Swaback Partners, PLLC, and Hydrotech Engineering, Inc. v. OMP Developmnet, LLC
2014 Tex. App. LEXIS 8125
Tex. App.2014Background
- One Montgomery Plaza project allegedly leaked; OMP (plaintiff) sued ICI (general contractor) and others; Hydrotech (engineer) and Swaback (architect) were design professionals on the project.
- ICI and Pavecon filed third-party petitions against Hydrotech and Swaback seeking contribution; both attached expert affidavits (Maierhoffer and, shortly thereafter, Yarbrough).
- G&D and Lasting Impressions filed cross-claims against Hydrotech and Swaback; G&D incorporated the existing affidavits, Lasting Impressions did not attach any affidavit.
- Plaintiffs later filed a fifth amended petition asserting claims against multiple defendants, including Swaback; the fifth amended petition did not itself include a certificate of merit.
- Hydrotech and Swaback moved to dismiss various third-party and cross-claims under Tex. Civ. Prac. & Rem. Code § 150.002 for failure to file a certificate of merit; the trial court denied those motions and also denied Swaback’s motion to dismiss the fifth amended petition.
- The court of appeals consolidated interlocutory appeals and applied recent Texas Supreme Court precedent holding cross-claimants/third-party plaintiffs are not required to file certificates of merit, but also applied Crosstex to conclude an untimely certificate filed after the original petition cannot cure the defect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cross-claimants/third-party plaintiffs seeking contribution/indemnity must file a §150.002 certificate of merit | Plaintiffs (and intervening parties) argued certificate not required for cross-claims/third-party claims | Hydrotech/Swaback argued third-party plaintiffs/cross-claimants are "plaintiffs" under §150.002 and must file certificate with their claims | Court: Held cross-claimants/third-party plaintiffs are not "the plaintiff" who initiates the action; §150.002 does not apply to them (affirmed denial of dismissal) |
| Whether a certificate of merit omitted from the original filing can be cured by amendment | Plaintiffs argued an affidavit filed the next day with an amended petition cured the omission and Plaintiffs could rely on it | Swaback argued the contemporaneous filing requirement is mandatory and cannot be cured by later amendment | Court: Held Crosstex controls—failure to file the certificate with the original petition cannot be cured by amendment; trial court erred in denying Swaback’s dismissal of the fifth amended petition as to Swaback (reversed) |
| Whether a late-filed certificate may be excused by equitable/fairness arguments (clerical error) | Plaintiffs relied on timing and clerical error, noting the affidavit was on file before answer/motion | Defendants insisted statute’s timing is mandatory despite clerical error | Court: Declined to apply equitable cure; followed Crosstex—statutory exceptions limited; clerical fix the next business day insufficient |
| Whether trial court abused discretion in denying motions to dismiss under §150.002 | Plaintiffs argued denial was proper under Jaster (and similar reasoning) | Defendants argued trial court should have dismissed claims lacking proper certificate | Court: No abuse of discretion for third-party/cross-claims (affirmed); but abused discretion in denying dismissal of plaintiffs’ fifth amended petition against Swaback (reversed as to that petition) |
Key Cases Cited
- Crosstex Energy Svcs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014) (failure to file certificate with original petition cannot be cured by amendment; limits on "good cause" extension)
- BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (abuse of discretion standard explained)
- Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430 (Tex. App.—Fort Worth 2005) (standard of review for §150.002 dismissal motions)
- Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395 (Tex. App.—Beaumont 2008) (purpose of certificate-of-merit requirement)
- EPCO Holdings, Inc. v. Chi Bridge & Iron Co., 352 S.W.3d 265 (Tex. App.—Houston [14th Dist.] 2011) (court reluctant to apply hypertechnical rules when clerical errors occur)
- Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175 (Tex. 1994) (precedential value of plurality opinions)
- Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex. App.—Corpus Christi 2009) (cited for principle that certificate omission cannot be cured by amendment)