Thursday, December 8, 2011
Court of appeals holds that trial court's denial of land surveyer's motion to dismiss for plaintiffs' alleged failure to satisfy the certificate-of-merits requirement in lawsuit against a licensed or registered professional seeking damages occasioned by the professonal's failure to perform the services properly. Certificate of merit was sufficiently specific. Plaintiff's expert was not disqualified from submitting the affidavit as a third-party fact or expert witness.
Joseph G. Gartrell, Jr., vs. Ernest Joseph Wren and Beverly Sue Wren, No. 01-11-00586-CV (Tex.App.- Houston [1st Dist.] Dec. 8, 2011, no pet. h.)
Appellant Joseph G. Gartrell, Jr., a registered professional land surveyor, brings this statutory interlocutory appeal. He complains that the trial court should have granted his motion to dismiss. The alleged ground for dismissal was that when appellees Ernest Joseph Wren and Beverly Sue Wren sued Gartrell for errors contained in surveys prepared by him, they failed to fully comply with the statute requiring a contemporaneously filed certificate of merit. See Tex. Civ. Prac. & Rem. Code Ann. §§ 150.001–.003 (West 2011). We find no error in the denial of Gartrell’s motion, and accordingly we affirm.
Gartrell performed two surveys on the Wrens’ residential property in 2000 and 2001. According to Gartrell, the Wrens sued him in 2006, but they dismissed that lawsuit without prejudice, only to refile the suit again in 2010. The Wrens’ 2006 petition is not part of the record for this appeal, but the 2010 petition alleged negligence and gross negligence related to Gartrell’s preparation of the surveys. The Wrens alleged that Gartrell
was negligent and fell below the standard of care for surveyors in that he falsely described the two surveys he prepared for [them] to contain acreage that was not part of the subject property; that incorrectly showed on the latter survey prepared by James W. Gartrell, Jr. the location of the house on the subject property; and that included easements and/or “easements not shown” that did not exist on the subject property.
The Wrens attached a certificate of merit to their 2010 petition—an affidavit from Christopher Trusky, a registered professional land surveyor. In it, Trusky stated that he had examined the two surveys prepared by Gartrell. He further attested:
4. I have walked the subject property and have prepared a survey of my own on the subject property;
5. I find that the two surveys of Mr. Gartrell, Jr. are incorrect and note the following:
a. The two surveys incorrectly show the acreage of the subject property;
b. The second survey, which was prepared on or about October l, 2001, incorrectly shows the location of the house located on the subject property;
c. The two surveys incorrectly state that there are pipeline easements and/or “easements not shown” that do not exist on the subject property or that physical evidence does not support.
6. It is my opinion that Mr. Gartrell, Jr. failed to use proper care in connection with the two surveys described above and that this failure and breach of the standard of care required of Mr. Gartrell, Jr. was the proximate cause of loss by Joseph and Beverly Wren.
7. I have read this affidavit, and every statement contained in it is true and correct and is within my personal knowledge.
Gartrell generally denied the allegations, pleaded the affirmative defense of limitations, and moved to dismiss under Chapter 150 of the Civil Practice and Remedies Code. He objected that the certificate of merit was untimely because no such certificate had been filed in 2006 with the previous petition. The motion to dismiss also alleged that the certificate of merit was substantively insufficient for four reasons: (1) inadequate specificity as to the alleged error concerning “acreage of the subject property”; (2) inadequate specificity as to the alleged error concerning “location of the house”; (3) an equivocal reference to easements on the survey; and (4) failure to address the applicable standard of care. Gartrell also objected that the certificate of merit did not satisfy the statute because Trusky was originally “employed” by the Wrens in connection with the sale of their property, and therefore he was “not a disinterested ‘third party’ within the meaning and intent of Chapter 150.”
The trial court rejected Gartrell’s arguments and denied the motion to dismiss. On appeal, Gartrell reurges the same arguments he presented to the trial court, which we summarize as: (1) because the Wrens did not file a certificate of merit in the earlier lawsuit, their current lawsuit should be dismissed; (2) the certificate of merit was insufficiently specific as to the area of the real property, the location of the house, and the description of easements; (3) it also lacked specificity because it did not state a standard of care; and (4) Trusky was not an appropriate third party affiant.
Standards of Review
We review a trial court’s ruling on a motion to dismiss for failure to file a certificate of merit 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.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Id. We cannot say that a trial court has abused its discretion merely because this Court would decide a discretionary matter differently in a similar circumstance, and we may not substitute our own judgment for that of the trial court. Id. However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Id. (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
We review questions of statutory construction de novo. Id. (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). In construing statutes, our primary goal is to determine and give effect to the legislature’s intent, and we begin with the plain language of the statute and apply its common meaning. Id. When the statutory text is unambiguous, we adopt a construction supported by the statute’s plain language, unless that construction would lead to an absurd result. Id. (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999)).
The original petition giving rise to this appeal was filed on August 31, 2010. Accordingly, the current version of Chapter 150 of the Civil Practice and Remedies Code applies. Section 150.002 requires that a plaintiff suing for damages arising from the provision of professional services by a licensed or registered professional must file a certificate of merit “with the complaint.” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a). The certificate of merit is an affidavit of a third-party licensed professional who is competent to testify and holds the same professional license or registration as the defendant, and who is knowledgeable in the area of practice of the defendant. Id. § 150.002(a)(1)–(3). To satisfy the requirement of a certificate of merit, the affiant must offer testimony based on the person’s knowledge, skill, experience, education, training, and practice. Id. § 150.002(a)(3). In addition,
The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.
Id. § 150.002(b). Failure to file a certificate of merit in accordance with the statute shall result in dismissal, which may be with prejudice. See id. § 150.002(e).
I. Effect of prior lawsuit
Gartrell argues that the Wrens first raised their claims in a prior lawsuit filed years earlier. He asserts that they filed no certificate of merit before voluntarily filing a nonsuit of that action. At the hearing on his motion to dismiss the 2010 action, Gartrell conceded that he did not seek dismissal of the prior suit due to the Wrens’ failure to file a certificate of merit.
Without expressing any opinion about the viability of Gartrell’s legal theory that the failure to file a certificate of merit with the 2006 petition requires dismissal of the subsequent 2010 lawsuit, the first step of analysis under this theory would require us to examine the 2006 petition to determine whether a certificate of merit was required. That petition from the earlier lawsuit was not provided to the trial court in support of Gartrell’s motion to dismiss, and it is not part of the record in this appeal. Thus we have no basis to conclude that a certificate of merit was required to be filed with the 2006 petition, and we also cannot conclude that dismissal of the 2010 petition was required for that reason. See Tex. R. App. P. 33.1(a) (preservation of error requires showing of complaint and trial court action on record).
II. Sufficiency of physical description
The adequacy of the Wrens’ certificate of merit was challenged because Trusky merely alleged survey errors concerning acreage, location of the house, and existence of easements. Gartrell argues that Trusky’s failure to describe particular errors in his observation or computation renders the affidavit insufficiently specific.
The statute requires that the affidavit set forth “specifically” for each theory of recovery “the negligence, if any, or other action, error, or omission” of the defendant “and the factual basis for each such claim.” See Tex. Civ. Prac. & Rem. Code § 150.002(b). Trusky testified by affidavit that he had “walked the subject property and [had] prepared a survey of [his] own on the subject property.” We hold that this statement provided the required “factual basis” for his statements identifying Gartrell’s alleged errors.
Gartrell contends that an expert report must list specific “objectively verifiable” acts, errors, or omissions. In support of that argument, he argues that the certificate of merit at issue in Howe-Baker Engineers Ltd. v. Enterprise Products Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, at *6 (Tex. App.—Houston [1st Dist.] Apr. 29, 2011, no pet.) (mem. op.), survived scrutiny because the affiant included several objectively verifiable acts, errors, or omissions. However, the specificity of the factual basis for errors identified in the affidavit was not at issue in that case. Rather the appellant in Howe-Baker challenged the sufficiency of the affidavit based on the affiant’s qualifications, whether the affidavit addressed both of two projects for which the plaintiff sought damages, and whether the affidavit addressed the negligence of a codefendant, against whom the plaintiff alleged only a theory of vicarious liability. See Howe-Baker, 2011 WL 1660715, at *4–7.
Similarly, Gartrell asserts that the certificate of merit in Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-10-00805-CV, 2011 WL 1562891, at *5 (Tex. App.—Austin Apr. 20, 2011, pet. denied) (mem. op.), was sufficient only because of its “objective specificity.” But the issues in that case were whether the affiant was qualified and whether the affidavit needed to recite a standard of care. See Elness Swenson, 2011 WL 1562891, at *2–5. Moreover, the certificate of merit held to be adequate in that case appears to have been similar to Trusky’s affidavit in terms of its specificity. The affidavit alleged that Elness Swenson deviated from the standard of care by “(1) failing to advise the geotechnical consultant of the final finished floor elevations, (2) failing to provide effective drainage around the building, (3) failing to design a recommended wall drain, and (4) failing to specify backfill of cohesive (clay) soil around the building to control surface water percolation.” Id. The affidavit identified the alleged errors but did not describe how or why the errors occurred. Id. Similarly, Trusky’s affidavit stated the alleged errors, i.e., that Gartrell deviated from the standard of care by: (1) incorrectly showing the acreage of the subject property, (2) incorrectly showing the location of the house located on the subject property, and (3) incorrectly stating that there were pipeline easements “and/or easements not shown” that did not exist on the subject property or that physical evidence did not support.
Gartrell also argues that the certificate of merit was insufficient because it did not address the applicable standard of care. Trusky’s affidavit did state that Gartrell “failed to use proper care in connection with the two surveys” and that “this failure and breach of the standard of care” caused the Wrens’ damages. But Trusky provided no further detail in describing the applicable standards of care or how Gartrell allegedly failed to satisfy them. However, the statute does not expressly require the affiant to state the applicable standard of care as part of the “factual basis” for the professional’s alleged error. See Tex. Civ. Prac. & Rem. Code § 150.002(b). By contrast, the Legislature has expressly required a description of the standard of care in an analogous context. An expert report required to be filed in support of a health care liability claim must provide:
a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Id. § 74.351(r)(6) (West 2011); see also Elness Swenson, 2011 WL 1562891, at *5. We conclude that a Chapter 150 certificate of merit need not include an express description of the applicable standard of care and how it allegedly was violated in order to provide an adequate “factual basis” for the identification of professional errors.
III. Third-party affiant requirement
Finally, we consider Gartrell’s contention that Trusky was not a third-party licensed professional within the meaning of Chapter 150 because he had been employed by the Wrens and purportedly had corrected parts of the surveys he criticized in his affidavit. Nothing in the statute expressly precludes a third-party fact or expert witness from serving as the third-party affiant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 150.001–.003. This is consistent with the conventional and common-sense understanding of a “third party” as “[a] person who is not a party to a lawsuit, agreement or other transaction but who is usually somehow implicated in it; someone other than the principal parties.” Black’s Law Dictionary 1617 (9th ed. 2009). Trusky is not the plaintiff, the defendant, or an officer or agent of either. He is a person other than the principal parties to the litigation and is, therefore, a third party with respect to the lawsuit.
Having considered all of the arguments and examined the certificate of merit in light of the statute, we conclude that Gartrell has failed to demonstrate any abuse of discretion by the trial court’s denial of his motion to dismiss. We overrule Gartrell’s sole issue and affirm the judgment of the trial court.
Panel consists of Justices Keyes, Higley, and Massengale.
SOURCE: OPINION FROM HOUSTON COURT OF APPEALS - CASE NO NO. 01-11-00586-CV - DECISION DATE: 12/8/2011
Wednesday, December 7, 2011
FIRST COURT OF APPEALS - NO. 01-11-01044-CR - 12/2/2011 (habeas corpus in civil case vs. criminal case)
City of Houston's jurisdictional plea properly denied in tort case, First Court of Appeals says, in opinion by its newest member
Election of remedies provision did not provide basis for dismissal of claims against the City of Houston in addition to dismissal of claims against its employee who drove the vehicle involved in the crash that was the cause of the plaintiff's injuries and basis for tort claim.Opinion, by Justice Huddle, cites the Court's recent decision in City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, no pet. h.)(“recovery against an individual employee is barred and may be sought against the governmental unit only . . . when suit is filed against both the governmental unit and its employee, [TEX. CIV. PRAC. & REM. CODE ANN.] § 101.106(e)”).
|The clock keeps ticking|
Appellant,[name omitted], attempts to appeal from the trial court’s judgment signed January 31, 2011. Because appellant’s notice of appeal was untimely filed, we dismiss.
Generally, a notice of appeal is due within thirty days after the judgment is signed. See Tex. R. App. P. 26.1(a). The deadline to file a notice of appeal is extended to 90 days after the date the judgment is signed if any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. Id. We may extend the time to file the notice of appeal if, within 15 days after the deadline to file the notice of appeal, the party properly files a motion for extension. See Tex. R. App. P. 10.5(b), 26.3. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the 15-day extension period provided by Rule 26.3. See Tex. R. App. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997).
The record reflects that appellant timely filed a motion to vacate the trial court’s judgment, which extended the deadline for appellant to file his notice of appeal to 90 days after the date the judgment was signed, or Monday, May 2, 2011. See Tex. R. App. P. 26.1(a). Appellant’s notice of appeal was not filed until Wednesday, May 18, 2011. Appellant did not file a motion to extend time to file his notice of appeal and did not file his notice of appeal within the Verburgt period. See Tex. R. App. P. 26.3; Verburgt, 959 S.W.2d at 617–18.
Appellant’s notice of appeal was untimely filed. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See Tex. R. App. P. 25.1.
On August 26, 2011, we notified appellant that his appeal was subject to dismissal for want of jurisdiction unless, by September 15, 2011, he filed a response showing that this Court has jurisdiction of the appeal. No response was filed by that date. Appellant later filed a new notice of appeal, but it does not show that this Court has jurisdiction of the appeal.
Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
SOURCE: HOUSTON COURT OF APPEALS - 01-11-00437-CV - 12/1/11
Appellant [in family law case - name omitted] filed her initial brief on August 15, 2011 and her amended brief on October 11, 2011. Neither brief complies with Texas Rule of Appellate Procedure 38.1. Specifically, neither contains "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). The appendix does not comply either. See Tex. R. App. P. 38.1(k)(1).
The briefs fail to identify any error; they simply request a different result. See Tex. R. App. P. 38.1(f), (j). It does not appear that Appellant sought the clarifications and modifications of the agreed orders that she requests in her brief from the trial court in the first instance. As a court of appeals, we may only review the trial court’s judgments or other rulings as permitted under statute; we cannot undertake the duties assigned to the trial court. See Tex. R. App. P. 43.2 (limiting courts of appeals to affirming, modifying, reversing, or vacating trial court judgment, or dismissing appeal); see also In re B.L.D., 113 S.W.3d 340, 350 (Tex.2003) ("Requiring parties to raise complaints at trial conserves judicial resources by giving trial judges the opportunity to correct an error before an appeal proceeds.") (citing In re C.O.S., 988 S.W.2d 760, 765 (Tex.1999)).
Appellant’s first brief addresses the trial court’s agreed order in suit to modify the parent-child relationship signed on October 13, 2010. Her amended brief addresses recent agreed temporary orders signed August 2, 2011, which are contained in a recently filed supplement to the clerk’s record. Those temporary orders address the same subject matter and thus appear to supersede the earlier agreed order at issue in this appeal. The Texas Family Code specifically precludes the interlocutory appeal of temporary orders in suits affecting the parent-child relationship. See Tex. Fam. Code Ann. § 105.001(e) (West 2008); see also Tex. Fam. Code Ann. § 6.507 (West 2006) (specifically precluding interlocutory appeal of temporary orders, except those appointing receiver); Mason v. Mason, 256 SW3d 716, 718 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Marley v. Marley, No. 01-05-00992-CV, 2006 WL 3094325, at *2 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (mem. op) (holding that section 51.014(4) of Civil Practice and Remedies Code permitting appeals from temporary injunctions did not control over statutory prohibition of interlocutory appeals from temporary orders in Family Code). Because Appellant has not identified any issue over which this Court can exercise jurisdiction, we dismiss this appeal.
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
SOURCE: HOUSTON COURT OF APPEALS -
01-10-00966-CV - 12/1/11
A settlement agreement is a contract between parties, a breach of which gives rise to a cause of action for breach of contract. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995).
To be entitled to summary judgment on this claim, the employees were required to prove, as a matter of law, the following essential elements: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. See B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Parties form a valid and enforceable contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) the execution and delivery of the contract with the intent that it be mutual and binding. See Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex. App.—Fort Worth 2004, pet. denied). "Meeting of the minds" describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526, 530 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Whether a contract is ambiguous is a question of law for the court. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). A contract is not ambiguous if its wording permits a definite or certain legal meaning. DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). "[A]n ambiguity does not arise simply because parties advance conflicting interpretations of the contract." Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 728 (Tex. 2001); see also DeWitt Cnty. Elec. Coop., 1 S.W.3d at 100. We construe the parties’ intentions as expressed in the document, considering the entire writing and attempting to harmonize and give effect to all of the contract’s provisions with reference to the whole agreement. Frost Nat’l Bank v. L & F Distribs., 165 S.W.3d 310, 311–12 (Tex. 2005).
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00764-CV - 12/1/11
Settlement agreement moots the underlying controversy
In his first issue, Yellowe contends that he preserved for appeal his complaint that the trial court did not rule on his motion for summary judgment concerning his affirmative defense of limitations to the lawsuit originally brought by the employees. In his second issue, he contends that the trial court erred by failing to grant his motion.
We need not decide Yellowe’s first issue. Even if Yellowe preserved this complaint for appeal, the trial court properly determined that a valid and enforceable settlement agreement existed and that the underlying case was settled. Thus, there is no live controversy regarding the employees’ claims under the employment contracts. See Bd. of Adjustment v. Wende, 92 S.W.3d 424, 427 (Tex. 2002) (holding that when parties have settled dispute, there is no longer a live controversy between them, and case is moot); Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (stating if controversy ceases to exist, case becomes moot and "[i]f a case becomes moot, the parties lose standing to maintain their claims."). A court is prohibited from deciding a moot case. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). Because it found that the employees’ claims under the employment contracts were rendered moot by the settlement agreement, the trial court did not commit error by declining to reach the merits of the employees’ claims or Yellowe’s affirmative defenses to those claims. See id.; see also Williams, 52 S.W.3d at 184.
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00764-CV - 12/1/11