Arbitrators' ruling on Certificate of Merit requirement not subject to judicial review or interlocutory appeal. SM Architects, PLLC v AMX Veteran Specialty Services, LLC (Tex.App. - Dallas, No. 05-17-01064-CV (Nov 8, 2018)

SM Architects, PLLC v AMX Veteran Specialty Services, LLC (Tex.App. - Dallas, No. 05-17-01064-CV (Nov 8, 2018) (right to interlocutory appeal granted by CPRC section 150.002 does not apply to an order rendered by an arbitration panel.)

SM ARCHITECTS, PLLC AND ROGER STEPHENS, Appellant,
v.
AMX VETERAN SPECIALTY SERVICES, LLC, Appellee.

No. 05-17-01064-CV.

Court of Appeals of Texas, Fifth District, Dallas.

Order entered March 20, 2018. 

Gregory N. Ziegler, Bryan Rutherford, Weston M. Davis, for SM Architects, PLLC and Roger Stephens, Appellant.

Doug Drucker, David P. Kallus, Kirby D. Hopkins, for AMX Veteran Specialty Services, LLC, Appellee.

On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-17-11230.

DISMISS and Opinion Filed November 8, 2018

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-17-01064-CV

SM ARCHITECTS, PLLC AND ROGER STEPHENS, Appellants

V.

AMX VETERAN SPECIALTY SERVICES, LLC, Appellee

On Appeal from the 116th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-17-11230

OPINION

Before Justices Bridges, Francis, and Lang-Miers

Opinion by Justice Francis

This is a case of first impression regarding the ability of a party in an arbitration proceeding

to appeal an interlocutory order denying a motion to dismiss for failure to file a certificate of merit

as required by section 150.002 of the Texas Civil Practice and Remedies Code. Because we

conclude the right to interlocutory appeal granted by section 150.002 does not apply to an order

rendered by an arbitration panel, and the Texas Arbitration Act (TAA) does not provide a means

for judicial review of such an order, we vacate the trial court’s order as void and dismiss this appeal for lack of jurisdiction.

On August 5, 2016, AMX Veteran Specialty Services, LLC filed a demand for arbitration

with the American Arbitration Association naming SM Architects, PLLC and one of its architects,

Roger Stephens, as respondents. AMX stated the nature of the dispute was “professional 

 –2–

negligence against architect and architectural firm; breach of contract; tortious interference with

contract; [and] business disparagement.” Section 150.002 of the civil practice and remedies code

requires that, in any action or arbitration proceeding based on the provision of professional

architectural services, the plaintiff must file a certificate of merit affidavit by a third-party licensed

architect in support of its claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002. As an

attempt to meet this requirement, AMX attached to its arbitration demand an unsigned letter by

Bradford Russell of BR Architects & Engineers.

In response to the demand, appellants asserted a general denial and requested a more

definite statement of the claims being made. Six weeks later, AMX filed an amended demand for

arbitration, removing Stephens as a respondent and setting out the claims against SMA in more

detail. SMA answered asserting multiple affirmative defenses, and both SMA and Stephens

brought counterclaims for declaratory judgment, breach of contract, and copyright infringement.

On November 10, 2016, the parties mediated the case, but the dispute was not resolved.

On December 28, an arbitration panel was appointed and the parties began the discovery process.

Three months later, AMX amended its demand for arbitration again to reassert its claims against

Stephens. Attached to the second amended demand was a signed certificate of merit affidavit by

Russell. The contents of the affidavit were substantially similar to the original unsigned letter, but

with added information regarding SMA’s alleged negligence. Stephens was not referenced in the

affidavit.

Eight months after the arbitration proceedings commenced, appellants filed a motion with

the panel to dismiss AMX’s claims for failure to comply with the certificate of merit requirement.

Appellants contended the unsigned letter submitted with AMX’s first demand for arbitration was

not an affidavit as required by section 150.002. Appellants further argued the affidavit filed with

AMX’s second amended demand for arbitration was ineffective because the failure to file an 

 –3–

affidavit contemporaneously with the first-filed complaint could not be cured by amendment and

the affidavit did not meet the statute’s specific requirements. Because section 150.002(e) states

the failure to file a certificate of merit affidavit “shall result in dismissal of the complaint against

the defendant,” appellants contended dismissal was statutorily mandated. See id. The arbitration

panel denied appellants’ motion to dismiss without a hearing.

Relying on section 150.002(f), which states that “[a]n order granting or denying a motion

for dismissal” under chapter 150 is “immediately appealable,” appellants filed a notice of appeal

stating they wished to appeal the arbitration panel’s order to this Court. See id. However, because

chapter 150 provides no process for appealing an interlocutory arbitration order, appellants stated

in their notice that, “out of an abundance of caution” and “to the extent a district court filing, ruling,

order, or other action” was required, they were filing suit in district court and requesting the court

render an order “entering” the arbitration panel’s order so that order could be appealed to this

Court. In the alternative, appellants requested the district court vacate the arbitration panel’s order.

Several weeks later, appellants filed a new motion in district court requesting only that the court

vacate the arbitration panel’s order under either chapter 150 or section 171.088 of the TAA. See

TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a).

AMX moved to dismiss the action in district court for lack of jurisdiction, stating there was

nothing in chapter 150 to indicate the legislature intended to confer jurisdiction on the district

courts to review an interlocutory order issued by an arbitration panel. With respect to the motion

to vacate, AMX argued the TAA authorized vacatur only of final awards and not interlocutory

orders. The trial court denied the motion to vacate the arbitration panel’s order but stated its order

was “a final appealable order.” The court additionally stayed the arbitration until further order of

the court. Appellants then amended their notice of appeal in this Court to challenge the trial court’s

order denying the motion to vacate. 

 –4–

AMX has requested this appeal be dismissed on essentially the same grounds urged in the

trial court. In response, appellants contend their appeal of the arbitration panel’s order is

authorized by both the plain language of section 150.002(f) and the TAA, which permits limited

judicial review of arbitration awards. In the alternative, they ask us to treat their brief on appeal

as a petition for writ of mandamus.

In deciding whether we have jurisdiction to review the merits in this matter, we examine

the legislature’s decision to apply the certificate of merit requirement, with its right to immediate

appeal, to arbitration proceedings. This must be done in the context of the TAA, which contains

the legislative grant of court jurisdiction over arbitrations. See TEX. CIV. PRAC. & REM. CODE

ANN. § 171.081. By enacting section 150.002(f), it is clear the legislature intended to provide

parties in a suit before a trial court the right to immediately challenge the court’s decision on

whether a plaintiff has met the certificate of merit requirement. The issue before us is whether the

legislature intended to significantly alter the jurisdictional limitations on courts with respect to

arbitration proceedings to allow interlocutory judicial review of the same determination made by

an arbitration panel. We conclude section 150.002 does not evidence such an intent.

Because Texas law favors arbitration, judicial review of arbitration proceedings is

extraordinarily narrow. See E. Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267, 271

(Tex. 2010). The court’s jurisdiction over an arbitration proceeding is limited to enforcing the

agreement to arbitrate and rendering judgment on the panel’s award. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.081. The filing of an application for an order concerning arbitration invokes the

jurisdiction of the court. Id. § 171.082(a). But the “orders that may be rendered” include only

those within the purview of section 171.086 of the TAA that assist with the arbitration process or

involve limited review of a panel award. Id. § 171.086. Judicial review of an interlocutory order

issued by an arbitration panel does not fall within the scope of section 171.086. 

 –5–

Similarly, chapter 150 does not provide or create a process for judicial review of an

interlocutory arbitration order. The absence of a review process for interlocutory arbitration orders

is demonstrated by appellants’ actions in this case. After the arbitration panel denied appellants’

motion to dismiss, they initially appealed the panel’s order directly to this Court. But, as we noted

in a letter to counsel, this Court’s jurisdiction is dependent on the jurisdiction of the district and

county courts within our district, and we do not have direct jurisdiction over arbitration panel

decisions. TEX. GOV’T CODE ANN. § 22.220(a) (Supp.).

Appellants then filed suit and obtained an order from the district court refusing to vacate

the arbitration panel’s order and amended their notice of appeal to challenge that order. Although

a trial court may render an order granting or denying a motion to vacate an arbitration panel’s

decision, it may only do so with respect to an arbitration award. See TEX. CIV. PRAC. & REM.

CODE ANN. §§ 171.086–.088. Here, appellants have attempted to use the process for judicial

review of an arbitration award to appeal the interlocutory order at issue arguing “nothing in the

TAA precludes the treatment of an interlocutory Chapter 150 order as an ‘award.’” We disagree.

Although the TAA does not define the term “award,” where a term is undefined, we

consider it in context and apply the meaning of its common usage. TEX. GOV’T CODE ANN.

§ 311.011(a). In addition, where a term has acquired a technical or particular meaning, it is

construed accordingly. Id. § 311.011(b). Webster’s Third New International Dictionary defines

“award” as “a judgment, sentence, or final decision,” especially “the decision of arbitrators in a

case submitted to them.” Award, WEBSTER’S THIRD NEW INT’L DICTIONARY, 152 (1993). 

Black’s Law Dictionary defines “award” as a “final judgment or decision, esp. one by an arbitrator or 
by a jury assessing damages.” Award, BLACK’S LAW DICTIONARY (10th ed. 2014). Both the common

and technical meanings of “award” contemplate finality. See Centex/Vestal v. Friendship W.

Baptist Church, 314 S.W.3d 677, 683 (Tex. App.—Dallas 2010, pet. denied) (arbitration awards 

 –6–

have the same effect as judgments in a court of last resort.) Particularly in the context of the TAA,

which seeks to limit the role of the courts, the term “award” cannot be read so broadly as to

encompass interlocutory orders – even those that are otherwise immediately appealable. Cf.

Yaseen Educ. Soc’y v. Islamic Ass’n of Arabi, Ltd., 406 S.W.3d 385, 389 (Tex. App.—Dallas 2013,

no pet.) (appellate court has no jurisdiction over incomplete arbitration award). To allow a party

to appeal an interlocutory arbitration panel order in the same manner as an arbitration award would

conflict with the TAA’s goal of providing an efficient, economical system for resolving disputes

and limiting judicial review with its accompanying expense and delay. See CVN Grp., Inc. v.

Delgado, 95 S.W.3d 234, 238 (Tex. 2002); Collins v. Tex Mall, L.P., 297 S.W.3d 409, 417 (Tex.

App.—Fort Worth 2009, no pet).

We recognize the goal of section 150.002, like the TAA, is to increase efficiency in conflict

resolution. It does so by providing a means to quickly eliminate patently unmeritorious claims

against licensed or registered professionals. See Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d

395, 399 (Tex. App.—Beaumont 2008, no pet.). Plaintiffs must make a “threshold showing” of

the viability of their claims through a certificate of merit or have those claims subject to dismissal.

See M-E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 504 (Tex. App.—Austin 2012, pet.

denied). But the application of the certificate of merit requirement to an arbitration proceeding

does not evince a concomitant intent to expand the court’s jurisdiction over the proceeding. Even

without the right to interlocutory appeal, a defendant in an arbitration proceeding maintains the

benefits of the certificate of merit, which allows both him and the arbitration panel to assess the

merits of the plaintiff’s allegations early in the process. Section 150.002 is not rendered

meaningless with respect to arbitrations simply because a panel’s refusal to dismiss claims, like

most interlocutory decisions, is not immediately reviewable. 

 –7–

It is noteworthy that, although the certificate of merit requirement was made applicable to

arbitration proceedings more than thirteen years ago, we can find no cases in which a defendant in

an arbitration proceeding has sought judicial review under 150.002(f). Indeed, the legislative

history of section 150.002 does not suggest the legislature intended to expand judicial review of

arbitrations. Section 150.002 was amended in 2005 by House Bill 1573. The “Statement of Intent”

by the bill’s author-sponsor states the bill’s purpose was to provide “a more accurate description

of today’s architecture practice” and “eliminate ambiguities in Chapter 150, Civil Practice and

Remedies Code, regarding certificates of merit for design professionals.” See House Comm. on

Bus. & Commerce, Bill Analysis, Tex. H.B. 1573, 79th Leg., R.S. (2005). None of the

“ambiguities” noted in the Statement of Intent pertain to arbitration proceedings or the ability of a

party in such a proceeding to pursue interlocutory review. Id. The statement provides no support,

therefore, for significant judicial intrusion into ongoing arbitration proceedings.

The scope of the court’s jurisdiction over arbitration proceedings is specifically and

narrowly defined by sections 171.081 and 171.086 of the TAA. See TEX.CIV. PRAC. & 
REM.CODE ANN. §§ 171.081 & 171.086. If the legislature intended to expand judicial review 
of arbitration decisions beyond our limited review of arbitration awards, it could have done so by 
amending these sections. Absent a clear expression of intent to expand the court’s jurisdiction, we 
cannot conclude the legislature intended anything more by its inclusion of arbitration proceedings in

section 150.002 than to require plaintiffs in those proceedings to file a certificate of merit. See id.

§ 150.002(a); see also CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011) (we strictly apply

statutes granting interlocutory appeals because they are a narrow exception to general rule that

interlocutory orders are not immediately appealable).

Because neither section 150.002(f) nor the TAA provides courts with the jurisdiction to

review an arbitration panel’s denial of a motion to dismiss, the trial court’s order on appellant’s 

 –8–

motion to vacate the panel’s decision is void for lack of jurisdiction. Appellants have requested

that, if we determine the right to interlocutory appeal does not apply in this case, we treat their

appeal as a petition for writ of mandamus and order the trial court to render judgment dismissing

AMX’s arbitration claims for failure to comply with section 150.002. Absent court jurisdiction to

review the arbitration panel’s interlocutory decision, however, there is no further relief we can

grant, or action we can compel the trial court to take, with respect to the panel’s decision.

Based on the foregoing, we vacate the trial court’s order as void and dismiss this appeal

for want of jurisdiction.

171064F.P05

/Molly Francis.

MOLLY FRANCIS

JUSTICE 

 –9–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

SM ARCHITECTS, PLLC AND ROGER

STEPHENS, Appellants

No. 05-17-01064-CV V.

AMX VETERAN SPECIALTY

SERVICES, LLC, Appellee

 On Appeal from the 116th Judicial District

Court, Dallas County, Texas

Trial Court Cause No. DC-17-11230.

Opinion delivered by Justice Francis.

Justices Bridges and Lang-Miers

participating.

 In accordance with this Court’s opinion of this date, the order of the trial court is VACATED AS VOID and the case is DISMISSED for want of jurisdiction.

 It is ORDERED that appellee AMX VETERAN SPECIALTY SERVICES, LLC recover

its costs of this appeal from appellants SM ARCHITECTS, PLLC AND ROGER STEPHENS.

Judgment entered November 8, 2018. 

SM ARCHITECTS, PLLC AND ROGER STEPHENS, Appellant,
v.
AMX VETERAN SPECIALTY SERVICES, LLC, Appellee.

No. 05-17-01064-CV.

Court of Appeals of Texas, Fifth District, Dallas.

Order entered March 20, 2018.

Gregory N. Ziegler, Bryan Rutherford, Weston M. Davis, for SM Architects, PLLC and Roger Stephens, Appellant.

Doug Drucker, David P. Kallus, Kirby D. Hopkins, for AMX Veteran Specialty Services, LLC, Appellee.

On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-17-11230.

ORDER

ADA BROWN, Justice.

Before the Court is appellee's March 19, 2018 unopposed motion for an extension of time to file a brief. We GRANT the motion and extend the time to March 29, 2018. We caution appellee that further requests for extension in this accelerated appeal will be disfavored.

Also before the Court is appellee's March 19, 2018 motion to dismiss the appeal for want of jurisdiction. By order dated December 5, 2017, the Court deferred the issue of this Court's jurisdiction over this appeal to the submissions panel. We instructed the parties to address in their briefs on the merits both the trial court's jurisdiction to enter the October 31, 2017 order and this Court's jurisdiction over the appeal. Accordingly, we defer appellee's motion to dismiss to the submissions panel.

Can an order compelling arbitration be challenged by immediate appeal?

No immediate appellate review of trial court order sending parties to arbitration either under the FAA or the TAA. Interlocutory appeal not authorized under such circumstances (as opposed to an order denying a motion to compel arbitration). Bashaw v Republic State Mortgage Co, No 01-14-00427-CV (Tex.App.- Houston [1st Dist.] Sep. 4, 2014) 

FRANCIS BASHAW

v.

REPUBLIC STATE MORTGAGE CO

No. 01-14-00427-CV

Opinion issued September 4, 2014.

Court of Appeals of Texas, First District, Houston 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

First Court of Appeals (Old Harris County Courthouse) 

PER CURIAM MEMORANDUM OPINION

Appellant, Francis Bashaw, attempts to appeal from the trial court's April 25, 2014 order staying this case and granting Republic State Mortgage Co.'s motion to compel arbitration. Appellee, Republic State Mortgage Co., has filed a "Motion to Dismiss for Lack of Jurisdiction Pursuant to Rule 42.3(a)." We grant the motion and dismiss this appeal.

Bashaw entered into a "Branch Agreement" with Republic State Mortgage in 2006. On September 22, 2011, Bashaw filed suit against Republic State Mortgage, alleging breach of fiduciary duty, fraud by nondisclosure, and defalcation. On October 25, 2011, Republic State Mortgage filed a motion to dismiss or, in the alternative, to stay and compel arbitration. On September 21, 2012, the trial court granted the motion to stay, referred the case to arbitration, and stayed the case for six months. On June 11, 2013, Republic State Mortgage filed an amended motion to stay and to compel arbitration. The trial court granted the amended motion on April 25, 2014, again staying the case for six months and referring the claims to arbitration. On May 14, 2014, Bashaw filed a notice of appeal from the trial court's April 25, 2014 order.

On July 9, 2014, Republic State Mortage filed a motion to dismiss this appeal for lack of jurisdiction. In the motion, Republic State Mortgage argues that the trial court's April 25, 2014 order is a non-appealable interlocutory order, and that we therefore have no jurisdiction over this appeal. Bashaw has not responded to the motion.

"Whether under the Texas Arbitration Act or the Federal Arbitration Act, there is no interlocutory appeal over an order granting a motion to compel arbitration. As a result, we have no jurisdiction over this appeal and must dismiss it." Koontz v. Citibank (South Dakota), N.A., No. 01-05-01140-CV, 2007 WL 1299674, at *1 (Tex. App.-Houston [1st Dist.] May 3, 2007, no pet.) (mem. op., internal citations omitted); see In re Gulf Exploration, LLC, 289 S.W.3d 836, 839-41 (Tex. 2009) (quoting Perry Homes v. Cull,258 S.W.3d 580, 586 n.13 (Tex. 2008)); Ortiz v. Junell Law Firm, No. 14-11-00805-CV, 2011 WL 5554620, at *1 (Tex. App.-Houston [14th Dist.] Nov. 15, 2011, pet. denied) (mem. op.).

Accordingly, we grant Republic State Mortgage's motion to dismiss and dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). We dismiss any other pending motions as moot.

---------

STATUTORY BASIS FOR INTERLOCUTORY APPEAL 
FROM ORDER DENYING ARBITRATION 

In 2009, the Texas Legislature amended the Texas Arbitration Act to permit interlocutory appeals of orders denying motions to compel arbitration pursuant to the FAA. See Tex. Civ. Prac. & Rem. Code § 51.016 (West, Westlaw through 2013 3d C.S.); see also CMH Homes v. Perez, 340 S.W.3d 444, 448 (Tex. 2011) (construing section 51.016). If a matter is subject to the FAA, section 51.016 of the Texas Civil Practice and Remedies Code authorizes interlocutory appeals "to the court of appeals from the judgment or interlocutory order of a district court . . . under the same circumstances that an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16." Tex. Civ. Prac. & Rem. Code § 51.016.

Exceptions to deadline for appealing denial of motion to compel arbitration - Don't count on them

The trial court's denial of a motion to compel arbitration can be appealed immediately, but the right to appeal expires faster than is the case for an appeal from a final judgment because such appeals are accelerated interlocutory appeals. There may be exceptions, but benefiting from them can get pretty tricky, as the following excerpt from the Dallas Court of Appeals in Pilot Travel Centers, LLC v. McCray illustrates. The lesson: Don't take any chances. Appeal within 20 days, or better still, less than 20 days.  

The clock keeps ticking 

Section 51.016 of the civil practice and remedies code provides that in a matter subject to the Federal Arbitration Act (FAA), a party may appeal from an interlocutory order of a district court "under the same circumstances that an appeal from a federal district court's order . . . would be permitted by 9 U.S.C. Section 16. TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West Supp. 2012); see CMH Homes v. Perez, 340 S.W.3d 444, 448-49 (Tex. 2011) (explaining that section 51.016 of the civil practice and remedies code provides for interlocutory appeals in FAA cases so long as "it would be permitted under the same circumstances in federal court under [9 U.S.C.] section 16"). Section 16 of the FAA provides an appeal may be taken from an order "denying an application under section 206 of this title to compel arbitration." 9 U.S.C.A. § 16(a)(1)(C) (West 2009); Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc., 347 S.W.3d 897, 900 (Tex. App.-Dallas 2011, pet. denied); Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 877 (Tex. App.-Houston [14th Dist.] 2011, no pet.).

An appeal from an interlocutory order denying a motion to compel arbitration is an accelerated appeal. See TEX. R. APP. P. 28.1 ("Appeals from interlocutory orders (when allowed by statute) . . . are accelerated appeals."). In an accelerated appeal, the notice of appeal must be filed within twenty days after the judgment or order is signed. TEX. R. APP. P. 26.1(b); see also Iron Mountain Bison Ranch, Inc. v. Easley Trailer Mfg., Inc., 964 S.W.2d 762, 763 (Tex. App.-Amarillo 1998, no pet.) (interlocutory appeal is perfected by filing notice of appeal with trial court within twenty days after judgment or order is signed).

The record contains a November 12, 2012 Order denying Pilot Travel's motion to compel arbitration. The notice of accelerated appeal of the November 12, 2012 Order denying Pilot Travel's motion to compel arbitration had to be filed within twenty days after the date the order was signed. Because the twentieth day after the November 12, 2012 Order fell on Sunday, December 2, 2012, Pilot Travel's deadline for perfecting the appeal from that order fell on the following day, Monday, December 3, 2012. See TEX. R. APP. P. 4.1(a).[3] Pilot Travel filed its notice of appeal on December 28, 2012, beyond the twenty-day deadline for perfecting appeal of the interlocutory November 12, 2012 Order.

In an accelerated appeal, absent a rule of civil procedure 26.3 motion, the deadline for filing a notice of appeal is strictly set at twenty days after the appealable interlocutory order is signed. See In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). However, if applicable, rule of civil procedure 306a may operate to extend the deadline for filing a notice of appeal of an interlocutory order. See TEX. R. CIV. P. 306a; see also John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001). If a party affected by an appealable order has not, within twenty days after the order was signed, either received notice required by rule of civil procedure 306a(3) or acquired actual knowledge of the signing, then any period that, under the rules of appellate procedure, runs from the signing of the order will begin on the earlier of the date when the party receives notice or acquires actual knowledge of the signed order; however, no such period may begin to run more than ninety days after the judgment or order was signed. TEX. R. APP. P. 4.2(a)(1); see also TEX. R. CIV. P. 306a(4).

However, rule of civil procedure 306a(4) is not self-executing. Subsection (5) of rule of civil procedure 306a provides a procedure that enables the trial court to change the date the appellate timetable begins to run from the actual date of the interlocutory order to the date on which the party received the clerk's notice or acquired actual knowledge that the trial court signed the order, whichever occurs first, as long as that date is not more than 90 days after the trial court signed the interlocutory order. TEX. R. CIV. P. 306a(5). "The party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed." Id.; see Hone v. Hanafin, 105 S.W.3d 15, 18 (Tex. App.-Dallas 2002) (party must obtain order from trial court that reflects date the party or party's attorney first either received notice or acquired actual knowledge that the order was signed), rev'd on other grounds, 104 S.W.3d 884 (Tex. 2003) (per curiam). A parallel provision of the rules of appellate procedure affords additional time for filing documents related to the appeal under the same time parameters and in accordance with the procedures set out in rule of civil procedure 306a(5). TEX. R. APP. P. 4.2(b); see also TEX. R. CIV. P. 306a(5). After conducting the hearing contemplated by rule of civil procedure 306a(5), the trial court "must sign a written order that finds the date when the party or the party's attorney first either received notice or acquired actual knowledge that the judgment or order was signed." TEX. R. APP. P. at 4.2(c); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex. App.-Houston [1st Dist.] 2003, no pet.). The requirements of rule 306a(5) are jurisdictional. Mem'l Hosp. of Galveston Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam); Nedd-Johnson v. Wells Fargo Bank, N.A., 338 S.W.3d 612, 613 (Tex. App.-Dallas 2010, no pet.).

Here, Pilot Travel asserted reliance on rule of civil procedure 306a in its objection and verified motion to vacate the January 16, 2013 Order. The sworn 306a motion served the purpose of establishing a prima facie case of lack of timely notice of the November 12, 2012 Order. See TEX. R. CIV. P. 306a(5). For purposes of appellate jurisdiction, rule of appellate procedure 4.2(c) requires that the trial court sign a written order, pursuant to rule of civil procedure 306a, that finds the date when Pilot Travel or Pilot Travel's attorney first either received notice or acquired actual knowledge that the November 12, 2012 Order denied Pilot Travel's motion to compel arbitration. See TEX. R. APP. P. at 4.2(c); see also Nedd-Johnson, 338 S.W.3d at 613; see also Gillis, 741 S.W.2d at 366 ("Rule 306a plainly requires that this proof be made in the trial court, not the court of appeals."). Without a finding of the date Pilot Travel or its attorney first received notice or actual knowledge of the November 12, 2012 Order, there can be no extension of the appellate timetable for Pilot Travel's notice of appeal of the denial of its motion to compel arbitration. See TEX. R. APP. P. 4.2(c); see also Nedd-Johnson, 338 S.W.3d at 613.

Pilot Travel cites In re C.L.C., No. 12-02-00348-CV, 2003 WL 252139 (Tex. App.-Tyler Feb. 5, 2003, no pet.) (mem. op. on reh'g) in support of its argument that, because the December 12, 2012 Order was the only order denying its motion to compel arbitration that it received, the December 28, 2012 notice of appeal was timely as filed within twenty days of December 12, 2012. However, unlike this case, in In re C.L.C., the trial judge signed an order that included a finding of the earliest date upon which either appellant or appellant's attorney received notice or actual knowledge of the judgment, and appellant's notice of accelerated appeal was timely as filed within twenty days of the date found by the trial judge. In re C.L.C., 2003 WL 252139, at *1.

Rule of appellate procedure 27.3 provides that after an order in a civil case has been appealed, if the trial court modifies the order, the appellate court must treat the appeal as from the subsequent order and may treat actions relating to the appeal of the first order as relating to the appeal of the subsequent order. TEX. R. APP. P. 27.3. While rule 27.3 contemplates the trial court's ability to modify or amend orders that have been appealed, neither the December 12, 2012 Order nor the May 1, 2013 Order modified or amended the trial court's November 12, 2012 Order. By denying Pilot Travel's motion to compel arbitration, the December 12, 2012 Order and the May 1, 2013 Order provided the same substantive ruling contained in the trial court's November 12, 2012 Order. Rule of appellate procedure 29.6 governs our jurisdiction to review "a further appealable interlocutory order concerning the same subject matter." See TEX. R. APP. P. 29.6. Because the December 12, 2012 Order and May 1, 2013 Order are substantively identical to the trial court's November 12, 2012 Order, neither order may be considered a further order of the trial court concerning Pilot Travel's motion to compel arbitration. See TEX. R. APP. P. 29.6(a)(1). To conclude otherwise would enable a trial court to alter an appellate timetable, and render an otherwise untimely appeal timely, simply by signing a subsequent order affording the same relief.

Pilot Travel acknowledged at submission that the trial court's May 1, 2013 Order denying Pilot Travel's motion to compel arbitration made no substantive change to the prior November 12, 2012 Order and December 12, 2012 Order denying Pilot Travel's motion to compel arbitration, and that it was not relying on the May 1, 2013 Order to restart the appellate timetable for filing this interlocutory appeal. Pilot Travel acknowledged it could offer no authority in support of a contention that a trial court can affect or extend the appellate timetable by signing a subsequent order containing the same denial of a motion to compel arbitration contained in the November 12, 2012 Order. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) (permitting interlocutory appeal of a denial of a motion to reconsider a plea to jurisdiction "would effectively eliminate the requirement that appeals from interlocutory orders must be filed within twenty days after the challenged order is signed," and "[t]hat would work against the main purpose of the interlocutory appeal statute, which is to increase efficiency of the judicial process."); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 358 (Tex. 2001) ("Allowing interlocutory appeals whenever a trial court refuses to change its mind . . . would invite successive appeals and undermine the [interlocutory appeal] statute's purpose of promoting judicial economy."). However, according to Pilot Travel, even though the December 12, 2012 Order made no change to the trial court's November 12, 2012 denial of Pilot Travel's motion to compel arbitration other than crossing out the date of November 12, 2012 and writing in the date of December 12, 2012, Pilot Travel contends its notice of appeal was timely because it received notice only of the December 12, 2012 Order, and, therefore, the appellate timetable did not begin to run until it received notice of the December 12, 2012 Order.

Pilot Travel's contention that under rule of civil procedure 306a, its appellate timetable for perfecting its interlocutory appeal ran from the date it or its attorney received notice or actual knowledge of the November 12, 2012 Order fails. Pilot Travel did not establish in the trial court the specific date it or its attorney received notice or actual knowledge of the November 12 Order, and Pilot Travel did not obtain a signed written order from the trial court that recites that specific date. See TEX. R. CIV. P. 306a(5); TEX. R. APP. P. 4.2(b), (c). Because Pilot Travel did not comply with rule of civil procedure 306a(5), it is not entitled to receive an extension of time for perfecting its appeal under rule 4.2. See TEX. R. APP. P. 4.2(b), (c).

Pilot Travel's notice of interlocutory appeal was due, but not filed, within twenty days after the November 12, 2012 appealable interlocutory order was signed. To conclude otherwise would defeat the purpose of the interlocutory appeal statute. Thus, Pilot Travel's notice of appeal was not timely perfected under rule of appellate procedure 26.1(b). See Tex. R. App. P. 26.1(b).

Without a timely filed notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. at 25.1. Although the Texas Supreme Court has directed us to construe the rules of appellate procedure reasonably and liberally so that the right to appeal is not lost by imposing requirements not absolutely necessary to effectuate the purpose of a rule, see Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997), we are prohibited from expanding the scope of our jurisdiction by enlarging the time for perfecting an appeal in a civil case in a manner not provided for by rule. See TEX. R. APP. P. 2; see also In re T.W., 89 S.W.3d 641, 642 (Tex. App.-Amarillo 2002, no pet.). Rule of appellate procedure 2 expressly prohibits this Court from suspending the requirements of the appellate rules in a manner which will "alter the time for perfecting an appeal in a civil case."

Consequently we do not address the merits of this interlocutory appeal. We dismiss this interlocutory appeal for want of jurisdiction. See TEX. R. APP. P. at 42.3(a).

JUDGMENT

In accordance with this Court's opinion of this date, the appeal is DISMISSED. It is ORDERED that appellees Joan McCray, James McCray, and Shamekia Gullatte, as Next Friend of Brandon Gullate, recover their costs of this appeal from appellant Pilot Travel Centers, LLC.

SOURCE: Pilot Travel Centers, LLC v. McCray, No. 05-13-00002-CV (Tex.App.- Dallas, July 10, 2013)

[1] The January 16, 2013 Order states the trial court considered appellees' "Motion for Judgment Nunc Pro Tunc, and the response thereto." However, the record contains no motion for judgment nunc pro tunc, nor any response by Pilot Travel to such a motion. See TEX. R. CIV. P. 316 (permits trial court to correct mistakes and incorrect recitals in judgments but only after reasonable notice of any application for correction is given to opposing party).

[2] In its objection to the January 16, 2013 order and motion to vacate that order, Pilot Travel stated it was never served with a motion for judgment nunc pro tunc.

[3] On appeal, the parties do not dispute the trial court conducted a hearing on Pilot Travel's motion to compel arbitration on November 16, 2012. However, no reporter's record containing a transcript of the November 16, 2012 hearing has been filed with this Court. Even assuming the November 12, 2012 date of signature on the order was incorrect and should have been November 16, 2012, the deadline for filing an accelerated appeal of a November 16, 2012 denial of Pilot Travel's motion to compel arbitration would have been December 6, 2012.

Under rule of appellate procedure 26.3, an appellate court may extend the time to file a notice of appeal if, within fifteen days after the deadline for filing the appeal notice, the party files a notice of appeal in the trial court and a motion for extension of time complying with rule of appellate procedure 10.5(b) in the court of appeals. See TEX. R. APP. P. 26.3. In Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997), the Texas Supreme Court held that a motion for extension of time is implied when a party, acting in good faith, files a cost bond within the fifteen-day period in which the party would be entitled to move to extend the filing deadline under the rules of appellate procedure. To be entitled to an implied fifteen-day extension to file its notice of appeal under rule of appellate procedure 26.3 from the November 12, 2012 Order, Pilot Travel would have had to file its notice of appeal by December 18, 2012. To be entitled to an implied fifteen-day extension to file its notice of appeal under rule of appellate procedure 26.3 from November 16, 2012, Pilot Travel would have had to file its notice of appeal by December 21, 2012.

Trial court order compelling arbitration not immediately appealable

Can an order compelling arbitration signed by a trial judge be challenged in an immediate appeal so as to avoid the need to arbitrate? Generally no. Arbitration is favored. An order denying arbitration is a different matter. Texas statute authorizing interlocutory appeal tracks federal provision for such appeals.

Under the Federal Arbitration Act (FAA), an order compelling arbitration and granting a stay is not immediately reviewable. In re Gulf Exploration, LLC, 289 S.W.3d at 842; see 9 U.S.C.A. § 16(b)(1),(3)(West 2009)(interlocutory orders compelling arbitration and staying proceeding are not immediately reviewable under the FAA). Because such an order is not appealable under the FAA, it is not appealable under Section 51.016 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West Supp. 2012)(in matters subject to the FAA, an appeal is available only under the same circumstances that an appeal from federal district court's order would be permitted).

    MEMORANDUM OPINION FROM EL PASO   

In this employment-discrimination and -retaliation case, Benjamin Tice, Jr. appeals from the trial court's order granting El Paso Education Initiative, Inc. d/b/a Burnham Wood Charter School District's motion to compel arbitration and stay the proceedings. El Paso Education Initiative now moves to dismiss the appeal for want of jurisdiction.[1] Concluding that we lack jurisdiction over this appeal, we dismiss it.

It is well settled that appellate courts have jurisdiction over final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final if it disposes of all pending parties and claims. Id. An order compelling arbitration and staying proceedings pending arbitration does not dispose of all claims and parties. In re Gulf Exploration, LLC, 289 S.W.3d 836, 840-41 (Tex. 2009)(orig. proceeding). Thus, the trial court's order at issue here is interlocutory.

Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly confers appellate jurisdiction. See Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). If a statute authorizes an interlocutory appeal, we strictly construe it. CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011); Nazareth Hall Nursing Ctr. v. Castro, 374 S.W.3d 590, 593 (Tex.App.-El Paso 2012, no pet.); Lucchese, Inc. v. Solano, 388 S.W.3d 343, 348 (Tex.App.-El Paso 2012, no pet.). The substance and function of the interlocutory order from which an appeal is taken controls our interlocutory jurisdiction. Castro, 374 S.W.3d at 593; Solano, 388 S.W.3d at 348; Texas La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878 (Tex.App.-Houston [14th Dist.] 2011, no pet.). When a party attempts to appeal a non-appealable interlocutory order, we have no jurisdiction except to dismiss the appeal. Cantu Servs., Inc. v. United Freedom Assoc., Inc., 329 S.W.3d 58, 63 (Tex.App.-El Paso 2010, no pet.) [Quotation marks omitted].

Under the Federal Arbitration Act (FAA), an order compelling arbitration and granting a stay is not immediately reviewable. In re Gulf Exploration, LLC, 289 S.W.3d at 842; see 9 U.S.C.A. § 16(b)(1),(3)(West 2009)(interlocutory orders compelling arbitration and staying proceeding are not immediately reviewable under the FAA). Because such an order is not appealable under the FAA, it is not appealable under Section 51.016 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.016 (West Supp. 2012)(in matters subject to the FAA, an appeal is available only under the same circumstances that an appeal from federal district court's order would be permitted).

Here, both parties agreed at trial that the arbitration agreement was governed by the FAA, not the Texas General Arbitration Act (TAA).[2] The trial court's order compelling arbitration and staying the proceedings pending arbitration is therefore not reviewable by interlocutory appeal. We thus lack jurisdiction to consider Tice's appeal. Appellee's motion to dismiss the appeal for want of jurisdiction is hereby granted. Accordingly, we dismiss the appeal for want of jurisdiction.

SOURCE: EL PASO COURT OF APPEALS - No. 08-13-00014-CV – 1/13/2013