Forum Studio, Inc. and Clayco, Inc. v. Intellicenter Dallas Investments LLP

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: 05-15-00540-CV
• Status: Published

Opinion

DISMISS and Opinion Filed June 24, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00540-CV

FORUM STUDIO, INC. AND CLAYCO, INC., Appellants V. INTELLICENTER DALLAS INVESTMENTS LLP, Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-02018

MEMORANDUM OPINION Before Chief Justice Wright and Justices Lang-Miers and Stoddart Opinion by Chief Justice Wright Before the Court is Intellicenter Dallas Investments LLP’s motion to dismiss the appeal

for want of jurisdiction. Intellicenter contends this Court lacks jurisdiction because the order

appealed is an unappealable interlocutory order.

Clayco, Inc. provided architectural and engineering services to Intellicenter Dallas

Investments LLP. After a dispute arose, Intellicenter filed a demand for arbitration with the

American Arbitration Association. Subsequently, Clayco and Forum Studio, Inc. (collectively

Clayco) commenced the underlying lawsuit seeking to stay the arbitration and declaratory

judgment relief. Intellicenter filed a motion to compel arbitration and stay trial court

proceedings in the underlying lawsuit. On the same day, Clayco filed a motion to dismiss the

arbitration complaint in this lawsuit because Intellicenter did not provide the required certificate of merit in the arbitration. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a) & (e) (West

2011). Following a hearing, the trial court granted the motion to compel arbitration and ordered

the case “including the Court’s consideration of Plaintiffs’ Motion to Dismiss” stayed pending

the arbitration. Clayco appeals this order.

An appeal from an interlocutory order must be authorized by statute. See Bally Total

Fitness Corp. v. Jackson, 53 S.W.3d 352 (Tex. 2001). We strictly construe statutes authorizing

interlocutory appeals. See State Fair of Tex. v. Iron Montain Info. Mgmt., Inc., 299 S.W.3d 261,

263 (Tex. App.—Dallas 2009, no pet.).

Chapter 150 of the civil practice and remedies code concerns licensed and registered

professionals. Section 150.002 provides that in any action or arbitration proceeding for damages

arising out of the provision of professional services by a licensed or registered professional, the

plaintiff must file with the complaint an affidavit of a qualified third party in the same profession

substantiating the plaintiff’s claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a) &

(b). The plaintiff’s failure to file the affidavit shall result in dismissal of the complaint against

the defendant. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e). An order granting or

denying a motion for dismissal under section 150.002 is immediately appealable as an

interlocutory order. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(f).

Intellicenter contends this Court lacks jurisdiction because the trial court’s interlocutory

order did not grant or deny Clayco’s motion to dismiss the arbitration complaint under section

150.002. Clayco acknowledges this fact. In its notice of appeal from the order granting the

motion to compel arbitration, Clayco states the appeal “is filed pursuant to Section 150.002(f) . .

. as the aforementioned order of the Court is a disposition of, and de facto denial of Plaintiff’s

Motion for Dismissal under Section 150.002.” As noted above, however, section 150.002(f)

authorizes an interlocutory appeal only from an order granting or denying a motion to dismiss

–2– under that chapter. The order here does neither. Rather, the trial court stayed the case pending

arbitration, “including consideration of Plaintiffs’ Motion to Dismiss.”

Because the trial court did not grant or deny Clayco’s motion to dismiss, we grant

Intellicenter’s motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P.

42.3(a).

150540F.P05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

FORUM STUDIO, INC. AND On Appeal from the 160th Judicial District CLAYCO, INC., Appellants Court, Dallas County, Texas. Trial Court Cause No. DC-15-02018. No. 05-15-00540-CV V. Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart, INTELLICENTER DALLAS participating. INVESTMENTS LLP, Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee INTELLICENTER DALLAS INVESTMENTS LLP recover its costs of this appeal from appellants FORUM STUDIO, INC. AND CLAYCO, INC.

Judgment entered June 24, 2015.

–4–