Dunham Engineering, Incorporated v. the Sherwin-Williams Company
404 S.W.3d 785
| Tex. App. | 2013Background
- City of Lake Jackson hired DEI to design and draft bid/replacement plans for a 500,000-gallon water tower project and to assist in bid advertisement and contractor selection.
- DEI's specifications required Tnemec paint; substitutions required DEI approval, giving DEI final say over substitutes.
- Sherwin-Williams submitted substitute paint requests; DEI, especially Jimmy Dunham, notified the City DEI would reject SW’s request as not equal to Tnemec’s.
- SW sued DEI for intentional interference with prospective business relationships, business disparagement, and product disparagement, attaching a certificate-of-merit by James O’Connor asserting deficiencies in DEI’s process.
DEI moved to dismiss the case under section 150.002(e); trial court denied the motion; DEI appealed.
The appellate court held section 150.002 applies to claims against DEI and that O’Connor’s certificate of merit complies with both subsections (a)(3) and (b); the trial court’s denial of the motion to dismiss was not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §150.002 applies to these intentional tort claims | SW contends the statute does not apply to intentional torts arising from engineering services. | DEI argues the statute should not apply to non-negligence claims or to this tort theory. | Yes, §150.002 applies to these claims. |
| Whether O’Connor’s affidavit meets §150.002(a)(3) knowledge requirement | SW argues O’Connor was knowledgeable in DEI’s area of practice. | DEI argues the affidavit lacks demonstrated expertise in DEI’s exact sub-specialty. | O’Connor is knowledgeable in DEI’s area of practice; satisfies a(3). |
| Whether O’Connor’s affidavit complies with §150.002(b) (factual basis for each claim) | SW asserts the factual basis supports its theories of recovery. | DEI contends the affidavit does not address the alleged falsity of DEI’s evaluation in depth. | Yes, the affidavit provides a sufficient factual basis for each theory. |
| Whether the trial court abused its discretion in denying dismissal with prejudice | SW maintains dismissal with prejudice is unnecessary given a meritorious affidavit. | DEI argues the court should have dismissed with prejudice if §150.002 is violated. | No abuse of discretion; court properly denied dismissal. |
Key Cases Cited
- Benchmark Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41 (Tex. App.—Houston [14th Dist.] 2010) (amended statute broadened affidavit requirements)
- Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421 (Tex. App.—Dallas 2012) (2009 version §150.002 does not require sub-specialty expertise)
- Jay Miller & Sundown, Inc. v. Camp Dresser & McKee Inc., 381 S.W.3d 635 (Tex. App.—San Antonio 2012) (notes application of 2009 version to tort claims (dicta))
- Robert Navarro & Assocs. Eng’g, Inc. v. Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475 (Tex. App.—El Paso 2012) (affidavit must address each theory of recovery)