# Gathe v. Cigna Healthplan of Texas, Inc.

> Court of Appeals of Texas · June 16, 1994 · 879 S.W.2d 360

URL: https://www.frixlaw.com/law-library/cases/9677698

## Case

- **Full name:** Joseph C. GATHE, Jr., M.D., Appellant, v. CIGNA HEALTHPLAN OF TEXAS, INC., Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** June 16, 1994
- **Citations:** 879 S.W.2d 360; 1994 Tex. App. LEXIS 1449; 1994 WL 265159
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Brown, Murphy, Ellis
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677698

## How later opinions describe it (automated extraction)

- holding that an order compelling arbitration and abating state-court proceedings is an unappealable interlocutory order, regardless of whether the FAA or TAA' applies
- holding order compelling arbitration is unappealable

## Opinion text

J. CURTISS BROWN, Chief Justice,
dissenting.
I respectfully dissent from the majority’s dismissal of appellant’s appeal for want of jurisdiction. The majority finds the trial court’s order compelling arbitration to be an unappealable interlocutory order. In doing so, the majority refuses to follow the Texas Supreme Court in Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266 (Tex.1992).
In Jack B. Anglin, the court stated that “[b]oth the Texas and Federal Acts permit a party to appeal from an interlocutory order granting or denying a request to compel arbitration.” Id. at 271-72 . The court unequivocally construed Article 238-2(A) of the Texas Arbitration Act to provide an interlocutory appeal from a trial court’s order granting arbitration. Id. at 272 n. 10. Given the clarity of the Texas Supreme Court on this issue, I would not would dismiss appellant’s appeal for lack of jurisdiction.
In addition, I believe that appellant’s claim falls outside the scope of the arbitration clause. A court deciding a motion to compel arbitration must first determine whether the parties agreed to arbitrate and, if so, the scope of their agreement. Merrill Lynch, Pierce, Fenner v. McCollum, 666 S.W.2d 604, 608 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd n.r.e), cert. denied, 469 U.S. 1127 , 105 S.Ct. 811 , 83 L.Ed.2d 804 (1985). The dispute resolution provision containing the arbitration clause in appellant’s contract limits itself to disputes arising out of the “performance or interpretation” of the agreement. Appellant’s claim arises out of his alleged wrongful termination. There exists no dispute with regard to the “performance or interpretation” of any provision in the contract itself. Had appellee intended the arbitration provision to apply to ,, disputes arising out of the termination of appellant’s employment, they could have easily added such language. See, e.g., McCollum, 666 S.W.2d at 606 (involving an employment contract containing an arbitration clause that specifically provided for disputes arising out of the termination of the defendant’s employment).
Furthermore, even if the arbitration clause is construed to be broad enough to include such employment disputes, the contract expressly terminates all contractual obligations upon the termination of agreement. In a section entitled “Rights and Obligations Upon Termination,” the contract states “[u]pon termination of this Agreement for any reason, the rights of each party hereunder shall terminate. Any such termination, however, shall not release Physician or Healthplan from obligations under this Agreement prior to the effective date of termination.” Because appellee waited until after the effective date of the termination to invoke the arbitration provision, appellee lost its right to arbitrate the dispute.
I, therefore, would reverse the order of the trial court compelling arbitration.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677698. Public record. Not legal advice.