Opinion issued July 9, 2009

In The

Court of Appeals

For The

First District of Texas

NOS. 01-07-00907-CV

           01-09-00544-CV

AZTECK INTERNATIONAL BUSINESS CORPORATION, Appellant

V.

UPI COMMUNICATIONS, Appellee

On Appeal from the 295th District Court

Harris County, Texas

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.

          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.

          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 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.