Charles Durivage, P. E. v. La Alhambra Condominium Association ( 2011 )

NUMBER
13-11-00324-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHARLES DURIVAGE, P.E., Appellant,
v.
LA ALHAMBRA CONDOMINIUM
ASSOCIATION, Appellee.
On appeal from the 357th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Justice Garza
In this interlocutory appeal, appellant Charles Durivage, P.E. challenges the trial
court‘s denial of his motion to dismiss the claims brought by appellee, La Alhambra
Condominium Association (―La Alhambra‖). By three issues, Durivage argues that the
trial court abused its discretion by concluding that the affidavit filed by La Alhambra was
sufficient to serve as a certificate of merit for purposes of section 150.002 of the civil
practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (West
2011). We affirm in part and reverse and remand in part.
I. BACKGROUND
In 2005, La Alhambra hired Durivage, a professional engineer, to inspect the roof
of a condominium building it was developing in Brownsville, Texas. Durivage certified
that the roof complied with applicable roofing windstorm standards. In July 2008,
Hurricane Dolly caused damage to the building. La Alhambra subsequently sued
Durivage for negligence, gross negligence, and breach of contract, alleging that he
failed to properly inspect and certify the roof.1
La Alhambra‘s second amended original petition, filed on November 1, 2010,
included an affidavit executed by Richard T. Frantz, a professional engineer. The
affidavit stated, in its entirety, as follows:
My name is Richard T. Frantz, P.E. I am of sound mind, over the age of
eighteen (18) and am competent in all respects to make this Certificate of
Merit and testify.
I hold the same professional license or registration as the defendant and
am knowledgeable in the area of practice of the defendant. I offer
testimony based on my knowledge, skill, experience, education, training,
and practice. My curriculum vitae is attached as a part of this certification
of merit.[2]
I am licensed and registered in the State of Texas and am actively
engaged in the practice of engineering.
1
La Alhambra‘s original petition named only its insurer, Texas Windstorm Insurance Association
(―TWIA‖), as a defendant. La Alhambra‘s second amended petition named Durivage as well as TWIA and
the builder of the condominiums, Hispania Development Company (―Hispania‖), as defendants. Neither
TWIA or Hispania are parties to this appeal.
2
Frantz‘s curriculum vitae does not appear in the record before this Court. However, a
curriculum vitae is not required under the relevant statute. See TEX. CIV. PRAC. & REM. CODE ANN. §
150.002 (West 2011).
2
I am familiar with the standard of care in the practice of engineering.
Charles M. Durivage, P.E. failed to exercise reasonable care and diligence
and committed errors while he was in responsible charge of inspecting
and certifying the roofing installation in Building B (Units 3 & 4) in 2004,
Building C (Units 5 & 6) in 2005 and Building A (Units 1 & 2), Building D
(Units 7, 8 & 9), and Building G (Unit 16) in 2006 of the La Alhambra
condominiums property located at 2200 Laredo Road, Brownsville, Texas.
Specifically, Charles M. Durivage, P.E. failed to ensure the roofing
installation in 2004 and 2005 conformed to the International Building Code
(IBC) or the International Residential Code (IRC). Charles M. Durivage,
P.E. did not ensure the roof installation complied with the IBC or IRC, and
Texas Department of Insurance certificate. The new tile roof on the units,
as installed, was insufficient to withstand code[-]specified wind speed
requirements.
Durivage moved to dismiss La Alhambra‘s suit on the basis that the affidavit did
not meet the requirements for a certificate of merit as set forth in chapter 150 of the civil
practice and remedies code. See id. After a hearing, the trial court denied the motion.
This interlocutory appeal followed. See id. § 150.002(f) (authorizing immediate appeal
of interlocutory order denying motion to dismiss for failure to file certificate of merit).
II. DISCUSSION
A. Applicable Law and Standard of Review
Section 150.002 of the civil practice and remedies code states:
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 . . . .
Id. § 150.002(a).3 The affiant must (1) be competent to testify, (2) hold the same
professional license or registration as the defendant, and (3) be knowledgeable in the
area of practice of the defendant and offer testimony based on the person‘s knowledge,
3
This opinion uses the current version of the statute as amended by the Legislature in 2009.
Though La Alhambra‘s cause of action arguably accrued as early as 2005, the 2009 amendments apply
to any ―action filed or commenced on or after [September 1, 2009],‖ such as La Alhambra‘s. Act of June
19, 2009, 81st Leg., R.S., ch. 789, § 3, 2009 TEX. SESS. LAW SERV. 1989, 1990 (West).
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skill, experience, education, training, and practice. Id. The affiant must also be licensed
or registered in Texas and be ―actively engaged‖ in his practice. Id.
To qualify as a certificate of merit under the statute, the affidavit must
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.
Id. § 150.002(b). If a plaintiff fails to file an affidavit in accordance with these
requirements, the trial court must dismiss the complaint. Id. § 150.002(e).
We review a trial court‘s ruling on a motion to dismiss under section 150.002 for
an abuse of discretion. Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex. App.—Houston
[14th Dist.] 2010, no pet.). A trial court abuses its discretion if it fails to analyze or apply
the law correctly. Id. To the extent the issues presented require us to construe the
statute, we essentially conduct a de novo review. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (―A trial court has no ‗discretion‘ in determining what the law is or in
applying the law to the facts.‖).
B. Analysis
Durivage first contends that Frantz‘s affidavit does not comply with section
150.002 because it contains conclusory statements. An expert‘s opinion is conclusory if
it ―state[s] a conclusion without any explanation‖ or ―express[es] a factual inference
without stating the underlying facts on which the inference is based.‖ Arkoma Basin
Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389, 390 n.32 (Tex.
2008). Conclusory statements in expert affidavits have been considered insufficient to
raise a question of fact at the summary judgment stage, see McIntyre v. Ramirez, 109
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S.W.3d 741, 749 (Tex. 2003), and will be legally insufficient to support a trial verdict,
see Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 229 (Tex.
2004). However, Durivage directs us to no authority, and we find none, establishing
that a certificate of merit must fail if its statements are conclusory, or even that it must
comply with rules of evidence. See Benchmark Eng’g Corp. v. Sam Houston Race
Park, 316 S.W.3d 41, 47 (Tex. App.—Houston [14th Dist.] 2010, pet. granted, judgm‘t
vacated w.r.m.) (―[T]he legislature did not include a requirement that statements in a
certificate of merit must be competent as evidence when the affiant provides the ‗factual
basis‘ for claims.‖).
Durivage next argues that the affidavit fails because it does not ―show‖ that
Frantz possesses the requisite qualifications. In Landreth v. Las Brisas Council of Co-
Owners, Inc., 285 S.W.3d 492, 499 (Tex. App.—Corpus Christi 2009, no pet.), we held
that a certificate of merit failed under the 2005 version of the statute because it did not
state or show that the affiant was practicing in the same area as the defendant. In
comparison, Frantz‘s affidavit explicitly stated, under oath, that he possessed the
requisite qualifications. Though Frantz‘s statements regarding his qualifications are
indeed conclusory, no further or more detailed proof of Frantz‘s credentials was
required.
Finally, Durivage argues that Frantz‘s affidavit fails because it ―provides no
factual basis‖ for La Alhambra‘s three causes of action. ―Factual basis‖ is not defined in
the statute, but courts have held 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.‖ Criterium-
Farrell Eng’rs v. Owens, 248 S.W.3d 395, 400 (Tex. App.—Beaumont 2008, no pet.);
see Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-10-
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00805-CV, 2011 Tex. App. LEXIS 3063, at *4 (Tex. App.—Austin Apr. 20, 2011, pet.
denied) (mem. op.). Our evaluation of whether a ―factual basis‖ has been established
should be performed with this purpose in mind. See TEX. GOV‘T CODE ANN. § 312.005
(West 2005) (―In interpreting a statute, a court shall diligently attempt to ascertain
legislative intent and shall consider at all times the old law, the evil, and the remedy.‖).
Frantz stated in his affidavit that Durivage breached the applicable standard of
care by certifying the roof as code-compliant even though it ―was insufficient to
withstand code[-]specified wind speed requirements.‖ Though Durivage suggests that
Frantz was obligated to state precisely how the roof was insufficient and to specify
which code provisions it violated, the statute does not explicitly require such details.
See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b). The requirement to show a
―factual basis‖ is less onerous than that imposed on, for example, health care liability
plaintiffs. Compare id. (requiring affidavit establishing ―factual basis‖ for each claim)
with id. § 74.351(r)(6) (West 2011) (requiring plaintiff in a suit against a health care
provider to serve an expert report ―that provides a fair summary of the expert‘s opinions
as of the date of the report regarding applicable standards of care, the manner in which
the care rendered by the physician or health care provider failed to meet the standards,
and the causal relationship between that failure and the injury, harm, or damages
claimed‖). Frantz‘s affidavit explains that Frantz is familiar with the applicable standard
of care and how Durivage allegedly breached that standard. See, e.g., IHS Cedars
Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) (―The
elements of a negligence cause of action are the existence of a legal duty, a breach of
that duty, and damages proximately caused by the breach.‖); see also Criterium-Farrell
Eng’rs, 248 S.W.3d at 400 (holding that, with respect to negligence claims, ―the
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certificate of merit must necessarily address the applicable standard of care and the
defendant‘s failure to meet the standard‖). The affidavit therefore provides a sufficient
―factual basis‖ for La Alhambra‘s negligence claim because it gives the trial court a
basis to conclude that the claim has merit. See Criterium-Farrell Eng’rs, 248 S.W.3d at
400.
However, unlike the 2005 version of the statute, the current version of the statute
—the one applicable to La Alhambra‘s suit—requires that the affiant set forth a factual
basis for ―each theory of recovery for which damages are sought.‖ Id. § 150.002(b)
(emphasis added); see Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 TEX.
SESS. LAW SERV. 369, 370 (West) (requiring that affidavit ―set forth specifically at least
one negligent act, error, or omission claimed to exist and the factual basis for each such
claim‖ (emphasis added)). Frantz‘s affidavit does not state any factual basis for La
Alhambra‘s gross negligence cause of action. See, e.g., Columbia Med. Ctr. of Las
Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008) (―Two elements comprise
gross negligence. First, viewed objectively from the actor‘s standpoint, the act or
omission complained of must depart from the ordinary standard of care to such an
extent that it creates an extreme degree of risk of harming others. . . . Second, the
actor must have actual, subjective awareness of the risk involved and choose to
proceed in conscious indifference to the rights, safety, or welfare of others.‖). 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. 4
4
We note that the 2009 amendments to section 150.002 altered the statute so that it now clearly
applies to causes of action other than negligence. Compare TEX. CIV. PRAC. & REM. CODE ANN. § 150.002
(―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 . . . .‖ (emphasis added)) with Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2,
7
See, e.g., Sauceda v. GMAC Mortgage Corp., 268 S.W.3d 135, 140 (Tex. App.—
Corpus Christi 2008, no pet.) (―The elements of a breach of contract action are: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff;
(3) breach by the defendant; and (4) damages sustained by the plaintiff as a result of
the breach.‖). The affidavit fails to state a ―factual basis‖ for those claims because it
does not give the trial court a basis to conclude that the claims have merit. See
Criterium-Farrell Eng’rs, 248 S.W.3d at 400. Because the affidavit is deficient as to
those claims, the trial court was without discretion to deny Durivage‘s motion to dismiss
those claims.
III. CONCLUSION
We reverse that portion of the trial court‘s judgment denying Durivage‘s motion to
dismiss the gross negligence and breach of contract claims brought by La Alhambra,
and we remand for determination of whether the dismissal of those claims shall be with
or without prejudice. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e) (stating that
dismissal for failure to file a certificate of merit in accordance with the statute ―may be
with prejudice‖). The remainder of the trial court‘s judgment is affirmed.
________________________
DORI CONTRERAS GARZA
Justice
Delivered and filed the
21st day of December, 2011.
2005 TEX. SESS. LAW SERV. 369, 370 (West) (requiring that affidavit ―set forth specifically at least one
negligent act, error, or omission claimed to exist and the factual basis for each such claim‖ (emphasis
added)). Accordingly, the certificate of merit requirement of section 150.002 applies to La Alhambra‘s
gross negligence and breach of contract claims.
8