S & P CONSULTING ENGINEERS, PLLC v. Baker
2011 Tex. App. LEXIS 1260
| Tex. App. | 2011Background
- S&P Consulting Engineers, PLLC appeals a trial court denial of a motion to dismiss for failure to file a certificate of merit within 30 days of filing the petition.
- Plaintiffs allege misrepresentations and mistakes in platting a residential subdivision, including flood plain mischaracterizations requiring flood insurance.
- Plaintiffs claim S&P certified plat portions of the subdivision and allegedly knew homes were in the flood plain but represented otherwise.
- Plaintiffs filed suit in May 2008; a Third Amended Petition adding S&P as a defendant was filed November 2009.
- S&P moved to dismiss arguing plaintiffs failed to file a certificate of merit for claims against S&P; district court denied, appeal ensued.
- Texas Civil Practice and Remedies Code § 150.002 was amended in 2005 and 2009, with questions about which version applies to claims against S&P and whether non-negligence claims require a certificate of merit
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effective statute applied to claims against S&P | Action commenced pre-2009 amendments, so 2005 version applies | 2009 amendments apply to actions commenced or filed after Sept. 1, 2009; postpone applicability to S&P | 2009 amendments do not apply; 2005 version governs for pre-2009 action; unless remanded for justice |
| Whether 2005 amendment requires certificate for non-negligence claims | 2005 version broadens to any action arising from professional services; non-negligence claims require certificate | Non-negligence claims were not intended to be covered by certificate requirement under 2005 reading | Under 2005 reading, certificate required for any action arising from professional services by design professionals; majority adopts broader view (grace remand) |
| Whether certificate of merit was filed for plaintiffs' non-negligence claims against S&P | Certificate not filed because claims were non-negligence | Certificate required for non-negligence under 2005 amendments | Certificate not filed; dismissal warranted absent grace remand |
Key Cases Cited
- Consolidated Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887 (Tex.App.-Austin 2008) (expanded scope of 2005 certificate requirement; later overruled in this decision)
- Kniestedt v. Southwest Sound & Elecs., Inc., 281 S.W.3d 452 (Tex.App.-San Antonio 2007) (held 2005 amendments limited to negligence claims under grammatical reading)
- Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex.App.-Corpus Christi 2009) (non-negligence claims not covered under earlier view; later authorities diverge)
- Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102 (Tex.App.-Houston [1st Dist.] 2010) (non-negligence claims under 2005 amendments discussed by court)