Gary Wayne Jaster v. Comet II Construction, Inc. Joe H. Schneider Laura H. Schneider And Austin Design Group
Gary Wayne Jaster v. Comet II Construction, Inc. Joe H. Schneider Laura H. Schneider And Austin Design Group
Opinion of the Court
OPINION
Gary Wayne Jaster, a licensed professional engineer, appeals from the trial court’s denials of his motions to dismiss a third-party complaint and a cross-claim in a suit for damages arising from the allegedly improper design and construction of a house foundation. Jaster argues that, because the third-party complaint and the cross-claim against him relate to his provision of professional services as a licensed engineer, those complaints had to be accompanied by a certificate of merit. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002.
BACKGROUND
The suit underlying this appeal was filed by homeowner Mahmoud Dawoud, who is not a party to this appeal. Dawoud alleged that he bought his home from Comet II Construction, Inc. Almost ten years later, he sued Comet II Construction, Inc., Joe H. Schneider, and Laura H. Schneider (collectively, “Comet”),
Jaster moved to dismiss both claims against him. He argued that Comet’s third-party complaint and ADG’s cross-claim were deficient because they were not accompanied by a certifícate of merit as required by section 150.002. Jaster urged in his motions to dismiss that the trial court was required to dismiss the claims by Comet and ADG against him. He asserted that these claims alleged damages arising out of the provision of professional services by a registered engineer, that section 150.002 required that they file certificates of merit with their complaints, and that their failure to file such an affidavit required the trial court to dismiss their claims. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a), (d).
Comet filed amended third-party complaints asserting not only contribution and indemnity claims but original causes of action against Jaster and ADG, including violations of the deceptive trade practices act and negligent design of the foundation. Comet attached an affidavit from a professional engineer to certify the merit of Comet’s amended complaint. Jaster filed an amended motion to dismiss Comet’s complaint, arguing that Comet’s failure to file a certificate of merit simultaneously with its original third-party complaint required dismissal of the complaint. Comet filed a second amended complaint, attaching the same affidavit. The trial court denied Jaster’s motions to dismiss the claims by Comet and ADG.
DISCUSSION
Jaster contends that the trial court abused its discretion and erred (1) by denying his original and amended motions to dismiss Comet’s original and second amended third-party complaints on grounds that Comet failed to file a certificate of merit with its original third-party complaint; (2) by denying his amended motion to dismiss Comet’s second amended third-party complaint because the certificate of merit was deficient, and (3) by denying his motion to dismiss ADG’s cross-claim because of ADG’s failure to file a certificate of merit with its cross-claim.
We review a trial court’s decision on a defendant’s motion to dismiss under section 150.002 under an abuse of discretion standard. See Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.-Fort Worth 2005, no pet.). A trial court abuses its discretion when it reaches a decision so arbitrary and
Statutory construction is a question of law we review de novo. Palladian, 165 S.W.3d at 436. When reading statutes, our goal is to ascertain and give effect to the legislature’s intent. See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). We glean that intent when we can from the plain meaning of the words the legislature uses. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). We use statutory definitions provided. See Tex. Gov’t Code Ann. § 311.011(b) (West 2005); Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Where statutory text is clear, it is determinative of legislative intent unless the plain meaning of the statute’s words would produce an absurd result. Entergy, 282 S.W.3d at 437. Only when statutory text is susceptible to more than one reasonable interpretation is it appropriate to look beyond its language for assistance in determining legislative intent. See In re Smith, 333 S.W.3d 582, 586 (Tex. 2011). We can look at the object sought to be attained, the circumstances under which the statute was enacted, the legislative history, common law or former statutory provisions including laws on the same or similar subjects, consequences of a particular construction, any administrative construction of the statute, and the title, any preamble, and emergency provision. Tex. Gov’t Code Ann. § 311.023 (West 2005).
The actions at issue in this appeal are governed by the version of section 150.002 enacted in 2005, which provided in subsection (a) as follows:
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, registered professional land surveyor, or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.
Former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (revised). The statute provides that the failure to file the affidavit “shall result in dismissal of the complaint against the defendant.” Id. § 150.002(d) (recodified at Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e) (West 2011)).
Section 150.002(a) fails to specifically address the situation of defendants who file either third-party complaints or cross-claims. Jaster argues that the statute requires that certificates of merit be filed by claimants other than plaintiffs — in this case, defendants who have filed third-party and cross-claims. The plain language of the statute expressly requires only “the plaintiff’ to file certificates of merit with the “complaint.” Id. § 150.002(a). The resolution of Jaster’s appeal will turn upon our construction of the statute.
The Fort Worth Court of Appeals grappled with this statutory provision under slightly different circumstances, ultimately
This case has a posture somewhat distinct from CTL. In this case, neither of the defendants could rely on a certificate of merit from plaintiff Dawoud because, based on the record before us, he did not file suit against a design professional and thus did not file a certificate of merit with his claims against Comet. Further, this case has a third-party plaintiff and thus squarely presents the question of whether a third-party plaintiff must file a certificate of merit. Adding a layer of complexity, third-party plaintiff Comet did not file a certificate with its original contribution and indemnity complaint, but did when it filed an amended complaint asserting original direct claims. While mindful of CTL, we will analyze whether “the plaintiff’ as used in section 150.002 applies to defendants who file their own claims for relief in the suit in which they.have been sued.
Third-party claimants and cross-claimants have some characteristics of plaintiffs. Their claims are listed in the rules of procedure alongside original complaints as “Claims for Relief.” See Tex.R. Civ. P. 47. A defendant who files a third-party complaint
Third-party claimants and cross-claimants also differ from plaintiffs in significant respects. Neither a third-party plaintiff nor a cross-claimant originates the suit in which it brings its claim, and thus they do not choose the time, place, or the participants in the original suit. Their claims may be wholly derived from the plaintiffs claims (as in the case of a pure contribution and indemnity claim), may be unique, or may be intermingled or a hybrid of derivative and original claims. Unlike plaintiffs, defendants may be unaware of the impending litigation and the concomitant need to investigate claims that they did not intend to bring until they are haled into court. Further, defendants who seek only contribution and indemnity for the claims brought against them do not allege additional wrongdoing — and may not believe that any wrong has been done to or damage suffered by the plaintiff — but seek only to redirect liability, if any, for the damage alleged by the plaintiff. See Equitable Recovery, L.P. v. Heath Ins. Brokers, L.P., 235 S.W.3d 376, 387 (Tex.App.-Dallas 2007, pet. dism’d).
Given that the statute does not specifically address defendants filing third-party complaints and cross-claims, there are multiple options of how the certificate-of-merit requirement could be applied to them. At one extreme, the certificate-of-merit requirement could apply to any defendant who files any kind of claim for recovery of damages against any design professional already in the suit or not part of the suit. At the other extreme, it could apply to no defendant filing any sort of claim within the lawsuit. Of the remaining combinations of types of claims (original to the defendant or derived from the plaintiffs claims like contribution claims) and types of parties (already in the suit or brought into the suit by the defendant’s claims), the statute could require the filing of certificates by only, for example, (1) a defendant who files an original claim against a new party, (2) a defendant who files any type of claim against a new party, (3) a defendant who files an original claim against any type of party, or (4) a defendant who either files any type of claim against a new party or files an original claim against an existing party.
As a practical matter, the scope of the applicability of the statute to defendants could also be affected by whether the plaintiff in a given suit has filed a certificate of merit. Defendants may be able to rely on the plaintiffs certificate, or they could be required to file their own certificate. The CTL court split the difference by permitting cross-claimants filing contribution and indemnity claims against fellow defendants to rely on the plaintiffs certificate regarding the fellow defendants’ wrongdoing, but requiring defendants suing previously uninvolved third parties to file a certificate regarding the third parties’ alleged wrongdoing. CTL, 337 S.W.3d at 445-46. While the CTL rationale makes sense for the cross-claimant in situations in which the original plaintiff has filed a certificate, it creates a precarious position for a defendant/third-party plaintiff in a case where the plaintiff has not filed a certificate — especially one who seeks only contribution or indemnity from the third party. Under CTL, the defendant/third-party plaintiff could be forced
More potentially unintended consequences of an expansive definition of “plaintiff’ are apparent when we consider what happens if a plaintiff sues a defendant who is not a licensed or registered professional who then files third-party claims against licensed or registered professionals.
Notably, the legislature chose to use the word “plaintiff’ in section 150.002 as opposed to expressly including “cross-plaintiffs” and “third-party plaintiffs” or making the requirement applicable more generally to “claimants.” In other statutory schemes within the civil practice and remedies code, the legislature has demonstrated a willingness and ability to expressly treat plaintiffs, third-party plaintiffs, and cross-claimants the same by using the broader term “claimant” to include all parties seeking recovery of damages including a plaintiff, counter-claimant, cross-claimant, or third-party plaintiff. See, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 9.001(1) (frivolous pleadings) (West 2002); id. §§ 33.011(1) (proportionate responsibility) & 41.001(1) (damages) (West 2008); id. §§ 85.001(1) (liability for stalking) & 147.001(2) (West 2011) (causes of action for “year 2000 computer date failure”); see also Tex. Fam.Code Ann. § 261.108(a)(1) (West 2008) (frivolous claims against reporters of child abuse). The legislature has also shown the ability to limit the definition of “plaintiff’ to exclude a counterclaim-
An analogous scheme is the health-care liability claim statutes that require “a claimant” to file an expert report. See id. §§ 74.001-.852 (West 2011 & Supp. 2012). That statute defines “claimant” not in terms of party titles, but as “a person, including a decedent’s estate, seeking or who has sought recovery of damages in a health care liability claim.” Id. § 74.001(a)(1) (West Supp. 2012). A claimant must serve the parties with an expert report concerning the actions of defendant physicians or health-care providers. Id. § 74.351(a) (West 2011). The statute does not further- define “claimant,” but does define “defendant” as “a physician or health care provider against whom a health care liability claim is asserted. The term includes a third-party defendant, cross-defendant, or counterdefendant.” Id. § 74.351(r)(4).
This context adds significance to the legislature’s choice of wording in expressly imposing the requirement of filing a certificate of merit only on “the plaintiff’ in suits against a licensed or registered professional. The legislature in other contexts has acknowledged that third-party plaintiffs and cross-claimants are different from plaintiffs. Further, the legislature has demonstrated the ability to include cross-claimants and third-party plaintiffs with plaintiffs when it deems appropriate. The legislature could have expressly imposed the requirement for filing a certificate of merit on third-party plaintiffs and cross-claimants but did not.
We have explored the difficulties in judicially imposing, as the dissent in this case advocates, a broader definition of “the plaintiff” in section 150.002 to encompass third-party plaintiffs and cross-claimants.
Expanding the certificate-of-merit requirement in that way disregards the plain meaning of a clearly worded, if not comprehensively perfect, statute and leads to absurd consequences — for example, forcing defendants who assert pure contribution and indemnity claims to produce a certificate of merit, placing them in the quandary of both denying and substantiating the same claim at the outset of their defense.
Accordingly, we will resist the urge to judicially create a solution to the statute’s failure to address third-party complaints and cross-claims. Section 150.002 expressly requires “the plaintiff’ to file a certificate of merit with its complaint, and thus does not require a certificate of merit from a defendant who files a third-party complaint or cross-claim.
Resolution of this question controls our disposition of all of Jaster’s issues on appeal. Neither defendant/third-party plaintiff Comet nor third-party defendant/cross-claimant ADG is “the plaintiff.” They were not required to file a certificate of merit, and the trial court did not err by denying Jaster’s motions to dismiss Comet’s third-party complaint, Comet’s amended third-party complaints, and ADG’s cross-claim despite the absence of a certificate of merit. The adequacy of Comet’s certificate of merit filed with its second amended complaint is, therefore, moot.
CONCLUSION
We affirm the trial court’s orders denying Jaster’s motions to dismiss claims against Jaster made by Comet and ADG.
Dissenting Opinion by Justice HENSON.
. The version of section 150.002 applicable to these facts was effective and applicable to cases filed on or after September 1, 2005. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847, 896-97, amended by Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 4, 2005 Tex. Gen. Laws 348, 348 and Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (codified as Tex. Civ. Prac. & Rem.Code Ann. § 150.002). All references to section 150.002 will be to the version of the statute that became effective in 2005 unless otherwise noted. This statute has since been amended. See Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992. Each of these iterations of the statute has required "the plaintiff” to file a certificate of merit.
. The Schneiders are listed with the same address as Comet, and Joe Schneider is listed as Comet's registered agent for service of process. The Schneiders and Comet are represented by the same counsel, filed a joint answer and third-party complaint, and filed a joint brief here. Their interests in this appeal appear sufficiently aligned to justify reference to them as a single entity.
. Much of the parties’ briefing centered on whether any non-negligence claims against Jaster triggered the section 150.002 certificate requirements. After the parties filed their briefs, this Court held that' the version of section 150.002 effective September 1, 2005 required a certificate of merit to be filed in all actions or arbitration proceedings for damages arising out of the provision of professional services by a licensed or registered professional, not just in negligence cases. S & P Consulting Eng’rs, PLLC v. Baker, 334 S.W.3d 390, 403-04 (Tex.App.-Austin 2011, no pet). Therefore, the fact that ADG and Comet seek contribution and indemnity from potential damage awards on non-negligence claims in addition to negligence claims did not except Comet and ADG from the certificate requirement.
. Rule 38 refers to a "petition” filed by the third-party plaintiff, see Tex.R. Civ. P. 38, but we are using the word "complaint" in this opinion to be consistent with the statute at issue and with the title Comet used on its document. See Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). We see no functional difference between the words “petition” and "complaint” for purposes of this opinion.
. It is also conceivable that a plaintiff sues a licensed or registered professional who does not enforce his right to a certificate, but there the policy considerations and equities are different.
Dissenting Opinion
dissenting.
The majority concludes that section 150.002 of the Texas Civil Practice and
As the majority correctly points out, section 150.002(a) expressly provides that “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” a certificate of merit. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (emphasis added).
In S & P Consulting Engineers, we held that a certificate of merit must be filed “in any action for damages arising out of the provision of professional services by a design professional,” including, but not limited to, cases alleging negligence. Id. at 403 (emphasis added). In that case, the appel-lee homeowners had sued S & P Consulting Engineers (“S & P”) for potential costs and losses associated with the fact that their subdivision properties were within a flood plain. Id. at 393. The homeowners alleged that S & P was responsible for certification of the development plat for four phases of development and that S & P’s representations in and regarding the plat constituted violations of the deceptive trade practices act, statutory fraud, and common-law fraud. Id. at 393, 404. We concluded that these claims related to S & P’s performance of professional services, and as a result, the homeowners were required to file a certificate of merit. Id. at 404.
In this case, Comet was sued by a homeowner, Dawoud, for violations of the deceptive trade practices act, common-law fraud, breach of contract, negligence, and negligent misrepresentation. Dawoud alleged that deficiencies in construction and design
Under our holding in S & P Consulting Engineers, there can be no dispute that Comet’s third-party claims and ADG’s cross-claim against Jaster are related to Jaster’s performance of professional services. Upon filing, these claims became part of the lawsuit filed by Dawoud, and accordingly, the claims became part of an “action ... for damages arising out of the provision of professional services by a licensed or registered professional.” See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). Section 150.002 requires a “plaintiff’ filing such claims to file a certificate of merit with the complaint. See id.; S & P Consulting Eng’rs, 334 S.W.3d at 403. Thus, the issue in this case becomes whether Comet and ADG are “plaintiffs” within the meaning of section 150.002-a matter of statutory construction. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (requiring “plaintiff’ to file certificate of merit “with the complaint”).
The majority concludes that the term “plaintiff’ strictly refers to the party (or parties) initiating the lawsuit and does not include third-party plaintiffs or cross-claimants. In other words, the majority would hold that Jaster is stripped of the protections afforded by section 150.002 when the claims against him, which otherwise fall within the scope of the statute, are brought by parties other than the plaintiff who initiated the lawsuit. For the following reasons, I would instead conclude that the term “plaintiff’ includes any party that has asserted a claim for damages against the professional arising out of his or her provision of professional services.
When construing a statute, our primary objective is to ascertain and give effect to the legislature’s intent as expressed by the language of the statute. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We generally construe a statute’s words according to their plain and common meaning. See National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). However, we must decline to adopt such a construction if it would lead to absurd results or if a contrary intention is apparent from the context of the statute. See City of Rockwall, 246 S.W.3d at 625-26.
The plain language of section 150.002 “reflects a legislative goal of requiring merely that plaintiffs make a threshold showing that their claims have merit.” M-E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 504 (Tex.App.-Austin 2012, pet. denied); see former Tex. Civ. Prac. & Rem.Code Ann. § 150.002. The statute does not necessarily require a plaintiff to marshal expert testimony that would be admissible at trial. M-E Eng’rs, 365 S.W.3d at 504. Rather, the purpose of the eertificate-of-merit requirement is to provide a method by which courts can quickly dismiss meritless claims. See Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395,
In the context of construction cases, like this one, engineers and other licensed or registered professionals are routinely brought into the lawsuit as third-party defendants. This affords the defendant/third-party plaintiff a method by which to shift liability.
Further, as the majority points out, and I agree, third-party plaintiffs and cross-claimants have some characteristics of plaintiffs. Most notably, when a party asserts a third-party claim or cross-claim, he or she asserts a claim for relief against another party, and those parties become adverse. See Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992). Thus, from the standpoint of the licensed or registered professional, third-party plaintiffs and cross-claimants are certainly “plaintiffs” with regard to the third-party claims and cross-claims against them. In conclusion, it is apparent from the context of section 150.002, that “plaintiff” must include third-party plaintiffs and cross-claimants.
Finally, I would note that this construction of “plaintiff’ — to include both third-party plaintiffs and cross claimants — comports with our sister court’s well-reasoned holding in CTL/Thompson Texas, LLC v. Morrison Homes, 337 S.W.3d 437 (Tex.App.-Fort Worth 2011, pet. denied). In that ease, Morrison Homes sued Sheffield Development Company (“Sheffield”) for claims arising out of Sheffield’s sale of land to Morrison Homes. Id. at 439. Morrison Homes also sued several professional defendants (collectively, “CTL”), who had provided geotechnical engineering services for Sheffield, alleging negligence, professional negligence, and breach of warranty, and filed a certificate of merit with its original petition. Id. at 439-40. Sheffield then filed a cross-claim seeking contribution and indemnity from CTL, but did not file a certificate of merit. Id. at-440, 444. The Fort Worth court affirmed the trial court’s denial of CTL’s motion to dismiss Sheffield’s cross-claim, holding that Sheffield, a cross-claimant, was not required to file a certificate of merit under section 150.002. Id. at 445-46. The court reasoned that “a cross-claiming defendant may rely on the certificate of merit filed by the plaintiff and is not required to file a second, independent certificate of merit.” Id. at 446. Conversely, the court pointed out, “when a defendant files a third-party petition against a licensed or registered professional that the plaintiff has not sued, then obviously the plaintiff has not filed a certificate of merit concerning the conduct of that licensed or registered professional; consequently, the defendant acting as
I would conclude that both Comet and ADG are “plaintiffs” within the meaning of section 150.002. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002. Further, under S & P Consulting Engineers, the claims asserted by Comet and ADG are asserted in an “action for damages arising out of the provision of professional services by a licensed or registered professional.” See S & P Consulting Eng’rs, 334 S.W.3d at 404. Consequently, under S & P Consulting Engineers, both Comet and ADG were each separately required to either (1) file a certificate of merit contemporaneously with their complaint or (2) rely on a certificate of merit previously filed by another party in the case. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). However, neither Comet nor ADG filed a certificate of merit in this case.
Ordinarily, under these circumstances, I would conclude that the trial court abused its discretion in denying Jaster’s motions to dismiss. Further, I would reverse the trial court’s order and remand the cause for the trial court to dismiss the claims after determining whether each dismissal is with or without prejudice. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(d) (providing that failure to file certificate of merit “shall result in dismissal of the complaint against the defendant” and that “dismissal may be with prejudice”); Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex.App.-Houston [14th Dist.] 2010, no pet.). However, like this Court did in S & P Consulting Engineers, I would conclude that a different result is warranted in this case. See 334 S.W.3d at 404.
In 5 & P Consulting Engineers, this Court determined that the homeowners had failed to file a certificate of merit as required by section 150.002. See id. However, rather than remand the cause for the trial court to dismiss the homeowners’ claims, we recognized that “the parties and the trial court were proceeding under the authority of [Consolidated Reinforcement ]” and thus “justice require[d] a different result.” Id. Therefore, instead of remanding the cause to the trial court for
Similarly, in this case, the parties, in choosing not to file a certificate of merit, may have relied upon Consolidated Reinforcement, our controlling precedent at the time. See S & P Consulting Eng’rs, 334 S.W.3d at 392. The trial court, in denying the motions to dismiss, may have also relied on that same authority.
I would reverse the trial court’s orders denying the motions to dismiss and remand the cause to the trial court. I would also allow Comet and ADG thirty days from the date this judgment is mandated to file a certificate of merit satisfying the requirements of section 150.002. See Tex. R.App. P. 43.3; former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(b) (in cases in which original petition is filed within ten days of the expiration of the limitations period, plaintiffs may file affidavit within thirty days of filing of petition).
. Like the majority opinion, any references to section 150.002 in this dissent will be to the version of the statute that became effective in 2005 unless otherwise noted. See footnote 1 of the majority opinion.
. At the same time, the third-party defendant may offer testimony in his own defense that supports the defendantAhird-party plaintiff’s defense, in essence providing "free” expert testimony in defense of the plaintiff's claims.
. While Comet subsequently filed a certificate of merit with its amended third-party complaint, almost two months after filing its original third-party complaint, Comet does not contend that it requested or obtained any extension of time under subsection (b) of section 150.002. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(b) (providing that “contemporaneous filing requirement” does not apply when period of limitation will expire within ten days of date of filing and that court may grant, upon motion, extension for filing of more than thirty days); see also Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (holding that trial court abused its discretion in denying motion to dismiss where plaintiff failed to file certificate of merit with first-filed complaint and did not contend that exception set forth in section 150.002(b) was applicable).
. As previously discussed, Consolidated Reinforcement and similar cases held that non-negligence causes of action do not require a certificate of merit. See, e.g., Consolidated Reinforcement v. Carothers Executive Homes, Ltd., 271 S.W.3d 887, 894 (Tex.App.-Austin 2008, no pet.), overruled by S & P Consulting Eng’rs v. Baker, 334 S.W.3d 390, 399-400 (Tex.App.-Austin 2011, no pet.). In addition, Consolidated Reinforcement and its associated cases are unclear and confusing with regard to exactly what claims constitute a "non-negligence cause of action.” Compare Kniestedt v. Southwest Sound & Elecs., Inc., 281 S.W.3d 452, 455 (Tex.App.-San Antonio 2007, no pet.) ("When the plaintiff does not claim a negligent act, error or omission exists, and is not required to make such an allegation as an element of its cause of action, a certificate of merit is not required under section 150.002(a).”) with Parker Cnty. Veterinary Clinic v. GSBS Batenhorst, Inc., No. 02-08-380-CV, 2009 WL 3938051, at *3, 2009 Tex.App. LEXIS 8986, at *9-10 (Tex.App.-Fort Worth Nov. 19, 2009, no pet.) (mem. op.) (considering "the source of the duty and nature of the remedy sought” in determining whether breach of contract claim was negligence claim within the scope of section 150.002); see generally Ashkar Eng'g Corp. v. Gulf Chem. & Metallurgical Corp., No. 01-09-00855-CV, 2010 WL 376076, at *4-10, 2010 Tex.App. LEXIS 769, at *11-28 (Tex.App.Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) (summarizing different approaches taken by courts in determining which claims are "negligence” claims under section 150.002).
Reference
- Full Case Name
- Gary Wayne JASTER, Appellant, v. COMET II CONSTRUCTION, INC.; Joe H. Schneider; Laura H. Schneider; And Austin Design Group, Appellees
- Cited By
- 10 cases
- Status
- Published