Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 1 Dallas County,
Texas Trial Court Cause No. CC-16-01668-A
Chief Justice Burns, Justice Whitehill, and Justice Nowell
D. BURNS, III CHIEF JUSTICE
Patton appeals from the trial court's February 22, 2019
order granting the joint motion to compel arbitration filed
by Barry Johnson and Steven Johnson with the Law Offices of
Steven M. Johnson d/b/a the Johnson Law Firm (collectively
JLF) and Barry Johnson. Before the Court is JLF and
Johnson's motion to dismiss the appeal.
hired JLF to represent him in a products liability lawsuit
concerning an allegedly defective hernia mesh device. They
signed an Attorney Representation Agreement (Agreement) that
provided that any dispute would be resolved by binding
arbitration conducted in Fort Worth. The product liability
lawsuit settled. Anticipating that Patton would file a legal
malpractice lawsuit against him and JLF, Barry Johnson, a
former attorney with the Johnson Law Firm, filed the
underlying lawsuit seeking a declaratory judgment as to the
parties' rights under the Agreement and attorney's
fees. While the lawsuit was pending, JLF initiated an
arbitration proceeding against Patton in Fort Worth. The
arbitrator dismissed the arbitration after concluding that
Patton was not bound by the arbitration provision in the
and JLF then filed a joint motion to compel arbitration in
the underlying lawsuit. By order signed on February 22, 2019,
the trial court granted the motion and ordered the parties to
arbitration. Patton appeals from this order.
the Texas Arbitration Act (TAA), a party can appeal an order
or judgment that either: (1) denies an application to compel
arbitration made under section 171.021, or (2) grants an
application to stay arbitration under section 171.023.
See Tex. Civ. Prac. & Rem. Code Ann. §
171.098(a)(1), (2). The TAA does not provide for an
interlocutory appeal from an order granting a motion to
compel arbitration. Like the TAA, the Federal Arbitration Act
does not permit an interlocutory appeal from an order
compelling arbitration. See 9 U.S.C. § 16;
Chambers v. O'Quinn, 242 S.W.3d 30, 31-32 (Tex.
their motion to dismiss, Johnson and JLF assert the appealed
order granting their motion to compel arbitration is not
subject to an interlocutory appeal. In his response, Patton
asserts the appealed order effectively disposed of all claims
and parties, making the order a final and appealable
judgment. By ordering the parties to arbitration, Patton
asserts, the trial court awarded the declaratory relief
sought. The trial court's order is not a final judgment
because Johnson's claim for attorney's fees and
Patton's counterclaim and cross-claim remain pending.
See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195
(Tex. 2001) (final judgment is one that disposes of all
parties and claims).
Patton asserts the order is an appealable interlocutory order
because it effectively vacated the prior arbitrator's
dismissal of the proceeding after finding that Patton was not
bound by the arbitration provision in the Agreement.
See 9 U.S.C. § 16 (a)(1)(E) (an order vacating
an arbitration award is subject to an interlocutory appeal).
The prior arbitrator, however, dismissed the arbitration
without making any award. Thus, there was no award to vacate.
law does not permit an appeal from an order compelling
arbitration. See Tex. Civ. Prac. & Rem. Code
Ann. § 171.098(a)(1), (2); 9 U.S.C. § 16. For this
reason, we grant appellees' motion and dismiss this
appeal for want of jurisdiction. See Tex. R. App. P.
accordance with this Court's opinion of this date, the
appeal is DISMISSED.
ORDERED that appellees BARRY JOHNSON AND STEVEN M. JOHNSON,
INDIVIDUALLY AND LAW OFFICES OF STEVEN M. JOHNSON, P.C.,
D/B/A THE JOHNSON LAW FIRM recover their ...