tdindustries-inc-v-my-three-sons-ltd-my-three-sons-management-llc ( 2014 )

Affirmed; Opinion Filed February 14, 2014.
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-13-00861-CV
TDINDUSTRIES, INC., Appellant
V.
MY THREE SONS, LTD., MY THREE SONS MANAGEMENT, LLC, PRESTONWOOD
OB/GYN ASSOCIATES, P.A., CHRISTOPHER RIEGEL, MD, P.A., AND
CHRISTOPHER RIEGEL, Appellees
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-00398-2013
MEMORANDUM OPINION
Before Justices Moseley, Lang, and Brown
Opinion by Justice Lang
In this interlocutory appeal, TDIndustries, Inc. (TDI) appeals the trial court’s denial of its
motion to dismiss a suit claiming damages based upon allegedly defective improvements in a
building that Appellees bought. 1 TDI asserts three issues contending Appellees’ claims against
TDI should have been dismissed because of Appellees’ failure to file a “certificate of merit,”
pursuant to chapter 150 of the Civil Practice and Remedies Code. A certificate of merit is a
particular affidavit required to be filed with a suit where damage claims are asserted arising out
of the provision of professional services by licensed or registered professionals, including
1
Appellees include My Three Sons, Ltd., My Three Sons Management, LLC, Prestonwood OB/GYN Associates, P.A., Christopher Riegel,
M.D., P.A., and Christopher Riegel and will be referred to collectively as Appellees.
engineers and architects. We decide TDI’s issues against it and affirm the trial court’s order
denying TDI’s motion to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
In their petition, Appellees alleged they “owned and/or conducted business in a business
condominium” they had acquired from co-defendant Midway/Parker Medical Center, L.P. 2
After allegedly experiencing various malfunctions of improvements on the property, including
the plumbing system that TDI purportedly installed, Appellees sued several entities, including
TDI. Specifically, Appellees complained of TDI and the other co-defendants, stating that “faulty
design, installation, construction, maintenance, remediation, clean-up, and/or insulation of the
plumbing and fire protection systems” in this property resulted in the “proliferation of mold,
bacteria, and other environmental or biological (sic) hazardous materials,” including “brown
water” containing fecal bacteria.
TDI filed a motion to dismiss Appellees’ claims pursuant to Section 150.002 of the Civil
Practice and Remedies Code, arguing Appellees were required to file a certificate of merit to
support their claims against TDI since “TDI is a licensed engineer in the state and the allegations
against TDI implicate basic engineering services and the applicable standard of care for the
rendering of engineering services.” Appellees raised several “objections” to the motion,
including that TDI had presented no competent evidence it was a licensed or registered
professional that performed engineering services in connection with the property or that
Appellees had engaged TDI to provide engineering services.
Before the hearing scheduled for TDI’s motion to dismiss, Appellees filed a partial
nonsuit of claims against TDI, stating their intent to nonsuit “without prejudice any claim
asserted in Plaintiffs’ Original Petition for any engineering service provided by” TDI.
2
This co-defendant is not a party to this appeal.
–2–
The trial court denied TDI’s motion to dismiss, and this interlocutory appeal followed.
II. NECESSITY OF CERTIFICATE OF MERIT
In TDI’s first and second issues, it argues the trial court abused its discretion by denying
TDI’s motion to dismiss because Appellees’ causes of action against TDI arose out of the
provision of engineering services, a certificate of merit was required, and Appellees failed to file
a certificate of merit. As to its third issue, TDI argues Appellees’ “attempted” nonsuit could not
cure Appellees’ failure to file a certificate of merit because this nonsuit violated the rules of civil
procedure, TDI’s motion to dismiss survived Appellees’ “attempted” nonsuit, and even if
Appellees’ nonsuit were effective, it would have the effect of a nonsuit of all of Appellees’
claims against TDI.
A. Standard of Review and Applicable Law
An order denying a motion to dismiss pursuant to Chapter 150 is appealable as an
interlocutory order and is reviewed for an abuse of discretion. TEX. CIV. PRAC. & REM. CODE
ANN. § 150.002(f); Morrison Seifert Murphy, Inc. v. Zion, 385 S.W.3d 421, 424 (Tex. App.—
Dallas 2012, no pet.). An abuse of discretion occurs where the trial court acts in an unreasonable
or arbitrary manner or without reference to any guiding rules or principles. Morrison Seifert
Murphy, Inc., 385 S.W.3d at 424 (citing Belvedere Condos. at State Thomas, Inc. v. Meeks
Design Grp., Inc., 329 S.W.3d 219, 220 (Tex. App.—Dallas 2010, no pet.)). “[T]he party that
complains of abuse of discretion has the burden to bring forth a record showing such abuse.”
Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987); see also Hartman
Income Reit PPTY Holdings, LLC v. Dallas Cent. Appraisal Dist., No. 07-11-00079-CV, 2012
WL 5231854 (Tex. App.—Amarillo Oct. 23, 2012, pet. denied) (“[B]urden lies with the
appellant to establish that an abuse of discretion occurred.”).
–3–
Section 150.002 provides, in relevant part:
(a) In any action ... for damages arising out of the provision of professional services by a
licensed or registered professional, the plaintiff shall be required to file with the
complaint an affidavit of a third-party licensed architect, licensed professional engineer,
registered landscape architect, or registered professional land surveyor...
(e) The plaintiff’s failure to file the affidavit in accordance with this section shall result in
dismissal of the complaint against the defendant. This dismissal may be with prejudice…
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (emphasis added). A licensed or registered
professional is defined as “a licensed architect, licensed professional engineer, registered
professional land surveyor, registered landscape architect, or any firm in which such licensed or
registered professional practices, including but not limited to a corporation…” TEX. CIV. PRAC.
& REM. CODE ANN. § 150.001(1-a).
“If resolution of the issue requires us to construe statutory language, we review statutory
construction de novo.” Morrison Seifert Murphy, Inc., 384 S.W.3d at 425 (quoting Ustanik v.
Nortex Found. Designs, Inc., 320 S.W.3d 409, 412 (Tex. App.—Waco 2010, pet. denied)). The
method of our analysis is as follows:
The meaning of a statute is a legal question, which we review de novo to ascertain and
give effect to the Legislature's intent. Where text is clear, text is determinative of that
intent. “[W]hen possible, we discern [legislative intent] from the plain meaning of the
words chosen.” This general rule applies unless enforcing the plain language of the
statute as written would produce absurd results. Therefore, our practice when construing
a statute is to recognize that “the words [the Legislature] chooses should be the surest
guide to legislative intent.” Only when those words are ambiguous do we resort to rules
of construction or extrinsic aids.
–4–
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (citations omitted).
After deciding the proper construction, we then determine whether the trial court abused its
discretion in its application of the statute. Morrison Seifert Murphy, Inc., 384 S.W.3d at 425.
B. Application of Law to Facts
TDI asserts it is “undisputed” that TDI is a licensed or registered professional as defined
by Chapter 150. As support, TDI cites a) the record where it attached to its motion a copy of a
computer print out of the Texas Board of Professional Engineers’ Firm Search results page, b)
the “government website address” of this search page, and c) the Appellees’ partial nonsuit of
claims against it. TDI would have us conclude that, since Appellees’ claims against TDI arose
out of the provision of engineering services and Appellees failed to file a certificate of merit, the
trial court abused its discretion in denying TDI’s motion to dismiss.
Appellees disagree, arguing inter alia, it is not “undisputed” that TDI is a licensed or
registered professional as defined in Chapter 150. Further, Appellees assert there is no
competent evidence TDI or any of its employees were licensed professional engineers.
Additionally, Appellees contend their original petition did not refer to “professional negligence”
or an “engineer,” and TDI’s only evidence relating to its alleged status as a licensed or registered
professional, an “unsworn, undated internet inquiry/printout purportedly from the Texas Board
of Professional Engineers,” is “pure hearsay.” 3 Moreover, Appellees argue there is no evidence
in this case TDI engaged in the practice of engineering or provided any professional services as
defined by Chapter 150.
In its reply brief, TDI asserts it is “conclusively presumed to be engaged in the practice of
engineering” under Occupations Code § 1001.301(e) since, according to TDI, Appellees’ petition
3
Because the objection to hearsay was raised only on appeal, but not in the trial court, it will not be considered. See TEX. R. APP. P.
33.1(a).
–5–
alleged TDI and/or TDI’s employees engaged in conduct that fell within the Occupations Code’s
definition of the practice of engineering. See TEX. OCC. CODE ANN. § 1001.301(e) (“A
person…firm…or corporation that engages in or offers or attempts to engage in conduct
described by this section is conclusively presumed to be engaged in the practice of
engineering”). TDI contends since a person may not engage in the practice of engineering
without a license, it is presumed to be a licensed or registered professional. See TEX. OCC. CODE
ANN. § 1001.301(a). Accordingly, TDI argues this presumption, together with its “assertion” to
the trial court that it was a licensed or registered professional, the print out of the Texas Board of
Professional Engineers’ Firm Search results page, the “government website address” of this
search page, and “the fact that nobody actually disputes or disputed TDI’s status as a licensed or
registered professional” gave the trial court “no reasonable basis” to determine that TDI was not
a licensed or registered professional. TDI also points again to Appellees’ nonsuit as support,
arguing “If [Appellees] disputed that TDI was a licensed or registered professional, why would
they attempt to nonsuit claims for ‘engineering service provided by [TDI]?’”
To determine whether a certificate of merit is required, we must first decide whether the
record reflects TDI has been shown to be a licensed or registered professional under Chapter
150, and if so, whether the Appellees’ claimed damages arose from the provision of professional
services. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002; see also Dunham Eng’g, Inc. v.
Sherwin-Williams Co., 404 S.W.3d 785, 792 (Tex. App.—Houston [14th Dist.] 2013, no pet.);
V.R. & Son, L.P. v. Cive Consulting, Inc., No. 01-11-00967-CV, 2012 WL 3133605, at *2 (Tex.
App.—Houston [1st Dist.] 2012, no pet.). As the party complaining of an abuse of discretion,
TDI has the burden of bringing forth a record showing such abuse. See Simon, 739 S.W.2d at
795.
–6–
Contrary to TDI’s assertion, as described above, Appellees have disputed TDI’s status as
a licensed or registered professional in their “objections” raised to TDI’s motion to dismiss and
in their briefs before this court. Moreover, nothing in this record shows Appellees’ “purporting
to nonsuit” their claims affirmatively demonstrates TDI is a licensed or registered professional.
Additionally, we cannot agree with TDI that a conclusive presumption of the
Occupations Code applies here. Based on our review of the record, it does not appear this
contention was asserted in the trial court. Rather, it was raised for the first time in its reply brief
on appeal. Generally, an issue raised for the first time in a reply brief may not be considered.
Humphries v. Advanced Print Media, 339 S.W.3d 206, 208 (Tex. App.—Dallas 2011, no pet.)
(citing Bankhead v. Maddox, 135 S.W.3d 162, 163-64 (Tex. App.—Tyler 2004, no pet.)).
However, even were we to consider this argument, such a presumption would only have the
effect that TDI would be “conclusively presumed to be engaged in the practice of engineering.”
See TEX. OCC. CODE ANN. § 1001.301(e). Although the Occupations Code states one “may not
engage in the practice of engineering without a license,” the fact that one is presumed to be
engaged in the practice of engineering does not imply that one has a license. See TEX. OCC.
CODE ANN. § 1001.301(a). Consequently, we conclude, even if applicable, this presumption
would not expressly show TDI to be a licensed or registered professional.
The only purported evidence TDI has provided in support of its claimed status as a
licensed or registered professional is a print out of the Texas Board of Professional Engineers’
Firm Search results page and the “government website address” of this search page. In its
motion to dismiss, to support its claim that it was a licensed engineer, TDI stated only, “See
http://engineers.texas.gov/search.php attached hereto as Exhibit A and incorporated herein.”
This search results page is reproduced in full below. However, it shows nothing respecting
TDI’s asserted status as a licensed or registered professional pursuant to Chapter 150.
–7–
We conclude TDI has failed to meet its burden of proof to show an abuse of discretion by
the trial court. See Simon, 739 S.W.2d at 795. Accordingly, we decide TDI’s first issue against
it. Because this issue is dispositive, we need not address TDI’s remaining contentions and
issues.
–8–
III. CONCLUSION
The trial court did not abuse its discretion when it denied TDI’s motion to dismiss. We
decide TDI’s issues against it and affirm the trial court’s order.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
130861F.P05
–9–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TDINDUSTRIES, INC., Appellant On Appeal from the 380th Judicial District
Court, Collin County, Texas
No. 05-13-00861-CV V. Trial Court Cause No. 380-00398-2013.
Opinion delivered by Justice Lang. Justices
MY THREE SONS, LTD., MY THREE Moseley and Brown participating.
SONS MANAGEMENT, LLC,
PRESTONWOOD OB/GYN
ASSOCIATES, P.A., CHRISTOPHER
RIEGEL, MD, P.A., AND CHRISTOPHER
RIEGEL, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellees MY THREE SONS, LTD., MY THREE SONS
MANAGEMENT, LLC, PRESTONWOOD OB/GYN ASSOCIATES, P.A., CHRISTOPHER
RIEGEL, MD, P.A., AND CHRISTOPHER RIEGEL recover their costs of this appeal from
appellant TDINDUSTRIES, INC.
Judgment entered this 14th day of February, 2014.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
–10–