DISMISS and Opinion Filed March 19, 2020




                                  S In The
                              Court of Appeals
                       Fifth District of Texas at Dallas

                              No. 05-19-00314-CV

                   RICKIE PATTON, Appellant
                             V.
    BARRY JOHNSON AND STEVEN M. JOHNSON, INDIVIDUALLY
        AND LAW OFFICES OF STEVEN M. JOHNSON, P.C.
            D/B/A THE JOHNSON LAW FIRM, Appellees

                On Appeal from the County Court at Law No. 1
                            Dallas County, Texas
                    Trial Court Cause No. CC-16-01668-A

                        MEMORANDUM OPINION
         Before Chief Justice Burns, Justice Whitehill, and Justice Nowell
                         Opinion by Chief Justice Burns
      On the Court’s own motion, we vacate our opinion of November 14, 2019.

The opinion below is now the opinion of the Court.

      Rickie Patton appeals from the trial court’s February 22, 2019 order granting

the joint motion to compel arbitration filed by Barry Johnson and Steven Johnson

with the Law Offices of Steven M. Johnson d/b/a the Johnson Law Firm (collectively

JLF) and Barry Johnson. Before the Court is JLF and Johnson’s motion to dismiss

the appeal.
      Patton hired JLF to represent him in a products liability lawsuit concerning an

allegedly defective hernia mesh device. They signed an Attorney Representation

Agreement (Agreement) that provided that any dispute would be resolved by binding

arbitration conducted in Fort Worth. The product liability lawsuit settled.

Anticipating that Patton would file a legal malpractice lawsuit against him and JLF,

Barry Johnson, a former attorney with the Johnson Law Firm, filed the underlying

lawsuit seeking a declaratory judgment as to the parties’ rights under the Agreement

and attorney’s fees. While the lawsuit was pending, JLF initiated an arbitration

proceeding against Patton in Fort Worth. The arbitrator dismissed the arbitration

after concluding that Patton was not bound by the arbitration provision in the

Agreement.

      Johnson and JLF then filed a joint motion to compel arbitration in the

underlying lawsuit. By order signed on February 22, 2019, the trial court granted

the motion and ordered the parties to arbitration. Patton appeals from this order.

      Under the Texas Arbitration Act (TAA), a party can appeal an order or

judgment that either: (1) denies an application to compel arbitration made under

section 171.021, or (2) grants an application to stay arbitration under section

171.023. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.098(a)(1),(2). The TAA

does not provide for an interlocutory appeal from an order granting a motion to

compel arbitration. Like the TAA, the Federal Arbitration Act does not permit an



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interlocutory appeal from an order compelling arbitration. See 9 U.S.C. § 16;

Chambers v. O’Quinn, 242 S.W.3d 30, 31–32 (Tex. 2007).

        In their motion to dismiss, Johnson and JLF assert the appealed order granting

their motion to compel arbitration is not subject to an interlocutory appeal. In his

response, Patton asserts the appealed order effectively disposed of all claims and

parties, making the order a final and appealable judgment. By ordering the parties

to arbitration, Patton asserts, the trial court awarded the declaratory relief sought.

The trial court’s order, however, is not a final judgment. Although the order lacks

the mandatory stay required by section 171.021(c) of the civil practice and remedies

code, it includes none of the hallmarks of finality, nor does it dismiss the case.1 See

In re Gulf Exploration, LLC, 289 S.W.3d 836, 840 (Tex. 2009). Moreover, Johnson

filed a counterclaim and a cross claim after the order was entered, and thus the order

did not encompass those claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,

195 (Tex. 2001) (final judgment is one that disposes of all parties and claims).

        Alternatively, Patton asserts the order is an appealable interlocutory order

because it effectively vacated the prior arbitrator’s dismissal of the proceeding after

finding that Patton was not bound by the arbitration provision in the Agreement. See



1
  We observe that Johnson’s original petition specifically requested that after the trial court granted his
requested declaration and compelled the parties to arbitration, it should “retain jurisdiction to enter
judgment upon any award rendered in such arbitration proceedings.” Such relief appropriately recognizes
that as explained in Gulf Exploration, trial courts should typically stay cases in which the parties are
compelled to arbitration to allow the trial court to address incidental issues that may arise during the
arbitration. See In re Gulf Exploration, LLC, 289 S.W.3d at 841.
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9 U.S.C. § 16 (a)(1)(E) (an order vacating an arbitration award is subject to an

interlocutory appeal).   The prior arbitrator, however, dismissed the arbitration

without making any award. Thus, there was no award to vacate.

      Statutory law does not permit an appeal from an order compelling arbitration.

See TEX. CIV. PRAC. & REM. CODE ANN. § 171.098(a)(1),(2); 9 U.S.C. § 16. For this

reason, we grant appellees’ motion and dismiss this appeal for want of jurisdiction.

See TEX. R. APP. P. 42.3(a).




                                          /Robert D. Burns, III/
                                          ROBERT D. BURNS, III
                                          CHIEF JUSTICE


1900314F.P05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 RICKIE PATTON, Appellant                            On Appeal from the County Court at Law
                                                     No. 1, Dallas County, Texas
 No. 05-19-00314-CV          V.                      Trial Court Cause No. CC-16-01668-A.
                                                     Opinion delivered by Chief Justice Burns.
 BARRY JOHNSON AND STEVEN M.                         Justices Whitehill and Nowell participating.
 JOHNSON, INDIVIDUALLY AND LAW
 OFFICES OF STEVEN M. JOHNSON,
 P.C., D/B/A THE JOHNSON LAW FIRM,
 Appellee

       We WITHDRAW our opinion and VACATE our judgment of November 14, 2019. This
is now the judgment of the Court. In accordance with this Court’s opinion of this date, the appeal
is DISMISSED for want of jurisdiction.

      It is ORDERED that appellee BARRY JOHNSON AND STEVEN M. JOHNSON,
INDIVIDUALLY AND LAW OFFICES OF STEVEN M. JOHNSON, P.C., D/B/A THE
JOHNSON LAW FIRM recover their costs of this appeal from appellant RICKIE PATTON.


Judgment entered this 19th day of March 2020.




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