Emerald Waco Investments, Ltd. v. David Randolph Petree, RPLS
05-15-00863-CV
| Tex. App. | Dec 21, 2015Background
- Emerald Waco Investments, Ltd. (EWI) filed suit alleging negligence and breach of contract against surveyor David Petree, asserting a deficient survey led to >65,000 cubic yards of excess dirt.
- EWI filed its Original Petition within ten days of limitations expiring and served a Certificate of Merit (CM) and a First Supplement within 30 days of filing.
- Petree moved to dismiss under Tex. Civ. Prac. & Rem. Code §150.002(c), arguing EWI failed to satisfy procedural requirements for the CM exemption and, for the first time on appeal, challenged the substantive sufficiency of the CM.
- The trial court granted dismissal; EWI appeals, arguing the dismissal elevated form over substance and was an abuse of discretion.
- EWI contends its CM (a sworn affidavit by a licensed surveyor) provided the factual basis required, properly invoked the automatic 30-day exemption, and was timely filed and served.
Issues
| Issue | Plaintiff's Argument (EWI) | Defendant's Argument (Petree) | Held / Court Ruling (as argued in brief) |
|---|---|---|---|
| Substantive sufficiency of Certificate of Merit | CM need only state factual basis and come from a licensed peer; Stark affidavit meets statute | CM fails to identify specific acts or standards; therefore deficient (raised on appeal only) | EWI: CM is sufficient; Petree waived substantive challenge by not raising it below; dismissal on this ground is improper |
| Procedural timing/exemption (30‑day automatic exemption) | §150.002(c) grants automatic 30‑day extension when suit filed within 10 days of limitations and plaintiff alleges CM couldn’t be prepared; no "good cause" required to invoke automatic exemption | Plaintiff failed to show "good cause" or properly invoke exemption in original pleading | EWI: automatic exemption was properly invoked and no good‑cause showing was required for the initial 30 days; trial court abused discretion if it required otherwise |
| Whether exemption must be invoked in the original petition | Invocation need only occur within 30 days; statute’s plain language does not mandate inclusion in the initial filing | Invocation must appear in the first‑filed pleading (Petree relies on a dissent and other cases) | EWI: invocation in a supplement filed within 30 days complies with statute; courts that have addressed this do not require invocation in the original petition |
| Accrual/limitations date and whether limitations were "about to expire" | Earliest accrual date could be date survey was provided (two years before suit); because suit was filed within 10 days of the expiration, the automatic exemption applied | Accrual may have occurred later (legal injury date), so limitations was not "about to expire" and exemption not available | EWI argues it reasonably relied on the earliest possible accrual date; Petree cites accrual cases but provided no record date; trial court’s dismissal improperly penalized EWI for choosing the conservative accrual date |
Key Cases Cited
- Atkins v. Crosland, 417 S.W.2d 150 (Tex. 1967) (discusses accrual and legal injury test)
- Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014) (distinguishes automatic 30‑day exemption from later good‑cause extensions)
- Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265 (Tex. App.—Houston [14th Dist.] 2011) (majority opinion rejecting requirement that exemption be invoked in original petition)
- CBM Engineers, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339 (Tex. App.—Houston [1st Dist.] 2013) (explains CM need only provide factual basis, not full discovery‑level detail)
- Dunham Eng’g, Inc. v. Sherwin‑Williams Co., 404 S.W.3d 785 (Tex. App.—Houston [14th Dist.] 2013) (addresses CM sufficiency standards)
- WCM Group, Inc. v. Brown, 305 S.W.3d 222 (Tex. App.—Corpus Christi 2009) (statutory purpose: avoid dismissing meritorious claims on technicalities)
- Benchmark Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41 (Tex. App.—Houston [14th Dist.] 2010) (abuse of discretion standard for dismissals on procedural grounds)
- Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259 (Tex. 1994) (accrual principles referenced for legal injury analysis)
- Pakal Enters., Inc. v. Lesak Enters. LLC, 369 S.W.3d 224 (Tex. App.—Houston [1st Dist.] 2011) (addressed timing of CM filing relative to original petition)