Jaster v. Comet II Constr., Inc.

Decision Date03 July 2014
Docket NumberNo. 12–0804.,12–0804.
Citation438 S.W.3d 556,57 Tex. Sup. Ct. J. 1005
PartiesGary Wayne JASTER, Petitioner, v. COMET II CONSTRUCTION, INC., Joe H. Schneider, Laura H. Schneider, and Austin Design Group, Respondents.
CourtTexas Supreme Court


David Kenneth Sergi, David K. Sergi & Associates, P.C., San Marcos, TX, for Other interested party.

Andrew L. Kerr, Cynthia E. Ellis Rosen, John Alex Huddleston, Strasburger & Price LLP, San Antonio, TX, for Petitioner.

Kemp W. Gorthey, Attorney at Law, Austin, TX, for Respondent Austin Design Group.

Henderson L. Buford III, Buford & Associates, Austin, TX, for Respondent Comet II Construction, Inc.

Justice BOYD announced the Court's disposition and delivered a plurality opinion, in which Justice JOHNSON, Justice WILLETT, and Justice DEVINE joined.

Chapter 150 of the Texas Civil Practice and Remedies Code requires “the plaintiff in “any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional” architect, engineer, land surveyor, or landscape engineer to file a supporting expert affidavit “with the complaint.” The issue in this case is whether this requirement applies to a defendant or third-party defendant who files a third-party claim or cross-claim against a licensed or registered professional. Concluding that cross-claimants and third-party plaintiffs are not “the plaintiff in an “action or arbitration proceeding,” we hold that the statute's expert affidavit requirement does not apply to them.



Mahmoud Dawoud purchased a home from Comet II Construction, Inc. About ten years later, Dawoud sued Comet 1 for negligence, negligent misrepresentations, fraud, deceptive trade practices, and breach of contract, alleging that Comet defectively designed and constructed the home's foundation. Comet denied any liability and asserted third-party claims against Austin Design Group, from whom Comet had purchased the foundation plans, and against Gary Wayne Jaster, the licensed professional engineer who had prepared the plans. Comet sought contribution and indemnity from the third-party defendants, alleging that they “are or may be liable to [Comet] for all or part of [Mahmoud's] complaint.” Austin Design Group filed a counterclaim against Comet and a cross-claim against Jaster, seeking contribution and indemnity and asserting that, [t]o the extent there is any defect in the foundation, whether by design or construction, it is the fault of [Jaster or Comet] and not the fault of Austin Design Group.”

Jaster filed a motion to dismiss Comet's third-party claim and Austin Design Group's cross-claim, arguing that they were each “the plaintiff as to those claims, that he was a licensed professional engineer, and that they had failed to file an expert affidavit (which the statute refers to as a “certificate of merit”) as chapter 150 requires. In response, Comet filed an amended third-party petition, this time attaching a certificate of merit.2 Jaster then filed an amended motion to dismiss, arguing that Comet did not comply with the statute because it did not file the certificate of merit with the original third-party petition and thus did not file it “with the complaint.”

The trial court denied Jaster's motion to dismiss, and Jaster filed this interlocutory appeal.3 With one justice dissenting, the court of appeals affirmed, concluding that chapter 150 does not require third-party plaintiffs or cross-claimants to file a certificate of merit. 382 S.W.3d 554. Jaster filed a petition for review, which we granted.


“The Plaintiff in an “Action” Under Section 150.002

Jaster contends that section 150.002 of the Texas Civil Practice and Remedies Code requires dismissal of the claims that Comet and Austin Design Group asserted against him in this case. The 2005 version of this section, which governs this action, provided:

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.

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, § 4, 2005 Tex. Gen. Laws 348, 348 and Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 and Act of May 27, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992 (current version codified at Tex. Civ. Prac. & Rem.Code § 150.002).4 “The plaintiff's failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the defendant and [t]his dismissal may be with prejudice.” Id. § 150.002(e).5

The parties do not dispute that Jaster is a licensed professional engineer and thus a “licensed or registered professional,” 6 or that the claims that Comet and Austin Design Group assert against him arise out of the provision of professional services. Neither Comet nor Austin Design Group filed a certificate of merit when they originally filed their claims against him. The only issue in this appeal is whether the statute required them to do so.

Jaster argues: (1) for purposes of section 150.002, “there is no meaningful distinction” between an original plaintiff and a third-party plaintiff or a cross-claimant because they all assert affirmative claims for relief and are subject to the same pleading requirements; (2) third-party claims and cross-claims are “actions,” and thus must comply with the statute's requirements for “any action”; and (3) not applying the requirement to third-party plaintiffs and cross-claimants thwarts “the statute's purpose to protect licensed professionals from unmeritorious or frivolous claims.” In response, Comet and Austin Design Group contend: (1) because the statute uses the word plaintiff rather than the more inclusive term claimant,” the certificate-of-merit requirementapplies only to a party that initiates a lawsuit; (2) requiring a defendant who denies the plaintiff's allegations to file a certificate of merit that supports the plaintiff's claims would be “absurd,” “unfair,” and “unreasonable”; and (3) if applying the requirement only to “the plaintiff undermines the statute's purpose, the Legislature should address that problem, not the courts.7 After briefly reviewing the courts of appeals' decisions addressing this issue, we consider the language of the statute and its context, and conclude that they compel us to agree with Comet and Austin Design Group.

A. Judicial Constructions of Section 150.002

Three Texas courts of appeals have addressed section 150.002's certificate-of-merit requirement in the context of third-party plaintiffs or cross-claimants.8 First, in DLB Architects, P.C. v. Weaver, the Dallas Court of Appeals applied the requirement to a defendant who asserted third-party claims for contribution and indemnity against out-of-state architects. 305 S.W.3d 407, 411 (Tex.App.-Dallas 2010, pet. denied). The third-party plaintiff argued that the requirement applies only to architects licensed in Texas, and the court rejected that argument. Id. at 410–11. But neither party argued that the requirement did not apply to third-party plaintiffs, and the court applied the requirement without addressing that issue. Id.

Next, the Fort Worth Court of Appeals became the first to expressly address the issue in CTL/Thompson Texas, LLC v. Morrison Homes, 337 S.W.3d 437 (Tex.App.-Fort Worth 2011, pet. denied). In that case, a homebuilder sued a land developer and several engineers over a real estate transaction and filed a certificate of merit with the original petition. Id. at 439. The land developer brought cross-claims against the engineers, but instead of filing a certificate of merit, he incorporated the homebuilder's certificate of merit into his cross-petition by reference. Id. The engineers argued that the statute required the developer to file his own certificate of merit to support the cross-claims. Id. at 440. The court of appeals held that the statute does not apply to a defendant who merely files cross-claims against another defendant. Id. at 445–46. The court rejected the engineer's reliance on DLB Architects on the ground that it involved a defendant who filed third-party claims against a new third-party defendant, rather than cross-claims against a defendant who was already in the case. Id. The court reasoned that there is no need to require a cross-claimant to file a certificate of merit because “the plaintiff will have already filed [one],” or “if not, the plaintiff's claims are subject to dismissal.” Id. at 445. But because the plaintiff will not have already filed a certificate of merit addressing the conduct of a new third-party defendant, the court reasoned that a third-party plaintiff should be required to do so, even if a cross-claimant is not. Id. at 445–46.

Finally, in the case before us today, the Austin Court of Appeals held that the statute does not require third-party plaintiffs or cross-claimants to file a certificate of merit. The court identified many respects in which third-party plaintiffs and cross-claimants are both similar to and yet different from original plaintiffs. 382 S.W.3d at 559–60. The majority observed that “the statute does not specifically address defendants filing third-party complaints and cross-claims” and suggested that “there are multiple options of how the certificate-of-merit requirement could be applied to them,” depending on whether the claims...

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