Azteck International Business Corporation v. UPI Communications (Tex.App.- Houston [1st
Dist.] Jul. 9, 2009)(Sharp) (finality issue, no final order from which appeal may be taken)(DWOJ)
DISMISS APPEAL: Opinion by Justice Sharp
Before Chief Justice Radack, Justices Taft and Sharp
01-07-00907-CV Azteck International Business Corporation v. UPI Communications
Appeal from 295th District Court of Harris County
Trial Court Judge: Hon. Tracy Christopher
Trial Court Cause No. 2005-78680
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 2002 &
Supp. 2008) (DTPA). On June 13, 2007, the district court ordered the claims arising out of Azteck’s
contracts with UPI involving T-Mobile service to be arbitrated. After a jury trial followed by motions for a
directed verdict and a judgment notwithstanding the verdict, the district court rendered a September 24,
2007 interlocutory take-nothing judgment related to claims arising out of Azteck’s contracts with UPI
involving AT&T and Cingular Wireless services. On October 19, 2007, Azteck filed its notice of appeal,
seeking to appeal the “portion of the judgment” related to the contracts involving AT&T and Cingular
Wireless services. This appeal was docketed in this Court as case number 01-07-00907-CV.
Azteck’s appellant’s brief in both appeals lists Frank Farshad and Cation Farshad as appellees. Azteck,
however, does not seek to alter the district court’s orders in a manner that is adverse to Frank Farshad
and Cation Farshad. Accordingly, they are not appellees. See Tex. R. App. P. 3.1(c) (defining“appellee”
as “a party adverse to an appellant.”).
On September 29, 2008, the district court signed the following:
ORDER ON PLAINTIFF’S MOTION FOR RELIEF
On ________________, the Court held a hearing on Plaintiff’s motion for Relief. After due consideration
of the Motion for Relief’s Evidence, including documentary evidence, and the arguments of counsel, this
Court finds that Plaintiff’s Motion is
/s/ Tracy Christopher
Azteck’s “motion for relief” was an objection to arbitration on what it describes as the “August 8, 2002
Sub-Dealer Agreement.” In that motion, Azteck argued that the district court ordered the “May 1, 2001
Sub-Dealer Agreement” to be arbitrated, but not the “August 8, 2002 Sub-Dealer Agreement.”
The district court denied the “motion for relief,” and Azteck filed a notice of appeal on October 16, 2008,
seeking an interlocutory appeal pursuant to Civil Practice and Remedies Code section 171.098(a)(3).
See Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(3) (Vernon 2005) (“A party may appeal a judgment
or decree entered under this chapter or an order . . . confirming or denying confirmation of an award.”).
This attempted statutory interlocutory appeal was docketed in this Court as a part of existing case
number 01-07-00907-CV, rather than as a separate statutory interlocutory appeal.
When the second notice of appeal was received in this Court, there was aquestion whether the
September 24, 2007 and September 29, 2008 ordersjointly constituted a final judgment. If they did, there
would properly be onlyone case on appeal with one appellate case number. Because they do
notconstitute a final judgment, they are not the same case on appeal, but areinstead two separate
interlocutory cases on appeal needing two separateappellate case numbers. See Tex. R. App. P. 12.2(c)
(requiring appellate clerkto give same docket number to all notices of appeal filed in same case).
UPI filed a November 20, 2007 motion to dismiss the appeal of the September 24, 2007 interlocutory take-
nothing judgment and a November 12, 2008 motion to dismiss the attempted statutory interlocutory
appeal of the September 29, 2008 order denying the “motion for relief.” See Tex. R. App. P. 42.3
(involuntary dismissal in civil cases). Both motions to dismiss are meritorious.
The September 24, 2007 order is expressly interlocutory, and there has been no severance. Absent
statutory authorization for an interlocutory appeal, this Court has jurisdiction only to review final
judgments of the district or county court in a civil case in which the judgment or amount in controversy
exceeds $100. See Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 2008).
Azteck claims the September 29, 2008 order is a permissible statutory interlocutory appeal under Civil
Practice and Remedies Code section 171.098(a)(3), because it is an order confirming an arbitral award.
Azteck cites no authority for this proposition, and we know of none. The record contains no arbitral
award. Furthermore, the appeal of the September 29, 2008 order is now moot, because the district court
on May 14, 2009 ordered the parties to arbitration on the “August 8, 2002 Sub-Dealer Agreement.”
We have directed the Clerk of this Court to assign a separate appellate casenumber to this attempted
statutory interlocutory appeal of theSeptember 29, 2008 order. The Clerk has assigned appellate case
number01-09-00544-CV. The test for assigning a separate appellate case number foreach interlocutory
appeal arising out of the same trial-court proceeding is notwhether the interlocutory appeal is ultimately
authorized by statute. Instead,the test is whether the appeal—at the time it is perfected—is interlocutory
andpurports in good faith to be a matter the appellate court has jurisdiction to hear.
We grant both motions to dismiss and dismiss appellate case numbers 01-07-00907-CV and 01-09-
00544-CV for want of jurisdiction.
Panel consists of Chief Justice Radack and Justices Sharp and Taft.
The Honorable Tim Taft, retired justice, Court of Appeals for the First District of Texas, participating by