Gary Wayne Jaster v. Comet II Construction, Inc. Joe H. Schneider Laura H. Schneider And Austin Design Group
382 S.W.3d 554
Tex. App.
2012
Check Treatment

Gary Wayne JASTER, Appellant, v. COMET II CONSTRUCTION, INC.; Joe H. Schneider; Laura H. Schneider; and Austin Design Group, Appellees.

No. 03-10-00191-CV

Court of Appeals of Texas, Austin.

Aug. 31, 2012.

were cumulative of other evidence. At trial, Campbell testified as follows:

STATE: How did she hit you in your face? With her first or her open hand?

CAMPBELL: Yes, she open hand she keep going like that. And I said, stop, Ana, stop. It was like a joke until it get serious.

STATE: Did it hurt?

CAMPBELL: Yes, it hurt, of course. But, you know, I‘m a man, I don‘t really was, you know, going to hit her back, you know.

And then she start to slap me. She start to slap me. And I said, Ana, stop. If you don‘t stop I‘m going to hit you back and you ain‘t going to like it because my one going to be harder than your own. That‘s what I told her, you know.

STATE: Did she eventually stop hitting you?

CAMPBELL: She never stop hitting me. She just take it as like a joke thing, but she were hitting me hard.

STATE: After you told her to stop, then what happened?

CAMPBELL: Then I hit her back.

STATE: How did you hit her?

CAMPBELL: I hit her with my hand.

STATE: Where did you hit her?

CAMPBELL: In her face right here.

Thus, Campbell‘s own testimony was that he struck Ana. This testimony is entirely consistent with the statement in the Facebook message that Campbell claims was so crucial to the jury‘s verdict-“it don‘t matter what you say or do to me i should never put my hand on you.”

In light of the cumulative evidence in the record demonstrating that Campbell struck Ana, we conclude that any error in admitting the evidence did not have a substantial and injurious effect on the jury‘s verdict and should be disregarded. Campbell‘s sole point of error is overruled.

CONCLUSION

Because the trial court did not abuse its discretion in admitting the Facebook messages, we affirm the trial court‘s judgment.

Henderson Buford, Buford & Associates, Kemp W. Gorthey, Austin, TX, Appellees.

Cynthia E. Rosen, John Alex Huddleston, Andrew L. Kerr, Strasburger & Price, L.L.P., San Antonio, TX, for Appellant.

Before Justices HENSON, ROSE and GOODWIN.

OPINION

JEFF ROSE, Justice.

Gary Wayne Jaster, a licensed professional engineer, appeals from the trial court‘s denials of his motions to dismiss a third-party complaint and a cross-claim in a suit for damages arising from the allegedly improper design and construction of a house foundation. Jaster argues that, because the third-party complaint and the cross-claim against him relate to his provision of professional services as a licensed engineer, those complaints had to be accompanied by a certificate of merit. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002.1 Jaster argues that the appellees’ failure to file a certificate of merit with their original respective third-party and cross-claims requires dismissal of their claims against him. See id. § 150.002(d). Because section 150.002 by its plain language applies only to “the plaintiff,” we conclude that the trial court did not err by denying Jaster‘s motions to dismiss appellees’ claims for their failures to file timely certificates of merit.

BACKGROUND

The suit underlying this appeal was filed by homeowner Mahmoud Dawoud, who is not a party to this appeal. Dawoud alleged that he bought his home from Comet II Construction, Inc. Almost ten years later, he sued Comet II Construction, Inc., Joe H. Schneider, and Laura H. Schneider (collectively, “Comet“),2 alleging that his house foundation was improperly designed and built. Dawoud asserted several causes of action including negligence, negligent misrepresentation, fraud, and violations of the deceptive trade practices act. With its answer to Dawoud‘s petition, Comet filed a third-party complaint seeking contribution and indemnity from Jaster and Austin Design Group (“ADG“), alleging that the third-party defendants “are or may be liable to [Comet] for all or part of Plaintiff‘s complaint” against Comet. Comet alleged that it purchased engineered foundation plans from ADG; that the plans were prepared by Jaster, a professional engineer; and that Dawoud sued alleging defective construction of his foundation. ADG then filed a cross-claim alleging that “[t]o the extent there is any defect in the foundation, whether by design or construction, it is the fault of Gary Wayne Jaster or Comet II Construction,

Inc. and not the fault of Austin Design Group.” ADG asserted that it “is entitled to contribution and/or indemnity from Gary Wayne Jaster and/or Comet II Constructors.” It is undisputed that no party to this appeal filed a certificate of merit with its original complaint or cross-claim.

Jaster moved to dismiss both claims against him. He argued that Comet‘s third-party complaint and ADG‘s cross-claim were deficient because they were not accompanied by a certificate of merit as required by section 150.002. Jaster urged in his motions to dismiss that the trial court was required to dismiss the claims by Comet and ADG against him. He asserted that these claims alleged damages arising out of the provision of professional services by a registered engineer, that section 150.002 required that they file certificates of merit with their complaints, and that their failure to file such an affidavit required the trial court to dismiss their claims. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a), (d).

Comet filed amended third-party complaints asserting not only contribution and indemnity claims but original causes of action against Jaster and ADG, including violations of the deceptive trade practices act and negligent design of the foundation. Comet attached an affidavit from a professional engineer to certify the merit of Comet‘s amended complaint. Jaster filed an amended motion to dismiss Comet‘s complaint, arguing that Comet‘s failure to file a certificate of merit simultaneously with its original third-party complaint required dismissal of the complaint. Comet filed a second amended complaint, attaching the same affidavit. The trial court denied Jaster‘s motions to dismiss the claims by Comet and ADG.

DISCUSSION

Jaster contends that the trial court abused its discretion and erred (1) by denying his original and amended motions to dismiss Comet‘s original and second amended third-party complaints on grounds that Comet failed to file a certificate of merit with its original third-party complaint; (2) by denying his amended motion to dismiss Comet‘s second amended third-party complaint because the certificate of merit was deficient, and (3) by denying his motion to dismiss ADG‘s cross-claim because of ADG‘s failure to file a certificate of merit with its cross-claim.3 Underlying these issues is a question of statutory construction-how should the certificate of merit requirement of section 150.002, which applies expressly to “the plaintiff,” be applied in situations involving defendants who file third-party complaints and cross-claims?

We review a trial court‘s decision on a defendant‘s motion to dismiss under section 150.002 under an abuse of discretion standard. See . A trial court abuses its discretion when it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law. . A trial court acts arbitrarily and unreasonably if application of the law to the facts dictates only one correct decision, but the trial court reaches a different one. . A trial court abuses its discretion when it fails to analyze or apply the law correctly. See .

Statutory construction is a question of law we review de novo. . When reading statutes, our goal is to ascertain and give effect to the legislature‘s intent. See . We glean that intent when we can from the plain meaning of the words the legislature uses. See . We use statutory definitions provided. See Tex. Gov‘t Code Ann. § 311.011(b) (West 2005); . Where statutory text is clear, it is determinative of legislative intent unless the plain meaning of the statute‘s words would produce an absurd result. . Only when statutory text is susceptible to more than one reasonable interpretation is it appropriate to look beyond its language for assistance in determining legislative intent. See . We can look at the object sought to be attained, the circumstances under which the statute was enacted, the legislative history, common law or former statutory provisions including laws on the same or similar subjects, consequences of a particular construction, any administrative construction of the statute, and the title, any preamble, and emergency provision. Tex. Gov‘t Code Ann. § 311.023 (West 2005).

The actions at issue in this appeal are governed by the version of section 150.002 enacted in 2005, which provided in subsection (a) as follows:

In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, registered professional land surveyor, or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall be set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.

Former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (revised). The statute provides that the failure to file the affidavit “shall result in dismissal of the complaint against the defendant.” Id. § 150.002(d) (recodified at Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e) (West 2011)).

Section 150.002(a) fails to specifically address the situation of defendants who file either third-party complaints or cross-claims. Jaster argues that the statute requires that certificates of merit be filed by claimants other than plaintiffs in this case, defendants who have filed third-party and cross-claims. The plain language of the statute expressly requires only “the plaintiff” to file certificates of merit with the “complaint.” Id. § 150.002(a). The resolution of Jaster‘s appeal will turn upon our construction of the statute.

The Fort Worth Court of Appeals grappled with this statutory provision under slightly different circumstances, ultimately

holding that the requirement that the plaintiff file a certificate of merit does not apply to defendants filing cross-claims for contribution and indemnity from fellow existing defendants, but does apply to defendants filing third-party claims against new defendants. . In that case, Morrison bought land for a residential subdivision from Sheffield Development Company, and Sheffield received geotechnical engineering services from CTL and its professional engineers (collectively, “CTL“). . Morrison sued Sheffield and CTL, alleging breach of warranty and negligence. Morrison filed a certificate of merit with its original complaint. . Sheffield filed a cross-claim seeking contribution and indemnity from CTL in case the plaintiff recovered damages from Sheffield, but did not file a certificate of merit with its cross-claim against CTL. . Sheffield‘s cross-claim did not seek to establish any additional factual allegations against CTL on the merits of the plaintiff‘s action, but sought by way of contribution and indemnity only to shift liability away from Sheffield if any was assessed. The court of appeals affirmed the denial of CTL‘s motion to dismiss Sheffield‘s cross-claim, reasoning that a “cross-claiming defendant may rely on the certificate of merit filed by the plaintiff and is not required to file a second, independent certificate of merit.” . Although there was no third-party plaintiff in that appeal, the court of appeals theorized in dicta that third-party plaintiffs were not entitled to rely on the plaintiff‘s affidavit because a plaintiff would not have filed a certificate of merit regarding the behavior of a third party whom the plaintiff had not sued. As such, the Fort Worth court crafted a solution under which section 150.002 would require third-party plaintiffs, but not cross-claimants, to file a certificate of merit. .

This case has a posture somewhat distinct from CTL. In this case, neither of the defendants could rely on a certificate of merit from plaintiff Dawoud because, based on the record before us, he did not file suit against a design professional and thus did not file a certificate of merit with his claims against Comet. Further, this case has a third-party plaintiff and thus squarely presents the question of whether a third-party plaintiff must file a certificate of merit. Adding a layer of complexity, third-party plaintiff Comet did not file a certificate with its original contribution and indemnity complaint, but did when it filed an amended complaint asserting original direct claims. While mindful of CTL, we will analyze whether “the plaintiff” as used in section 150.002 applies to defendants who file their own claims for relief in the suit in which they have been sued.

Third-party claimants and cross-claimants have some characteristics of plaintiffs. Their claims are listed in the rules of procedure alongside original complaints as “Claims for Relief.” See Tex.R. Civ. P. 47. A defendant who files a third-party complaint4 is expressly called a “third-party plaintiff” in the rule. Id. R. 38 (emphasis added). As the Fort Worth court noted, a third-party claim brings a new defendant into the suit. See . Like a third-party plaintiff, a cross-claimant is, by the plain language of the rule,

placed “in the attitude of a plaintiff” for those claims on which it seeks relief. See Tex.R. Civ. P. 85; see also (cross-claimant considered a plaintiff for res judicata purposes). Unlike a third-party plaintiff, however, a cross-claimant does not bring a new party to the suit. Compare Tex.R. Civ. P. 92 (concerning cross-claims), with Tex.R. Civ. P. 38 (concerning third-party practice); see also .

Third-party claimants and cross-claimants also differ from plaintiffs in significant respects. Neither a third-party plaintiff nor a cross-claimant originates the suit in which it brings its claim, and thus they do not choose the time, place, or the participants in the original suit. Their claims may be wholly derived from the plaintiff‘s claims (as in the case of a pure contribution and indemnity claim), may be unique, or may be intermingled or a hybrid of derivative and original claims. Unlike plaintiffs, defendants may be unaware of the impending litigation and the concomitant need to investigate claims that they did not intend to bring until they are haled into court. Further, defendants who seek only contribution and indemnity for the claims brought against them do not allege additional wrongdoing--and may not believe that any wrong has been done to or damage suffered by the plaintiff-but seek only to redirect liability, if any, for the damage alleged by the plaintiff. See .

Given that the statute does not specifically address defendants filing third-party complaints and cross-claims, there are multiple options of how the certificate-of-merit requirement could be applied to them. At one extreme, the certificate-of-merit requirement could apply to any defendant who files any kind of claim for recovery of damages against any design professional already in the suit or not part of the suit. At the other extreme, it could apply to no defendant filing any sort of claim within the lawsuit. Of the remaining combinations of types of claims (original to the defendant or derived from the plaintiff‘s claims like contribution claims) and types of parties (already in the suit or brought into the suit by the defendant‘s claims), the statute could require the filing of certificates by only, for example, (1) a defendant who files an original claim against a new party, (2) a defendant who files any type of claim against a new party, (3) a defendant who files an original claim against any type of party, or (4) a defendant who either files any type of claim against a new party or files an original claim against an existing party.

As a practical matter, the scope of the applicability of the statute to defendants could also be affected by whether the plaintiff in a given suit has filed a certificate of merit. Defendants may be able to rely on the plaintiff‘s certificate, or they could be required to file their own certificate. The CTL court split the difference by permitting cross-claimants filing contribution and indemnity claims against fellow defendants to rely on the plaintiff‘s certificate regarding the fellow defendants’ wrongdoing, but requiring defendants suing previously uninvolved third parties to file a certificate regarding the third parties’ alleged wrongdoing. . While the CTL rationale makes sense for the cross-claimant in situations in which the original plaintiff has filed a certificate, it creates a precarious position for a defendant/third-party plaintiff in a case where the plaintiff has not filed a certificate-especially one who seeks only contribution or indemnity from the third party. Under CTL, the defendant/third-party plaintiff could be forced

near the outset of a lawsuit to simultaneously deny that any wrong or damage was done to the plaintiff and also produce a certificate of merit essentially putting forth expert testimony to bolster the plaintiff‘s claims. The defendant/third-party plaintiff could be put in the position at the outset of its defense of having to vouch for the merits of a case it elsewhere denied had merit.

More potentially unintended consequences of an expansive definition of “plaintiff” are apparent when we consider what happens if a plaintiff sues a defendant who is not a licensed or registered professional who then files third-party claims against licensed or registered professionals.5 Section 150.002 would not require the plaintiff to file a certificate in that case, but recovery for the plaintiff‘s damages ultimately may be sought from licensed or registered professionals. Should the burden for filing the certificate fall on the defendant, who never intended to bring the suit and may not believe any wrongdoing occurred? The plaintiff could avoid the burden of filing a certificate of merit by not suing the licensed professional, then reap the benefit of the defendant‘s certificate. But not requiring the defendant to file a certificate of merit in that case would deny the licensed professional the protection of the certificate-of-merit requirement. There is no procedural mechanism apparent under current law that could shift the burden of producing a certificate of merit back to the plaintiff, who stands to benefit from the suit but chose not to sue the licensed or registered professional in the first place. If we were to determine that the statute requires certificates from defendants for original claims but not for derivative claims, courts

Notes

1
The version of section 150.002 applicable to these facts was effective and applicable to cases filed on or after September 1, 2005. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847, 896-97, amended by Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 4, 2005 Tex. Gen. Laws 348, 348 and Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (codified as Tex. Civ. Prac. & Rem.Code Ann. § 150.002). All references to section 150.002 will be to the version of the statute that became effective in 2005 unless otherwise noted. This statute has since been amended. See Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992. Each of these iterations of the statute has required “the plaintiff” to file a certificate of merit. Like the majority opinion, any references to section 150.002 in this dissent will be to the version of the statute that became effective in 2005 unless otherwise noted. See footnote 1 of the majority opinion.
2
The Schneiders are listed with the same address as Comet, and Joe Schneider is listed as Comet‘s registered agent for service of process. The Schneiders and Comet are represented by the same counsel, filed a joint answer and third-party complaint, and filed a joint brief here. Their interests in this appeal appear sufficiently aligned to justify reference to them as a single entity. At the same time, the third-party defendant may offer testimony in his own defense that supports the defendant/third-party plaintiff‘s defense, in essence providing “free” expert testimony in defense of the plaintiff‘s claims.
3
Much of the parties’ briefing centered on whether any non-negligence claims against Jaster triggered the section 150.002 certificate requirements. After the parties filed their briefs, this Court held that the version of section 150.002 effective September 1, 2005 required a certificate of merit to be filed in all actions or arbitration proceedings for damages arising out of the provision of professional services by a licensed or registered professional, not just in negligence cases. . Therefore, the fact that ADG and Comet seek contribution and indemnity from potential damage awards on non-negligence claims in addition to negligence claims did not except Comet and ADG from the certificate requirement. While Comet subsequently filed a certificate of merit with its amended third-party complaint, almost two months after filing its original third-party complaint, Comet does not contend that it requested or obtained any extension of time under subsection (b) of section 150.002. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(b) (providing that “contemporaneous filing requirement” does not apply when period of limitation will expire within ten days of date of filing and that court may grant, upon motion, extension for filing of more than thirty days); see also (holding that trial court abused its discretion in denying motion to dismiss where plaintiff failed to file certificate of merit with first-filed complaint and did not contend that exception set forth in section 150.002(b) was applicable).
4
Rule 38 refers to a “petition” filed by the third-party plaintiff, see Tex.R. Civ. P. 38, but we are using the word “complaint” in this opinion to be consistent with the statute at issue and with the title Comet used on its document. See Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). We see no functional difference between the words “petition” and “complaint” for purposes of this opinion. As previously discussed, Consolidated Reinforcement and similar cases held that non-negligence causes of action do not require a certificate of merit. See, e.g., , overruled by . In addition, Consolidated Reinforcement and its associated cases are unclear and confusing with regard to exactly what claims constitute a “non-negligence cause of action.” Compare (“When the plaintiff does not claim a negligent act, error or omission exists, and is not required to make such an allegation as an element of its cause of action, a certificate of merit is not required under section 150.002(a).“) with (considering “the source of the duty and nature of the remedy sought” in determining whether breach of contract claim was negligence claim within the scope of section 150.002); see generally (summarizing different approaches taken by courts in determining which claims are “negligence” claims under section 150.002).
5
It is also conceivable that a plaintiff sues a licensed or registered professional who does not enforce his right to a certificate, but there would have to parse the nature of undeveloped claims with potentially case-dispositive results. We find no clear indication in the statute or legislative history that the legislature wants its directive that “the plaintiff” file an affidavit “with the complaint” to apply to a defendant filing a third-party claim or cross-claim. We rely on the plain meaning of the text of the statute, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. See .

Notably, the legislature chose to use the word “plaintiff” in section 150.002 as opposed to expressly including “cross-plaintiffs” and “third-party plaintiffs” or making the requirement applicable more generally to “claimants.” In other statutory schemes within the civil practice and remedies code, the legislature has demonstrated a willingness and ability to expressly treat plaintiffs, third-party plaintiffs, and cross-claimants the same by using the broader term “claimant” to include all parties seeking recovery of damages including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff. See, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 9.001(1) (frivolous pleadings) (West 2002); id. §§ 33.011(1) (proportionate responsibility) & 41.001(1) (damages) (West 2008); id. §§ 85.001(1) (liability for stalking) & 147.001(2) (West 2011) (causes of action for “year 2000 computer date failure“); see also Tex. Fam.Code Ann. § 261.108(a)(1) (West 2008) (frivolous claims against reporters of child abuse). The legislature has also shown the ability to limit the definition of “plaintiff” to exclude a counterclaim-

ant, cross-claimant, or third-party plaintiff. See Tex. Civ. Prac. & Rem.Code Ann. § 71.051(h)(2) (forum non conveniens) (West 2008).

An analogous scheme is the health-care liability claim statutes that require “a claimant” to file an expert report. See id. §§ 74.001-.352 (West 2011 & Supp.2012). That statute defines “claimant” not in terms of party titles, but as “a person, including a decedent‘s estate, seeking or who has sought recovery of damages in a health care liability claim.” Id. § 74.001(a)(1) (West Supp.2012). A claimant must serve the parties with an expert report concerning the actions of defendant physicians or health-care providers. Id. § 74.351(a) (West 2011). The statute does not further define “claimant,” but does define “defendant” as “a physician or health care provider against whom a health care liability claim is asserted. The term includes a third-party defendant, cross-defendant, or counterdefendant.” Id. § 74.351(r)(4).

This context adds significance to the legislature‘s choice of wording in expressly imposing the requirement of filing a certificate of merit only on “the plaintiff” in suits against a licensed or registered professional. The legislature in other contexts has acknowledged that third-party plaintiffs and cross-claimants are different from plaintiffs. Further, the legislature has demonstrated the ability to include cross-claimants and third-party plaintiffs with plaintiffs when it deems appropriate. The legislature could have expressly imposed the requirement for filing a certificate of merit on third-party plaintiffs and cross-claimants but did not.

We have explored the difficulties in judicially imposing, as the dissent in this case advocates, a broader definition of “the plaintiff” in section 150.002 to encompass third-party plaintiffs and cross-claimants. Expanding the certificate-of-merit requirement in that way disregards the plain meaning of a clearly worded, if not comprehensively perfect, statute and leads to absurd consequences--for example, forcing defendants who assert pure contribution and indemnity claims to produce a certificate of merit, placing them in the quandary of both denying and substantiating the same claim at the outset of their defense.

Accordingly, we will resist the urge to judicially create a solution to the statute‘s failure to address third-party complaints and cross-claims. Section 150.002 expressly requires “the plaintiff” to file a certificate of merit with its complaint, and thus does not require a certificate of merit from a defendant who files a third-party complaint or cross-claim.

Resolution of this question controls our disposition of all of Jaster‘s issues on appeal. Neither defendant/third-party plaintiff Comet nor third-party defendant/cross-claimant ADG is “the plaintiff.” They were not required to file a certificate of merit, and the trial court did not err by denying Jaster‘s motions to dismiss Comet‘s third-party complaint, Comet‘s amended third-party complaints, and ADG‘s cross-claim despite the absence of a certificate of merit. The adequacy of Comet‘s certificate of merit filed with its second amended complaint is, therefore, moot.

CONCLUSION

We affirm the trial court‘s orders denying Jaster‘s motions to dismiss claims against Jaster made by Comet and ADG.

Dissenting Opinion by Justice HENSON.

DIANE M. HENSON, Justice, dissenting.

The majority concludes that section 150.002 of the Texas Civil Practice and

Remedies Code does not require a certificate of merit from a party who files a third-party complaint or cross-claim against a licensed or registered professional. Because I would instead hold that third-party plaintiffs and cross-claimants must comply with section 150.002‘s certificate-of-merit requirement, I respectfully dissent.

As the majority correctly points out, section 150.002(a) expressly provides that “in any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint” a certificate of merit. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (emphasis added).1 In Consolidated Reinforcement, L.P. v. Carothers Executive Homes, Ltd., we considered the type of claims for which a certificate of merit is required under section 150.002(a). , overruled by . Interpreting the same version of section 150.002 at issue in this case, we held that a certificate of merit was not required for non-negligence causes of action. ; see also ; ; ; ; . However, during the pendency of this appeal, this Court, sitting en banc, reconsidered the issue and overruled this holding of Consolidated Reinforcement. See .

In S & P Consulting Engineers, we held that a certificate of merit must be filed “in any action for damages arising out of the provision of professional services by a design professional,” including, but not limited to, cases alleging negligence. (emphasis added). In that case, the appellee homeowners had sued S & P Consulting Engineers (“S & P“) for potential costs and losses associated with the fact that their subdivision properties were within a flood plain. . The homeowners alleged that S & P was responsible for certification of the development plat for four phases of development and that S & P‘s representations in and regarding the plat constituted violations of the deceptive trade practices act, statutory fraud, and common-law fraud. . We concluded that these claims related to S & P‘s performance of professional services, and as a result, the homeowners were required to file a certificate of merit. .

In this case, Comet was sued by a homeowner, Dawoud, for violations of the deceptive trade practices act, common-law fraud, breach of contract, negligence, and negligent misrepresentation. Dawoud alleged that deficiencies in construction and design

of his home resulted in “excessive foundation settlement which in turn caused cracks and distortions.” In turn, Comet filed a third-party complaint seeking contribution and indemnity from Jaster and ADG, alleging that “the [foundation] plans were prepared by [Jaster], a professional engineer registered in the State of Texas” and that Jaster and ADG “are or may be liable to [Comet] for all or part of the Plaintiff‘s complaint.” Similarly, after being added as a third-party defendant by Comet, ADG filed a cross-claim against Jaster for contribution and indemnity alleging that “to the extent there is any defect in the foundation, whether by design or construction, it is the fault of [Jaster] or [Comet].” After Jaster filed his motions to dismiss, Comet amended its third-party complaint and added claims for violations of the deceptive trade practices act, negligence, fraud, and breach of contract.

Under our holding in S & P Consulting Engineers, there can be no dispute that Comet‘s third-party claims and ADG‘s cross-claim against Jaster are related to Jaster‘s performance of professional services. Upon filing, these claims became part of the lawsuit filed by Dawoud, and accordingly, the claims became part of an “action... for damages arising out of the provision of professional services by a licensed or registered professional.” See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). Section 150.002 requires a “plaintiff” filing such claims to file a certificate of merit with the complaint. See id.; . Thus, the issue in this case becomes whether Comet and ADG are “plaintiffs” within the meaning of section 150.002-a matter of statutory construction. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (requiring “plaintiff” to file certificate of merit “with the complaint“).

The majority concludes that the term “plaintiff” strictly refers to the party (or parties) initiating the lawsuit and does not include third-party plaintiffs or cross-claimants. In other words, the majority would hold that Jaster is stripped of the protections afforded by section 150.002 when the claims against him, which otherwise fall within the scope of the statute, are brought by parties other than the plaintiff who initiated the lawsuit. For the following reasons, I would instead conclude that the term “plaintiff” includes any party that has asserted a claim for damages against the professional arising out of his or her provision of professional services.

When construing a statute, our primary objective is to ascertain and give effect to the legislature‘s intent as expressed by the language of the statute. See . We generally construe a statute‘s words according to their plain and common meaning. See . However, we must decline to adopt such a construction if it would lead to absurd results or if a contrary intention is apparent from the context of the statute. See .

The plain language of section 150.002 “reflects a legislative goal of requiring merely that plaintiffs make a threshold showing that their claims have merit.” ; see former Tex. Civ. Prac. & Rem.Code Ann. § 150.002. The statute does not necessarily require a plaintiff to marshal expert testimony that would be admissible at trial. . Rather, the purpose of the certificate-of-merit requirement is to provide a method by which courts can quickly dismiss meritless claims. See

(“[T]he purpose of the certificate of merit is to provide a basis for the trial court to conclude that the plaintiff‘s claims have merit.“).

In the context of construction cases, like this one, engineers and other licensed or registered professionals are routinely brought into the lawsuit as third-party defendants. This affords the defendant/third-party plaintiff a method by which to shift liability.2 Under the majority‘s construction, the defendant/third-party plaintiff in such cases would not have to file a certificate of merit, though the plaintiff asserting the very same claims would. This is an absurd result, and the purpose of the plain language of the statute would be thwarted if third-party plaintiffs and cross-claimants were not required to file certificates of merit in such cases. Conversely, a construction of the term “plaintiff” that includes third-party plaintiffs and cross-claimants would require any party asserting a claim within the scope of the statute to make a threshold showing of merit upon filing. This construction is clearly consistent with the overall intent of the statute.

Further, as the majority points out, and I agree, third-party plaintiffs and cross-claimants have some characteristics of plaintiffs. Most notably, when a party asserts a third-party claim or cross-claim, he or she asserts a claim for relief against another party, and those parties become adverse. See . Thus, from the standpoint of the licensed or registered professional, third-party plaintiffs and cross-claimants are certainly “plaintiffs” with regard to the third-party claims and cross-claims against them. In conclusion, it is apparent from the context of section 150.002, that “plaintiff” must include third-party plaintiffs and cross-claimants.

Finally, I would note that this construction of “plaintiff“-to include both third-party plaintiffs and cross claimants-comports with our sister court‘s well-reasoned holding in . In that case, Morrison Homes sued Sheffield Development Company (“Sheffield“) for claims arising out of Sheffield‘s sale of land to Morrison Homes. . Morrison Homes also sued several professional defendants (collectively, “CTL“), who had provided geotechnical engineering services for Sheffield, alleging negligence, professional negligence, and breach of warranty, and filed a certificate of merit with its original petition. . Sheffield then filed a cross-claim seeking contribution and indemnity from CTL, but did not file a certificate of merit. . The Fort Worth court affirmed the trial court‘s denial of CTL‘s motion to dismiss Sheffield‘s cross-claim, holding that Sheffield, a cross-claimant, was not required to file a certificate of merit under section 150.002. . The court reasoned that “a cross-claiming defendant may rely on the certificate of merit filed by the plaintiff and is not required to file a second, independent certificate of merit.” . Conversely, the court pointed out, “when a defendant files a third-party petition against a licensed or registered professional that the plaintiff has not sued, then obviously the plaintiff has not filed a certificate of merit concerning the conduct of that licensed or registered professional; consequently, the defendant acting as

third-party plaintiff seeking contribution and indemnity must do so.” . Implicit in the Fort Worth court‘s reasoning is that third-party plaintiffs and cross-claimants are subject to section 150.002‘s certificate-of-merit requirement, but may satisfy the requirement by relying on a certificate of merit previously filed by another party. See id. I agree, and if any party had previously timely filed a certificate of merit in this case, both Comet and ADG would have been entitled to rely on that certificate of merit in connection with their claims.

I would conclude that both Comet and ADG are “plaintiffs” within the meaning of section 150.002. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002. Further, under S & P Consulting Engineers, the claims asserted by Comet and ADG are asserted in an “action for damages arising out of the provision of professional services by a licensed or registered professional.” See . Consequently, under S & P Consulting Engineers, both Comet and ADG were each separately required to either (1) file a certificate of merit contemporaneously with their complaint or (2) rely on a certificate of merit previously filed by another party in the case. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). However, neither Comet nor ADG filed a certificate of merit in this case.3 Further, no other party in this case timely filed a certificate of merit upon which Comet or ADG could rely. See . Accordingly, both ADG and Comet failed to comply with section 150.002‘s certificate-of-merit requirement.

Ordinarily, under these circumstances, I would conclude that the trial court abused its discretion in denying Jaster‘s motions to dismiss. Further, I would reverse the trial court‘s order and remand the cause for the trial court to dismiss the claims after determining whether each dismissal is with or without prejudice. See former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(d) (providing that failure to file certificate of merit “shall result in dismissal of the complaint against the defendant” and that “dismissal may be with prejudice“); . However, like this Court did in S & P Consulting Engineers, I would conclude that a different result is warranted in this case. See .

In S & P Consulting Engineers, this Court determined that the homeowners had failed to file a certificate of merit as required by section 150.002. See id. However, rather than remand the cause for the trial court to dismiss the homeowners’ claims, we recognized that “the parties and the trial court were proceeding under the authority of [Consolidated Reinforcement]” and thus “justice require[d] a different result.” Therefore, instead of remanding the cause to the trial court for

dismissal, we adapted the statutory grace period designed for cases filed within ten days of the limitations period and allowed the homeowners an additional thirty days to file a certificate of merit. See id.; see also former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(b) (providing that “contemporaneous filing requirement” does not apply when limitations period will expire within ten days of date of filing and that court may grant, upon motion, extension for filing of more than thirty days).

Similarly, in this case, the parties, in choosing not to file a certificate of merit, may have relied upon Consolidated Reinforcement, our controlling precedent at the time. See . The trial court, in denying the motions to dismiss, may have also relied on that same authority.4 See Accordingly, I would conclude that “justice requires a different result” in this case. See

I would reverse the trial court‘s orders denying the motions to dismiss and remand the cause to the trial court. I would also allow Comet and ADG thirty days from the date this judgment is mandated to file a certificate of merit satisfying the requirements of section 150.002. See Tex.R.App. P. 43.3; former Tex. Civ. Prac. & Rem.Code Ann. § 150.002(b) (in cases in which original petition is filed within ten days of the expiration of the limitations period, plaintiffs may file affidavit within thirty days of filing of petition).

HEALTHTRONICS, INC., Appellant, v. LISA LASER USA, INC. and Lisa Laser Products, OHG, Appellees.

No. 03-11-00530-CV.

Court of Appeals of Texas, Austin.

Aug. 31, 2012.

the policy considerations and equities are different.
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