Nangia v. Taylor
2011 Tex. App. LEXIS 3382
| Tex. App. | 2011Background
- Nangia appeals the trial court’s denial of a motion to dismiss under Tex. Civ. Prac. & Rem. Code § 150.002.
- Taylor sued ICON Building Systems and later Nangia, a licensed professional engineer.
- Taylor’s second amended petition did not include a certificate of merit; he later filed a third amended petition with an affidavit.
- The 2009 amendment to § 150.002 governs whether the certificate of merit was timely.
- Taylor argued the 2009 statute applies because Nangia was added after the amendment and the claim against Nangia was first asserted in 2010.
- The issue turns on whether the 2009 amendment applies and whether the certificate of merit and its timing complied with § 150.002.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable statute for Nangia claim | Taylor: 2009 statute applies | Nangia: 2005 version applies | 2009 statute applies |
| Timeliness of certificate of merit under §150.002(c) | Contemporaneous filing with initial petition; grace period available if limitations imminent | No timely certificate; failed contemporaneous filing | Plaintiff satisfied 30-day grace period and filed within limits |
| Adequacy of certificate of merit for each theory of recovery | Affidavit covers negligence and DTPA theory | Affidavit insufficient to address all theories | Certificate of merit satisfied §150.002(b) for each theory; no abuse of discretion |
Key Cases Cited
- Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex. 2009) (statutory interpretation; legislative intent guiding § 150.002)
- City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) (statutory construction aids; legislative context)
- S & P Consulting Eng’rs, PLLC v. Baker, 334 S.W.3d 390 (Tex.App.-Austin 2011) (application of § 150.002 to added party post-amendment)
- WCM Group, Inc. v. Brown, 305 S.W.3d 222 (Tex.App.-Corpus Christi 2009) (abuse of discretion standard for § 150.002 dismissal)