In the Interest of M.W.M., Jr., a Minor Child v. << (2016)

MEMORANDUM OPINION

This appeal arises in a suit affecting the parent–child relationship.  Under their agreed divorce decree Father and Mother agreed to submit certain disputes to binding arbitration under the Texas Arbitration Act, including disputes regarding periods of possession.  A dispute eventually arose concerning Mother's rights to visitation and possession with the child.  Father filed an emergency motion with the arbitrator requesting suspension of Mother's visitation rights.  The arbitrator signed an “ arbitration order” captioned with the cause number of the suit affecting the parent child relationship suspending Mother's visitation rights until a hearing could be held on the emergency motion and authorizing the child's school to refuse to release the child to Mother.  The arbitration order did not purport to resolve the substance of the emergency motion and concluded “Arbitrator reserves the right to make a determination as to costs and attorney's fees after a hearing on the merits of [Father's] Emergency Motion for Relief.”

Mother then moved to remove the arbitrator and vacate the arbitration order arguing, among other things, that only elected judges, and not arbitrators, are empowered to render orders under Texas law.  The trial court agreed and signed an order that removed the arbitrator, declared the order signed by the arbitrator void because the arbitrator was not authorized to issue and sign orders, and appointed a new arbitrator.  Father now appeals the trial court's order.

After reviewing the clerk's record in the case, we questioned our jurisdiction to review the trial court's order because it did not appear to be an appealable order.  We requested that the parties file jurisdictional briefing addressing the appealability of the order.  Appellant responded agreeing that the November 12, 2015 order “[did] not address certain issues.”  Noting that “[t]his matter is now on the trial court's dismissal docket for February 23, 2016,” appellant requested that we abate the appeal so that the appellant could obtain an order from the trial court finally disposing of the case.  Appellee did not file a jurisdiction brief.

We subsequently received a supplemental clerk's record that included an order dated February 23, 2016 dismissing the case for want of prosecution.  Because the order dismissing the case for want of prosecution finally disposed of all of the claims in the case, we advised the parties that it appeared the Court had jurisdiction over the appeal and advised the appellant of the deadline for filing his brief.  Eleven days later, however, we received a letter from appellee's counsel bringing to our attention that minutes after signing the dismissal order, the trial judge signed an order, not included in the supplemental clerks record, vacating the dismissal and once again rendering its prior order interlocutory.

Appellate courts may review only final judgments or interlocutory orders specifically made appealable by statute.  See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001).  Here, the only statute that could render the trial court's interlocutory order appealable is the Texas Arbitration Act. Under the TAA a party may appeal a judgment or decree (1) denying an application to compel arbitration;  (2) granting an application to stay arbitration made under Section 171.023;  (3) confirming or denying confirmation of an award;  (4) modifying or correcting an award;  or (5) vacating an award without directing a rehearing.  Tex. Civ. Prac. & Rem.Code Ann. § 171.098 (West 2011).  The trial court's order removing the arbitrator, declaring that the arbitration order was void because it purported to be an order of the court, and directing further arbitration with a new arbitrator does not fall into any of these categories.  Because the trial court's order is neither a final judgment nor an appealable interlocutory order, we lack jurisdiction over the appeal.

We dismiss the appeal for want of jurisdiction.

Opinion by Justice Lang–Miers