Rosenthal v. Boyd

• Decision Date: 01 May 2013
• Docket Number: NO. 03-11-00037-CV,03-11-00037-CV
• Parties: Gayle Rosenthal, Appellant v. Sam Boyd, Trustee, as the Legal Representative of the Ethel Davidson Boyd Living Trust; Sam Boyd, Trustee, as the Legal Representative of the Ethel Davidson Boyd Living Trust No. Two; Imad Salem and MWM Design, Inc., Appellees
• Court: Texas Court of Appeals

Gayle Rosenthal, Appellant v. Sam Boyd, Trustee, as the Legal Representative

of the Ethel Davidson Boyd Living Trust; Sam Boyd,

Trustee, as the Legal Representative of the Ethel Davidson

Boyd Living Trust No. Two; Imad Salem and MWM Design, Inc., Appellees

NO. 03-11-00037-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Filed: May 1, 2013

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY

NO. C-1-CV-10-008564, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Gayle Rosenthal sued Sam Boyd, in his capacity as trustee of a trust, Imad Salem, and, MWM Design, Inc., asserting negligence per se, negligence, and premises liability claims for injuries Rosenthal sustained in a bicycle accident. On appeal, she challenges the trial court's rulings (1) granting Salem and MWM's motion to dismiss her claims for failure to file a certificate of merit and (2) granting Boyd's motion for summary judgment on Rosenthal's claims against him. We will affirm the trial court's judgment.

BACKGROUND

In September 2008, Rosenthal was riding her bicycle north along Shoal Creek Boulevard near its intersection with Hancock Drive in Austin, Texas. When the bike lane ended, Rosenthal decided to move from the street to the sidewalk using the nearest residential driveway,which was owned by the trust overseen by Boyd. As Rosenthal steered onto the driveway, she lost control of her bicycle when her front tire hit the driveway edge or "lip," which was one inch higher than is allowed under City of Austin design standards. Specifically, the driveway edge was 1.5 inches high and the City's design standard mandates that curb cuts be no higher than .5 inches high. See City of Austin, Texas, Standard Specifications, § 470S.4 (2012) ("The saw cutting of the curb face shall be initiated at an elevation 1/2 inch (12.5 millimeters) above the existing gutter . . . .") (available at http://austintexas.gov/department/online-tools-resources). After she hit the driveway edge, Rosenthal crashed into a nearby retaining wall and suffered serious injuries to her hand and face.

Rosenthal sued Boyd, as trustee of the trust that owns the property, alleging negligence per se, negligence, and premises liability on the grounds that Boyd had failed to properly maintain and improve the property and had allowed a dangerous condition on the property.¹ She also sued Salem and MWM—the engineer and engineering firm hired by the City of Austin to design the sidewalk modifications that the City made in August 2007 to its right-of-way along part of Shoal Creek—claiming negligence per se and negligence on the grounds that Salem and MWM had failed to properly construct, design, and supervise the construction of the driveway entrance.

Salem and MWM filed a motion to dismiss Rosenthal's claims because she failed to include with her petition the certificate of merit required by the civil practice and remedies codefor claims that are based on the performance of professional engineering services. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (West 2011). In support of their motion to dismiss, Salem and MWM attached an affidavit from Salem explaining the services he and MWM provided to the City on the Shoal Creek sidewalk project and attesting to Salem's status as a licensed professional engineer. Rosenthal responded that she was not required to include a certificate of merit because her claims against Salem and MWM did not arise from the provision of professional engineering services. See id.

Meanwhile, Boyd filed a motion for summary judgment attacking Rosenthal's claims against the trust, asserting that the trust had no control or right of control over the driveway edge because that part of the trust property was located within the City's right-of-way easement and that the City, not the trust, had designed and built the driveway edge. In support of the summary-judgment motion, Boyd attached three affidavits, which can be summarized as follows:

• Bill Boyd, the trust beneficiary's son, testified that the City of Austin, not the property owner, constructed the edge of the driveway and that the property owner did not maintain the edge of the driveway.

• James Grant, a licensed surveyor, testified that the edge of the driveway is located within the City of Austin's right of way and that, under City ordinance, the property owner "may not make any alterations to the area where the accident allegedly occurred."

• Imad Salem, named defendant and civil engineer employed by MWM, testified, among other matters, that MWM contracted with the City to perform professional engineering services, including design of the project and construction administration, in connection with the City's Shoal Creek project.

Boyd also attached a notarized letter from the president of a masonry company who stated that the company had built the driveway for the City of Austin in August 2007 as part of the City's sidewalkimprovement project in that area. Rosenthal objected to Boyd's summary-judgment evidence, and offered her own affidavit averring that she lost control of her bicycle and sustained injuries because the lip of the driveway was too high. She also included a photograph showing the height of the driveway edge and schematics of the plan for the driveway edge.

After hearings on these motions, the trial court granted Salem and MWM's motion to dismiss and Boyd's motion for summary judgment, and dismissed Rosenthal's claims. On appeal, Rosenthal challenges both rulings, which we address separately.

CERTIFICATE OF MERIT

Rosenthal challenges the trial court's ruling dismissing her claims against Salem and MWM in two issues. First, she argues that section 150.002 does not require a certificate of merit in cases such as hers where the underlying claims do not implicate an engineer's professional knowledge, education, and experience. Second, Rosenthal argues that the application of section 150.002 to dismiss her claims violates her constitutional right to trial by jury.

Standard of review

We review a trial court's decision on a defendant's motion to dismiss under section 150.002 for an abuse of discretion. Jaster v. Comet II Const., Inc., 382 S.W.3d 554, 557 (Tex. App.—Austin 2012, no pet.). A trial court abuses its discretion when it rules arbitrarily, unreasonably, or without regard to guiding legal principles, or without supporting evidence. See Ford Motor Co. v. Chacon, 370 S.W.3d 259, 362 (Tex. 2012); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).

Section 150.002

Civil practice and remedies code section 150.002 requires a plaintiff filing claims against a licensed engineer to file with its petition an affidavit from a third-party engineer if the plaintiff's claims against the engineer arise from the provision of the engineer's professional services—

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, licensed professional engineer, registered landscape architect, or registered professional land surveyor who . . . holds the same professional license or registration as the defendant . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a). The statute requires the affidavit, which is called a certificate of merit, to set forth specifically the negligence or other action, error, or omission of the defendant engineer in providing the professional services. See id. § 151.002(b). The plaintiff's failure to file the certificate of merit "shall result in dismissal of the complaint against the defendant." Id. § 150.002(e).

Applicability of 150.002

Rosenthal does not dispute that she failed to file a certificate of merit, but instead argues that her claims against Salem and MWM do not require a section 150.002 certificate of merit because those claims do not implicate an engineer's professional knowledge, education, and experience. See TDIndustries, Inc. v. Rivera, 339 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding that a claim arises out of the provision of professional services "if the claimimplicates the engineer's education, training, and experience in applying special knowledge or judgment"). Specifically, she argues that measuring the edge of a driveway to determine whether its height complies with City code does not require engineering skills. We disagree with her characterization of the issue here and also with her conclusion that section 150.002 does not apply to her claims against Salem and MWM.

Rosenthal's claims for negligence and negligence per se against Salem and MWM rest on her allegation that the engineers failed "to properly design and construct the sidewalk and driveway." While measuring the height of a driveway edge after its construction may not require engineering knowledge and training, the design of a project adding sidewalks along a residential street where no sidewalks currently exist certainly can, and likely does, implicate an engineer's specialized knowledge or judgment. The occupations code defines the practice of engineering as "the performance of . . . any public or private service or creative work, the adequate performance of which requires engineering education, training, and experience in applying special knowledge or judgment of the mathematical, physical, or engineering sciences to that service or creative work." See Tex. Occ. Code Ann. § 1001.003(b)(c) (West 2012). Designing a project to add sidewalks to an existing residential street would require knowledge of relevant city, state, and federal laws, obtaining and incorporating survey information, developing specifications for the project, demolition of existing improvements, and knowledge regarding underground cables, wires, and other utilities. It also requires knowledge of the ground, drainage, slopes, and construction materials and the ability to incorporate this...