Tiffany J. Koontz v. Citibank (South Dakota) N.A.--Appeal from County Court at Law No 1 of Fort Bend County

Opinion issued May 3, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-01140-CV

TIFFANY J. KOONTZ, Appellant

V.

CITIBANK (SOUTH DAKOTA), N.A., Appellee

On Appeal from the County Court at Law No. 1

Fort Bend County, Texas

Trial Court Cause No. 26137

MEMORANDUM OPINION

Appellant, Tiffany J. Koontz, appeals from the trial court's order granting a motion to compel arbitration filed by appellee, Citibank (South Dakota), N.A. In nine issues on appeal, Koontz argues that (1) the rules relating to summary judgment proof apply to the proof of the agreement to arbitrate; (2) Koontz is entitled to discovery on the costs associated with arbitration before the motion to compel is ruled on; (3) Citbank has elected not to arbitrate; (4) the agreement to arbitrate has been mutually repudiated; (5) Citibank cannot arbitrate the entire matter; (6) the arbitration agreement is unconscionable; and (7) the arbitration agreement is illusory.

We dismiss the appeal for lack of jurisdiction.

Koontz opened a credit card account with Citibank in 1995. On March 28, 2005, Citibank filed suit to collect an overdue balance, an amount under $3,000, due on Kootz's account. In June 2005, Koontz filed a counterclaim. On July 19, 2005, Citibank moved to compel arbitration pursuant to the Federal Arbitration Act ("FAA") and to stay the trial court proceedings. On November 15, 2005, the trial court ordered the parties to proceed to arbitration without stating whether the FAA or the Texas Arbitration Act ("TAA") applied.

As a threshold matter, we determine our jurisdiction to hear this appeal. Within well-defined exceptions, we review by appeal only final judgments that dispose of all parties and issues. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex. 2001). A right to appeal arises only from a final order or an interlocutory order made appealable by statute. Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon Supp. 2006) (describing appealable interlocutory orders in civil cases); see Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); In re MHI P'ship, Ltd., 7 S.W.3d 918, 920 (Tex. App.--Houston [1st Dist.] 1999, orig. proceeding). Because orders compelling arbitration do not dispose of all parties and issues, but instead contemplate continuing resolution through the arbitration process, orders compelling arbitration are interlocutory per se. Brook v. Pep Boys Auto. Supercenters, Inc., 104 S.W.3d 656, 660 (Tex. App.--Houston [1st Dist.] 2003, no pet.).

Koontz challenges an order that grants Citibank's motion to compel arbitration, and that is, therefore, interlocutory. Whether under the Texas Arbitration Act or the Federal Arbitration Act, there is no interlocutory appeal over an order granting a motion to compel arbitration. Compare Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 835 (Tex. App.--Houston [1st Dist.] 2002, orig. proceeding) ("TAA") with In re Am. Homestar, Inc., 50 S.W.3d 480, 483 (Tex. 2001) ("FAA"). As a result, we have no jurisdiction to address this appeal and must dismiss it. Tex. R. App. P. 42.3(a); see Trico Marine Servs., Inc. v. Stewart & Stevenson Technical Servs., 73 S.W.3d 545, 547-48 (Tex. App.--Houston [1st Dist.] 2002, orig. proceeding).

We dismiss the appeal for lack of jurisdiction.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Keyes, and Higley.