specifying that he was
appealing “the interlocutory order entitled ‘Order Granting Brian Nguyen’s
Motion to Compel Contractually Agreed ADR and Denying Nguyen’s Plea in
Abatement’ signed on October 18, 2022.” On December 8, 2022, in response to
this court’s notice of dismissal for want of jurisdiction, appellant filed an amended
notice of appeal stating,
“The notice of appeal should have stated that ‘Appellant desires to appeal
the interlocutory ‘Order Granting Temporary Injunction’ signed on October
12, 2022, in conjunction with the interlocutory order entitled ‘Order
Granting Brian Nguyen’s Motion to Compel Contractually Agreed ADR and
Denying Nguyen’s Plea in Abatement’ signed on October 18, 2002. This
omission was an oversight by the undersigned.”
We must consider whether our jurisdiction was invoked in relation to either
of the October orders. See Kilory v. Kilroy, 137 S.W.3d 780, 783 (Tex. App.—
Houston [1st Dist.] 2004, no pet.) (addressing jurisdiction as a threshold issue).
October 18 order compelling arbitration
We lack jurisdiction over the October 18, 2022 order because orders
compelling arbitration are not reviewable by interlocutory appeal. See Chambers v.
O’Quinn, 242 S.W.3d 30, 31–32 (Tex. 2007) (holding that neither the Texas
Arbitration Act nor the Federal Arbitration Act provide for interlocutory appeals of
orders granting or compelling arbitration. “The Act is one-sided, allowing
interlocutory appeals solely from orders that deny arbitration.”). Thus, the October
24 notice of appeal was not sufficient to invoke our jurisdiction.
2
October 12 order granting temporary injunction
An order granting a temporary injunction is reviewable by interlocutory
appeal. See Tex. Civ. Prac. Rem. Code § 51.014(a)(4). However, appellant’s
December 8, 2022 amended notice of appeal was not sufficient to timely invoke
our jurisdiction. A notice of appeal from the October 12, 2022 order granting
temporary injunction was due November 1, 2022. See Tex. R. App. P. 26.1(b).
Moreover, the December 8 notice of appeal does not relate back to the October 24
notice because Rule 25.1(g) does not permit an amendment to a notice of appeal to
add an entirely different order from which the appeal is taken. Tex. R. App. P.
25.1(g); see Rainbow Grp., Ltd. v. Wagoner, 219 S.W.3d 485, 492–93 (Tex.
App.—Austin 2007, no pet.); Fain v. Georgen, No. 03-17-00313-CV, 2017 WL
4766654 at *3 (Tex. App.—Austin Oct. 19, 2017, no pet.) (holding that an
amended notice of appeal may only be used to correct defects and omissions in
earlier notices, not to “challenge an entirely different order than the one named in
the notice.”).
Because appellant’s notice of appeal and amended notice of appeal did not
invoke our jurisdiction with regard to either of the October orders, we dismiss the
appeal for want of jurisdiction.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
3