Noe Garza and Noe Garza Engineers, Inc. v. Joe Carmona and Celina Carmona
2012 Tex. App. LEXIS 2714
Tex. App.2012Background
- Carmona plaintiffs sued Garza Engineering for engineering services on a San Benito subdivision project.
- The Carmonas filed an affidavit by licensed professional engineer Michael Myers as part of their certificate of merit.
- Garza moved to dismiss under Texas Civil Practice and Remedies Code §150.002(a)-(e), asserting the affidavit failed to address theories of recovery.
- The trial court denied the motion to dismiss; Garza appealed via interlocutory appeal under §150.002(f).
- The court held the 2009 amendment to §150.002(b) requires an affidavit addressing each theory of recovery with factual bases; Myers’ affidavit did not address several theories and failed the requirement.
- The court remanded to determine whether dismissal should be with prejudice or not, reversing the trial court’s denial and sustaining Garza’s first issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2009 §150.002(b) requires addressing each theory of recovery | Carmona argues the statute does not require addressing every theory, only negligence claims | Garza argues the affidavit must address each theory | Yes, the affidavit must address each theory (negligence and others) |
| Whether Myers’ affidavit adequately addresses the negligence theory | Affidavit identifies deficiencies but does not tie to negligence standard of care | Affidavit should establish breach of standard of care for negligence | No; affidavit failed to specifically address negligence or deviation from standard of care |
| Whether Myers’ affidavit addresses the DTPA, fraud, misrepresentation, or contract claims | Affidavit should support all pleaded theories | Affidavit need not address every theory if the statute was misapplied | No; affidavit did not address these theories |
| Whether dismissal should be with prejudice | N/A | N/A | Remand for prejudice determination; dismissal with prejudice not automatic |
Key Cases Cited
- Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395 (Tex. App.—Beaumont 2008) (certificate of merit must show the standard of care and deviations)
- Nangia v. Taylor, 338 S.W.3d 768 (Tex. App.—Beaumont 2011) (address each theory of recovery separately)
- Durivage v. La Alhambra Condo. Ass’n, 2011 WL 6747384 (Tex. App.—Corpus Christi 2011) (discussed requirements of §150.002(b) and dismissed non-negligence claims on remand")
- Elness Swenson Graham Architects, Inc. v. RLJ II – C Austin Air, LP, 2011 WL 1562891 (Tex. App.—Austin 2011) (applied §150.002(b) to negligence claims)
- Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323 (Tex. 2011) (elements of fraud and related claims)
- Johnston v. McKinney Am., Inc., 953 S.W.3d 271 (Tex. App.—Houston [14th Dist.] 1999) (DTPA/breach-of-warranty analysis)
- Evans v. J. Stiles, Inc., 689 S.W.2d 399 (Tex. 1985) (implied warranties in construction context)