      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00573-CV



                    Evan P. Weaver and Weaver Interests, Inc., Appellants

                                                   v.

                             Jim Tobin and Linda Tobin, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
         NO. GN301325, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               On September 29, 2003, appellants Evan P. Weaver and Weaver Interests, Inc.

(Weaver) filed a notice of an interlocutory appeal from a trial court order denying its motion to

compel arbitration. On October 2, Weaver filed an emergency motion to stay the trial that was

scheduled to start October 6, 2003. This court denied the motion for emergency relief. See Weaver

v. Tobin, No. 03-03-00573-CV (Tex. App.—Austin October 3, 2003, order). On October 6, Weaver

removed the case to federal court, staying any action by this Court on the motion to dismiss the

appeal and for sanctions filed by appellees Jim Tobin and Linda Tobin. See Meyerland Co. v.

Federal Deposit Ins. Corp., 848 S.W.2d 82, 83 (Tex. 1993). Accordingly, we abated the appeal with

instructions that the appeal was reinstated at the revesting of jurisdiction in the state court upon the
federal court’s execution of the remand order and mailing of a certified copy of the order to the state

court. See Quaestor Investments, Inc. v. State of Chiapas, 997 S.W.2d 226, 229 (Tex. 1999);

Weaver v. Tobin, No. 03-03-00573-CV (Tex. App.—Austin October 27, 2003, interlocutory

memorandum opinion abating appeal). The Travis County District Clerk received the order of

remand on October 27, 2003. Accordingly, this cause was reinstated.

                The initial material filed in this case was unclear about whether the Texas Arbitration

Act1 or the Federal Arbitration Act2 applied.         In his notice of removal, however, Weaver

unequivocally states: “Defendants seek to compel arbitration pursuant to the Federal Act.” The

Texas Arbitration Act allows an interlocutory appeal from an order denying a motion to compel

arbitration. Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(1) (West Supp. 2003). No such

provisions allow an interlocutory appeal to a Texas court from an order denying arbitration under

the Federal Arbitration Act. See In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 551 (Tex.

2003) (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73).3 Accordingly, we dismiss this

appeal for want of jurisdiction. Tex. R. App. P. 42.3(a).




       1
           Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001-.098 (West Supp. 2003).
       2
           9 U.S.C.A. §§ 1-16 (West 1999).
       3
         Mandamus, not appeal, is the appropriate remedy to contest an order denying arbitration
under the federal act. See, e.g., Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992).
No document filed in this court in connection with this proceeding can be construed as a petition for
writ of mandamus.

                                                  2
               Appellees also filed a motion for sanctions for filing a frivolous appeal. The motion

for sanctions is overruled.




                                             __________________________________________

                                             Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Dismissed for Want of Jurisdiction

Filed: December 11, 2003




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