Sanders v. Wood
2011 Tex. App. LEXIS 6373
| Tex. App. | 2011Background
- Wood, a professional engineer, charged Sanders for plans; Sanders paid most but withheld the last invoice; Wood sued Sanders for the remaining amount and Sanders counterclaimed for damages tied to an allegedly unusable, economically unfeasible plan.
- Sanders sought to recover costs to hire another firm to redo the project because the plans were allegedly not economically feasible.
- Wood moved to dismiss Sanders' counterclaim for lack of a certificate of merit under Texas Civil Practice and Remedies Code § 150.002; the trial court granted part and denied part, limiting the counterclaim to an offset against Wood's claim.
- Both sides appealed the partial dismissal order as interlocutory under § 150.002(f).
- The issue is whether § 150.002 requires a certificate of merit in this suit arising out of professional services, and whether Sanders’ counterclaim is governed by contract or tort.
- The court ultimately held that Sanders’ counterclaim sounds in contract, § 150.002 does not require a certificate of merit for this counterclaim under the applicable version, and reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a certificate of merit is required under §150.002. | Sanders argues not required for non-negligence contract claims. | Wood argues statute requires a certificate for any action arising from professional services. | Not required; counterclaim sounds in contract. |
| Whether Sanders' counterclaim sounds in tort or contract. | Counterclaim arises from contract-based duties and remedies. | Counterclaim could be tort-based due to negligence theories. | Counterclaim sounds in contract; not subject to certificate requirement. |
| Whether the alleged damages are governed by contract or tort remedies. | Damages are for failure of consideration and breach of contract. | Damages could reflect negligent design. | Damages are contract-based; within contract law. |
| Whether the case is a suit for payment of fees and thus exempt from §150.002. | Counterclaim seeks recovery of fees via breach-related theories. | Contends the fee-suit posture would trigger exemption. | Court does not address this in light of contract-based counterclaim; remands. |
Key Cases Cited
- Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728 (Tex.App.-Texarkana 2010) (certificate of merit applies to negligence, not contract)
- Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986) (economic loss rule; contract vs tort analysis depends on injury type)
- Formosa Plastics Corp. v. Presidio Eng'r, 960 S.W.2d 41 (Tex.1996) (two-factor test: source of duty and nature of remedy)
- S & P Consulting Eng'rs v. Baker, 334 S.W.3d 390 (Tex.App.-Austin 2011) (certificate of merit required for damages arising from professional services (broader view))