Toby Paul Couchman and Pro-Surv v. Elizabeth Cardona ( 2015 )

ACCEPTED
01-14-01000-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/10/2015 4:06:22 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-01000-CV
FILED IN
1st COURT OF APPEALS
In The HOUSTON, TEXAS
3/10/2015 4:06:22 PM
COURT OF APPEALS CHRISTOPHER A. PRINE
Clerk
FIRST DISTRICT OF TEXAS
Houston, Texas
TOBY PAUL COUCHMAN AND PRO-SURV,
Appellants,
v.
ELIZABETH CARDONA,
Appellee.
On Appeal from Case No. 2014-29414
In the 189th District Court of Harris County, Texas
Honorable William R. Burke, Presiding Judge
BRIEF FOR APPELLANT
Zandra E. Foley
State Bar No. 24032085
Andrew L. Johnson
State Bar No. 24060025
Kimberly R. Snagg
State Bar No. 24075099
One Riverway, Suite 1400
Houston, Texas 77056
T: (713) 403-8210 | F: (713) 403-8299
Email: zfoley@thompsoncoe.com
Email: ajohnson@thompsoncoe.com
Email: ksnagg@thompsoncoe.com
COUNSEL FOR APPELLANTS
ORAL ARGUMENT REQUESTED
I. IDENTITY OF PARTIES AND COUNSEL
In order to assist the Court in identifying grounds for recusal or
disqualification, Appellants provide the following list of the names and addresses
of the parties and their counsel:
APPELLANTS/DEFENDANTS: Toby Paul Couchman and Pro-Surv
COUNSEL FOR Zandra E. Foley
APPELLANTS/DEFENDANTS: Andrew L. Johnson
Kimberly Snagg
Thompson, Coe, Cousins & Irons, L.L.P.
One Riverway, Suite 1400
Houston, Texas 77056
APPELLEE/PLAINTIFF: Elizabeth Cardona
COUNSEL FOR Robert L. Collins
APPELLEE/PLAINTIFF: Audrey Guthrie
P.O. Box 7726
Houston, Texas 77270
Christopher D. Lewis
1721 West T.C. Jester Blvd.
Houston, Texas 77008
ii
II. TABLE OF CONTENTS
I.  IDENTITY OF PARTIES AND COUNSEL ................................................. ii
II.  TABLE OF CONTENTS .............................................................................. iii
III.  INDEX OF AUTHORITIES ........................................................................... v
IV.  STATEMENT OF THE CASE ................................................................... viii
V.  STATEMENT REGARDING ORAL ARGUMENT ....................................ix
VI.  ISSUES PRESENTED .................................................................................... x
VII.  STATEMENT OF FACTS .............................................................................. 1
A.  Cardona’s Petition in Cause No. 2014-29414 ....................................... 1
B.  Cardona’s Certificate of Merit in Cause No. 2014-29414 .................... 2
C.  Cardona’s First-Filed Petition Was in Cause No. 2014-12614............. 3
D.  Trial Court Denied Appellants’ Motion to Dismiss in Cause No.
2014-29414 ............................................................................................ 4
VIII.  SUMMARY OF ARGUMENT ....................................................................... 4
IX.  ARGUMENT ................................................................................................... 6
A.  Chapter 150 of the Civil Practice and Remedies Code ......................... 6
B.  Standard of Review for Motion to Dismiss Based on Section
150.002 .................................................................................................. 8
C.  Analysis ................................................................................................. 9
1.  Appellants’ Motion to Dismiss Must Be Granted Because
Cardona Failed to File a Certificate of Merit with Her
First-Filed Petition ...................................................................... 9
iii
a.  Cardona Circumvents the Purpose of Section
150.002 ........................................................................... 10
b.  This Court Should Adopt the Holding in
Bruington II .................................................................... 11
c.  This Court Should Not Adopt the Holding in
Envirobusiness ................................................................ 14
2.  Appellants’ Motion to Dismiss Must Be Granted Because
Cardona’s Certificate of Merit Does Not Satisfy the
Requirements of Section 150.002(b) ........................................ 18
X.  CONCLUSION.............................................................................................. 23
PRAYER .................................................................................................................. 24
CERTIFICATE OF SERVICE ................................................................................ 26
CERTIFICATE OF COMPLIANCE ....................................................................... 27
APPENDIX
1. Trial Court’s December 5, 2014 Order Denying Appellants’ Motion to
Dismiss
2. Tex. Civ. Prac. & Rem. Code Ann. § 150.002
3. Trial Court’s May 12, 2014 Order Granting Partial Nonsuit in Cause
No. 2014-12614
iv
III. INDEX OF AUTHORITIES
Cases
Ashkar Eng’g Corp. v. Gulf Chem. & Metallurgical Corp., 01-09-00855-
CV, 2010 WL 376076 (Tex. App.—Houston [1st Dist.] Feb. 4, 2010,
no pet.) .............................................................................................................8
Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Services, Inc.,
441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ............9
Bruington Eng’g Ltd. v. Pedernal Energy L.L.C. (Bruington I), 403 S.W.3d
523 (Tex. App.—San Antonio 2013, no pet.) .................. 8, 10, 11, 13, 16, 18
Bruington Eng’g Ltd. v. Pedernal Energy, LLC (Bruington II), ___
S.W.3d___, No. 04-13-00558, 2014 WL 4211024 (Tex. App.—San
Antonio, August 27, 2014, no pet. h.) ................................... ix, 11–13, 15, 23
Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804 (Tex. App.—Houston
[1st Dist.] 2011, no pet.) ..................................................................................8
CBM Engineers, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied) ...............................................19
Charles Durivage, P.E. v. La Alhambra Condo. Ass’n, 13-11-00324-CV,
2011 WL 6747384 (Tex. App.—Corpus Christi Dec. 21, 2011, pet.
dism’d) ...........................................................................................................20
Chavez v. McNeely, 287 S.W.3d 840 (Tex. App.—Houston [1st Dist.] 2009,
no pet.) ...........................................................................................................17
CHCA Woman’s Hosp., L.P. v. Lidji, 369 S.W.3d 488 (Tex. App.—Houston
[1st Dist.] 2012) .............................................................................................14
Chevron Corp. v. Redmon, 745 S.W.2d 314 (Tex. 1987)........................................10
Crosstex Energy Services, L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex.
2014) ........................................................................................................ ix, 18
CTL/Thompson Texas v. Starwood HOA, 390 S.W.3d 299 (2013) (per
curiam) ...........................................................................................................16
v
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ....................9
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) ........................9
Garza v. Carmona, 390 S.W.3d 391 (Tex. App.-Corpus Christi 2012, no
pet.) ......................................................................................................... 21, 22
Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853 (Tex. 1995) ..............................11
In re Bennett, 960 S.W.2d 35 (Tex. 1997) ...............................................................11
In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) ...........................................10
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014) ........................... ix, 19
Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex.
App.—Corpus Christi 2009, no pet.).............................................................18
Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) ..................................................17
Nangia v. Taylor, 338 S.W.3d 768 (Tex. App.—Beaumont 2011, no pet.) ............19
Packard Eng’g Assocs. v. Sally Group, L.L.C., 398 S.W.3d 389 (Tex.
App.—Beaumont 2013, no pet.)....................................................................22
Pakal Enterprises, Inc. v. Lesak Enterprises LLC, 369 S.W.3d 224 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied) .......................................... 7, 10
Pelco Const., Inc. v. Dannenbaum Eng’g Corp., 404 S.W.3d 48 (Tex.
App.—Houston [1st Dist.] 2013, no pet.) .............................. 7, 10, 13, 19, 21
Pro Plus, Inc. v. Crosstex Energy Services, L.P., 388 S.W.3d 689 (Tex.
App.—Houston [1st Dist.] 2012) ..................................................................20
TDIndustries, Inc. v. Rivera, 339 S.W.3d 749 (Tex. App.—Houston [1st
Dist.] 2011, no pet.) .............................................................................. 7, 9, 10
TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 05-13-01021-CV,
2014 WL 4724706 (Tex. App.—Dallas Sept. 24, 2014, pet. filed) .. ix, 14–17
Statutes
Tex. Civ. Prac. & Rem. Code § 150.002 ......................................................... passim
vi
Tex. Civ. Prac. & Rem. Code § 150.002(a) .................................................. 8, 12, 14
Tex. Civ. Prac. & Rem. Code § 150.002(b)..................................... 5, 18, 19, 21, 23
Tex. Civ. Prac. & Rem. Code § 74.351(b)...............................................................14
vii
IV. STATEMENT OF THE CASE
Nature of Elizabeth Cardona originally filed a suit against Toby Paul
the Case Couchman and Pro-Surv (“Appellants”) in Cause No. 2014-
12614, asserting claims based on Appellants’ provision of
land-surveying services. (CR 55–70). In response to
Appellants’ motion to dismiss for failure to serve a certificate
of merit, Cardona nonsuited her original petition. (CR 100–
101).
Subsequently, Cardona filed a new suit against Appellants
based on the same allegations as in her nonsuited petition, this
time including a certificate of merit. (CR 26–46).
Trial Court Cause No. 2014-29414 in the 189th Judicial District Court,
Harris County, Texas, the Honorable William Burke,
presiding.
Course of the After Cardona filed her new petition, Appellants again filed a
Proceedings motion to dismiss, arguing dismissal was required because
Cardona failed to comply with the certificate-of-merit
requirements of Chapter 150 of the Texas Civil Practice and
Remedies Code. (CR 47–54).
Trial Court’s After a non-evidentiary hearing, the trial court denied
Disposition Appellants’ motion to dismiss by order signed on December 5,
2014. (CR 138; see App’x Tab 1).
Appeal Appellants timely filed a notice of interlocutory appeal on
December 12, 2014, pursuant to Rule 26.1(b) of the Tex. R.
App. P. and section 150.002(f) of the Tex. Civ. Prac. & Rem.
Code. (CR 142).
viii
V. STATEMENT REGARDING ORAL ARGUMENT
This appeal involves a plaintiff’s ability to avoid the well-known certificate-
of-merit and dismissal requirements of Section 150.002 of the Texas Civil Practice
and Remedies Code simply by filing a non-suit. Recently, many courts have had
the opportunity to address Chapter 150. In 2014, the Supreme Court of Texas
issued two opinions interpreting the section 150.002 certificate-of-merit and
dismissal requirements. See Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex.
2014) (plurality op.); Crosstex Energy Services, L.P. v. Pro Plus, Inc., 430 S.W.3d
384 (Tex. 2014). Moreover, in 2014, the San Antonio and Dallas Courts of
Appeals disagreed on their interpretation of section 150.002. Compare Bruington
Eng’g Ltd. v. Pedernal Energy, LLC (Bruington II), ___ S.W.3d___, No. 04-13-
00558, 2014 WL 4211024 (Tex. App.—San Antonio, August 27, 2014, no pet. h.),
with TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 05-13-01021-CV, 2014
WL 4724706 (Tex. App.—Dallas Sept. 24, 2014, pet. filed). Accordingly,
Appellants believe oral argument would be beneficial to the Court so that the
recent caselaw regarding the Chapter 150 and how it applies in this case may be
thoroughly debated.
ix
VI. ISSUES PRESENTED
A. The trial court erred by denying Appellants Toby Paul Couchman and Pro-
Surv’s motion to dismiss because Appellee Elizabeth Cardona failed to
comply with the certificate-of-merit requirements of Chapter 150 of the
Texas Civil Practice and Remedies Code.
1. Cardona’s petition in Cause No. 2014-29414 is not her first-filed
petition and must be dismissed under Section 150.002 of the Texas Civil
Practice and Remedies Code because a certificate-of-merit was not filed
with her first-filed petition.
2. Cardona’s certificate of merit is insufficient because it does not set
forth specifically for each theory of recovery the negligence or other action,
error, or omission of Appellants in providing professional services, including
any error or omission in providing advice, judgment, opinion, or a similar
professional skill claimed to exist and the factual basis for each such claim.
x
VII. STATEMENT OF FACTS
A. Cardona’s Petition in Cause No. 2014-29414
In her petition in this case, Cause No. 2014-29414, Appellee Elizabeth
Cardona made the following allegations. CR 26–42. Cardona planned to purchase
a tract of land in Harris County, and her lender required her to obtain title
insurance. CR 27. The title insurer chose Appellant Pro-Surv to conduct a survey
needed to determine whether the tract was in a flood zone. CR 27–28. Appellant
Tony Paul Couchman was the registered professional land surveyor who signed the
surveying report generated by Pro-Surv on February 21, 2012. CR 28. In the
survey, Couchman allegedly indicated that the tract was not in a flood zone. CR
28. Cardona purportedly paid Appellants’ surveying fee and closed on the tract.
CR 28–29. Cardona claims she subsequently learned that Appellants had prepared
a separate survey in which Couchman indicated that the tract was in a flood zone.
CR 29. According to Cardona, based on this second survey, the City of Houston
denied her request for construction permits, preventing her from using the land as
she intended at closing. CR 29. Cardona sued Appellants, asserting claims for
breach of contract, negligence and gross negligence, fraud, violation of Insurance
Code chapter 541, and violation of the Deceptive Trade Practices Act (“DTPA”).
CR 29–33.
1
B. Cardona’s Certificate of Merit in Cause No. 2014-29414
Cardona attached “Registered Professional Land Surveyor Oscar
Hernandez’ Affidavit of Merit” to her petition in Cause No. 2014-29414. CR 40–
42. Hernandez stated that he reviewed two surveys purportedly issued by
Appellants, both of which were dated February 21, 2012. CR 40. Hernandez
noted that the difference between the surveys is that the first survey allegedly
provided to Cardona before she closed on the property stated the property does not
lie in a flood zone, whereas the second survey provided to Cardona after the
closing stated the property does lie in a flood zone. CR 40.
Hernandez recognized that both surveys appear to bear Couchman’s seal and
signature. CR 41. Hernandez opined that if the first survey did not reflect
Couchman’s opinion, it meant his seal and signature stamp were used without
permission. CR 41. If the first survey did reflect Couchman’s opinion, the
existence of the second survey meant Couchman changed his opinion and stamped
a new survey without informing Cardona of the revision, meaning Couchman and
Pro-Surv performed untimely since Cardona did not receive the second survey
until after closing. CR 41.
Hernandez expressed that reasonably safeguarding the stamp would have
prevented its unauthorized use. CR 41. Moreover, Hernandez stated that
“Adequate record-keeping to differentiate between work in progress and completed
2
surveys would also have been sufficient to prevent document ready for
transmission to those excepted to rely on it.” CR 41.
Hernandez provided that a registered professional land surveyor has a duty
to 1) “ensure that documents are not created that bear his signature and stamp
unless they reflect that considered opinion of the land surveyor in a surveying
matter,” and 2) “not to allow the circulation of documents that purport to reflect the
surveyor’s considered opinion on a surveying matter, but which do not.”
Hernandez conclusorily stated Appellants breached these duties because of “the
availability to [Cardona] of both [surveys].” CR 41. Hernandez expressed that
Cardona was entitled to and did believe that the first survey accurately reflected
Couchman’s opinion because his signature and stamp were on it. CR 41.
C. Cardona’s First-Filed Petition Was in Cause No. 2014-12614
Cardona’s petition and certificate of merit in Cause No. 2014-29414 was
initially filed in the 334th District Court of Harris County but was transferred to
the 189th District Court. CR 25. The basis for the transfer was Cardona had
previously brought the same allegations against Appellants on March 10, 2014 in
Cause No. 2014-12614 in the 189th District Court. CR 25, 55–70. Cardona did
not file a certificate of merit contemporaneously with her original petition in Cause
No. 2014-12614, which, as discussed in detail below, is a requisite to bring her
claims under Chapter 150 of the Texas Civil Practice & Remedies Code. On May
3
1, 2014, Appellants filed a motion to dismiss pursuant to Chapter 150 in Cause No.
2014-12614. CR 93–98. In response to the motion to dismiss, Cardona nonsuited
her claims against Appellants. CR 100–101. The trial court in Cause No. 2014-
12614 performed its ministerial duty of signing the order of nonsuit.1
D. Trial Court Denied Appellants’ Motion to Dismiss in Cause No. 2014-
29414
On July 10, 2014, Appellants filed a motion to dismiss Cardona’s new
petition in Cause No. 2014-29414, arguing Cardona failed to file a certificate of
merit with her first-filed petition and that her certificate of merit is deficient. CR
47–53. Cardona filed a response on August 11, 2014. CR 105–108. On August
15, 2014, the trial court conducted a non-evidentiary hearing on Appellants’
motion to dismiss. CR 110. Thereafter, the parties submitted post-hearing
briefing. CR 110–111, 112–113, 116, 117–118, 119–133. On December 5, 2014,
the trial court signed an order denying Appellants’ motion to dismiss. CR 138.
Appellants timely bring this interlocutory appeal. CR 142–143.
VIII. SUMMARY OF ARGUMENT
In an effort to curtail litigation abuse relative to licensed and registered
professionals, the Texas Legislature enacted Chapter 150 of Texas Civil Practice
1
Appellants request this Court to take judicial notice of the trial court’s order of nonsuit
in Cause No. 2014-12614, included in the Appendix at Tab 3 and on the Harris County District
Clerk’s website, Image No. 60802336.
4
and Remedies Code. Pertinent here is section 150.002, governing a plaintiff’s
requirement to file a certificate of merit with her first-filed petition. Appellants
first contend that Cardona failed to comply with the certificate-of-merit
requirement because her first-filed petition in Cause Number 2014-12614 was not
accompanied by a certificate of merit. Although Cardona filed a nonsuit of the
petition as to Appellants, and then filed a new petition with a certificate of merit
under a new cause number, the fact still remains that she did not file a certificate
contemporaneously with her first-filed petition and thus the trial court must grant
Appellant’s motion to dismiss. Appellant cannot circumvent the requirements of
section 150.002 simply by taking a nonsuit.
Second, even assuming Cardona properly filed her certificate of merit, the
substance of the certificate itself is insufficient to satisfy the requirements of
section 150.002(b). Cardona’s certificate of merit does not set forth specifically
for each theory of recovery the negligence or other action, error, or omission of
Appellants in providing their professional service, including any error or omission
in providing advice, judgment, opinion, or a similar professional skill claimed to
exist and the factual basis for each such claim. Accordingly, Cardona did not
comply with the statute and her claims must be dismissed.
5
IX. ARGUMENT
A. Chapter 150 of the Civil Practice and Remedies Code
Chapter 150 of the Civil Practice and Remedies Code governs specific
aspects of the liability of licensed or registered professionals. See Tex. Civ. Prac.
& Rem. Code Ann. §§ 150.001–150.004. Under the following relevant portions of
Section 150.002, a plaintiff suing a land surveyor must file with his original
petition the certificate of merit of a registered professional land surveyor setting
forth the bases for the plaintiff’s claims and damages.
(a) In any action or arbitration proceeding 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 who:
(1) is competent to testify;
(2) holds the same professional license or registration as the
defendant; and
(3) is knowledgeable in the area of practice of the defendant
and offers testimony based on the person’s:
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
(F) practice.
(b) The affidavit shall set forth specifically for each theory of
recovery for which damages are sought, the negligence, if any, or
other action, error, or omission of the licensed or registered
6
professional in providing the professional service, including any error
or omission in providing advice, judgment, opinion, or a similar
professional skill claimed to exist and the factual basis for each such
claim. The third-party licensed architect, licensed professional
engineer, registered landscape architect, or registered professional
land surveyor shall be licensed or registered in this state and actively
engaged in the practice of architecture, engineering, or surveying.
(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(a), (b), (e) (emphasis added).
This Court has recognized that, under section 150.002, “the certificate of
merit must be filed with the first-filed complaint asserting the relevant claim
against a professional” and that “[f]ailure to file a certificate of merit in such
instances requires dismissal of the complaint against the defendant.” Pelco
Const., Inc. v. Dannenbaum Eng’g Corp., 404 S.W.3d 48, 53 (Tex. App.—
Houston [1st Dist.] 2013, no pet.) (emphasis added) (citing Tex. Civ. Prac. & Rem.
Code 150.002(a), (e)); see also Pakal Enterprises, Inc. v. Lesak Enterprises LLC,
369 S.W.3d 224, 228 (Tex. App.—Houston [1st Dist.] 2011, pet. denied)
(“[S]ection 150.002 requires a plaintiff to file a certificate of merit with the first-
filed complaint asserting a negligence claim against a professional.”);
TDIndustries, Inc. v. Rivera, 339 S.W.3d 749, 753 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (“The plaintiff in such an action is required to file a particular kind
7
of affidavit, often referred to as a ‘certificate of merit,’ contemporaneously with
the complaint.”).
“The defendant’s right to a dismissal is triggered by the plaintiff’s failure to
file with the trial court a certificate of merit contemporaneously with the complaint
or petition.” Bruington Eng’g Ltd. v. Pedernal Energy L.L.C. (Bruington I), 403
S.W.3d 523, 531 (Tex. App.—San Antonio 2013, no pet.). “Nothing in Section
150.002 allows a plaintiff to cure a failure to timely comply.” Ashkar Eng'g
Corp. v. Gulf Chem. & Metallurgical Corp., 01-09-00855-CV, 2010 WL 376076,
at *3 (Tex. App.—Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.). “The
only exception to section 150.002(a)’s contemporaneous filing requirement [and
which does not apply in this case] is when the period of limitations will expire
within ten days of filing and there are time constraints.” Bruington I, 403 S.W.3d
at 531 (citing Tex. Civ. Prac. & Rem. Code § 150.002(c)). “By its plain language,
the statute permits no other exceptions.” Id.
B. Standard of Review for Motion to Dismiss Based on Section 150.002
An appellate court reviews the trial court’s ruling on a motion to dismiss for
an abuse of discretion. Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804, 808
(Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its discretion
when it acts arbitrarily or unreasonably, without reference to any guiding rules and
8
principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985).
To the extent we are required to interpret a statute, that aspect of our review
is performed de novo. See TDIndustries, 339 S.W.3d at 752. The Court must
enforce the statute “as written” and “refrain from rewriting text that lawmakers
chose.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009).
In interpreting statutes, our primary purpose is to give effect to the legislature’s
intent by relying on the plain meaning of the text adopted by the legislature, unless
a different meaning is supplied by statutory definition or is apparent from the
context, or the plain meaning leads to absurd results. Better Bus. Bureau of Metro.
Houston, Inc. v. John Moore Services, Inc., 441 S.W.3d 345, 353 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied).
C. Analysis
1. Appellants’ Motion to Dismiss Must Be Granted Because
Cardona Failed to File a Certificate of Merit with Her First-Filed
Petition
As set forth above, the undisputed procedural posture establishes that
Cardona (1) filed an original lawsuit without a certificate of merit (CR 55–70), (2)
nonsuited her original lawsuit in response to Appellants’ motion to dismiss before
the motion was considered (CR 100–101), and (3) subsequently filed a new lawsuit
with a certificate of merit (CR 26–42). At this point, application of section
9
150.002 requires one result—Cardona’s new petition must be dismissed because
Cardona did not file a certificate contemporaneously with her first-filed petition.
See Tex. Civ. Prac. & Rem. Code 150.002(a), (e); Pelco Const., 404 S.W.3d at 53;
Pakal Enterprises, 369 S.W.3d at 228; TDIndustries, 339 S.W.3d at 753.
a. Cardona Circumvents the Purpose of Section 150.002
Permitting Cardona to skirt the statutorily prescribed requirements of
Section 150.002 simply by filing a nonsuit followed by a new suit would eradicate
the purpose and intent of the statute. Courts must avoid statutory interpretations
that render portions of a particular statute meaningless or mere surplusage. See
Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987). Interpreting Section
150.002 to provide noncomplying plaintiffs with a means of wholly avoiding the
effects of the statute would render it meaningless. “[A] section 150.002(e) motion
to dismiss with prejudice is a claim for affirmative relief that survives nonsuit
because, otherwise, the nonsuit would defeat the purpose of deterring meritless
claims.” Bruington I, 403 S.W.3d at 527.
Moreover, the law loathes the use of nonsuit as an escape hatch to deprive
another party of his right to relief:
[T]he Texas Supreme Court looks with disfavor on nonsuits that are
filed to circumvent legal restrictions or unfavorable rulings. See, e.g.,
In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig.
proceeding) (holding that once a venue determination has been made,
that determination is conclusive as to those parties and claims, and
because venue is then fixed in any suit involving same parties and
10
claims, it cannot be overcome by a nonsuit and subsequent refiling in
another county); In re Bennett, 960 S.W.2d 35, 36 (Tex. 1997) (orig.
proceeding) (holding that neither filing of nonsuit nor subsequent
removal of case to federal court deprived state court of jurisdiction to
consider, sua sponte, whether sanctions should be imposed on
attorneys for pre-removal conduct when sanctions are unrelated to the
merits of the removed case); Hyundai Motor Co. v. Alvarado, 892
S.W.2d 853, 854–55 (Tex. 1995) (holding that once trial court
announces decision on motion for partial summary judgment, that
claim is no longer subject to plaintiff’s right to nonsuit)
Id. at 532. Statutory construction should further legislative intent, not stifle it, and
reading a loophole into the statute that renders the certificate-of-merit requirements
moot cannot be a fair surmising of legislative intent.
b. This Court Should Adopt the Holding in Bruington II
The San Antonio Court of Appeals recently issued an opinion with an
analogous procedural posture to that of the present case and which highlights the
Legislature’s purpose in enacting Section 150.002. See Bruington Eng’g Ltd. v.
Pedernal Energy, LLC (Bruington II), ___ S.W.3d___, No. 04-13-00558, 2014 WL
4211024 (Tex. App.—San Antonio, August 27, 2014, no pet. h.), denial of en banc
review, Jan. 28. 2015.2 In that case, (1) the plaintiff filed its original petition
without the required certificate of merit, (2) the defendant filed a motion to dismiss
under section 150.002(e), (3) the plaintiff nonsuited its claims without prejudice
against the defendant, and (4) the trial court signed an order of nonsuit without
2
Pedernal Energy, LLC’s petition for review to Supreme Court of Texas is presently due
March 16, 2015. http://www.search.txcourts.gov/Case.aspx?cn=15-0123&coa=cossup.
11
prejudice. Id. at *1–2. Later, the plaintiff filed an amended petition, once again
bringing the defendant into the suit and this time attaching a certificate of merit.
Id. at *2. The defendant filed a new motion to dismiss, which the trial court
denied. Id.
On the first interlocutory appeal, the court of appeals reversed and
remanded, directing the trial court to dismiss the case and determine whether the
dismissal should be with or without prejudice. Id. On remand, the trial court
dismissed the claims without prejudice. Id.
The defendant then filed a second interlocutory appeal, contending the trial
court abused its discretion by failing to dismiss with prejudice. Id. The court of
appeals noted, “Our primary focus on this appeal is to determine if the Legislature
intended a dismissal under subsection (e) be with prejudice or without prejudice
where a claimant failed to file an affidavit contemporaneously with the complaint.”
Id. at *5. The court of appeals panel unanimously agreed with the defendant,
holding that the only reasonable interpretation of section 150.002 is that dismissal
with prejudice is required when a plaintiff fails to serve a certificate of merit with
its first-filed petition:
We limit our analysis to whether “[t]his dismissal may be with
prejudice” is clear and unambiguous in the context of subsection (a).
A failure to file a section 150.002(a) affidavit contemporaneously
with the first-filed petition mandates dismissal with prejudice
pursuant to section 150.002(e). Yet, a “plaintiff who does not timely
file the certificate of merit should not be allowed to circumvent the
12
unfavorable ruling of a dismissal by nonsuiting and then filing an
amended complaint with the appropriate certificate.” Bruington I, 403
S.W.3d at 532. Unless the exception in subsection (c) applies,3 a
dismissal without prejudice under these circumstances would be
contrary to legislative intent.
We, therefore, hold that, as a matter of law, when a plaintiff fails to
file an affidavit contemporaneously with the first-filed complaint,
and the exception under section 150.002(c) does not apply, the
Legislature intended the complaint be dismissed with prejudice.
Based on our statutory construction, the trial court abused its
discretion in dismissing [the plaintiff’s] complaint without prejudice.
Id. at 12 (emphasis added).
Cardona argues that amending the petition following a nonsuit (what
occurred in Bruington II) is substantively different than filing a new petition under
a new cause number following a nonsuit (which is what Cardona did in the present
case). However, this distinction makes no difference—the bottom-line is whether
the plaintiff’s “first-filed complaint” contained the required certificate of merit.
See Pelco Const., 404 S.W.3d at 53. If not, section 150.002 has been violated and
requires dismissal regardless of what form or fashion a subsequent petition takes.
Admittedly, dismissal with prejudice for failing to attach a certificate of
merit with the first-filed petition is an exacting mandate. However, such is the
system envisioned by the Legislature to curtail abusive, unmeritorious claims.
3
Subsection (c) does not apply in the present case—it applies only when the statute of
limitations is set to expire within ten days of the first-filed complaint’s filing, and the plaintiff
alleged that it would be too difficult for her to procure a certificate of merit due to time
constraints. See Tex. Civ. Prac. & Rem. Code § 150.002(c). Cardona never made such an
allegation nor has she argued for the application of subsection (c).
13
This result is not surprising given the analogous result for not timely filing expert
reports under section 74.351. See Tex. Civ. Prac. & Rem. Code § 74.351(b)
(requiring trial court to dismiss plaintiff’s suit with prejudice if plaintiff fails to
timely serve expert report and to award attorney’s fees to defendant); see also
CHCA Woman’s Hosp., L.P. v. Lidji, 369 S.W.3d 488, 492 (Tex. App.—Houston
[1st Dist.] 2012). Moreover, section 150.002 has been enacted for over a decade,
and its certificate-of-merit requirement should not be a surprise for plaintiffs.
c. This Court Should Not Adopt the Holding in Envirobusiness
Appellants are cognizant of the Dallas Court of Appeals’ recent
determination that section 150.002(a)’s requirement that a certificate must be
contemporaneously filed with the first-filed petition means the first-filed petition
per lawsuit. TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 05-13-01021-
CV, 2014 WL 4724706, at *4–5 (Tex. App.—Dallas Sept. 24, 2014, pet. filed).4 In
that suit, the plaintiff filed a petition without a certificate of merit, the defendant
filed a motion to dismiss pursuant to section 150.002(e), and the trial court granted
the motion to dismiss without prejudice (which, as discussed below, is an
important distinction from the present situation in which the trial court never
ruled on Appellants’ first motion to dismiss due to Cardona’s nonsuit). Id. at *2.
4
Petitions for review to the Supreme Court of Texas have been filed in this case.
http://www.search.txcourts.gov/Case.aspx?cn=14-0916&coa=cossup.
14
The plaintiff filed a new suit in a different district court, this time with a certificate
of merit. Id. The defendant moved for the new suit to be consolidated with the
original suit (which remained pending against other defendants) and, once
consolidated, moved for the new petition to be dismissed because plaintiff failed to
attach a certificate with the original petition. Id. The trial court granted the
consolidation and dismissed the plaintiff’s claims with prejudice. Id.
The Dallas Court reversed the dismissal because the plaintiff filed a new suit
against the defendant. Id. at *4. In other words, the Dallas Court broadly held that
a plaintiff can avoid the effects of section 150.002 simply by filing a new suit:
“when a plaintiff files a new action and includes a certificate of merit with the first-
filed petition in that action, the plaintiff has complied with the plain language of
the statute.” Id. Appellants urge this Court to decline adoption of Envirobusiness.
First, Envirobusiness is distinguishable from the present case because, in
that case, the plaintiff filed a new suit after trial court actually granted the
defendant’s original motion to dismiss (without prejudice); hence the defendant
had already received the statutorily-required dismissal. Here, Cardona filed her
new suit after taking a nonsuit, and the trial court never ruled on Appellants’
original motion to dismiss because, like the defendant in Bruington II, Appellants
15
simply filed a new motion dismiss.5 Therefore unlike in Envirobusiness, the trial
court still has not complied with its ministerial duty to grant Appellants’ motion to
dismiss due to Cardona’s failure to file a certificate of merit with her first-filed
petition.
Second, the Envirobusiness court’s interpretation of section 150.002 is
illogical and leads to an absurd result. The court agrees that the statute precludes a
plaintiff from filing an amended petition with a certificate of merit to rectify her
failure to file a certificate with the first-filed petition. Id. at *4. However, the
court holds a plaintiff may file a petition in a new lawsuit with a certificate of merit
to rectify her failure to file a certificate with the first-filed petition. Id. But what is
the difference between filing an amended petition with a certificate of merit and
filing a new lawsuit with a certificate of merit that would support such an
interpretation? Courts should be disinclined to determine a statute provides such
an arbitrary procedural mechanism—particularly when, as here, the statutory
5
The Supreme Court has held that a motion to dismiss for failure to attach a certificate of
merit is a claim for affirmative relief that survives a nonsuit. CTL/Thompson Texas v. Starwood
HOA, 390 S.W.3d 299, 300–01 (2013) (per curiam). This is because a nonsuit does not provide
all the relief the defendant was entitled to seek, namely a dismissal with prejudice. Id. at 301.
Appellants’ motion to dismiss in Cause No. 2014-12614 included a request for a
dismissal with prejudice. CR 96. Moreover, the trial court’s exercise of its ministerial duty to
grant Cardona’s nonsuit did not grant or deny any relief sought by Appellants. See App’x Tab 3;
see also Bruington I, 403 S.W.3d at 528 (“Thus, it is clear the trial court was simply carrying out
the ministerial, non-discretionary act of granting Pedernal’s nonsuit.”). Hence, the trial court’s
ministerial duty in granting the nonsuit did not explicitly or implicitly rule on the merits of
Appellants’ motion to dismiss.
16
language does not dictate such a mechanism. See Molinet v. Kimbrell, 356 S.W.3d
407, 411 (Tex. 2011) (“It is the Legislature’s prerogative to enact statutes; it is the
judiciary’s responsibility to interpret those statutes according to the language the
Legislature used.”). “[H]ad the Legislature intended that [a plaintiff could avoid
the dismissal penalty by taking a nonsuit], it could have done so by using clear
statutory language, as it has done in other situations.” Chavez v. McNeely, 287
S.W.3d 840, 844 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
Third, and most importantly, the Envirobusiness court’s interpretation of
section 150.002 effectively abrogates the Legislature’s intent and purpose in
enacting a certificate-of-merit requirement. Moreover, the Envirobusiness
interpretation encourages plaintiffs who err by failing to include a certificate of
merit with their first-filed petition to take a nonsuit and file a new suit against the
professional defendant but continue prosecuting their current suit against the non-
professional defendants (as is exactly what happened in this suit). Surely the
Legislature did not intend for plaintiffs to split up their claims arising from the
same underlying facts, wasting time and judicial resources.
In sum, the most reasonable interpretation for giving effect to legislative
intent is the one advocated by Appellants: the trial court must grant a defendant’s
motion to dismiss if the plaintiff fails to attach a certificate of merit with her first-
filed petition regardless of how she chooses the rectify the omission, no exceptions
17
(other than the inapplicable statute-of-limitations exception provided by section
150.002(c)). See Bruington I, 403 S.W.3d at 531 (“By its plain language, the
statute permits no other exceptions [other than subsection (c)].”); see also Crosstex
Energy Services, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014)
(interpreting the good-cause prong of the near-limitations exception narrowly so
that it does not “swallow the narrow near-limitations exception and, quite likely,
the contemporaneous filing rule”).
Finally, if the Court determines not to render judgment of dismissal with
prejudice against Cardona (which is the result required under Bruington II), it is
clear the Court should at least reverse the trial court’s order denying Appellants’
motion to dismiss and remand the case for the trial court to determine whether to
dismiss the case with or without prejudice. See Landreth v. Las Brisas Council of
Co-Owners, Inc., 285 S.W.3d 492, 495 (Tex. App.—Corpus Christi 2009, no pet.)
(“Rather than allow for amendment [of the petition to include a certificate of
merit], the statute permits dismissal without prejudice.”).
2. Appellants’ Motion to Dismiss Must Be Granted Because
Cardona’s Certificate of Merit Does Not Satisfy the Requirements
of Section 150.002(b)
As stated above, a certificate of merit
shall set forth specifically for each theory of recovery for which
damages are sought, the negligence, if any, or other action, error, or
omission of the licensed or registered professional in providing the
professional service, including any error or omission in providing
18
advice, judgment, opinion, or a similar professional skill claimed to
exist and the factual basis for each such claim.
Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b) (emphasis added).
The purpose of the certificate of merit is to provide a basis for the trial court
to conclude that the plaintiff’s claims are not frivolous. CBM Engineers, Inc. v.
Tellepsen Builders, L.P., 403 S.W.3d 339, 345 (Tex. App.—Houston [1st Dist.]
2013, pet. denied). The Supreme Court of Texas has recognized that “subsection
(b) requires the certificate to state the factual basis for each legal theory or ‘claim’
asserted in that action.” Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 567 (Tex.
2014). If a claim arose from a defendant’s “provision of professional services,” the
claim must be supported in a certificate of merit Pelco Const., 404 S.W.3d at 54–
55. Thus, Hernandez’s certificate of merit must contain specific statements for
each of Cardona’s claims regarding Appellants’ purported act or omission and the
factual basis for the claim. See CBM Engineers, 403 S.W.3d at 345; Nangia v.
Taylor, 338 S.W.3d 768, 772–73 (Tex. App.—Beaumont 2011, no pet.) (“The
focus of the certificate of merit is on the alleged error or omission and the facts that
support the claim.”).
Cardona brings claims against Appellants for breach of contract, negligence
and gross negligence, fraud, violation of Insurance Code chapter 541, and violation
of the DTPA. CR 29. In their motion to dismiss, Appellants argued that
Hernandez’s certificate of merit did not set forth specifically for each claim
19
Appellants’ negligence, error, act, or omission or the factual basis for the claim.
CR 51–52.
In her negligence claim, Cardona alleges Appellants breached their duty to
act with ordinary care in stamping and delivering the wrong survey to Cardona.
CR 30. Although Appellants fully contest and deny Cardona’s negligence claim,
they admit that Hernandez’s certificate is sufficient relative to this claim.
However, the certificate of merit does not provide any errors, acts, or omissions, or
a factual basis supporting a claim for gross negligence based on Appellants’
alleged reckless disregard of Cardona’s rights. See Charles Durivage, P.E. v. La
Alhambra Condo. Ass’n, 13-11-00324-CV, 2011 WL 6747384, at *4 (Tex. App.—
Corpus Christi Dec. 21, 2011, pet. dism’d) (“Frantz’s affidavit does not state any
factual basis for La Alhambra’s gross negligence cause of action.”).
Hernandez’s assertions do not provide any factual basis for a breach-of-
contract claim because Hernandez does not mention the existence, let alone his
review, of any contract. See id. at *4 (“Nor does the affidavit provide any factual
basis for La Alhambra's breach of contract claim, because it does not state any
facts regarding the existence or breach of any contract.”); see also Pro Plus, Inc. v.
Crosstex Energy Services, L.P., 388 S.W.3d 689, 706 (Tex. App.—Houston [1st
Dist.] 2012), aff’d, 430 S.W.3d 384 (Tex. 2014) (holding certificate-of-merit
requirements apply to breach-of-contract claim).
20
Likewise, Hernandez’s statements provide no factual basis for Cardona’s
fraud claim. This Court has held that section 150.002(b) requires a plaintiff to
provide a certificate of merit supporting its fraud claim when the claim arises “out
of the provision of professional services.” Pelco Const., 404 S.W.3d at 55.
Hernandez opines that Couchman breached duties by not properly protecting
his seal and signature stamp, by not having adequate record-keeping measures in
place to prevent draft reports from being distributed, and by not timely informing
Cardona of the second survey. Hernandez does not explain or even intimate that
any of these alleged facts or breaches form the basis of a fraud claim. See Garza v.
Carmona, 390 S.W.3d 391, 397 (Tex. App.—Corpus Christi 2012, no pet.)
(“Myers’s [certificate of merit] does not identify or otherwise discuss the
Carmonas’ claims for common-law fraud, negligent misrepresentation, or breach
of contract.”).
Furthermore, as regards Pro-Surv, Hernandez states that, if the first survey
“did not reflect Couchman’s opinion or Couchman did not approve Pro-Surv’s
transmission of [the first survey], then Pro-Surv acted with reckless disregard for
the truth or falsity of the representation made in [the first survey] regarding
Couchman’s opinion as a licensed Texas land surveyor.” CR 41. This appears to
be an assertion that Pro-Surv erred by distributing Couchman’s survey without first
checking with Couchman. Such statement has nothing to do with Couchman’s
21
actions, and clearly does not set forth specifically Pro-Surv’s alleged fraudulent
actions and a supporting factual basis. See Packard Eng’g Assocs. v. Sally Group,
L.L.C., 398 S.W.3d 389, 395 (Tex. App.—Beaumont 2013, no pet.) (holding
certificate-of-merit insufficient as to fraud claim because it “does not identify or
otherwise discuss any knowingly false or recklessly-made representations by
Packard upon which Packard intended appellees to rely to their detriment.”).
Finally, Hernandez’s assertions do not provide any factual basis for a claims
under the DTPA or Texas Insurance Code Chapter 541. See Garza, 390 S.W.3d at
397 (“Myers’s [certificate of merit] does not mention or in any way discuss the
Carmonas’ DTPA theory of recovery.”). Cardona’s DTPA claim is based on
Appellants’ alleged breach of warranty, unconscionable mishandling of the first
and second reports, and misrepresentations aimed at causing Cardona to purchase
the property. CR 32–33. Hernandez does not specifically address any of these
theories of recovery in his certificate of merit.
Further, Cardona’s Chapter 541 claim is apparently based on an assertion
that Appellants made misrepresentations to cause the wholly unrelated third-party
title company to issue an insurance policy. CR 32.6 Clearly, nothing in
6
Cardona did not explain or infer in her petition what section of Chapter 541 Appellants
purportedly violated. CR 32.
22
Hernandez’s report sets forth an act or omission or the factual basis for such a
claim.
In short, Cardona was required to specifically set forth for each theory of
recovery Appellants’ bad acts and the supporting factual basis. Tex. Civ. Prac. &
Rem. Code Ann. § 150.002(b). Instead Cardona provided a certificate of merit that
does not differentiate at all between theories of recovery or provide specific factual
bases for the theories. If Hernandez’s broad statements that do not attempt to
address Cardona’s claims specifically are sufficient to meet the requirements of
section 150.002(b), then what is the purpose to the statute? The certificate of merit
was supposed to provide the trial court with some indicia that Cardona’s claims
have merit, not a mere recasting of allegations by Hernandez. Hence, Cardona’s
certificate is insufficient to satisfy the statutory requirements.
X. CONCLUSION
Appellee Elizabeth Cardona may not circumvent the intent and purpose of
section 150.002’s certificate-of-merit and dismissal requirements by nonsuiting her
first-filed petition and filing a new lawsuit. The trial court erred by denying
Appellants’ motion to dismiss. This Court should apply the holding in Bruington II
by reversing the trial court’s order and rendering judgment dismissing with
prejudice all of Cardona’s claims. Alternatively, the trial court should reverse the
23
trial court’s order and remand the case for the trial court to determine whether to
dismiss with or without prejudice.
Moreover, even if the Court concludes section 150.002 allowed Cardona to
avoid the dismissal requirements by taking a nonsuit, the Court should still reverse
the trial court’s order as to Cardona’s claims for gross negligence, breach of
contract, fraud, and violation of the DTPA and Insurance Code because Hernandez’s
certificate of merit is deficient. The Court should then render judgment dismissing
these claims with prejudice or, alternatively, remanding for the trial court to
determine whether to dismiss the claims with or without prejudice.
PRAYER
Appellants Toby Paul Couchman and Pro-Surv pray that the Court reverse the
trial court’s interlocutory order denying their motion to dismiss pursuant to section
150.002 of the Texas Civil Practice and Remedies Code and render judgment
dismissing Appellee Elizabeth Cardona’s entire lawsuit with prejudice.
Alternatively, the Court should reverse the trial court’s order as to those claims which
are not supported by the certificate of merit pursuant to 150.002(b) and dismiss these
claims with prejudice. Alternatively, this Court should reverse the trial court’s order
and remand the case for the trial court to determine whether to dismiss Cardona’s
claims with or without prejudice. Finally, the Court should award Appellants any
other relief to which they may be entitled in law or equity.
24
Respectfully submitted,
By: /s/ Andrew L. Johnson______
Zandra E. Foley
State Bar No. 24032085
Andrew L. Johnson
State Bar No. 24060025
Kimberly R. Snagg
State Bar No. 24075099
One Riverway, Suite 1400
Houston, Texas 77056
T: (713) 403-8210 | F: (713) 403-8299
Email: zfoley@thompsoncoe.com
Email: ajohnson@thompsoncoe.com
Email: ksnagg@thompsoncoe.com
Counsel for Appellants Toby Paul
Couchman and Pro-Surv
25
CERTIFICATE OF SERVICE
I hereby certify that on March 10, 2015, a true and correct copy of the
foregoing document was served pursuant to the Rules to:
Robert L. Collins
Audrey Guthrie
P.O. Box 7726
Houston, Texas 77270-7726
Telephone: (713) 467-8884
Facsimile: (713) 467-8883
Christopher D. Lewis
1721 West T.C. Jester Blvd.
Houston, Texas 77008
Telephone: (713) 553-4104
Counsel for Appellee Cardona
/s/ Andrew L. Johnson_____________
Andrew L. Johnson
26
CERTIFICATE OF COMPLIANCE
I certify that this Brief contains 5,818 words, not including the parts
excluded by Tex. R. App. P. 9.4(i)(1). Accordingly, it complies with Rule
9.4(i)(2)(B).
/s/ Andrew L. Johnson_____________
Andrew L. Johnson
27
CAUSE NO. 2014-29414
EIZABETH CARDONA, § IN THE DISTRICT COURT OF
Plaintiff §
§
vs. §
§ HARRIS COUNTY, T E X AS
TOBY PAUL COUCHMAN and §
PRO-SURV, an unincorporated §
association, §
Defendants. § 18910 JUDICIAL DISTRICT
ORDER DENYING MOTION TO DISMISS
ON the 15tl! day of August, 2014, came to be heard Defendants' Molton to Dtsmtss, and
upon constderat!On of the matenals on file, the authon!Ies, and the arguments of counsel, the
Court finds that such Motion should be and hereby tS DENIED .
.5: ``
Signedthis_~d.yoU "'~u_~ '
Hon. Bill Burke
APPROVED AND ENTRY REQUESTED: 11, I LED
Chris Daniel
District Clerk
DEC 5 -"C> 14
Robert .L Collins
Texas Bar No .. 046181100
Audrey Guthrie
Texas BarNo. 24083116
P.O Box 7726
Houston, Texas 77270
(713) 467-8884
(713) 467-8883 Facsimile
Christopher D LeWJs
SBOT No. 24032546
1721 West T.C Jester Blvd.
Houston, Texas 77008
Telephone (713) 553-4104
5
138
APPENDIX 1
§ 150.002. Certificate of Merit, TX CIV PRAC & REM§ 150.002
!Vernon's Texas Statutesand Codes Annotated .. ·. . . ..
ICivil Practice and Remedies Code(Refs &Annas) · · · · ·· · · .· ·· ·. .
!Title 6. Miscellaneous Provisions · ··· · · ..
IChapter150. Licensed or Registered Professionals (Refs & Annas) • . .. .. ..
V.T.C.A., Civil Practice & Remedies Code§ 150.002
§ 150.002. Certificate of Merit
Effective: September 1, 2009
Currentness
(a) In any action or arbitration proceeding 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 who:
(I) is competent to testifY;
(2) holds the same professional license or registration as the defendant; and
(3) is knowledgeable in the area of practice ofthe defendant and offers testimony based on the person's:
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
·•·. ··•.•L•••,,Next © 2015 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX 2
§ 150.002. Certificate of Merit, TX CIV PRAC & REM§ 150.002
(F) practice.
(b) The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any,
or other action, error, or omission of the licensed or registered professional in providing the professional service, including
any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual
basis for each such claim. The third-party licensed architec~ licensed professional engineer, registered landscape architec~ or
registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of
architecture, engineering, or surveying.
(c) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation
will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit
of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional
land surveyor could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to
supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such
time as it shall determine justice requires.
(d) The defendaut shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such
affidavit.
(e) The plaintiffs 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.
(f) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.
(g) This statute shall not be construed to extend any applicable period oflimitation or repose.
(h) This statute does not apply to any suit or action for the payment of fees arising out of the provision of professional
services.
Credits
Added by Acts 2003, 78th Leg., ch. 204, § 20.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 189, § 2, elf. May
27, 2005; Acts 2005, 79th Leg., ch. 208, § 2, eff. Sept. 1, 2005; Acts 2009, 8lst Leg., ch. 789, § 2, eff. Sept. 1, 2009.
Notes of Decisions (185)
·i,:,. :fc .,,,N