JJW Development, L.L.C. v. Strand Systems Engineering, Inc.
2012 Tex. App. LEXIS 7300
| Tex. App. | 2012Background
- This is an appeal from a trial court order dismissing with prejudice JJW Development, L.L.C. and Wingfield’s claims against Strand Systems Engineering, Inc.
- JJW and Wingfield sued Strand after previously suing Ramer Concrete, Inc. for foundation-related negligence, breach of contract, and DTPA violations.
- They alleged Strand designed the foundation and failed meaningful pre-pour inspection, asserting Chapter 150.002 certificate-of-merit would be filed within 30 days.
- They did not file a Certificate of Merit with the second amended petition.
- They later filed a third amended petition alleging only a breach-of-contract claim against Strand.
- The trial court dismissed the Strand claims with prejudice under former Tex. Civ. Prac. & Rem. Code § 150.002(d), and the appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a certificate of merit is required for the third amended breach-of-contract claim against Strand | JJW/Wingfield say §150.002 applies only to negligence, not contract | Strand argues the breach claim arises from professional services and requires a merit certificate | No certificate required for contract claim; §150.002 applies to negligence claims only |
| Whether the live pleadings at the time of dismissal control §150.002 application | Live pleading is the third amended petition | Strand’s view that second amended pleading governs | Live pleading at dismissal governs §150.002 application; breach claim not barred |
Key Cases Cited
- Sanders v. Wood, 348 S.W.3d 254 (Tex. App.—Texarkana 2011) (certificate of merit applies to negligence, not contract, claims in 2005 version)
- DLB Architects, P.C. v. Weaver, 305 S.W.3d 407 (Tex. App.—Dallas 2010) (statutory analysis of §150.002 applies to negligence claims)
- Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409 (Tex. App.—Waco 2010) (breach-of-contract vs. negligence distinction under §150.002)
- S & P Consulting Eng’rs, PLLC v. Baker, 334 S.W.3d 390 (Tex. App.—Austin 2011) (en banc; extends §150.002 to negligence and non-negligence claims for design professionals)
- Parker Cnty. Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., 2009 WL 3938051 (Tex. App. Fort Worth 2009) (contract-based claims may not require a merit certificate; discussion cited in context of contract damages)