Toby Paul Couchman and Pro-Surv v. Elizabeth Cardona , 2015 Tex. App. LEXIS 7634 ( 2015 )

Opinion issued July 23, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-01000-CV
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TOBY PAUL COUCHMAN AND PRO-SURV, Appellants
V.
ELIZABETH CARDONA, Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2014-29414
OPINION
Appellee, Elizabeth Cardona, filed suit against appellants, Toby Paul
Couchman and Pro-Surv, for damages based on an allegedly incorrect land survey.
Couchman and Pro-Surv filed a motion to dismiss based on Cardona’s failure to
file a certificate of merit with her petition. Cardona nonsuited her claims against
Couchman and Pro-Surv and later filed the underlying suit based on the same
underlying injury. Couchman and Pro-Surv filed a motion to dismiss, which the
trial court denied. In two issues, Couchman and Pro-Surv argue the trial court
abused its discretion by denying their motion to dismiss because (1) Cardona’s
failure to file a certificate of merit in the earlier case controlled the outcome of the
current suit and (2) the certificate of merit was insufficient.
We affirm.
Background
In early 2012, Cardona sought to buy certain property in Houston, Texas.
To obtain a loan, Cardona had to obtain title insurance. To obtain title insurance,
Cardona had to have a survey of the land performed. Pro-Surv provided a survey
performed by Couchman before closing. That survey indicated the property was
not in a flood plain.
Some time after she purchased the property, Cardona learned that Couchman
and Pro-Surv produced a second survey of the same property, indicating that the
property was, in fact, in a flood plain. Because the property was in a flood plain,
the City of Houston denied her permits for the construction planned for the
property.
On June 26, 2014, Cardona filed suit against Couchman and Pro-Surv,
asserting claims for breach of contract, negligence, gross negligence, fraud, and
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violations of the Insurance Code and the Deceptive Trade Practices Act.
Couchman and Pro-Surv filed a motion to dismiss the suit due to Cardona’s failure
to file a certificate of merit pursuant to section 150.002 of the Texas Civil Practice
and Remedies Code.1 Couchman and Pro-Surv set a hearing on the motion for
May 9, 2014. On May 8, Cardona filed a notice of nonsuit. Four days later, the
trial court signed an order of non-suit, dismissing without prejudice all claims filed
against Couchman and Pro-Surv.
The next month, Cardona again filed suit against Couchman and Pro-Surv,
alleging the same causes of action based on the same underlying facts. This time,
Cardona included a certificate of merit with her petition. The certificate identifies
the two land surveys in question. It recognizes that both surveys contained
Couchman’s registered stamp and Pro-Surv’s copyright mark. It also recognizes
that the City of Houston denied Cardona’s zoning permits due to the indication in
the latter survey that the property was in a flood zone.
For the first survey, the certificate concludes that, if it did not reflect
Couchman’s opinion, then Couchman did not exercise reasonable control over his
seal and that Pro-Surv acted with reckless disregard for the truth in delivering it.
For the second survey, the certificate concludes that, by not delivering it until after
closing, Couchman and Pro-Surv’s performance was untimely. The certificate
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (Vernon 2011).
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asserted that Couchman and Pro-Surv “expected their consumer to rely on the
documents available at the transaction’s closing to represent the true opinion of the
surveyor whose name appears on the survey report.” The certificate also critiqued
the adequacy of Couchman and Pro-Surv’s “record-keeping to differentiate
between work in progress and completed surveys.” It asserts that a registered
professional land surveyor has a duty to ensure that documents do not bear his
signature and stamp unless they reflect his considered opinion and a duty not to
allow circulation of documents that purport to contain his considered opinion but
do not. The certificate concludes that Couchman and Pro-Surv breached these
duties.
Couchman and Pro-Surv filed a motion to dismiss. In it, they argued that
Cardona was required to file a certificate of merit with her “first-filed” petition,
that the first-filed petition was the petition in the first suit, and that, because
Cardona did not file a certificate of merit with the petition in the first suit, the trial
court was required to dismiss Cardona’s claim in the current suit. They also
argued that the certificate of merit was deficient. The trial court denied the motion
to dismiss.
Standard of Review & Applicable Law
An order granting or denying a motion to dismiss for failure to file a
certificate of merit is immediately appealable. See TEX. CIV. PRAC. & REM. CODE
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ANN. § 150.002(f) (Vernon 2011). We review a trial court’s order denying a
motion to dismiss for 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 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, Inc. v. Rivera, 339 S.W.3d 749, 752
(Tex. App.—Houston [1st Dist.] 2011, no pet.). “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. Hou., Inc. v. John
Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied) (citing Tex. Lottery Com’n v. First State Bank of DeQueen, 325
S.W.3d 628, 635 (Tex. 2010)). We presume that the legislature chooses a statute’s
language with care, including each word chosen for a purpose, while purposefully
omitting words not chosen. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d
432, 439 (Tex. 2011). We apply the plain meaning of the words of the statute as
written “unless a different meaning is apparent from the context or the plain
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meaning leads to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d
407, 411 (Tex. 2011).
“First-Filed” Petition
In their first issue, Couchman and Pro-Surv argue that the trial court abused
its discretion by denying their motion to dismiss in the underlying suit because
Cardona did not file a certificate of merit with the petition in the earlier suit. A
plaintiff is required to file a certificate of merit along with her original petition
“[i]n any action . . . for damages arising out of the provision of professional
services by a licensed or registered professional.” CIV. PRAC. & REM.
§ 150.002(a). A “licensed or registered professional” includes a “registered
professional land surveyor . . . or any firm in which such licensed or registered
professional practices.” TEX. CIV. PRAC. & REM. CODE ANN. § 150.001(1-a)
(Vernon Supp. 2014). Subject to an exception not applicable in this case,2 “[t]he
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.” CIV. PRAC. & REM. § 150.002(e).
Couchman and Pro-Surv argue that the statute required Cardona to file a
certificate of merit with her “first-filed” petition, that the petition in the earlier suit
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(c) (Vernon 2011) (allowing
certificate of merit to be filed after original petition if period of limitations will
expire within 10 days of filing).
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will always constitute the “first-filed” petition, and that this requirement prevents
her from ever satisfying the statutes requirements. Couchman and Pro-Surv’s
argument depends upon an analysis of what “first-filed petition” means. The term
they ask us to construe, however, does not come from the statute itself but from
earlier opinions from this court paraphrasing the requirements of the statute. See
Pelco Const., Inc. v. Dannenbaum Eng’g Corp., 404 S.W.3d 48, 53 (Tex. App.—
Houston [1st Dist.] 2013, no pet.); Pakal Enters., Inc. v. Lesak Enters. LLC, 369
S.W.3d 224, 228 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).
In Pelco, we summarized the requirements of subsection 150.002(a) as
“[w]hen required, the certificate of merit must be filed with the first-filed petition
asserting the relevant claim against a professional.” 404 S.W.3d at 53. Likewise,
in Pakal, we summarized it as “section 150.002 requires a plaintiff to file a
certificate of merit with the first-filed petition asserting a negligence claim against
a professional.” 396 S.W.3d at 228.
Both Pelco and Pakal involved a single lawsuit without a prior suit that had
been dismissed without prejudice. Pelco, 404 S.W.3d at 52; Pakal, 369 S.W.3d at
226. Accordingly, Couchman and Pro-Surv are relying on these cases for
propositions never raised or analyzed in the opinions. Likewise, relying on the
paraphrasing of the statute by an appellate court as proof of legislative intent
violates the requirement that, “[i]n interpreting statutes, our primary purpose is to
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give effect to the legislature’s intent by relying on the plain meaning of the text
adopted by the legislature . . . .” Better Bus. Bureau, 441 S.W.3d at 353 (citing
First State Bank of DeQueen, 325 S.W.3d at 635).
The actual language of the statute at issue provides, in pertinent part, that,
“[i]n 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 . . . .” CIV. PRAC. & REM. § 150.002(a). The
statute provides, then, that in an action brought by the plaintiff, the affidavit—
known as the certificate of merit—must be filed with the petition in that action. Id.
The statute does not extend the limitation to any subsequently-filed case. See id.
Couchman and Pro-Surv also argue that the trial court should have granted
the motion to dismiss in the underlying suit because the trial court was required to
dismiss with prejudice in the earlier suit. We do not need to reach whether the trial
court was required to dismiss Cardona’s claims with prejudice in the earlier suit
because, even if dismissal with prejudice was proper, Couchman and Pro-Surv
failed to challenge the alleged error in the earlier suit and cannot challenge any
alleged error now.
A motion to dismiss with prejudice under this chapter is a sanction meant “to
deter meritless claims and bring them quickly to an end.” CTL/Thompson Tex.,
LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex. 2013). A
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motion to dismiss with prejudice, then, is a motion for sanctions relief. See id. at
300–01. A motion to dismiss with prejudice survives a nonsuit filed by a plaintiff.
See id. at 300. Even after a dismissal without prejudice is entered following a
plaintiff’s nonsuit, the party seeking dismissal with prejudice can appeal the denial
of the sanctions relief. See id. at 301.
Before Cardona filed her nonsuit, Couchman and Pro-Surv had filed a
motion to dismiss. Because Couchman and Pro-Surv sought to dismiss with
prejudice, the motion contained a request for sanctions relief. See id. at 300–01.
This motion survived the nonsuit. See id. at 300. Couchman and Pro-Surv do not
argue and the record does not reflect that the trial court ever ruled on their motion
for sanctions. Eight months later, the trial court signed a final judgment in the
earlier suit. All interlocutory orders, including the dismissal of Cardona without
prejudice, were merged into the final judgment. See Webb v. Jorns, 488 S.W.2d
407, 408–09 (Tex. 1972) (holding trial court’s interlocutory rulings merge into
final judgment). Couchman and Pro-Surv did not appeal the judgment.3 Except
when the judgment is void, a party may not attack a final judgment for alleged
errors. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271–72 (Tex. 2012).
Couchman and Pro-Surv have not argued that the earlier judgment is void, and we
3
Cf. Cardona v. Startex Title Co., No. 14-15-00179-CV, 2015 WL 2404863, *1
(Tex. App.—Houston [14th Dist.] May 19, 2015) (dismissing appeal pursuant to
settlement, not identifying Couchman and Pro-Surv as parties to appeal).
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find no reason to conclude that it is. Accordingly, Couchman and Pro-Surv cannot
now challenge any alleged error in the trial court’s failure to dismiss without
prejudice.
We overrule Couchman and Pro-Surv’s first issue.
Adequacy of Certificate of Merit
In their second issue, Couchman and Pro-Surv argue that the trial court
abused its discretion by denying their motion to dismiss the underlying suit
because Cardona’s certificate of merit did not satisfy the statutory requirements. A
certificate of merit in a suit against a licensed or registered professional 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.
CIV. PRAC. & REM. § 150.002(b). Couchman and Pro-Surv assert that Cardona
failed to satisfy the requirements of the certificate of merit because the certificate
does not sufficiently tie the improper actions on their part to the causes of actions
asserted in the petition. They concede that Cardona’s certificate meets the
requirements for asserting a negligence claim. They assert, however, that the
certificate does not meet the requirements of a gross negligence claim because the
certificate does not identify any “alleged reckless disregard of Cardona’s rights”;
of a breach of contract claim because the certificate “does not mention the
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existence, let alone [the expert’s] review of, any contract”; of a fraud claim
because the expert “does not explain or even intimate that any of [the acts
described in the certificate] form the basis of a fraud claim”; or of claims for
deceptive trade practices or insurance code violations because the expert “does not
specifically address any of these theories of recovery in his certificate of merit.”
While they cite cases from sister courts that require the certificate of merit to
tie the alleged improper actions by the defendants to specific elements of specific
causes of action,4 Couchman and Pro-Surv overlook that we have already held this
level of specificity is not required in CBM Eng’rs, Inc. v. Tellepsen Builders, L.P.,
403 S.W.3d 339, 345 (Tex. App.—Houston [1st Dist.] 2013, pet denied). There,
we held that a certificate of merit does not “need to recite the applicable standard
of care and how it was allegedly violated in order to provide an adequate factual
basis for the identification of professional errors.” Id. As we noted, a certificate of
merit is “filed early in the litigation, before discovery and before other dispositive
motions may be available.” Id. at 346. Accordingly, the plaintiff is not required to
marshal her evidence or establish every element of her claims. See id. Instead,
“Chapter 150 requires only that a licensed professional, practicing in the same area
4
See Garza v. Carmona, 390 S.W.3d 391, 396–97 (Tex. App.—Corpus Christi
2012, no pet.) (rejecting certificate of merit for not tying specific actions by
defendants to specific causes of actions); Packard Eng’g Assocs. v. Sally Grp.,
L.L.C., 398 S.W.3d 389, 395 (Tex. App.—Beaumont 2013, no pet.) (dismissing
certain claims because not supported by certificate of merit).
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of expertise as the defendant, provide a sworn written statement certifying that the
defendant’s actions were negligent or erroneous and stating the factual basis for
this opinion.” Id.
The Fourteenth Court of Appeals has reached the same conclusion.
“Because the core focus of section 150.002(b) is ascertaining and verifying the
existence of errors or omissions in the professional serves provided, it does not
‘require that a certificate address operative facts other than the professional errors
and omissions that are the focus of the statute.’” Dunham Eng’g, Inc. v. Sherwin-
Williams Co., 404 S.W.3d 785, 796 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (quoting M–E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 506 (Tex.
App—Austin 2012, pet. denied)). Likewise, the Austin Court of Appeals has
rejected the argument that a certificate of merit must “set forth facts that would
satisfy each element of any legal theory or claim on which the plaintiff intends to
rely—including each element of . . . contract and warranty claims.” M–E Eng’rs,
365 S.W.3d at 505–07. Instead, the court held that the plain language of the statute
upholds the conclusion that the legislature did not “intend[] to require affiants with
expertise in such fields as engineering or architecture to opine regarding such far-
afield subjects as contract construction or agency.” Id. at 507.
Accordingly, Couchman and Pro-Surv’s arguments that the certificate did
not meet the statutory requirements by specifically identifying Cardona’s causes of
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action, by tying the alleged errors and omissions to the specific causes of action, by
failing to identify specific provisions of any contract, or by failing to address any
element concerning the defendants’ intent must fail. The certificate of merit
identifies the errors and omissions that form the basis of Cardona’s claims: that
Couchman prepared and Pro-Surv delivered to Cardona a land survey that
incorrectly warranted that the property in question was not in a flood zone and that
(after the property had been purchased) Couchman prepared but Pro-Surv did not
deliver another land survey saying the same property was, in fact, in a flood zone.
The certificate asserted that these actions were negligent or erroneous because
Couchman and Pro-Surv knew Cardona would rely on the survey created before
closing and that the survey created after closing was untimely. We hold the trial
court did not abuse its discretion by denying the motion to dismiss based on the
sufficiency of the certificate of merit. See CBM Eng’rs, 403 S.W.3d at 346
(upholding certificate of merit identifying errors in structural drawings and
concluding that errors contributed to instability of building); Dunham Eng’g, 404
S.W.3d at 796–97 (upholding certificate of merit identifying errors in bid process
and concluding that errors violated professional engineering duties).
We overrule Couchman and Pro-Surv’s second issue.
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Conclusion
We affirm the trial court’s order denying Couchman and Pro-Surv’s motion
to dismiss.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
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