PRO Plus, Inc. v. Crosstex Energy Servs., L.P.

• Decision Date: 09 February 2012
• Docket Number: No. 01–11–00025–CV.,01–11–00025–CV.
• Citation: 388 S.W.3d 689
• Parties: PRO PLUS, INC., Appellant v. CROSSTEX ENERGY SERVICES, L.P., Appellee.
• Court: Texas Court of Appeals

388 S.W.3d 689

PRO PLUS, INC., Appellant

v.CROSSTEX ENERGY SERVICES, L.P., Appellee.

No. 01–11–00025–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 9, 2012.

Levon G. Hovnatanian, Martin, Disiere, Jefferson & Wisdom, LLP, Houston, TX, for Appellant.

Clifton J. McAdams, Brook F. Minx, Donato, Minx, Brown & Pool, P.C., Rene S. Rogers, Keith R. Taunton, Tucker, Taunton, Snyder & Slade, P.C., Houston, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

LAURA CARTER HIGLEY, Justice.

In the trial court, Pro Plus, Inc. filed a motion to dismiss the claims of Crosstex Energy Services, L.P. on the ground that Crosstex had failed to file a certificate of merit with its original petition, as required by Civil Practice and Remedies Code section 150.002.¹ Identifying eleven issues, Pro Plus appeals the trial court's order denying its motion to dismiss.

We reverse and remand.

Background

Crosstex Energy Services provides natural gas gathering and transmission pipeline services to energy producers and consumers. The Godley Compressor Station in Johnson County, Texas is part of Crosstex's operations. Gas comes to the Godley Station through pipelines from wellheads in the field via gathering stations. The Godley Station compresses the gas, increasing the pressure, and then discharges the gas through a pipeline to the next downstream station.

On November 15, 2008, a gasket connection on a control valve on one of the compressors failed. Natural gas escaped the line and then ignited. A fire erupted at the station causing significant property damage.

On April 14, 2010, Crosstex sued Pro Plus and another defendant for damages arising from the fire. Pro Plus, a registered engineering firm, had been the principal contractor for the construction of the Godley Station. As stated in Crosstex's Original Petition, Pro Plus had “designed, specified, assembled, and constructed” the station.

In its Original Petition, Crosstex asserted causes of action against Pro Plus for general and specific negligence, negligent misrepresentation, breach of implied and express warranty, and breach of contract. With respect to its general negligence claim, Pro Plus alleged the following:

Pro Plus owed a duty to Crosstex, and the general public, to exercise a high degree of care in designing, constructing and assembling the Godley Station as any reasonable prudent engineering and/or construction firm would do under the same or similar circumstances. Pro Plus knew a leak in a high pressure gas pipeline could cause a cataclysmic event. Pro Plus breached its duty of care by rushing the design and/or hurriedly constructing the Godley Station in a careless and reckless manner.

Crosstex alleged the following specific acts of negligence against Pro Plus:

a) Failing to provide appropriate and/or independent conceptual design, specification and/or engineering services specifically for the Godley Station;

b) Failing to follow industry standards in the design, specification and/or engineering of the Godley Station;

c) Failing to provide appropriate conceptual design, specification and/or engineering services by including the 8? flangeless Dyna–Flo model DF560 control valve on the upstream side of compressor unit # 2 when such valve was completely unnecessary;

d) Failing to use appropriate and/or compatible materials in the component parts of the 8? flangeless Dyna–Flo model DF560 control valve under the circumstances, including but not limited to the decision to use a spiral wound gasket;

e) Failing to properly install the 8? flangeless Dyna–Flo model DF560 control valve, including but not limited to faulty installation of the spiral wound gasket;

f) Failing to properly install the 8? flangeless Dyna–Flo model DF560 control valve, including but not limited to failure to properly align and/or connect the 8? flangeless Dyna–Flo model DF560 control valve to the associated piping; g) Failing to warn Crosstex about the appropriateness and/or incompatibility of materials that Pro Plus utilized as component parts of the 8? flangeless Dyna–Flo model DF560 control valve, including but not limited to the decision to use a spiral wound gasket;

h) Failing to follow industry standards in the installation of the 8? flangeless Dyna–Flo model DF560 control valve and/or its component parts;

i) Failing to follow good and workmanlike practices with respect to using appropriate and/or compatible materials in installing and/or connecting the 8? flangeless Dyna–Flo model DF560 control valve;

j) Failing to follow good and workmanlike practices with respect to installing and/or connecting the 8? flangeless Dyna–Flo model DF560 control valve;

k) Failing to design and/or engineer the Godley Station in the same or similar manner as a reasonably prudent company would or would not have done, under the same or similar circumstances, commensurate with the danger involved;

l) Failing to install and/or connect the 8? flangeless Dyna–Flo model DF560 control valve in the same or similar manner as a reasonably prudent company would or would not have done, under the same or similar circumstances, commensurate with the danger involved.

In support of its negligent misrepresentation claim, Crosstex asserted as follows:

a) Pro Plus represented that as a full-service supplier of design, engineering, construction and project management services, installation of the 8? flangeless Dyna–Flo model DF560 control valve was reasonable and necessary in order to properly and safely operate the Godley Station;

b) Pro Plus represented the 8? flangeless Dyna–Flo model DF560 control valve, after installation at Godley Station, was safe for its intended use in a high pressure natural gas pipeline;

c) Pro Plus represented the 8? flangeless Dyna–Flo model DF560 control valve, after installation at Godley Station, was not defective nor unreasonably dangerous;

d) Pro Plus represented that as a full-service supplier of design, engineering, construction and project management services, it had a complement of qualified professionals with extensive experience to provide complete, cost effective, and timely project services;

e) Pro Plus represented that as a full-service supplier of design, engineering, construction and project management services, it had knowledge of the appropriate and/or compatible materials which should be utilized in a compressor station control valve and/or natural gas high pressure pipeline;

f) Pro Plus represented it followed the manufacturer's specifications and recommendations when installing the 8? flangeless Dyna–Flo model DF560 control valve.

Crosstex made the following allegations to support its breach of implied warranty claim:

Pro Plus impliedly warranted that it designed, constructed and oversaw installation of the Godley Station in a good and workmanlike manner. Crosstex further alleges Pro Plus impliedly warranted that installing the 8? flangeless Dyna–Flo model DF560 control valve made it fit for an appropriate and particular purpose (i.e., for use in a high pressure natural gas pipeline) if used in a reasonable manner when, in fact, the control valve was in a manifestly detective condition at the time it left the Defendant's possession, and was completelyunnecessary to the operation of the Godley Station. Pro Plus had reason to know and in fact did know the particular purpose for which the control valve was supposed to be used, and knew or should have known that Crosstex was relying on Pro Plus' skill and judgment to select and furnish goods suitable for high pressure gas line service, in accord with a reasonable prudent design.

Crosstex asserted as follows with regard to its breach of express warranty claim:

Crosstex entered into a contract with Pro Plus as the full-service supplier of design, engineering, construction and project management services for the Godley Station. Pro Plus expressly warranted its work at the Godley Station would be free of defects. Pro Plus breached its express warranty for services contained in the contract between the parties in that Pro Plus warranted that its work would conform to “good standard industry practices” and be performed in a “workmanlike manner,” when in fact Pro Plus' work on the Godley Station was clearly rushed, hurried, incomplete, substandard and inadequate.

Part of Pro Plus' work as the full-service supplier of design, engineering, construction and project management services for the Godley Station included the sale of services, including but not necessarily limited to providing professional judgment as to the necessity for having control valves at all, and if indicated, selection of the proper valve manufacturer, size, and appropriate materials for any component parts, including gaskets.

Lastly, Crosstex alleged as follows with respect to its breach of contract claim:

On or about February 28, 2005, Crosstex entered into a valid and enforceable Master Service Agreement contract with Pro Plus, governing all future work or services, including any supplied equipment or materials, which contract was in place during all times relevant to this lawsuit. Pro Plus, as the full-service supplier of design, engineering, construction and project management services for the Godley Station, breached the contract in one or more of the following respects:

a) Pro Plus failed to identify a hazardous condition(s) at the worksite;

b) Pro Plus failed to warn of a hazardous condition(s) at the worksite;

c) Pro Plus delivered goods that were defective in design;

d) Pro Plus delivered goods that were defective in workmanship;

e) Pro Plus delivered goods that were defective in materials;

f) Pro Plus delivered goods for other than their ordinary intended purposes.

Pro Plus filed its answer on May 28, 2010. Pro Plus generally denied Crosstex's claims and asserted a number of affirmative defenses and special exceptions.

A number of months later, the parties signed a Rule 11 agreement, which provided, inter alia, that...