Jaster v. Comet II Constr., Inc.

• Decision Date: 31 August 2012
• Docket Number: No. 03–10–00191–CV.,03–10–00191–CV.
• Citation: 382 S.W.3d 554
• Parties: Gary Wayne JASTER, Appellant, v. COMET II CONSTRUCTION, INC.; Joe H. Schneider; Laura H. Schneider; and Austin Design Group, Appellees.
• Court: Texas Court of Appeals

382 S.W.3d 554

Gary Wayne JASTER, Appellant,

v.COMET II CONSTRUCTION, INC.; Joe H. Schneider; Laura H. Schneider; and Austin Design Group, Appellees.

No. 03–10–00191–CV.

Court of Appeals of Texas, Austin.

Aug. 31, 2012.

Henderson Buford, Buford & Associates, Kemp W. Gorthey, Austin, TX, Appellees.

Cynthia E. Rosen, John Alex Huddleston, Andrew L. Kerr, Strasburger & Price, L.L.P., San Antonio, TX, for Appellant.

Before Justices HENSON, ROSE and GOODWIN.

OPINION

JEFF ROSE, Justice.

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. § 150.002.¹ Jaster argues that the appellees' failure to file a certificate of merit with their original respective third-party and cross-claims requires dismissal of their claims against him. See id. § 150.002(d). Because section 150.002 by its plain language applies only to “the plaintiff,” we conclude that the trial court did not err by denying Jaster's motions to dismiss appellees' claims for their failures to file timely certificates of merit.

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”), ² alleging that his house foundation was improperly designed and built. Dawoud asserted several causes of action including negligence, negligent misrepresentation, fraud, and violations of the deceptive trade practices act. With its answer to Dawoud's petition, Comet filed a third-party complaint seeking contribution and indemnity from Jaster and Austin Design Group (“ADG”), alleging that the third-party defendants “are or may be liable to [Comet] for all or part of Plaintiff's complaint” against Comet. Comet alleged that it purchased engineered foundation plans from ADG; that the plans were prepared by Jaster, a professional engineer; and that Dawoud sued alleging defective construction of his foundation. ADG then filed a cross-claim alleging that “[t]o the extent there is any defect in the foundation, whether by design or construction, it is the fault of Gary Wayne Jaster or Comet II Construction, Inc. and not the fault of Austin Design Group.” ADG asserted that it “is entitled to contribution and/or indemnity from Gary Wayne Jaster and/or Comet II Constructors.” It is undisputed that no party to this appeal filed a certificate of merit with its original complaint or cross-claim.

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 certificate 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.³ Underlying these issues is a question of statutory construction—how should the certificate of merit requirement of section 150.002, which applies expressly to “the plaintiff,” be applied in situations involving defendants who file third-party complaints and cross-claims?

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 unreasonable as to amount to a clear and prejudicial error of law. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.2002). A trial court acts arbitrarily and unreasonably if application of the law to the facts dictates only one correct decision, but the trial court reaches a different one. Rivenes v. Holden, 257 S.W.3d 332, 336 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). A trial court abuses its discretion when it fails to analyze or apply the law correctly. See In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex.2007).

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. SeeTex. 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 holding that the requirement that the plaintiff file a certificate of merit does not apply to defendants filing cross-claims for contribution and indemnity from fellow existing defendants, but does apply to defendants filing third-party claims against new defendants. CTL/Thompson Tex., LLC v. Morrison Homes & Sheffield Dev. Co., 337 S.W.3d 437, 445–46 (Tex.App.-Fort Worth 2011, pet. denied). In that case, Morrison bought land for a residential subdivision from Sheffield Development Company, and Sheffield received geotechnical engineering services from CTL and its professional engineers (collectively, “CTL”). Id. at 439. Morrison sued Sheffield and CTL, alleging breach of warranty and negligence. Id. Morrison filed a...