Criterium-Farrell Engineers v. Owens

• Decision Date: 14 February 2008
• Docket Number: No. 09-07-406 CV.,09-07-406 CV.
• Parties: CRITERIUM-FARRELL ENGINEERS, Appellant v. Rick and Karen OWENS, Appellees.
• Court: Texas Court of Appeals

248 S.W.3d 395

CRITERIUM-FARRELL ENGINEERS, Appellant v. Rick and Karen OWENS, Appellees.

No. 09-07-406 CV.

Court of Appeals of Texas, Beaumont.

Submitted on December 13, 2007.

Decided February 14, 2008.

Daryl W. Bailey, Michael A. Ackal, III, Looper Reed & McGraw, P.C., Houston, TX, for appellant.

Kevin T. Shea, Joseph T. Kennedy, Stirman, Kennedy & Shea, P.C., The Woodlands, TX, for appellees.

Before GAULTNEY, KREGER, and HORTON, JJ.

OPINION

CHARLES KREGER, Justice.

In this appeal, we must determine whether the certificate of merit filed by appellees Rick and Karen Owens in their lawsuit against appellant Criterium-Farrell Engineers ("CFE") complies with section 150.002(a) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 150.002(a) (Vernon Supp. 2007).

The plaintiffs considered purchasing a certain residence and hired CFE to conduct the home inspection. The home's sellers represented in their disclosures that they were unaware of any completed structural repairs, or that the home needed any repairs. An engineer employed by CFE inspected the residence and his report found the residence "structurally sound" with "no major structural problems" in the "visible framing members." The plaintiffs purchased the residence. While moving their furnishings into the residence, they noticed some defects in the residence and requested that CFE perform a second inspection. After CFE's second inspection, CFE sent the sellers a letter stating that "[d]uring our revisit, we observed a high spot on the floor on the left side of the game room."

The plaintiffs subsequently hired Gary Boyd, a Texas-licensed structural engineer, to conduct a home inspection. He declared the residence "unsafe" for habitation. Numerous subsequent inspections by licensed structural engineers identified foundation problems and structural defects on the second floor. The inspections also revealed several failed attempts at remediation and the attempted concealment of the defects. Home of Texas, the company that warrantied the residence, acknowledged two major structural defects. The plaintiffs sued CFE, the sellers of the residence, the home's builder, and Home of Texas.

The plaintiffs' suit against CFE alleged breach of contract, breach of warranty, negligence, gross negligence, fraud, and violations of the Texas DTPA, pertaining to CFE's alleged failure to perform a proper inspection. In support of the plaintiffs' negligence and gross negligence causes of action, they attached a certificate of merit affidavit from Boyd. CFE filed its motion to dismiss asserting Boyd's affidavit did not comport with section 150.002(a)'s requirements. See id. The plaintiffs' response contended that the affidavit did comply with the statute, that CFE's motion to dismiss was not timely, and that CFE waived its right to complain about the affidavit's contents because appellant invoked the judicial process prior to moving to dismiss.¹ The trial court denied the motion to dismiss, and CFE appeals the trial court's order. See id. at § 150.002(e).

CFE raises three issues on appeal. First, CFE maintains the trial court erred in denying the motion to dismiss because 1) Boyd's certificate of merit fails to comply with section 150.002(a), 2) there is no requirement that a defendant file its motion to dismiss under section 150.002 before or contemporaneously with its answer, and 3) there is no evidence that CFE intentionally relinquished its known right to contest the affidavit.

We review a trial court's decision to grant or deny 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.); Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at *3 (Tex.App.-San Antonio Oct.3, 2007, no pet. h.)(mem. op.). Statutory construction is a question of law we review de novo. Palladian, 165 S.W.3d at 436. Once we determine the statute's proper construction, we must then decide whether the trial court abused its discretion in applying the statute. Id.

We must first determine whether the Boyd affidavit complies with section 150.002. Section 150.002 provides, in relevant part:

§ 150.002. Certificate of Merit

(a) In any action ... for damages arising out of the provision of professional services by a licensed ... professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party ... licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, ... [setting] forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.

. . . .

(c) The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such affidavit.

(d) The plaintiff's failure to file the affidavit in accordance with Subsection (a) or (b) shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice.

(e) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.

TEX. CIV. PRAC. & REM.CODE ANN. § 150.002(a), (c)-(e). Boyd's affidavit stated that at the plaintiffs' request, he inspected the home and performed several elevation surveys of the residence's first and second floors. He also reviewed CFE's report. The affidavit stated, in relevant part, the following:

"As a result of my investigation, after thoroughly reviewing the Criterium-Farrell report, I have determined that, at a minimum, the Criterium-Farrell report was a) inaccurate, and b) incomplete. My reasons are as follows:"

a) After performing "... a survey of the [first] floor ...", Criterium-Farrell reported, "... a maximum elevation change [o]f about 1.0 inch in 14 feet measured from the middle to the rear living room ..." (page 6). The Criterium-Farrell sketch, which was attached to the report, identified the values (elevation differentials) and the locations (distance) as stated above. The Criterium-Farrell report followed with the conclusion (also page 6) that, "... foundation repairs ... [were] ... not ... warranted at this time ...".

I performed my first elevation survey on the first floor of the subject house on January 7, 2006, approximately three months after the Criterium-Farrell survey was performed. My survey, at that time, revealed, in the same location as reported by the Criterium-Farrell report, an elevation differential of 1:32 inches and a distance between the two reference points of only 11 feet.

Where as [sic] the data reported by the Criterium-Farrell report (1.0 inch in 14 feet) calculates to a slope of only 0.6%, the actual slope was 1.0%, two-thirds greater. The inaccuracy is significant since Criterium-Farrell considers that, "... differentials of less than 1 inch in 10 feet [are] acceptable ...". The inference is that, if Criterium-Farrell had measured a slope greater "... than 1 inch in 10 feet ...", the report would have concluded that foundation repairs were warranted.

I considered that the foundation had possibly moved subsequent to the Criterium-Farrell survey. I therefore re-surveyed the subject area four months later on May 12, 2006, which was eight months after the Criterium-Farrell survey. I measured the same values. The foundation had not moved.

Also, if the foundation had actually moved an additional 67% in only 3 months, the radical increase would have, most likely, been evidenced by visible distress, however, there were no apparent indications of any subsequent movement.

And, even realizing the accuracy of the instruments (+/- 1/8 inch) and adding 1/8 inch to the differential provided in the Criterium-Farrell report and removing 1/8 inch from my measured differential, the calculated slopes of 0.67% vs. 0.91%, respectively, are still disproportionate with the actual slope still indicating a 36% increase over the reported values. The 0.91% still exceeds the reports criteria of "1.0 inch in 14 feet".

. . . .

b) I also performed an elevation survey of the second floor of the subject residence. The Criterium-Farrell report did not mention surveying the second floor. My survey revealed a total differential in elevation of 3 1/4 inches in one room, the Game Room, across a distance of approximately 21 feet. The 3 1/4 inches in 21 feet represents a slope of almost 1.3% which is beyond any reasonable tolerance. I also measured a differential of over 2 inches in only 16 feet in the right-rear...