Chester T. Carthel D/B/A Carthel Engineering Solutions v. Robert Neidert and Linda Neidert ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00117-CV
CHESTER T. CARTHEL D/B/A CARTHEL ENGINEERING SOLUTIONS, APPELLANT
V.
ROBERT AND LINDA NEIDERT, APPELLEES
On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2017-526,408; Honorable William C. Sowder, Presiding
January 15, 2020
MEMORANDUM OPINION
Before PIRTLE and PARKER and SCHAAP1, JJ.
This is a restricted appeal from a no-answer default judgment rendered in favor of
Appellees, Robert and Linda Neidert, and against Appellant, Chester T. Carthel d/b/a
Carthel Engineering Solutions. Carthel argues reversible error is apparent on the face of
the record because the Neiderts failed to comply with the “certificate of merit” requirement
of Civil Practice and Remedies Code section 150.002(a). See TEX. CIV. PRAC. & REM.
CODE ANN. § 150.002 (a) (West Supp. 2019) (requiring the complaint in any dispute arising
1 Honorable Dan L. Schaap, Judge, 47th District Court, sitting by assignment.
out of the provision of services by a licensed or registered professional to file a “third-
party affidavit” setting forth the theory of recovery and factual basis for each claim).2
Because we find the entry of a default judgment in this case to be error apparent on the
face of the record, we sustain two of Carthel’s appellate issues and reverse the judgment
of the trial court.
BACKGROUND
In 2011, the Neiderts sought to purchase a residence in Lubbock. While moving
toward that end, their home inspector noted the presence of cracks in the foundation and
recommended a further inspection by a qualified professional. The Neiderts’ realtor
retained Carthel to perform a structural evaluation. In communications with the Neiderts’
realtor, Carthel attributed most of the cracks in the structure found by the home inspector
to severe cold weather and extended summer heat. According to the testimony given by
Robert Neidert, Carthel believed the cracks were “seasonal” and, if repaired, would not
reappear. As such, Carthel did not find a foundation problem.
After receiving Carthel’s report,3 the Neiderts purchased the house. About a year
to a year-and-a-half later, they noticed the same cracks reappearing as well as some
exterior cracks not previously seen. They retained a different engineering firm, which
concluded in its August 25, 2016 report that the Neiderts’ house had “experienced settling
of the foundation system as evidenced throughout the exterior . . . .” The report further
2 Unless otherwise provided, future references herein to “section” or “§” are references to the Texas
Civil Practice and Remedies Code.
3Neidert also testified that Carthel’s report was reduced to writing. A copy of that report was not,
however, included in the record.
2
opined that the “nature of these cracks . . . [were] typical of settling conditions at the
corners where larger roof and floor loads are located.”
On July 18, 2017, with the 2016 engineering report already in hand, the Neiderts
filed suit against Carthel seeking damages for negligence, negligent misrepresentation,
violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA), and breach
of contract. They did not, however, file a third-party affidavit setting forth their theory of
recovery or the factual basis for each claim as required by section 150.002(a).
While the record does not contain proof that Carthel was properly served with
process, the parties do not dispute this fact.4 It is likewise undisputed that Carthel did not
answer or otherwise appear in opposition to the Neiderts’ lawsuit. Although not shown
by a separate order, there is a record indication that on September 25, 2017, the trial
court rendered a default judgment as to liability against Carthel. On November 17, 2017,
the trial court conducted an evidentiary hearing for purposes of offering proof of the
Neiderts’ unliquidated damages. A final default judgment was then signed on November
27, 2017, which awarded the Neiderts damages of $122,636.20 and attorney’s fees of
$5,276.32. Carthel did not participate in either hearing, nor did he participate in any other
proceedings, file any post-judgment motions, request any findings of fact and conclusions
of law, or timely file a notice of appeal. Instead, on April 11, 2018, Carthel filed a notice
of restricted appeal.
4 The Neiderts attached what appears to be a copy of an affidavit of service and citation to their
brief. These items were not, however, included in the appellate record. As such, we are unable to give
them consideration. See, e.g., Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.—Houston [1st Dist.] 1999,
no pet.) (stating an appellate court “cannot consider documents attached to an appellate brief that do not
appear in the record”).
3
APPLICABLE LAW
A restricted appeal provides a party that did not participate at trial the opportunity
to correct an erroneous judgment. Richardson-Wiggins v. AH4R Props. Two, L.L.C., No.
02-15-00158-CV, 2016 Tex. App. LEXIS 1467, at *2 (Tex. App.—Fort Worth Feb. 11,
2016, no pet.) (mem. op.). As such, it is considered a direct attack on a default judgment.
Eguia v. Eguia, 367 S.W.3d 455, 458 (Tex. App.—Corpus Christi 2012, no pet.). A party
may prevail in a restricted appeal only if the following conditions are satisfied: (1) he has
filed notice of the restricted appeal within six months after the judgment was signed; (2)
he was a party to the underlying lawsuit; (3) he did not participate in the hearing that
resulted in the judgment complained of and did not timely file any post-judgment motions
or requests for findings of fact and conclusions of law; and (4) error is apparent on the
face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)
(citing TEX. R. APP. P. 26.1(c), 30, and Quaestor Invs., Inc. v. State of Chiapas, 997
S.W.2d 226, 227 (Tex. 1999) (per curiam)).
Here, the first through third requirements of a restricted appeal are satisfied without
dispute. The focus of our analysis, therefore, is whether reversible error is apparent on
the face of the record. DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991) (per
curiam). The “face of the record” consists of the papers on file with the trial court when it
rendered judgment, including the clerk’s and reporter’s records. See Miles v. Peacock,
229 S.W.3d 384, 387 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Campsey v.
Campsey, 111 S.W.3d 767, 771 (Tex. App.—Fort Worth 2003, no pet.). See also Norman
Communs v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (applying
former writ of error procedure). Accordingly, an appellate court may not consider
4
evidence in a restricted appeal unless it was before the trial court when judgment was
rendered. Campsey, 111 S.W.3d at 771. Furthermore, “a restricted appeal requires error
that is apparent, not error that may be inferred.” Gold v. Gold, 145 S.W.3d 212, 213 (Tex.
2004) (per curiam) (emphasis in original).
Chapter 150 of the Texas Civil Practice and Remedies Code pertains to suits
brought against certain licensed and registered professionals, including a licensed
professional engineer. TEX. CIV. PRAC. & REM. CODE ANN. §§ 150.001-.004 (West Supp.
2019). “In every suit or arbitration for damages arising out of the provision of professional
services by a licensed or registered professional,” the plaintiff must file the affidavit of a
third-party professional, called a “certificate of merit,” with its complaint setting forth each
theory of recovery and the factual basis of each claim. Id. at § 150.002(a), (b). A
“‘[l]icensed or registered professional’ means a licensed architect, licensed professional
engineer, registered professional land surveyor, registered landscape architect, or any
firm in which such licensed or registered professional practices . . . .” Id. at § 150.001(1-
c). This chapter of the Code further provides that the “defendant shall not be required to
file an answer to the complaint and affidavit until 30 days after the filing of [the third-party]
affidavit.” Id. at § 150.002(d). In addition, the failure to file a certificate of merit “in
accordance with this section shall result in dismissal of the complaint against the
defendant. This dismissal may be with prejudice.” Id. at § 150.002(e) (emphasis added).
ANALYSIS
By three issues, Carthel contends that (1) the error is apparent on the face of the
record, (2) the case should have been dismissed as a matter of law, and (3) any testimony
5
offered at trial does not substitute for the requirements of the statute. We will address
these issues in a logical rather than sequential order.
By his first and third issues, Carthel argues the Neiderts failed to file the mandatory
certificate of merit required by section 150.002(a) and the testimony offered at trial does
not meet the requirements of that section. We agree.
At the hearing on non-liquidated damages, the Neiderts offered the testimony of
George Timothy Patrick Murfee, a real estate appraiser to establish the extent to which
the existence of structural defects negatively impacted the fair market value of their
property. Although the Neiderts have not contended that this testimony is a viable
substitute for the statutorily required certificate of merit, Carthel argues the appraiser was
incompetent to offer an opinion under section 150.002(a) as the Neiderts’ theory of
recovery or the factual basis for their claim because he was not a licensed professional
engineer. The purpose of chapter 150 is to ferret out non-meritorious claims based upon
the services of a licensed professional at the earliest possible moment. To serve that
purpose, the statute requires that a certificate of merit be filed with the complaint so that
the defendant can determine the merits of the claim and seek an early dismissal where
there is no meritorious claim. As such, the oral testimony of any witness, no matter when
it is offered, is insufficient to meet the purposes of the statute.
Here, a simple review of the record shows that the Neiderts sought and obtained
the services of a “qualified professional . . . to perform a structural examination of the
Property (the ‘Examination’).” (Emphasis added). They then brought suit against
“Chester T. Carthel, an individual doing business as Carthel Engineering Solutions” on
6
the very basis of that examination. (Emphasis added). As such, it is apparent that their
claim against Carthel was based on services he provided in his capacity as a licensed
engineer. Because it is undisputed that the Neiderts did not file a certificate of merit,
Carthel was not required to file an answer to the complaint. Id. at § 150.002(d). Where
no answer was required to be filed, a trial court errs in entering a default judgment. See
TEX. R. CIV. P. 239 (providing that a plaintiff may take a default judgment “at any time after
a defendant is required to answer . . . .”) (Emphasis added). Accordingly, error is
apparent on the face of the record. Issues one and three are sustained.
By his second issue, Carthel argues the Neiderts’ claims should have been
dismissed as a matter of law because they did not file the required statutory affidavit.
While section 150.002(e) does provide that the “Plaintiff’s failure to file the affidavit in
accordance with this section shall result in dismissal of the complaint against the
defendant,” the statute is silent as to when a trial court would be required to impose that
sanction. Where, as here, the Neiderts, as plaintiffs, prematurely sought and obtained a
default judgment before the trial court could consider whether to dismiss their complaint,
we cannot fault the trial court for the failure to dismiss the Neiderts’ complaint. Issue two
is overruled.
CONCLUSION
We reverse the judgment of the trial court and remand this matter for further
proceedings consistent with this opinion.
Patrick A. Pirtle
Justice
7