ARBITRATORS HAVE TO FOLLOW THE CERTIFICATE-OF-MERIT RULES, BUT THERE IS NO INTERLOCUTORY REVIEW IF THEY DON'T

SM Architects, PLLC v. AMX Veteran Specialty Services, LLC
Dallas Court of Appeals, No. 05-17-01064 (November 8, 2018)
Justices Bridges, Francis (opinion linked here), and Lang-Myers

In a court action or arbitration based on the provision of professional architectural services, a plaintiff must file a certificate-of-merit affidavit by a third-party licensed architect in support of its claims. TEX. CIV. PRAC. & REM. CODE § 150.002. If a trial court denies a motion to dismiss the case for failure to comply with this requirement, that ruling is immediately appealable under § 150.002(f). But what is the remedy if an arbitrator refuses to dismiss?

 In this case of first impression, the Dallas Court of Appeals concluded there is no remedy—at least not before the arbitration is over. The courts’ jurisdiction over arbitration proceedings is limited to enforcing the agreement and rendering judgment on an “award.” TEX. CIV. PRAC. & REM. CODE §171.081. An “award” is a “judgment, sentence, or final decision” and does not include interlocutory orders. The Court acknowledged that, by enacting § 150.002(f), the legislature intended to provide parties the right to immediately challenge a trial court’s decision about whether a plaintiff has met the certificate-of-merit requirement, but it found no evidence of an intent to “significantly alter the jurisdictional limitations on courts with respect to arbitration proceedings.” The defendants tried several different approaches and arguments to obtain review of the order denying their motion to dismiss, but the Court concluded “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.”

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