in Re Dennis Weitzel ( 2019 )

Opinion issued January 29, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00006-CV
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IN RE DENNIS WEITZEL, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator Dennis Weitzel has filed a “Notice of Accelerated Appeal of Order
Denying Motion to Compel Arbitration and Petition for Writ of Mandamus.” 1 We
deny the petition.
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The underlying case is Michael T. Gallagher and The Gallagher Law Firm, PLLC
v. Brent Coon, Individually and Brent W. Coon, P.C. d/b/a Brent Coon and
Associates, cause number 2018-52828, pending in the 164th District Court of Harris
County, Texas, the Honorable Alexandra Smoots-Hogan presiding.
Weitzel has filed both a notice of appeal from the challenged order and a
petition for writ of mandamus. Weitzel does not state that he has filed his notice of
accelerated appeal in the trial court and we are unable to determine whether he has
done so. When a party mistakenly files a notice of appeal in an appellate court, “the
notice is deemed to have been filed the same day with the trial court clerk, and the
appellate clerk must immediately send the trial court clerk a copy of the notice.”
TEX. R. APP. P. 25.1(a). Accordingly, we have forwarded the notice of accelerated
appeal to the trial court clerk.
To be entitled to mandamus relief, a petitioner must show both that the trial
court abused its discretion and that there is no adequate remedy by appeal. In re
Prudential Ins. Co., 148 S.W.3d 124, 135– (Tex. 2004). The order Weitzel
challenges is appealable. See TEX. CIV. PRAC. & REM. CODE § 171.098 (providing
for appeal of order denying application to compel arbitration), § 51.016 (providing
for appeal of interlocutory order denying motion to compel arbitration). Because
Weitzel has an adequate remedy by appeal, he is not entitled to mandamus relief.
See In re Santander Consumer USA, Inc., 445 S.W.3d 216, 218–19 (Tex. App.—
Houston [1st Dist.] 2013, orig. proceeding) (observing that interlocutory orders
denying motion to compel arbitration are appealable both under the Texas
Arbitration Act and Texas Civil Practices and Remedies Code Section 51.016, and
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therefore, relator was not entitled to mandamus relief because it had adequate
remedy by accelerated appeal).
We deny the petition for writ of mandamus. TEX. R. APP. P. 52.8(a). Any
pending motions are dismissed as moot.
PER CURIAM
Panel consists of Justices Lloyd, Kelly, and Hightower.
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