Batton v. Green, 05-90-00807-CV
| Citation | 801 S.W.2d 923 |
| Decision Date | 14 December 1990 |
| Docket Number | No. 05-90-00807-CV,05-90-00807-CV |
| Parties | Gilmer L. BATTON, Joe Schwarz and Bill Cunningham, Appellants, v. Howard W. GREEN, Steve L. Taylor and W. Jay Taylor, Appellees. |
| Court | Court of Appeals of Texas |
Charles A. Gall and Matthew K. Davis, Jenkins & Gilchrist, Dallas, for appellants.
Samuel L. Boyd, Boyd & Associates, Dallas, for appellees.
Before WHITHAM, LAGARDE and WHITTINGTON, JJ.
In this appeal from an admitted interlocutory order, the defendants-appellants, Gilmer L. Batton, Joe Schwarz, and Bill Cunningham, (the Batton parties) appeal from the trial court's order denying their first amended plea in abatement and motion to stay action pending arbitration in a suit brought against the Batton parties by the plaintiffs-appellees, Howard W. Green, Steve L. Taylor, and W. Jay Taylor (the Green parties). We address the threshold issue of whether this interlocutory order is appealable. We conclude that the order is not appealable. Accordingly, we dismiss this appeal for want of jurisdiction.
The Batton parties desire to force the Green parties to arbitration. Rather than ask the Texas trial court to compel arbitration, the Batton parties sought to avoid further proceedings in the Texas trial court. The Batton parties did so as a part of their defense tactics. The Batton parties' efforts to avoid proceeding in the Texas trial court failed. This is obvious from the trial court's order now before us. Had the Batton parties sought from the trial court an order to compel arbitration, we would have jurisdiction of an appeal from the interlocutory order denying an application to compel arbitration. The Batton parties, however, in order to escape the consequences of their failed defense tactics, now demand that we abandon application of Texas law governing appeals from interlocutory orders and afford them a right to an interlocutory appeal the Batton parties claim to find in federal statute. We decline to do so.
The Batton parties are current or former employees of NCR Corporation. The Green parties are shareholders and officers of Taylor Management Systems, Inc. The Green parties brought this action in their individual capacities against the Batton parties in their individual capacities. Nevertheless, an arbitration clause in an agreement between NCR and TMS creates the issue in this appeal. On or about July 16, 1986, NCR and TMS entered into a software license agreement. Pursuant to the terms of the agreement, NCR was permitted to market TMS' computer software to NCR's computer hardware customers, paying TMS a royalty on each sale. The agreement contains a clause requiring arbitration of all disputes "arising out of or related to" the agreement. Specifically, Section 21 of the agreement provides:
21.0 DISPUTES AND GOVERNING LAW.
21.1 Any controversy or claim between the parties hereto, regardless of the nature of the theory or cause of action under which it is asserted, including any claim of misrepresentation, arising out of or related to this Agreement or the breach thereof, or the furnishing of any equipment or services by either party, shall be settled by arbitration.
21.2 The arbitration proceedings shall be conducted by a single arbitrator under the auspices of the then-current Commercial Rules of the American Arbitration Association. The arbitrator shall be chosen from a panel of persons knowledgeable in business information and data processing systems. The power and office of the arbitrator shall arise wholly and solely from this Agreement and said Rules. The arbitration shall be conducted in Dayton, Ohio, and the award of the arbitrator so rendered shall be final and binding, except to the extent that any arbitration award may be modified or vacated pursuant to the Ohio Arbitration Act. The award so rendered may be confirmed, modified or vacated only in the court of appropriate jurisdiction in Dayton, Ohio.
On January 11, 1989, NCR and TMS entered into an amendment to the agreement. Pursuant to the terms of the amendment, NCR paid "advance royalties" to TMS, as loans to TMS, to assist TMS with financial difficulties encountered in meeting its obligations to NCR under the agreement. Pursuant to the terms of the agreement, TMS released all claims it had against NCR in connection with the parties' dealings to date. Specifically, the release provides in relevant part that:
3.1 Based upon the foregoing, each party for itself, its successors in interest and assigns, releases and discharges the other party, its successors and assigns, of and from all past, present and future claims, demands, actions and causes of actions of any kind or nature, either directly between the parties or from a third-party or parties, whether known or unknown, based upon the performance or nonperformance of such other party of its obligations, if any, to (i) provide any level of selling or marketing efforts or (ii) provide the other party directly with technical, educational, or developmental support, prior to the Effective Date hereof, in relation to the business transaction described herein before, or based on the economic consequences thereof. Such release shall not operate as to claims, actions and causes of action of any kind or nature relating to (i) performance of the products of the respective parties or (ii) performance of the parties in development, delivery, installation, or technical and educational support of users of such products, and in the event that any claim therefor is made against either party by any third-party user of the parties' products, either party may seek such remedies as may be provided therefor by (i) the Agreement, (ii) the Amendment, or, (iii) to the extent permitted by the Agreement and the Amendment, by law.
Thereafter, the Green parties filed this action. The Batton parties insist that the Green parties brought the suit to circumvent TMS' contractual obligations to submit all claims against NCR to arbitration, to avoid the effects of the arbitration clause, and to avoid repayment of the loans and the effect of the release. Following the filing of this action, NCR instituted suit in the United States District Court for the Southern District of Ohio, Western Division, NCR Corporation v. Taylor Management Systems, Inc., Howard W. Green, Steve L. Taylor and W. Jay Taylor, Cause No. C-3-90-185, seeking an order compelling the Green parties to submit the claims in this case to arbitration as provided by the agreement. Subsequently, the Batton parties filed their first amended plea in abatement and motion to stay action pending arbitration in the present case which asked the trial court to abate this action pending a decision in the Ohio action. A hearing was held in the trial court. The trial court denied the plea in abatement and motion to stay action pending arbitration. The Batton parties seek to appeal from that order of denial. The Batton parties ground their right to appeal on provisions of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., the Texas General Arbitration Act, TEX.REV.CIV.STAT.ANN. art. 224 et seq., and Section 51.014 of the Texas Civil Practice and Remedies Code. Because the nature of the relief denied by the trial court becomes important to disposition of this appeal, we repeat that the trial court denied:
(1) a plea in abatement, and
(2) a motion to stay action pending arbitration.
We point out that the trial court did not:
(1) deny an application to compel arbitration, or
(2) grant an application to stay arbitration.
See TEX.REV.CIV.STAT.ANN. art. 238-2(A)(1) & (2) (Vernon 1973). Given our disposition of this appeal we ask the reader to keep in mind what the trial court did and did not do in ruling upon the matter before it. Moreover, be it known that the Batton parties have never asked the trial court to compel the arbitration.
Although the parties raise the jurisdiction question, a court must notice, even sua sponte, the matter of its own jurisdiction, for jurisdiction is fundamental in nature and may not be ignored. Marshall v. Brown, 635 S.W.2d 578, 580 (Tex.App.--Amarillo 1982, writ ref'd n.r.e.). If the present case is an appeal over which we have no jurisdiction, then the appeal must be dismissed. See Marshall, 635 S.W.2d at 580-81. To be appealable, an order must be a final judgment; an interlocutory order is not appealable unless specifically made so by statute. Henderson v. Shell Oil Co., 143 Tex. 142, 143-44, 182 S.W.2d 994, 995 (1944). A final judgment is one that determines the rights of the parties and disposes of all the issues involved so that no future action by the trial court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 334, 338, 295 S.W.2d 890, 892 (1956). An interlocutory order leaves something further to be determined and adjudicated in disposing of the parties and their rights. Kinney v. Tri-State Telephone Co., 222 S.W. 227, 230 (Tex.Comm'n App.1920, judgm't approved). In this connection, we emphasize that the Batton parties conceded at oral argument that the trial court's order at issue is interlocutory. Thus, we reach the question of whether the order is made appealable by statute.
First, we look to whether the order is one that (1) appoints a receiver or trustee; (2) overrules a motion to vacate an order that appoints a receiver or trustee; (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure; (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65; or (5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014 (Vernon Supp.1990). We...
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