Couchman v. Cardona

• Court: Texas Court of Appeals
• Writing for the Court: Laura Carter Higley, Justice
• Citation: Couchman v. Cardona, 471 S.W.3d 20 (Tex. App. 2015)
• Decision Date: 23 July 2015
• Docket Number: No. 01–14–01000–CV,01–14–01000–CV
• Parties: Toby Paul Couchman and Pro–Surv, Appellants v. Elizabeth Cardona, Appellee

471 S.W.3d 20

Toby Paul Couchman and Pro–Surv, Appellants

v.Elizabeth Cardona, Appellee

No. 01–14–01000–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued July 23, 2015

Zandra E. Foley, Andrew L. Johnson, Kimberly R. Snagg, Thompson, Coe, Cousins & Irons, L.L.P., Houston, TX, for appellant.

Robert L. Collins, Audrey E. Guthrie, Houston, TX, Christopher D. Lewis, Houston, TX, for Appellee.

OPINION

Laura Carter Higley, Justice

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 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.¹Couchman 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 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. SeeTex. Civ. Prac. & Rem. Code 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. SeeDowner 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. SeeTDIndustries, 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 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 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. SeePelco 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 150.002requires a plaintiff to file a certificate of merit with the first-filed petition asserting a negligence claim against a professional.” 369 S.W.3d at 228.

Both Pelcoand Pakalinvolved 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 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...