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
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 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
• DENIED
___________GRANTED
/s/ Tracy Christopher
9/29/08
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.
Jim Sharp
Justice
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
assignment.