DLB ARCHITECTS, PC v. Weaver, 05-09-00030-CV.
| Citation | 305 SW 3d 407 |
| Decision Date | 29 January 2010 |
| Docket Number | No. 05-09-00030-CV.,05-09-00030-CV. |
| Parties | DLB ARCHITECTS, P.C. and David Boeck, Appellants, v. Blair WEAVER, Weaver Construction Company, Inc., and Cool Water Development, L.L.P., Appellees. |
| Court | Court of Appeals of Texas |
Benjamin Baker, Benjamin A. Baker, P.C., Sherman, TX, for Appellants.
J. Don Gordon, Hynds & Gordon, P.C., Sherman, TX, for Appellees.
Before Justices MORRIS, BRIDGES, and MURPHY.
This interlocutory appeal follows the trial court's refusal to dismiss the claims that Blair Weaver, Weaver Construction Company, Inc., and Cool Water Development, L.L.P. brought against DLB Architects, P.C. and David Boeck for indemnity and contribution. Appellants moved for dismissal of the claims against them because appellees failed to file a statutorily required certificate of merit—an affidavit— at the time they filed their claims. The trial court concluded such an affidavit was not required for claims asserted against architects not registered in Texas. We conclude otherwise based on the plain language of the statute. We reverse the trial court's order and remand the cause to the trial court for further proceedings.
On May 9, 2007, Jeff and Yolanda Meincke sued appellees alleging defective construction of their home in Sherman. Appellees answered and filed a third-party complaint against appellants requesting indemnity and contribution.1 Almost fifteen months after appellees filed their complaint, appellants moved for dismissal based on appellees' failure to file an affidavit of a third-party architect in accordance with section 150.002 of the civil practice and remedies code. Appellees responded to the motion arguing that section 150.002 did not apply because appellants were not registered as Texas architects. They further asserted appellants waived their right to relief under the statute by delaying the filing of their motion to dismiss. The trial court denied the motion after concluding appellants were not entitled to the benefit of section 150.002 because they were not registered in Texas. Appellants timely brought this interlocutory appeal challenging the trial court's ruling.
The trial court's construction and application of a statute are questions of law we review de novo. See Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496 (Tex.App.-Corpus Christi 2009, no pet.). When construing a statute, we attempt to give effect to the legislature's intent. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999). To determine legislative intent, we look to the plain and common meaning of the words the legislature used. Id. Every word of a statute must be presumed to have been used for a purpose, and every word excluded from a statute must also be presumed to be excluded for a purpose. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Only when it is necessary to give effect to the clear legislative intent may we insert additional words into a statutory provision. See Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 552 (Tex.1981).
The central issue we must decide is whether chapter 150 applies to claims filed against architects not registered in Texas. The relevant statutory language, twice amended in 2005, provides as follows:
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, §§ 1-3, 2005 Tex. Gen. Laws 348, 348 (effective May 27, 2005), and Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (effective September 1, 2005).2
The trial court concluded section 150.002's affidavit requirements applied only to architects registered to practice in Texas. Yet the statute makes no mention of where an architect must be licensed or registered to be entitled to the benefit of its provisions. In reaching its conclusion, the trial court used the definition of "architect" in the Texas Occupations Code, which states, "In this subtitle: . . . `Architect' means a person registered under this chapter to engage in the practice of architecture." TEX. OCC.CODE ANN. § 1051.001(1) (Vernon Supp.2009). But there is no indication that the legislature intended to incorporate the occupations code's definition of "architect" into chapter 150 of the civil practice and remedies code. Moreover, the plain language of the statute does not support the trial court's limited application. If the legislature intended the affidavit requirement to apply only to those claims filed against defendant architects who are registered in Texas, it could have easily done so.
On appeal, appellees note that section 150.001(2) specifically adopts the definition of "practice of architecture" set forth in the Texas Occupations Code.3 They argue it would make no sense for the legislature to adopt that definition and reject the occupations code's definition of "architect." We are unpersuaded by appellees' argument. As noted above, the legislature clearly did not include the occupations code's definition of "architect" in section 150.001(2).
We are also unpersuaded by appellees' contention that the principle of in pari materia requires us to utilize the occupations code's definition of "architect" in construing the term "licensed architect" in chapter 150. The principle of in pari materia provides that, where two or more separate statutory provisions pertain to the same subject, appellate courts should attempt to construe the provisions so that the statutes will be in harmony. See Lenhard v. Butler, 745 S.W.2d 101, 105 (Tex. App.-Fort Worth 1988, writ denied). The principle is limited, however, to two provisions that were enacted with the same purpose in mind. See, e.g., Segura v. State, 100 S.W.3d 652, 654 (Tex. App.-Dallas 2003, no pet.). The two statutes before us were enacted many years apart for different purposes and objectives. Chapter 150 was added in 2003 as part of a "comprehensive tort reform bill addressing many issues affecting the civil court system." Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 4, 78th Leg., R.S. (2003). The occupations code provision, on the other hand, dates back to a 1937 statute defining and regulating the practice of architecture to safeguard the public "against the irresponsible practice of the profession of architecture." Act of May 18, 1937, 45th Leg., R.S., ch. 478, 1937 Tex. Gen. Laws 1279, 1279; see also TEX. Occ. CODE ANN. § 1051.0015 (Vernon Supp 2009). In light of the different purposes of the two statutes, the doctrine of in pari materia is inapplicable to the statutory construction issue before us.
Our conclusion that the term "licensed architect" in chapter 150 is not restricted to those architects registered in Texas is further supported by the legislature's use of the term "licensed in this state" when describing the requirements for the third-party licensed architect submitting the affidavit. See TEX. Civ. PRAC. & REM.CODE ANN. § 150.002(a). The statute specifically requires that the third-party licensed architect "shall be licensed in this state." Id. (emphasis added). If the trial court's construction were correct, the legislature's inclusion of the language "licensed in this state" would be redundant and mere surplusage.
Appellees argue that if section 150.002 applies to defendant architects not registered in Texas, the requirement that the third-party architect hold "the same professional license as" the defendant architect could lead to the absurd result of requiring the third-party architect to be licensed in a foreign jurisdiction. This reading, however, is in direct conflict with the express language of the statute that provides the third-party architect "shall be licensed in this state." Moreover, the "same professional license" requirement may be read to require the affiant to hold a license in the same discipline and profession as the defendant such that only an architect may testify about another architect. This construction is consistent with the express language of the section's second sentence, which requires the "third-party professional engineer, registered professional land surveyor, or...
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