Forum Studio, Inc. and Clayco, Inc. v. Intellicenter Dallas Investments LLP ( 2015 )

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
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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
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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.
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