Ctl/Thompson Tex. Llc v. Homes

• Decision Date: 03 March 2011
• Docket Number: No. 02–10–00259–CV.,02–10–00259–CV.
• Citation: 337 S.W.3d 437
• Parties: CTL/THOMPSON TEXAS, LLC; Michael L. Lester, P.E.; Che–Hung Tsai, Ph.D., P.E.; and Srikanth Dinakaran, P.E., Appellants,v.MORRISON HOMES and Sheffield Development Company, Inc., Appellees.
• Court: Texas Court of Appeals

337 S.W.3d 437

CTL/THOMPSON TEXAS, LLC; Michael L. Lester, P.E.; Che–Hung Tsai, Ph.D., P.E.; and Srikanth Dinakaran, P.E., Appellants,

v.MORRISON HOMES and Sheffield Development Company, Inc., Appellees.

No. 02–10–00259–CV.

Court of Appeals of Texas, Fort Worth.

March 3, 2011.

Bryan G. Rutherford, Gregory N. Ziegler, Alexander G. Blue, MacDonald Devin, PC, Dallas, TX, for Appellants.James W. Rudnicki, Daniel R. McCabe, Carl J. Wilkerson, The Bush Firm, P.C., Arlington, TX, Gino J. Rossini, Chuck W. Shiver II, Jennifer Duncan Edgeworth, Deke D. Owen, Hermes Sargent Bates, LLP, Dallas, TX, for Appellees.PANEL: DAUPHINOT, WALKER, and McCOY, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

Appellants CTL/Thompson Texas, LLC; Michael L. Lester, P.E.; Che–Hung Tsai, Ph.D., P.E.; and Srikanth Dinakaran, P.E. (collectively, “CTL”) perfected this interlocutory appeal from the trial court's denial of their motions to dismiss the claims of Appellees Morrison Homes and Sheffield Development Company, Inc. for Appellees' alleged failure to file certificates of merit as required by chapter 150 of the Texas Civil Practice and Remedies Code. For the reasons set forth below, we will dismiss CTL's appeal from the July 6, 2010 order denying CTL's second motion to dismiss Morrison Homes's claims against CTL, and we will affirm the trial court's denial of CTL's motion to dismiss Sheffield's cross-claims.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Morrison Homes sued Sheffield for breach of contract and other claims arising out of Sheffield's sale to Morrison Homes of land for a residential subdivision. CTL had provided geotechnical engineering services for Sheffield, and Morrison Homes sued CTL for professional negligence, negligent misrepresentation, and breach of warranty. Morrison Homes's original petition included a certificate of merit by Jim L. Hillhouse, P.E. (the Hillhouse certificate). In March 2008, CTL moved to dismiss Morrison Homes's claims against it on the ground that the Hillhouse certificate was inadequate.

Subsequently, Sheffield filed cross-claims and amended cross-claims against CTL for contribution and/or indemnity, breach of contract, breach of express warranty, and negligence. Sheffield expressly referenced and incorporated the Hillhouse certificate in its cross-claims against CTL.

CTL filed cross-claims against Sheffield. CTL demanded contribution from Sheffield and also pleaded a negligence cause of action against Sheffield. In its cross-claims against Sheffield, CTL also adopted and relied upon the Hillhouse certificate.

After the above pleadings had been filed, the trial court signed a July 3, 2008 order denying CTL's motion to dismiss Morrison Homes's claims against it on the ground that the Hillhouse certificate was inadequate. CTL did not perfect an interlocutory appeal from that order.

In 2009, Morrison Homes amended its pleadings to include additional factual allegations against CTL and to add a new claim against CTL for fraud in a real estate transaction. CTL then filed two motions to dismiss: a second motion to dismiss seeking dismissal of all of Morrison Homes's claims against it and a motion to dismiss Sheffield's claims against it.

CTL's second motion to dismiss Morrison Homes's claims asserted that the Hillhouse certificate filed by Morrison Homes—the same certificate of merit that CTL had challenged in its first motion to dismiss—was inadequate. Morrison Homes responded that CTL had waived any further complaints concerning the adequacy of the Hillhouse certificate because CTL had failed to perfect an appeal from the trial court's July 3, 2008 order denying CTL's first motion to dismiss.

CTL's motion to dismiss Sheffield's cross-claims asserted that Sheffield had failed to file a certificate of merit. Sheffield responded that it was not required to file a certificate of merit to pursue a contribution and/or an indemnity claim and that to the extent a certificate of merit was required by its claims for breach of contract, breach of express warranty, and negligence—which Sheffield pleaded were purely derivative of Morrison Homes's claims—that requirement was satisfied by the Hillhouse certificate that Sheffield had incorporated into its cross-claims.

The trial court conducted a hearing on both of CTL's dismissal motions and signed two July 6, 2010 orders denying them—one order denying CTL's second motion to dismiss Morrison Homes's claims and one order denying CTL's motion to dismiss Sheffield's claims. CTL then perfected this interlocutory appeal challenging the trial court's denial of both of its motions to dismiss.

III. CHAPTER 150 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE ¹

The controlling version of the statute provides, in pertinent part:

(a) In any action for damages alleging professional negligence by a design professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party registered ... licensed professional engineer competent to testify 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. The third-party professional engineer ... shall be licensed in this state and actively engaged in the practice of ... engineering.

....

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

See Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a), (d) (Vernon 2005).

IV. STANDARD OF REVIEW

An order granting or denying a motion to dismiss made pursuant to chapter 150 of the Texas Civil Practice and Remedies Code is immediately appealable as an interlocutory order. Id. § 150.002(e); Landreth v. Las Brisas Council of Co–Owners, Inc., 285 S.W.3d 492, 496 (Tex.App.-Corpus Christi 2009, no pet.). We review the denial of a defendant's motion to dismiss pursuant to section 150.002 under an abuse of discretion standard. Landreth, 285 S.W.3d at 496; Criterium–Farrell Eng'rs v. Owens, 248 S.W.3d 395, 397 (Tex.App.-Beaumont 2008, no pet.); see also 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 acts in an unreasonable and arbitrary manner or without reference to any guiding rules or principles. Palladian, 165 S.W.3d at 433. That a trial court decided a matter within its discretion in a different manner than an appellate court does not demonstrate an abuse of discretion, id., but a clear failure by the trial court to analyze or apply the law correctly does constitute an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

If resolution of an issue requires us to construe statutory language, we apply a de novo standard of review to the statute's construction. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009); Palladian, 165 S.W.3d at 436 (citing Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002)). Once we determine the proper construction of the statute, we determine whether the trial court abused its discretion in the manner in which it applied the statute to the instant case. See Palladian, 165 S.W.3d at 436.

V. NO ABUSE OF DISCRETION BY FAILING TO DISMISS MORRISON HOMES'S CLAIMS

In its first two issues, CTL claims that the trial court abused its discretion by denying CTL's second motion to dismiss Morrison Homes's claims. In its fifth issue, CTL argues that, to the extent the trial court implicitly found that CTL had waived its right to dismissal of Morrison Homes's claims, such a finding constituted an abuse of discretion.

CTL's first motion to dismiss Morrison Homes's claims and its second motion to dismiss Morrison Homes's claims both seek dismissal based solely on the alleged inadequacy of the Hillhouse certificate. CTL's second motion to dismiss alleges additional purported inadequacies that CTL did not allege in its first motion to dismiss and cites additional case law, but otherwise, the motions are the same. CTL concedes that it did not perfect an appeal from the trial court's July 3, 2008 order denying CTL's first motion to dismiss Morrison Homes's claims against it. CTL likewise concedes that its second motion to dismiss—denied by the trial court on July 6, 2010—challenges the same Hillhouse certificate.

An interlocutory order that is not timely appealed is not reviewable by this court. See City of Houston v. Estate of Jones, 321 S.W.3d 668, 670–71 (Tex.App.-Houston [14th Dist.] 2010, pet. filed); State v. Ruiz Wholesale Co., 901 S.W.2d 772, 775 (Tex.App.-Austin 1995, no writ); Desai v. Reliance Mach. Works, Inc., 813 S.W.2d 640, 641 (Tex.App.-Houston [14th Dist.] 1991, no writ); Cellular Mktg., Inc. v. Houston Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex.App.-Houston [14th Dist.] 1990, no writ); Tober v. Turner of Tex., Inc., 668 S.W.2d 831, 833–34 (Tex.App.-Austin 1984, no writ). Thus, we do not possess interlocutory jurisdiction over the trial court's July 3, 2008 order. See Tex.R.App. P. 26.1(b) (providing that in accelerated appeal, notice of appeal must be filed within twenty days of the date the judgment or order is signed); see also Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex.1998) (holding that we are to strictly construe statutes allowing interlocutory appeals).

We likewise do not possess jurisdiction over the trial court's July 6, 2010 order denying CTL's second motion to dismiss Morrison Homes's claims.² To the extent the July 6, 2010 order simply rules on the same matters already ruled on by the trial court in the July 3, 2008 order, it is not an appealable order. Denton County v. Huther, 43 S.W.3d 665, 666–67 (Tex.App.-Fort Worth 2001, no pet.) (holding that order denying “renewed plea to the jurisdiction” was not an appealable order; appellant had not appealed from original order denying plea to...