Tdindustries Inc. v. Rivera

• Decision Date: 31 March 2011
• Docket Number: No. 01–10–00812–CV.,01–10–00812–CV.
• Citation: 339 S.W.3d 749
• Parties: TDINDUSTRIES, INC., Appellant,v.Marco RIVERA, Appellee.
• Court: Texas Court of Appeals

339 S.W.3d 749

TDINDUSTRIES, INC., Appellant,

v.Marco RIVERA, Appellee.

No. 01–10–00812–CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 31, 2011.

Bruce K. Packard, James Owen Crewse, Theodore J. Riney, Riney Palter, PLLC, Dallas, for Appellant.

Brenton P. Monteleone, The Aubert Law Firm, Kingwood, Galvin B. Kennedy, Kennedy Hodges LLP, James M. Corbett, Barber Lyman, P.C., Jaqueline Leguizamon, City of Houston Legal Dept., Timothy L. Nebel, Barker Lyman, P.C., Houston, for Appellee.Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.

OPINION

ELSA ALCALA, Justice.

Appellant TDIndustries, Inc. (“TDI”) appeals from the denial of its motion to dismiss appellee Marco Rivera's claims against TDI for failure to file a certificate of merit pursuant to Section 150.002 of the Civil Practices and Remedies Code (the “CPRC”). In four issues, TDI argues that the trial court abused its discretion by denying the motion to dismiss because the claims pled by Rivera are governed by Section 150.002 and Rivera was required to satisfy the certificate of merit requirement with his original petition. We conclude that the trial court did not abuse its discretion in determining that Rivera's claims against TDI do not implicate Section 150.002's certificate of merit requirement, and we affirm.

Background

Rivera sued TDI and the City of Houston to recover for injuries Rivera allegedly incurred at the George R. Brown Convention Center when a freight elevator door closed and struck him in the head while he was pushing a trash cart into the elevator.¹ The City of Houston owns the George R. Brown Convention Center, and TDI provides management services to the City of Houston for the convention center. TDI is a licensed professional engineering firm. Under his original petition filed February 11, 2009, Rivera's claims against TDI and the City of Houston were negligence and premises liability claims.

Rivera did not file a certificate of merit with his original petition nor with his second, third or fourth amended petitions. On October 30, 2009, TDI moved to dismiss Rivera's complaint for failure to file a certificate of merit. On the day TDI's motion to dismiss was set for hearing, Rivera nonsuited his claims against TDI Seven months later, Rivera filed a certificate of merit and fifth amended petition that reasserted his previously nonsuited claims against TDI and added new claims for products liability, negligent activity, and gross negligence against TDI and other defendants. TDI filed a second motion to dismiss, arguing that Rivera's certificate of merit was untimely because it was not filed with his original petition and, alternatively, the certificate of merit filed with Rivera's fifth amended petition was deficient because the affiant was not “practicing in the same area of practice” as TDI.

On the day before the hearing on TDI's motion to dismiss, Rivera filed its sixth amended petition, dropping TDI from his products liability and negligent activity claims but retaining his claims against TDI for negligence and premises liability. After the hearing, Rivera filed a seventh amended petition that further honed the allegations against TDI in Rivera's negligence and premises liability claims. Subsequently, the trial court denied TDFs second motion to dismiss. TDI appeals from this order.

Standard of Review

Section 150.002(f) authorizes interlocutory appeal from a trial court's grant or denial of a motion to dismiss under that statute. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(f) (West Supp.2010) (formerly § 150.002(e)). We review such orders under an abuse of discretion standard. Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102, 106 (Tex.App.-Houston [1st Dist.] 2010, no pet.); UOP, L.L.C. v. Kozak, No. 01–08–00896–CV, 2010 WL 2026037, at *4 (Tex.App.-Houston [1st Dist.] May 20, 2010, no pet.) (mem.op.); Ashkar Eng'g Corp. v. Gulf Chem. & Metallurgical Corp., No. 01–09–00855–CV, 2010 WL 376076, at *1 (Tex.App.-Houston [1st Dist.] Feb. 4, 2010) (mem.op.) supplemented, 2010 WL 1509287 (Tex.App.-Houston [1st Dist.] Apr. 15, 2010, 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. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.2004). If resolution of the issue requires us to construe statutory language, we review statutory construction de novo. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009); Ashkar, 2010 WL 376076, at *1. Once we determine the proper construction of the statute, we determine whether the trial court abused its discretion in the manner in which it applied the statute to the instant case. Ashkar, 2010 WL 376076, at *1; Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 436 (Tex.App.-Fort Worth 2005, no pet.).

Standard for Statutory Construction

In construing Section 150.002, our primary goal is to determine and give effect to legislative intent. Williams, 315 S.W.3d at 106 (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003)). The Legislature's intent must be derived from the express terms of the statute when possible. Ashkar, 2010 WL 376076, at *2; Tex. Gov't Code Ann. § 311.023 (West 2005). We look to the plain and common meaning of the words the Legislature used unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.2008); Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). We may also consider the objective the Legislature sought to achieve through the statute, as well as the consequences of a particular construction. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.2009); Tex. Dep't of Transp., 146 S.W.3d at 642.

TDI's Motion to Dismiss

A. Applicable Law

As an initial matter, we note that Section 150.002 was amended by the Legislature during the time between Rivera's original filing of suit and Rivera's re-assertion of claims against TDI in his fifth amended and subsequent petitions. Compare Tex. Civ. Prac. & Rem.Code Ann. § 150.002 with Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (formerly codified at Tex. Civ. Prac. & Rem.Code § 150.002, amended 2009); Act of May 12, 2005, 79th Leg., R.S., ch. 189, §§ 1–2, 2005 Tex. Gen. Laws 348, 348 (formerly codified at Tex. Civ. Prac. & Rem.Code § 150.002, amended 2009). Neither party argues that the current version of the statute applies to Rivera's post-nonsuit assertion of claims against TDI in 2010; because both parties agree that the 2005 version of the statute governs all issues, we apply the 2005 version of the statute.²

Former Chapter 150 applies to “any action or arbitration proceeding for damages arising out of the provision of professional services” by a licensed engineering firm like TDI.2005 Tex. Gen. Laws at 348, 370 (formerly codified at Tex. Crv. Prac. & Rem.Code § 150.002). The plaintiff in such an action is required to file a particular kind of affidavit, often referred to as a “certificate of merit,” contemporaneously with the complaint or, under certain specified conditions, within 30 days after the complaint. Id. The certificate of merit required by the statute is an affidavit from a third-party professional who holds the same license as the defendant. Id. For example, a plaintiff bringing suit against an engineer on the basis of professional engineering services must file a supporting affidavit from a licensed engineer. Under the 2005 version of the statute, the affidavit must “set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.” Id. Under both versions of the statute, failure to file a certificate of merit in accordance with the statute “shall result in dismissal,” which dismissal “may be with prejudice.” Id.

B. Which Petition Governs?

In determining the nature of a party's claims with respect to Chapter 150, we look to the allegations in the party's pleadings. E.g., UOP, 2010 WL 2026037, at *3; Ashkar, 2010 WL 376076, at *7; Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728, 734 (Tex.App.-Texarkana 2010, pet. filed). Here, the parties dispute which petition we should look to in determining this appeal. TDI argues that the original petition pled claims within the scope of Chapter 150 and that Rivera's failure to timely file a certificate of merit with respect to that petition entitles TDI to dismissal of all of Rivera's subsequently pled claims against TDI. Rivera argues that the live pleadings govern, citing UOP, 2010 WL 2026037, at *1 (reviewing the live pleading at the time of the dismissal order) and Consol. Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887, 894 (Tex.App.-Austin 2008, no pet.) (same).

We will look to Rivera's live pleadings at the time of the motion to dismiss to determine whether Rivera's claims against TDI fall within the scope of Chapter 150. Cf. UOP, 2010 WL 2026037, at *3; Consol. Reinforcement, 271 S.W.3d at 891. If Rivera's claims against TDI are governed by Chapter 150, we will address TDI's argument that Rivera was required to file a certificate of merit with his original petition and, by failing to do so, is barred from filing claims against TDI in subsequent petitions. If Rivera's claims against TDI do not fall within the scope of Chapter 150, they are not barred by the statute. Texas courts of appeals have consistently declined to require the dismissal of non-Chapter 150 claims based on the plaintiff's failure to comply with Section 150.002 with respect to covered claims. Landreth v. Las Brisas Council of Co–Owners, Inc., 285 S.W.3d 492, 500 (Tex.App.-Corpus Christi 2009, no pet.) (plaintiff's failure to comply with Section 150.002 with regard to claims covered by Chapter 150 did not require dismissal of plaintiff...