parker-county-veterinary-clinic-inc-dba-parker-county-veterinary ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-380-CV
PARKER COUNTY VETERINARY APPELLANTS
CLINIC, INC., D/B/A PARKER
COUNTY VETERINARY HOSPITAL,
INC., PAT JARRETT, INDIVIDUALLY,
AND JARRETT PROPERTIES, LLC
V.
GSBS BATENHORST, INC. APPELLEE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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In one issue, Appellants Parker County Veterinary Clinic, Inc., d/b/a Parker
County Veterinary Hospital, Inc., Pat Jarrett, and Jarrett Properties, LLC, argue
that the trial court erred by dismissing their claim against Appellee GSBS
1
… See Tex. R. App. P. 47.4.
Batenhorst, Inc., an architecture firm. Because we hold that the trial court
erred by dismissing the claim, we reverse the trial court’s order of dismissal and
remand this case to the trial court.
Background Facts
Appellants and Appellee entered into an agreement for Appellee to design
a new veterinary clinic for Appellants. This agreement was in the form of a
letter to Appellants from Appellee and signed by Thomas E. Batenhorst, an
architect with Appellee. In the letter agreement, Batenhorst stated, “Our
Design Services will include: . . . Research and apply local and state codes and
city ordinances.”
According to Appellants’ petition, Appellee solicited an engineer to
provide engineering services, and Appellants contracted with the engineer to
provide those services, with those services to be incorporated into the work
provided by Appellee. The engineer’s plan called for waste disposal at the clinic
via a septic system. Appellants secured financing to cover the project based
on the plans that included a septic system.
As the project was nearing completion, the City of Hudson Oaks notified
Appellants that it could not issue a septic system permit because (1) Texas
Commission on Environmental Quality (TCEQ) regulations prohibit disposal of
medical waste through a septic system; (2) TCEQ regulations prohibit a septic
2
system at the location, which was too close to a waterway; and (3) the project
had insufficient space for a septic field. Appellants alleged in their petition that
they had two options if they wanted to operate a veterinary clinic at the site:
install a tanked wastewater disposal system that would cost $18,000 a month,
or pay for an extension of the city’s wastewater line to the project at an
estimated cost between $225,000 to $250,000. Appellants chose the second
option and obtained a loan for that purpose. Appellants alleged that to secure
the loan, they were forced to offer as collateral “virtually all personal and
business assets.” To cover the loan payments, Appellants had to convert
Jarrett’s existing clinic into a twenty-four-hour emergency clinic.
Procedural History
Appellants sued Appellee and the engineer. Appellee filed a motion to
dismiss, arguing that Appellants had failed to file a certificate of merit as
required under section 150.002 of the civil practice and remedies code. 2 The
trial court granted the motion, and Appellants filed this appeal. They argue that
the trial court erred by dismissing their breach of contract suit under section
150.002 when the contract specifically required the architect to “[r]esearch and
apply local and state codes and city ordinances.”
2
… See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (Vernon 2005).
3
Standard of Review
We review a trial court’s ruling on a motion to dismiss for an abuse of
discretion. 3 To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. 4
Statutory construction is a question of law, which we review de novo. 5
Once we determine the proper construction of a statute, we determine whether
the trial court abused its discretion in the manner in which it applied the statute
to the instant case. 6
Former Section 150.002
Section 150.002 requires a plaintiff to provide a “certificate of merit,”
that is, an affidavit from an expert, in certain cases against certain professionals
licensed by the state of Texas, including engineers and architects. 7 The
3
… Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palladian Bldg.
Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.
App.—Fort Worth 2005, no pet.).
4
… Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
5
… Palladian Bldg., 165 S.W.3d at 436.
6
… Id.
7
… Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a).
4
affidavit must set forth “at least one negligent act, error, or omission claimed
to exist and the factual basis for each such claim.” 8
The section as originally adopted in 2003 applied to “any action for
damages alleging professional negligence by a design professional.” 9 This court
has noted that the legislative history does not provide any indication of the
purpose for the statute. 10 The Beaumont Court of Appeals has nevertheless
concluded that the legislature’s purpose in adopting the statute was to weed
out frivolous claims. 11 A bill analysis for an amendment to the statute also
states that the statute was enacted for that purpose. 12
8
… Id.
9
… Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex.
Gen. Laws 847, 896–97 (amended as discussed below).
10
… See Palladian Bldg., 165 S.W.3d at 436.
11
… See Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 399 (Tex.
App.—Beaumont 2008, no pet.) (stating that “the purpose of the certificate of
merit is to provide a basis for the trial court to conclude that the plaintiff’s
claims have merit”).
12
… Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 854, 79th
Leg., R.S. (2005) (stating that the 2003 legislation was passed “protecting
engineers and architects from frivolous lawsuits”), available at
http://www.legis.state.tx.us/tlodocs/79R/analysis/html/HB00854E.htm; see
also Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496
(Tex. App.—Corpus Christi 2009, no pet.) (“Chapter 150 may have been
enacted to limit actions against architects and engineers by ensuring that there
is some basis for the lawsuit.”).
5
2005 Amendment
In 2005, the legislature amended the statute. 13 As amended, the section
applied to actions “arising out of the provision of professional services.” 14 The
Austin, San Antonio, and Corpus Christi Courts of Appeals have concluded that
no certificate of merit is required under amended section 150.002 when the
plaintiff does not allege a negligent act, error, or omission. 15 In Kniestedt, the
San Antonio Court of Appeals held that the plain wording of the statute led to
that conclusion because otherwise the legislature would not have specified that
the affidavit “shall set forth specifically at least one negligent act, error, or
omission claimed to exist.” 16 In another case, that court again rejected the idea
13
… Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen.
Laws 348, 348; Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005
Tex. Gen. Laws 369, 370. The legislature again amended this statute in 2009.
See Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Sess. Law.
Serv. 1989, 1989. The 2009 amendment was not retroactive and is not
applicable here. Our analysis in this opinion is limited to the statute as
amended in 2005; we make no determination of the effect of the 2009
amendment. Throughout this opinion, we use “section 150.002” to refer to the
statute as amended in 2005 but prior to the 2009 amendment.
14
… Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a).
15
… See Landreth, 285 S.W.3d at 500; Consol. Reinforcement, L.P. v.
Carothers Executive Homes, Ltd., 271 S.W.3d 887, 892 (Tex. App.—Austin
2008, no pet.); Kniestedt v. Sw. Sound & Elecs., 281 S.W.3d 452, 455 (Tex.
App.—San Antonio 2007, no pet.).
16
… Kniestedt, 281 S.W.3d at 455.
6
that the statute applied to any claim with merely a “causal connection . . . to
the rendition of professional services.” 17 The court held that the plaintiff’s
breach of contract claim against an engineering firm did not arise out of the
provision of professional services because the acts complained of did not fit
within the occupation code’s definition of the practice of engineers. 18
In Landreth, the Corpus Christi Court of Appeals agreed with the San
Antonio court that the statute did not apply when the plaintiff was not claiming
a negligent act, error, or omission. 19 It remanded the case back to the trial
court to determine which of the plaintiff’s claims, if any, were for professional
services.20
The Austin Court of Appeals similarly declined to expand the scope of
section 150.002 to causes of action “generally arising from” services provided
by licensed professionals such as engineers and architects. 21 The court noted
17
… Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at
*2–3 (Tex. App.—San Antonio Oct. 3, 2007, no pet.) (mem. op).
18
… Id.
19
… Landreth, 285 S.W.3d at 500.
20
… Id. at 500–01.
21
… Consol. Reinforcement, 271 S.W.3d at 892.
7
that under a straightforward reading of the plain language of statute, the filing
of a certificate of merit is not required for non-negligent causes of action. 22
Even though the bill analysis on the amendment provides that the statute
was amended to clarify, among other things, that the section applies when “the
suit is for damages arising out of the providing of any professional services,
except a suit or action for the payment of fees for professional services, rather
than only suits alleging professional negligence,” 23 the statute after amendment,
by its plain language, nevertheless continues to require the expert affiant to set
forth “at least one negligent act, error, or omission claimed to exist and the
factual basis for each such claim.” 24 To require such an affidavit outside the
context of a negligence cause of action would require an affidavit that had no
relevance to the suit and would render the statute meaningless. 25
22
… Id. at 892–94.
23
… Senate Comm. on Bus. & Commerce, Bill Analysis, Tex. H.B. 1573,
79th Leg., R.S., (2005)(em phasis added), available at
http://www.legis.state.tx.us/tlodocs/79R/analysis/html/HB01573S.htm.
24
… Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (emphasis added).
25
… Consol. Reinforcement, 271 S.W.3d at 892 (“To construe [section
150.002] to require an affidavit for non-negligent causes of action would render
the requirement that the affidavit set forth a negligent act, error, or omission
meaningless.”).
8
Appellee argues that the dissenting opinion in Consolidated was correct
that the word “negligent” in the statute only modifies the word “act” and that
the terms “error” and “omission” stand on their own and are not modified by
the word “negligent.” 26 Thus, Appellee argues, the statute requires a certificate
of merit pointing out a negligent act, an error, or an omission, and therefore the
plain language requires a certificate of merit in this case. We disagree with
Appellee and agree with the majority in Consolidated that under the rules of
grammatical construction, the word “negligent” modifies each of the nouns that
follow it. 27 Accordingly, we agree with our sister courts of appeals and hold
that this statute does not apply in a suit other than one for negligence arising
out of the provision of professional services.
Appellants’ Claim
Appellants assert that because they brought a breach of contract action
and section 150.002 applies only to negligence claims, they were not required
to file a certificate. Appellee disagrees with Appellants’ characterization of their
cause of action as one for breach of contract. Because we are not bound by
26
… Id. at 897 (Waldrop, J., dissenting).
27
… Id. at 893 (citing cases and a statute in support of its construction).
9
the labels used by the parties, 28 we look to Appellants’ pleadings and determine
for ourselves what claim Appellants assert.
As the Supreme Court of Texas has noted, “‘[W]hile the general
distinction between actions in contract and in tort is clearly defined and well
understood, it is often difficult to determine whether a particular action is the
one or the other.’” 29 Over the years, the supreme court has analyzed the
distinction between tort and contract by analyzing the source of the duty owed
to the plaintiff, by considering the nature of the remedy sought by the plaintiff,
and, most recently, by conducting an analysis of both the source of the duty
and the nature of the remedy sought. 30
In looking at the source of the duty, while there is no universally accepted
method of classification, “generally speaking, ‘actions in contract and in tort are
to be distinguished in that an action in contract is for the breach of a duty
28
… Murphy v. Gruber, 241 S.W.3d 689, 697 (Tex. App.—Dallas 2007,
pet. denied); see also Kimleco Petroleum, Inc. v. Morrison & Shelton, 91
S.W.3d 921, 924 (Tex. App.—Fort Worth 2002, pet. denied) (disregarding the
theory pled by plaintiff and looking at the crux of the complaint to determine
whether the plaintiff asserted a claim for legal malpractice).
29
… Int’l Printing Pressmen & Assistants’ Union of N. Am. v. Smith, 145
Tex. 399, 198 S.W.2d 729, 735 (1947).
30
… Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc.,
960 S.W.2d 41, 45 (Tex. 1998); Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d
493, 494–95 (Tex. 1991).
10
arising out of a contract either express or implied, while an action in tort is for
a breach of duty imposed by law.’” 31 Thus, when the plaintiff’s cause of action
arises only from the violation of a duty imposed by law, the cause of action
sounds in tort, and when the plaintiff’s cause of action arises only from the
violation of a duty imposed by contract, the cause of action is for breach of
contract. 32 A contractual relationship between the parties may create duties
under both contract and tort law, and “[t]he acts of a party may breach duties
in tort or contract alone or simultaneously in both.” 33
The nature of the remedy sought is also instructive on the issue. 34 “When
the only loss or damage is to the subject matter of the contract, the plaintiff’s
action is ordinarily on the contract.” 35
In this case, the practice of architecture as defined by the occupations
code includes “programming for construction projects, including identification
of economic, legal, and natural constraints and determination of the scope and
31
… Int’l Printing Pressmen, 198 S.W.2d at 735.
32
… Id. at 735–36; see also DeLanney, 809 S.W.2d at 494.
33
… Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986).
34
… DeLanney, 809 S.W.2d at 495.
35
… Id. at 494; see also Jim Walter Homes, 711 S.W.2d at 618 (“When
the injury is only the economic loss to the subject of a contract, itself the action
sounds in contract alone.”).
11
spatial relationship of functional elements.” 36 Thus, because the practice of
architecture includes identifying the legal constraints of a project, which
Appellants contend Appellee failed to do, Appellants’ complaint implicates the
quality of the professional services provided by Appellee. 37
But a specific provision of the contract also gave rise to a duty on
Appellee to research and incorporate applicable laws, and it is the breach of this
duty that Appellants complain about. Furthermore, the damages sought were
for economic loss directly related to the subject matter of the contract itself.
In their petition, Appellants asserted that Appellee breached the contract
and caused “the direct and consequential damages of [Appellants] described
herein.” The damages described by Appellants related to their having to secure
additional financing in order to remedy Appellee’s error and to obtain a permit
to operate the business in the building for which Appellee’s design skills were
solicited. Appellants asserted damages that were directly related to the subject
matter of the contract. Additionally, Appellants alleged that the vet clinic for
which they sought Appellee’s services cannot be opened until Hudson Oaks
36
… Tex. Occ. Code Ann. § 1051.001(7) (Vernon 2004).
37
… See Kimleco Petroleum, 91 S.W.3d at 924 (“Regardless of the theory
a plaintiff pleads, as long as the crux of the complaint is that the plaintiff’s
attorney did not provide adequate legal representation, the claim is one for legal
malpractice.”).
12
completes construction of the wastewaterline extension and that the city had
not begun construction as of the time of their pleadings. They asserted that
because of this delay, they were incurring damages of additional interest and
lost profits. 38 Appellants sought to recover economic damages in order to put
themselves in the position that they would have been in had it not been for
Appellee’s breach. 39 These damages are contract damages. Because
Appellants complain about a breach of a provision in a contract and seek
contract damages, their claim appears to be one for breach of contract.
Appellee asserts that although Appellants frame their cause of action as
one for breach of contract, because of the nature of suits against professionals,
Appellants’ cause of action sounds in tort. In support, Appellee points to this
court’s holding in Averitt v. PriceWaterhouseCoopers L.L.P. 40 Averitt involved
38
… See Bowen v. Robinson, 227 S.W.3d 86, 96 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied) (noting that benefit-of-the-bargain damages in
breach of contract cases may include lost profits); see also Formosa Plastics,
960 S.W.2d at 50 (noting that lost profits may be recovered under the benefit-
of-the-bargain measure of damages).
39
… See City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d
699, 739 (Tex. App.—Fort Worth 2008, pet. filed) (“The normal measure of
damages in a breach of contract case is the benefit of the bargain, the purpose
of which is to restore the injured party to the economic position it would have
been in had the contract been performed.”); see also Mays v. Pierce, 203
S.W.3d 564, 577 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
40
… 89 S.W.3d 330 (Tex. App.—Fort Worth 2002, no pet.).
13
a dispute between PriceWaterhouseCoopers (PWC) and Averitt, a longstanding
client of PWC. 41 In the context of a contractual relationship between the
parties, PWC performed tax, consulting, and estate planning services for
Averitt.42 In that role, PWC advised Averitt to create a trust in order to take
advantage of a tax exemption under the Internal Revenue Code. 43 Several years
after the trust’s creation, the trustee inquired as to whether a gift tax return
had been filed in connection with the trust’s formation, and PWC assured the
trustee that it had been done. 44 It was subsequently discovered that PWC had
not filed a gift tax return. 45
Averitt and others (Averitt) sued PWC in federal court for breach of
contract, accounting malpractice, breach of fiduciary duty, and fraud. 46 They
nonsuited their claims after discovering that they had named the wrong party
but then refiled against PWC in state court. 47 Two days prior to their refiling,
41
… Id. at 332.
42
… Id.
43
… Id.
44
… Id.
45
… Id.
46
… Id.
47
… Id.
14
PWC filed a declaratory judgment action against Averitt. 48 Averitt moved for,
among other things, summary judgment on the ground that PWC failed to state
a cause of action for which declaratory relief could be granted. 49 In response,
PWC asserted that it had properly brought a declaratory judgment action
because any claim Averitt could assert against it would be in contract as PWC’s
primary duty to her arose from their contractual relationship. 50
This court disagreed with PWC. We noted that “a contract for
professional services gives rise to a duty by the professional to exercise the
degree of care, skill, and competence that reasonably competent members of
the profession would exercise under similar circumstances.” 51 We held that
when a cause of action is based on an alleged failure to perform a professional
service, the issue is “whether the professional exercised that degree of care,
skill, and diligence that professionals of ordinary skill and knowledge commonly
possess and exercise.” 52 Thus, even if the parties have a contractual
relationship, the cause of action is a tort rather than for breach of contract.
48
… Id.
49
… Id. at 332–33.
50
… Id. at 334.
51
… Id.
52
… Id.
15
And in Averitt, the issue, as acknowledged by PWC, was whether PWC owed
a duty to Averitt to file a gift tax return and, if it did, whether it breached that
duty.53
Averitt is distinguishable. In that case, there was no assertion that PWC
breached any specific or particular provision of a contract. Thus, the contract
between the parties only served as the “foundation for the plaintiff’s right to
enjoy the benefits of the duty imposed by law.” 54 That is, the parties had a
contract in which PWC agreed to perform professional services, and in so
doing, PWC took on the duty to perform its services with the degree of care
applicable to accountants. When PWC breached that duty, it gave rise to a
cause of action in tort. 55 But in that case, there was no discussion of any
specific contractual provision alleged to have been breached.
In this case, as in Averitt, Appellee agreed to perform professional
services for Appellants, and by so doing, Appellee took on the duty to exercise
the degree of care, skill, and competence that reasonably competent architects
would exercise under similar circumstances. 56 The breach of that duty would
53
… Id. at 335.
54
… Int’l Printing Pressmen, 198 S.W.2d at 735.
55
… See Averitt, 89 S.W.3d at 334.
56
… See id.
16
give rise to a tort action. 57 But Appellee also made promises to perform specific
acts in the contract. If Appellee breached a specific provision of the contract,
that breach would also give rise to a breach of contract action. 58 Appellants
pursued a contract action, as was their right. 59 Because Appellants brought a
breach of contract action, and because section 150.002 only applies to
negligence actions, we hold that Appellants were not required to file a
certificate of merit in this case.
Appellee argues that a certificate of merit from an architect would be
necessary for the trial court to determine if Appellants’ claim has merit because
57
… See Aranda v. Ins. Co. of N. Am., 748 S.W.2d 210, 212 (Tex. 1988)
(“‘[A]ccompanying every contract is a common law duty to perform with care,
skill, reasonable expedience and faithfulness the thing agreed to be done, and
a negligent failure to observe any of these conditions is a tort as well as a
breach of contract.’”) (quoting Montgomery Ward & Co. v. Scharrenbeck, 146
Tex. 153, 157, 204 S.W.2d 508, 510 (1947)).
58
… See Jim Walter Homes, 711 S.W.2d at 618 (“The acts of a party
may breach duties in tort or contract alone or simultaneously in both.”).
59
… See id.; see also Beck v. Law Offices of Edwin J. (Ted) Terry, Jr.,
P.C., 284 S.W.3d 416, 427 (Tex. App.—Austin 2009, no pet.) (“[W]hen cases
say that clients cannot divide or fracture their negligence claims against their
attorneys into other claims, this does not mean that clients can sue their
attorneys only for negligence.”) (quoting Deutsch v. Hoover, Bax & Slovacek,
L.L.P, 97 S.W.3d 179, 189 (Tex. App.—Houston [14th Dist.] 2002, no pet.));
Murphy v. Gruber, 241 S.W.3d 689, 696–97 (Tex. App.—Dallas 2007, pet.
denied) (recognizing that “claims regarding the quality of the lawyer’s
representation of the client are professional negligence claims, but that not all
claims by clients against lawyers are professional negligence claims”).
17
an architect’s expertise is necessary to establish whether Appellee failed to
adequately perform under the contract. It asserts that “applying a code or
ordinance to a particular set of facts is most often subjective, requiring some
measure of judgment,” and that Appellee’s judgment must be measured by the
standard applicable to architects, which is beyond the common knowledge of
the trier of fact. We disagree with Appellee’s conclusion. There may well be
fact issues at trial, and expert testimony may be helpful to determine those fact
issues, but we disagree with Appellee that testimony as to whether Appellee
breached an architect’s standard of care would serve any relevant purpose for
the trial court prior to trial. A trial court is perfectly capable of determining
whether the contract required Appellee to apply the law in its design, 60 whether
the law prohibits the use of a septic system, 61 and whether the design included
60
… See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 252 S.W.3d 605,
617 n.10 (Tex. App.—Austin 2008, pet. granted) (stating that expert opinion
on proper interpretation of the legal effect of a notice of substitute trustee’s
sale and other instruments had “no probative value”); Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, pet. denied)
(holding trial court did not abuse its discretion by excluding expert testimony
on the interpretation of an unambiguous lease agreement); Pegasus Energy
Group, Inc., v. Cheyenne Petroleum Co., 3 S.W.3d 112, 134 (Tex.
App.—Corpus Christi 1999, pet. denied) (holding that when a term in a contract
had no specialized meaning within the industry, expert testimony is not required
to aid the court in its legal interpretation of the provision).
61
… See E.H. Stafford Mfg. Co. v. Wichita Sch. Supply Co., 118 Tex.
650, 23 S.W.2d 695, 697 (Tex. 1930) (“The rule is too elementary to require
the citation of authority that all persons are conclusively presumed to know the
18
a septic system. 62 Thus, a certificate of merit would not be required for the
trial court to determine if the claim has merit. Accordingly, we sustain
Appellants’ sole issue.
Conclusion
Having sustained Appellants’ issue, we reverse the trial court’s order of
dismissal and remand this cause to the trial court for further proceedings.
LEE ANN DAUPHINOT
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
DELIVERED: November 19, 2009
law.”); City of Dallas v. Coffin, 254 S.W.2d 203, 206 (Tex. Civ.
App.—Austin1953, writ ref’d n.r.e.) (“[A] person, even though he is a
nonresident, who deals with property within the limits of an incorporated city
is charged with notice of ordinances of the city regulating the use of such
property.”); Shoemaker v. Harrington, 30 S.W.2d 539, 544 (Tex. Civ.
App.—Fort Worth 1930) (“All persons are presumed to know the law.”), aff’d,
48 S.W.2d 612 (Tex. Comm’n. App. 1932, judgm’t adopted).
62
… See Mega Child Care, Inc. v. Tex. Dep’t of Protective & Regulatory
Servs., 29 S.W.3d 303, 310 n.2 (Tex. App.—Houston [14th Dist.] 2000, no
pet.) (noting that expert testimony on issue of ultimate fact may be excluded
“[w]here the trier of fact is equally competent to form an opinion” on the issue
and that appellants’ conduct did not appear so complex as to require expert
testimony on the issue of whether it complied with the statute).
19