COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00335-CV

KELLY THOMAS APPELLANT

V.

STANDARD CASUALTY 

COMPANY, MIKE MADDEN, 

PRESTIGE CLAIM SERVICE, 

MARK ANDERSON, AND SCOTT 

SCHMIDT

APPELLEES 

----------

FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 17-3697-431

----------

MEMORANDUM OPINION1

----------

Appellant Kelly Thomas, who is proceeding pro se, invokes civil practices 

and remedies code section 171.098(a)(1) in an attempt to bring an interlocutory 

appeal from the trial court’s order denying her “Motion to Compel Arbitration.” 

 

1See Tex. R. App. P. 47.4.
2

See Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(1) (West 2011). Under 

section 171.098(a)(1), we have jurisdiction to consider an appeal from a trial 

court’s interlocutory order that denies an application to compel arbitration made 

under section 171.021. See id. Appellees Standard Casualty Company, Mike 

Madden, Prestige Claim Service, Mark Anderson, and Scott Schmidt filed a 

motion to dismiss on the ground that we lack jurisdiction over this appeal 

because, among other reasons, this appeal is not authorized under section 

171.098(a)(1). We conclude that Thomas’s motion to compel arbitration was not 

an application to compel arbitration made under section 171.021 and, 

consequently, that this appeal is not authorized under section 171.098(a)(1). We 

therefore grant Appellees’ motion to dismiss, and we dismiss this appeal for want 

of subject-matter jurisdiction.

I. BACKGROUND

Thomas filed a pro se lawsuit against Appellees alleging claims for breachof-contract, violations of chapters 541 and 542 of the insurance code, violations 

of the Texas Deceptive Trade Practices Act, and breach of the duty of good faith 

and fair dealing. She filed a motion to compel arbitration in which, broadly 

construed, she asked the trial court to compel Appellees to arbitrate her dispute 

with them pursuant to business and commerce code section 17.5051, civil 

practices and remedies code section 154.021, and insurance code section 

541.161. See Tex. Bus. & Com. Code Ann. § 17.5051 (West 2011); Tex. Civ. 

Prac. & Rem. Code Ann. § 154.021 (West 2011); Tex. Ins. Code Ann. § 541.161 
3

(West 2009). Following a hearing, the trial court denied Thomas’s motion. 

Thomas now attempts an interlocutory appeal from that order.

II. JURISDICTION

Generally, appeals may not be taken from interlocutory orders unless

authorized by statute. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195, 200 

(Tex. 2001). In her notice of appeal, the statute upon which Thomas relies as 

authorizing her appeal from the trial court’s interlocutory order denying her 

motion to compel arbitration is civil practices and remedies code section 

171.098(a)(1). That statute provides, 

(a) A party may appeal a judgment or decree entered under this 

chapter or an order: 

(1) denying an application to compel arbitration made under 

Section 171.021. 

Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(1). Section 171.021 provides, in 

pertinent part,

(a) A court shall order the parties to arbitrate on application of a 

party showing:

(1) an agreement to arbitrate; and

(2) the opposing party’s refusal to arbitrate.

Id. § 171.021(a)(1)–(2) (West 2011). In her motion to compel arbitration, Thomas 

did not allege, let alone establish, the existence of any agreement with Appellees

to arbitrate, nor did she ask the trial court to compel arbitration on the basis of 

any agreement with Appellees to arbitrate. See Ellis v. Schlimmer, 337 S.W.3d 
4

860, 861–62 (Tex. 2011) (noting that a party seeking to compel arbitration under 

section 171.021(a) “must first establish the existence of a valid arbitration 

agreement”). Rather, the legal bases upon which Thomas sought to compel 

arbitration were business and commerce code section 17.5051, civil practices 

and remedies code section 154.021, and insurance code section 541.161.

2

 The 

trial court’s denial of her motion to compel arbitration was not, therefore, a denial 

of “an application to compel arbitration made under Section 171.021.” See Tex. 

Civ. Prac. & Rem. Code Ann. § 171.098(a)(1). Accordingly, civil practices and 

remedies code section 171.098(a)(1) does not confer jurisdiction on this court to 

review the trial court’s interlocutory order denying Thomas’s motion to compel 

arbitration. See id.

Because no statute authorizes an appeal from the trial court’s interlocutory 

order denying Thomas’s motion to compel arbitration, we lack subject-matter 

 

2We note that each of these provisions does deal generally with the subject 

of alternative dispute resolution. Both business and commerce code section 

17.5051 and insurance code section 541.161 generally provide that a party may 

file a motion to compel mediation. See Tex. Bus. & Com. Code Ann. § 17.5051; 

Tex. Ins. Code. Ann. § 541.161. And civil practices and remedies code section 

154.021 generally authorizes the trial court to refer a matter to alternative dispute 

resolution. See Tex. Civ. Prac. & Rem. Code Ann. § 154.021(a). Motions 

seeking relief under those provisions are, however, distinct from motions seeking

to compel arbitration under civil practices and remedies code section 171.021(a), 

which seek to enforce arbitration agreements that exist between the parties. See 

Ellis, 337 S.W.3d at 861–62. And while there is statutory authorization to appeal 

from an interlocutory order denying a motion to compel arbitration made under

this latter statutory provision, see Tex. Civ. Prac. & Rem. Code 

Ann. § 171.098(a)(1), there is no similar authorization to appeal from an 

interlocutory order denying a motion to compel arbitration made under any of the

former three statutory provisions.
5

jurisdiction over this appeal. See Lehmann, 39 S.W.3d at 195, 200. Accordingly, 

we grant Appellees’ motion to dismiss, and we dismiss this appeal for want of 

subject-matter jurisdiction.3 See Tex. R. App. P. 43.2(f).

/s/ Lee Gabriel

LEE GABRIEL

PANEL: GABRIEL, KERR, and PITTMAN, JJ.

DELIVERED: December 14, 2017

 

3Thomas filed a “Motion to Strike Filings” and another motion entitled

“Letter to Add Second Request to Extend Time and Order on Motion to Strike 

Unrelated Exhibits Granted.” Because we lack jurisdiction over this appeal, we 

take no action on these motions. See Elliott v. Deutsche Bank Nat’l Tr. Co., 

No. 02-16-00421-CV, 2017 WL 526315, at *1 n.2 (Tex. App.—Fort Worth Feb. 9, 

2017, no pet.) (mem. op.); Scales v. Horsley, No. 02-16-00328-CV, 2016 WL 

6277382, at *1 n.3 (Tex. App.—Fort Worth Oct. 27, 2016, pet. denied) (mem. 

op.).