MCGUYER HOMEBUILDERS INC MHI v. HASTINGS (2020)

OPINION

Appellee filed a motion to dismiss this appeal because, she contends, the order being appealed is an unappealable interlocutory order. Because we hold the order being appealed is patently ambiguous and, therefore, unenforceable, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).

Interlocutory orders may be appealed only if permitted by statute and only to the extent jurisdiction is conferred by statute. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). Civil Practice and Remedies Code section 171.098(a) allows a party to appeal an order denying an application to compel arbitration. See Tex. Civ. Prac. & Rem. Code § 171.098(a). According to appellants, this is the statute which authorizes this appeal. However, we conclude that the order being appealed is patently ambiguous.

The order underlying this appeal was proposed and filed by appellee with her Motion to Strike Defendants' (Third) Motion to Abate Proceedings and Compel Arbitration. The order was subsequently modified and signed by the trial judge.¹ Below is the signed order:

Had the order been signed in its original form, it would unambiguously be an unappealable interlocutory order granting a motion to strike. However, the order was edited and language was added to the proposed order: “Defendant's Motion to Abate Proceedings and Compel Arbitration is Denied.” The order purports to both (1) grant a motion to strike and (2) deny the motion which was struck.

In Harper v. Welchem, this court analogized an order to a final judgment, stating,

To be appealable, a judgment must be final. It must determine the rights of the parties and dispose of all issues so that no further action is required by the trial court. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 892 (1956). In other words, a judgment must conclude the controversy between the parties, must be definite and certain, and must protect the rights of the litigants. Jones v. Springs Ranch Co., 642 S.W.2d 551, 553 (Tex. App.—Amarillo 1982, no writ). Further, the form of the judgment is not the controlling matter so long as certainty is achieved. Int'l Security Life Ins. Co. v. Spray, 468 S.W.2d 347, 350 (Tex. 1971).

Harper v. Welchem, 799 S.W.2d 492, 494 (Tex. App.—Houston [14th Dist.] 1990, no writ).

In Harper, we reviewed an order attempting to grant alternative motions and ultimately concluded that we lacked jurisdiction over the “patently ambiguous” order, stating, “[w]e as an appellate court, cannot chose one of the inconsistent alternatives for the trial court.” See id. at 494. Similarly, here, we decline to choose whether the order granted appellee's motion to strike, rendering the order unappealable, or whether the order denied appellant's motion to compel arbitration, which would be appealable.

Accordingly, we hold that this order does not constitute an appealable interlocutory order under Civil Practice and Remedies Code section 171.098(1), and we dismiss the appeal for want of jurisdiction. See Harper, 799 S.W.2d at 496 (“Due to the interlocutory nature of its alternate provision, to its patently ambiguous character, and its internally inconsistent dispositions, we hold that the order is unenforceable and does not constitute a final judgment.”).

The appeal is dismissed. See Tex. R. App. P. 42.3 (a).

FOOTNOTES

1.   One might speculate that the trial court modified the order, however, there is no evidence in the record reflecting who modified the order. We will not presume it was the trial court. It is uncontested that both rulings were in the order when it was signed by the trial court.

PER CURIAM