Azteck International Business Corporation v. UPI Communications ( 2010 )

Opinion issued May 13, 2010

In The

Court of Appeals

For The

First District of Texas

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No. 01-09-00578-CV

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AZTECK INTERNATIONAL BUSINESS CORPORATION, Appellant

V.

UPI COMMUNICATIONS, Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 2005-78680

MEMORANDUM OPINION

Appellant Azteck International Business Corporation sued appellee UPI Communications and others for breach of contract, fraud, and violation of the Deceptive Trade Practices-Consumer Protection Act related to wireless telephone services.  See Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (Vernon 2008 & Supp. 2009).   This is the Azteck’s third attempted interlocutory appeal.[1]

Background

On June 13, 2007, the trial court ordered the parties to this appeal to arbitration under the provisions of a 2001 arbitration agreement. The order specified that UPI was to present to the arbitrator its argument that a 2002 arbitration agreement[2] was controlling and, should the arbitrator so decide, the parties were to proceed to arbitration pursuant to that agreement.   On December 9, 2008, after conducting an evidentiary hearing, the arbitrator determined that the 2002 arbitration agreement was controlling.

The following March, Azteck filed a “Motion to Vacate Arbitration Award,” complaining, among other things, that the arbitrator exceeded her authority by ruling on the existence of the 2002 arbitration agreement and “compelling arbitration by the parties to federal court.” Azteck asserted that only the trial court could determine whether there was a 2002 arbitration agreement between the parties and could compel arbitration under that agreement.  The record reflects no ruling on Azteck’s motion. 

In its response to Azteck’s motion to vacate, UPI requested the trial court to “reconsider and determine[,] independent of the Arbitrator’s Ruling, that the August 8, 2002 Agreement is the controlling agreement between the parties” “in order to avoid any further claims by [Azteck] that [the trial court] failed to determine a ‘threshold’ issue regarding the controlling agreement.”  UPI noted that its motion for partial summary judgment was still pending and asked the trial court to grant the partial summary judgment and find that the 2002 arbitration agreement was controlling.

On May 4, 2009, the trial court held an evidentiary hearing on “UPI’s motion” “to compel arbitration.”  After hearing testimony and receiving evidence, the trial court found in favor of UPI that the 2002 arbitration agreement was a signed agreement between the parties and held that “the motion to compel arbitration is granted.”

On May 14, 2009, the trial court entered an “ORDER CONFIRMING AND COMPELLING ARBITRATION,” in which the trial court notes that: 

(1)     it had ordered the parties to arbitration under the 2001 agreement with a provision that if the arbitrator determined that the 2002 agreement controlled, that the parties would proceed to arbitration under that agreement; 

(2)     the arbitrator issued a ruling that the 2002 agreement was controlling; 

(3)     Azteck filed a motion to vacate the arbitration order, claiming that the arbitrator lacked authority to determine the controlling agreement and arguing that only the trial court could make that determination; 

(4)     UPI requested the trial court to reconsider its motion to compel arbitration to independently determine whether the 2002 agreement controlled; and

(5)     in response, the trial court held an evidentiary hearing to determine whether the 2002 agreement was authentic, valid, and controlling.  

The order then states that the trial court “finds and orders, based on a preponderance of the evidence,” that the 2002 arbitration agreement was the controlling agreement and that “the parties shall proceed to arbitration” under that agreement.

          Azteck attempts to appeal this order.[3]

Motion to Dismiss

UPI filed a June 24, 2009 motion to dismiss the attempted statutory interlocutory appeal of the May 14, 2009 order.  See Tex. R. App. P. 42.3 (involuntary dismissal in civil cases).  The motion to dismiss is meritorious.

          The May 14, 2009 order is expressly interlocutory. Absent specific statutory authorization, we have no jurisdiction to consider an interlocutory appeal.   See Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000). Azteck’s notice of appeal states that “[p]ursuant to [Texas Civil Practices and Remedies Code section] 171.098,” it is appealing the trial court’s “judgment . . . [o]n May 14, 2009 confirming Arbitrator’s Award and compelling arbitration under the 2002 contract.”  See Tex. Civ. Prac. & Rem. Code Ann. § 171.098 (Vernon 2005). 

Section 171.098 of the Texas Civil Practices and Remedies Code does not provide a party the right to appeal an order compelling arbitration.  See id.; Chambers v. O’Quinn, 242 S.W.3d 30, 31 (Tex. 2007).  Section 171.098 does permit a party to appeal a trial court’s order confirming an arbitration award.  Tex. Civ. Prac. & Rem. Code Ann. § 171.098 (a)(3).  However, the May 14, 2009 order that Azteck seeks to appeal does not confirm any arbitration award.  Nor does the record on appeal contain any arbitration award or any order confirming an arbitration award. 

We grant the motion to dismiss and dismiss this appeal for want of jurisdiction.

                                                                   Jim Sharp

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

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[1]               See Azteck Int’l Bus. Corp. v. UPI Commc’ns, Nos. 01-07-00907-CV, 01-09-00544-CV, 2009 WL 1958410, at *1 (Tex. App.—Houston [1st Dist.] July 9, 2009, pet. denied) (memo op.).

[2]               Azteck disputed the existence of the 2002 arbitration agreement, arguing that it had not executed the agreement.

[3]               In its notice of appeal from this order, Atzeck also states that it was “alternatively . . . requesting a writ of Mandamus relief if there is no adequate remedy in appeal.” However, Azteck did not file a petition for writ of mandamus in this Court, nor did it raise any mandamus issues or request any mandamus relief in the brief that was filed on appeal. Therefore, only Azteck’s appeal is before this Court.