Hardy v. Matter
350 S.W.3d 329
Tex. App.
2011
Check Treatment

Roland HARDY d/b/a Hardy & Associates, Appellant, v. Carol MATTER and Frank Matter, Appellees.

No. 04-10-00785-CV

Court of Appeals of Texas, San Antonio.

July 20, 2011.

330 S.W.3d 329

more, this is an unusual child custody case in that neither the parents nor the child currently resides in Texas, yet one parent is still pursuing a modification suit in Texas. If Blair‘s modification suit were to proceed in Texas, it would require all of the parties, including the child, to continue to travel to Texas for all of the court proceedings. Allowing the California court to move forward with the merits of the case at this time, instead of waiting for this issue to be appealed after the conclusion of the case, would promote judicial economy and avoid wasting the time and resources of the parties in a Texas court. Therefore, we conclude the present facts are sufficiently compelling to justify this Court‘s granting of extraordinary relief.

CONCLUSION

Based on the foregoing analysis, we hold the trial court clearly abused its discretion in denying Alanis’ request for the trial court to decline jurisdiction as an inconvenient forum under Texas Family Code section 152.207. Accordingly, we conditionally grant the petition for writ of mandamus. The trial court is ordered to withdraw the portion of the February 7, 2011 order denying the request for it to decline jurisdiction in favor of California because Texas is an inconvenient forum, and enter an order declining jurisdiction in compliance with section 152.207. See TEX. FAM. CODE ANN. § 152.207. The writ will issue only if the trial court fails to comply within fourteen days.

John C. Wilson, Joseph Loiacono, II, Wilson Grosenheiden & Jacobs, L.L.P., Austin, TX, for Appellant.

Christopher J. Weber, Law Office of Christopher J. Weber, L.L.C., San Antonio, TX, for Appellee.

Sitting: KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.

OPINION

Opinion by: KAREN ANGELINI, Justice.

Architect Roland Hardy d/b/a Hardy and Associates appeals from an order denying a motion to dismiss a claim brought against him by Carol and Frank Matter. Hardy maintains the claim must be dismissed because the Matters failed to file an affidavit that complied with Section 150.002(a) of the Texas Civil Practice and Remedies Code.1 Under Section 150.002(a), a plaintiff who sues an architect for professional malpractice must file with the suit an affidavit of a third-party licensed architect setting forth specifically at least one negligent act, error, or omission and the factual basis for each such claim. At issue in this case is whether Section 150.002(a) requires the architect‘s qualifications to appear on the face of this affidavit. After construing Section 150.002(a), we conclude the statute does not require the affiant‘s qualifications to appear on the face of the affidavit. Because the affidavit filed by the Matters met the requirements of the statute, we affirm the trial court‘s order.

BACKGROUND

In 2003, the Matters purchased a house located in Helotes, Texas. The house was designed by Hardy in 1998 and 1999, and was built by a contractor in 1999. Hardy provided “builder‘s plans” for the house. Builder‘s plans contain fewer specifications and detail than blueprints and other architectural drawings. After living in the house, the Matters noticed water leaks. The Matters sued the previous owner and the contractor. They later added Hardy as a defendant. In their amended petition, the Matters alleged the house was built with an insufficient drainage plane behind the exterior stucco finish and an improperly installed vapor barrier which caused moisture to be retained inside the walls of the house. Attached to their amended petition was an affidavit from Lance Tatum. In this affidavit, Tatum avers he is fully competent to testify to the matters in the affidavit and is a “duly licensed Registered Architect in the State of Texas.” Tatum further opines that Hardy committed architectural malpractice by failing to (1) provide detailed instructions regarding waterproofing, moisture barriers, and sealing of the walls, (2) take any course of action with regard to these implementation issues, and (3) observe the construction process as it occurred to identify the improper construction procedures as they were occurring.

Hardy moved to dismiss the suit, asserting the affidavit filed by the Matters was insufficient because it did not comply with all of the requirements of Section 150.002(a) of the Texas Civil Practice and Remedies Code. In particular, Hardy alleged the affidavit was insufficient because it failed to state that Tatum (1) was actively engaged in the practice of architecture, and (2) practiced in the same area as Hardy. The Matters filed a response and an amended response to Hardy‘s motion to dismiss. Attached to the amended response was a supplemental affidavit from Tatum. In his supplemental affidavit, Tatum avers he is (1) “currently actively engaged in the practice of architecture in the State of Texas, and [has] been for several decades, including in 1998 and 1999;” and (2) that his “area of architecture practice encompasses the creation of Builder‘s Plans, although it is not limited to that.” The Matters also attached Tatum‘s resume to their amended response.

The trial court held a hearing on Hardy‘s amended motion to dismiss. At the hearing, the trial court disagreed with Hardy‘s assertion that Section 150.002(a) requires the qualifications of the third-party architect to appear on the face of the affidavit filed with the suit. Apparently relying on Tatum‘s initial affidavit addressing the alleged negligent omissions and the factual basis for the claim, as well as Tatum‘s supplemental affidavit addressing his qualifications, the trial court determined the Matters satisfied the requirements of Section 150.002(a). Thereafter, the trial court signed an order denying the amended motion to dismiss. Hardy appealed the trial court‘s interlocutory order.

STANDARD OF REVIEW

Generally, we review an order denying a Section 150.002 motion to dismiss under an abuse of discretion standard. ; . Nevertheless, if resolution of the issue requires us to construe statutory language, we employ a de novo standard of review. See ; . Under this circumstance, we first determine the statute‘s proper construction under a de novo standard, then determine if the trial court abused its discretion in applying the statute. .

DISCUSSION

Hardy argues the trial court abused its discretion in denying his motion to dismiss because Tatum‘s initial affidavit did not state that he practiced in the same area as Hardy and that he was actively engaged in the practice of architecture as required by Section 150.002(a). Hardy also argues the trial court abused its discretion by considering Tatum‘s supplemental affidavit because Section 150.002(a) does not permit consideration of supplemental affidavits. In response, the Matters contend there is no requirement within Section 150.002(a) that the initial affidavit set forth the qualifications of the third-party architect; the statute‘s only requirement is that the third-party architect hold the qualifications listed in the statute. The Matters further contend the trial court was permitted to review information outside of the initial affidavit, such as a resume or a supplemental affidavit, to determine if Tatum had the qualifications specified in Section 150.002(a).

Resolution of these issues requires us to construe Section 150.002(a). Our primary goal in construing a statute is to give effect to the Legislature‘s intent as expressed in the language of the statute. . We may not adopt a construction that renders any part of the statute meaningless or superfluous. . Under the well settled principles of statutory construction, we begin with the statutory language itself. . When the words of a statute are unambiguous, we apply them according to their plain and common meaning. . “We look first to the statute‘s language to determine that intent, as we consider it a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.” (internal quotations omitted). “In construing statutes we presume that each word in the statute was put there for a purpose and each word not in the statute was omitted for a purpose.” . When the Legislature uses a term in one section of a statute and excludes it in another, the term should not be implied where it was excluded. .

With the aforementioned principles in mind, we examine Section 150.002, which is titled “Certificate of Merit.” Subsection (a) of the statute provides,

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 set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party professional engineer, registered professional land surveyor, or licensed architect shall be licensed in this state and actively engaged in the practice of architecture, surveying, or engineering.

TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a) (emphasis added). The statute further provides that the failure to file the third-party affidavit contemporaneous with the filing of the suit requires the dismissal of the claim. Id. § 150.002(d). This dismissal may be with prejudice. Id. An exception exists for situations in which the limitations period will expire within ten days of the filing of the suit. Id. § 150.002(b). An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order. Id. § 150.002(e).

As shown above, Section 150.002(a) expressly states the “affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.” The statute also requires that the third-party architect (1) be competent to testify, (2) hold the same professional license as and practice in the same area of practice as the defendant, and (3) be licensed in this State and actively engaged in the practice of architecture. But the plain language of the statute never states these qualifications must be set forth in the affidavit. And, we cannot imply that the statute requires these qualifications to be set forth in the affidavit when it does not. We conclude the statute does not require the qualifications of the third-party architect to appear on the face of the initial affidavit; rather, the statute requires only that the affiant hold the specified qualifications. Additionally, even though Section 150.002(a) requires the affidavit to be filed contemporaneous with the suit, nothing in the statute provides that the affiant‘s qualifications must be demonstrated at this juncture. The statute is silent as to how and when the third-party architect‘s qualifications must be established.

We recognize that another Texas appellate court has construed Section 150.002(a) as requiring the qualifications listed in Section 150.002(a) to appear on the face of the initial affidavit filed with the suit. See . The opinions of other Texas appellate courts, however, are not binding on us. . Although we have reviewed and considered , we decline to adopt its construction of Section 150.002(a).

In , the Corpus Christi Court of Appeals construed Section 150.002(a) as requiring the initial affidavit to recite the qualifications listed in the statute. See . Important to the court‘s reasoning was Section 150.002(a)‘s mandate that the affidavit be filed at the same time as the complaint. . The court also looked to guidance from the Medical Liability and Insurance Improvement Act (MLIIA) in determining what is required of an affidavit under Section 150.002(a). See . The appellate court noted that, unlike the MLIIA, Section 150.002(a) has no express provision allowing a plaintiff to cure a deficient affidavit. . Based on this comparison to the MLIIA, the appellate court concluded the Legislature did not intend to allow plaintiffs to cure deficient affidavits under Section 150.002(a). See (“Had the legislature desired to give a design professional an opportunity to correct the affidavit, it could have provided it in the same manner it did in the medical malpractice statute.“). After construing the statute as requiring the affiant‘s qualifications to appear on the face of the initial affidavit, the appellate court held the trial court did not have the authority to consider amended or supplemental affidavits. .

“Ordinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on.” . Accordingly, in construing Section 150.002(a) we look no further than the literal text of the statute, which simply does not state the affiant‘s qualifications must appear on the face of the initial affidavit. See (explaining the reasons for construing the plain language of a statute before resorting to rules of construction).

In addition to , Hardy cites cases from three other Texas appellate courts. However, none of these cases squarely addresses whether Section 150.002(a) bars the trial court from considering amended or supplemental affidavits to evaluate the qualifications of third-party design professionals. In two of the cases, the plaintiffs filed both an affidavit and a resume with their suit, and the courts considered the information provided in both the affidavits and the resumes in evaluating whether the affiants had the qualifications listed in Section 150.002(a). ; . In the third case, , the appellate court upheld the trial court‘s ruling that the affiant had the qualifications listed in Section 150.002(a), even though the third-party affidavit did not specifically state that the affiant practiced in the same areas as the defendant. Moreover, in dicta, the appellate court noted, “[a]lthough the statute requires the affidavit to be made only by certain qualified persons, it is not required that the affidavit set out those qualifications.” See n. 5 (emphasis added).

Finally, Hardy argues that construing Section 150.002(a) as not requiring the affiant‘s qualifications to be stated on the face of the affidavit would render the statute meaningless. We disagree. In making this argument, Hardy cites . In , the plaintiffs failed to file a third-party affidavit when they first filed suit against an engineer. . Later, the plaintiffs filed an amended petition with the required affidavit. . The plaintiffs did not contend they fell within the exception under Section 150.002(b), which extends the time for filing an affidavit when the limitations period is about to expire. ; see § 150.002(b). The appellate court refused to construe Section 150.002(a) as not requiring the filing of the third-party affidavit contemporaneous with the original petition because such a construction would render Section 150.002(b) meaningless. .

The construction we adopt does not render any part of the statute meaningless. The apparent purpose of Section 150.002 is to discern whether a claim brought against a defendant architect has merit, and to provide a vehicle for dismissal when a claim lacks merit. See § 150.002. As we construe Section 150.002(a), a plaintiff must file with his suit an affidavit of a third-party architect that sets forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each claim. See § 150.002(a). The third-party architect who signed the affidavit must hold the qualifications listed in the statute, but the statute does not require these qualifications to appear on the face of the affidavit. See id.

CONCLUSION

Under the plain language of the statute, the trial court was not precluded from looking to Tatum‘s supplemental affidavit to determine his qualifications. Here, there is no dispute Tatum had the required qualifications, and that his qualifications were demonstrated in his supplemental affidavit. We conclude the trial court did not abuse its discretion in denying Hardy‘s amended motion to dismiss. We, therefore, affirm the trial court‘s order.

Concurring Opinion by: STEVEN C. HILBIG, Justice.

STEVEN C. HILBIG, Justice,

concurring.

I concur in the judgment because the trial court did not abuse its discretion in denying the motion to dismiss. I write separately because I disagree with the majority‘s interpretation of the legal requirements for the “certificate of merit” that must be filed contemporaneously with a lawsuit against certain licensed or registered professionals. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002.1 I believe the statute is not ambiguous and clearly requires the certificate or affidavit include the affiant‘s licensure, area of practice, and competency to testify.

Statutory construction is a question of law. . We construe statutory language to ascertain and give effect to the Legislature‘s intent. “[W]e construe the statute‘s words according to their plain and common meaning, unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results.” (citations omitted). Every word included in a statute must be presumed to have been used for a purpose and every word excluded for a purpose. ; . The statute must be read as a whole and we interpret it to give effect to every part. . We cannot adopt a construction that renders any statutory provision meaningless. .

As quoted in the majority opinion, Section 150.002 states:

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 set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each claim. The third-party professional engineer, registered professional land surveyor, or licensed architect shall be licensed in this state and actively engaged in the practice of architecture, surveying, or engineering.

Majority opinion, at 332 (emphasis in the opinion). The majority apparently reasons the only items required to be in the affidavit are those that follow the words “which affidavit shall set forth.” Majority opinion, at 332. If this were true, then the affidavit need not include any other information required by the statute—the affiant must be licensed, holding the same professional license as the defendant, practicing the same area as the defendant, licensed in the State of Texas, and actively engaged in the practice of architecture, surveying, or engineering. This interpretation fails to give full effect to all the words in the statute as required by law and discussed above. . This interpreta-

tion also would lead to an absurd result in that the affidavit must contain information about the negligent act, but not contain any information where one could judge the competency of the affiant to render his opinion. This result would not further the statute‘s apparent goal of weeding out frivolous lawsuits at an early stage.2 At least one other court that has considered this issue has also concluded the certificate of merit must demonstrate the affiant practices in the same area as the defendant. See .

Once the statute is properly construed, the appellate court must determine whether the trial court abused its discretion in the manner in which it applied the statute. ; . A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. , cert. denied, .

In his second amended motion to dismiss, Hardy complained that the affidavit failed to state that the affiant practiced in the same area of practice as Hardy (preparation of builder‘s plans) or that the affiant was actively engaged in the architectural practice. The certificate of merit stated:

My name is Lance Tatum. I am over the age of 21, of sound mind, capable of making this Affidavit, and fully competent to testify as to the matters stated herein. I have personal knowledge of each of the matters stated in this affidavit, and they are true and correct. Such personal knowledge has come from my research into the facts of this case.

I am a duly licensed Registered Architect in the State of Texas.

Through my research into the facts of the above-styled and numbered cause, including a review of the drafted house plans and an expert report by J. Wall Consulting, dated November 12, 2007, it is my professional opinion that the firm of Hardy & Associates, and Roland J. Hardy individually, did not exercise ordinary prudence of a Registered Architect in the State of Texas.

The architectural drawings I have reviewed include a foundation diagram, first and second level floor plans, elevations, sections, roof plan, details for cabinetry and first and second level electrical plans, all with corresponding notes. Whereas, although the drawings demonstrate a general competency of architectural drawing standards, they are not specific regarding details of assembly of the exterior wall systems, moisture barriers and waterproofing.

The subject residence has sustained water penetration of the exterior walls and substantial water damage to the structure and interior walls, resulting from improper construction procedures. Evidence of deterioration of the building

is described in the document prepared by J. Wall Consulting, specifically page 2-Site Observations and page 3-Discussion and Recommendations, and photographs 3, 4, 5, 6, 7, 8, 9, and 10, all pertaining to improper installation of the correct and necessary components of the exterior wall systems involving conventional balloon framing with exterior stucco and interior gyp board.

Paragraph No. 5-Exterior Walls in the document, “Description of Materials” attached to the set of prints of architectural drawings, outlines “2 x 4 & 2 x 6 studs to be installed at 16” O.C. (on center) with 15# Felt.” However, there is not a drawing on the plans I reviewed that describes the assembly and proper location of those materials. Additionally, there is not a drawing of an important and typical wall section, typically drawn at a sufficiently large scale, ½” = 1‘-0” or larger, identifying all of the components of the exterior walls and their sequence in the construction process. Neither is there a completion of the spaces for information outlined in Paragraph No. 5, regarding water proofing, moisture barriers, and recommended sealing of the stucco walls.

Further, the notation in paragraph No. 5-Exterior Walls of the document “Description of Materials” for use of 15# Felt is unclear as to whether the 15# Felt was intended for use as a moisture barrier between the floor plate of the stud wall and the concrete slab or as a waterproofing barrier applied to the sheathing (OSB). There should have been a detail drawing of that installation or a written note on the first and second level plan drawings describing the intended use of the material. However, no such drawings or notes were included in the documents I reviewed.

Since the document “Description of Materials” bears no signature denoting the preparer, it was not possible to determine whether that document was prepared by the architect; notwithstanding this, the architect should have reviewed the document and noted the lack of information and pursued some course of action as a result.

Based upon the document prepared by J. Wall Consulting, it can be concluded that there was a serious omission of a vapor barrier and waterproofing technology, as evidenced by the photos in the J. Wall Consulting document. The water damage to the residence should not have occurred with installation of a proper sequence of exterior wall components and proper sealing of the stucco on the exterior wall.

Professional conduct requires that an architect who prepares the drawings should be able to observe the construction process and, if any improper construction procedure is determined to have been followed, or if any building code violations have been discovered, such conditions should be immediately addressed, reported to proper jurisdictional authorities and/or the construction process stopped until said conditions are corrected.

By failing to provide detailed instructions regarding the water proofing, moisture barriers and recommended sealing of the stucco walls, by failing to take any course of action with respect to these architectural implementation issues, and by failing to observe the construction process as it occurred and identify the improper construction procedures that were occurring, Hardy & Associates, and Roland J. Hardy individually, failed to exercise ordinary prudence in the practice of architecture design, planning, and implementation in the State of Texas.

I believe the affidavit could be interpreted as including information demonstrating the affiant is “competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant,” and thus complying with section 150.002. TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a). The court in also recognized that a court could look to the content of the affidavit even though the affiant did not plainly state he practiced in the same area as the defendant. ; see also (judgment vac. and remanded by agreement) (trial court can look to content of affidavit and resume when affidavit does not contain specific statement regarding affiant‘s engineering practice areas).

In his affidavit, Tatum states he is a licensed architect. Although he did not state he was practicing in the same area as the Hardy, the basis of the complaint centers upon the drafting of architectural drawings. It would be logical to presume absent evidence to the contrary, the creation of architectural drawings is within the area of practice of an architect. Furthermore, in the affidavit, Tatum references a purported standard practice when creating architectural drawings. For example, Tatum asserts in the third paragraph that the drawings were not “specific regarding details of assembly of the exterior wall systems, moisture barriers and waterproofing,” implying architectural drawings should contain this feature. In the fifth paragraph, Tatum notes the failure to include a detailed drawing of the wall assembly, something he notes is “typically” included. In the sixth paragraph, Tatum notes that there should have been a detailed drawing of the installation of the felt and what purpose it was to serve. A trial court could read these statements and reasonably conclude the affiant practiced in the same area as the defendant, as required by the statute. Obviously, the better practice would be to directly and more completely address these items in the affidavit, but the issue here is whether the trial court abused its discretion in denying the motion to dismiss. I find the trial court did not abuse its discretion because a fair reading of the certificate of merit could allow the trial court to conclude Mr. Tatum is practicing in the same area as the defendant.

With these comments, I concur in the judgment.

In the Interest of K.G., a Child.

No. 02-10-00257-CV.

Court of Appeals of Texas, Fort Worth.

July 28, 2011.

Rehearing Overruled Sept. 15, 2011.

Notes

1
The Legislature amended Section 150.002, effective September 1, 2009. See Act of June 2, 2009, 81st Leg., R.S., ch. 789, §§ 3-4, Tex. Gen. Laws 1990-92 (effective Sept. 1, 2009). The citations in this opinion are to the version of the statute in effect before the 2009 amendments because Matters suit was filed before September 1, 2009. See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 12, 2005 Tex. Gen. Laws 348 and Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 150.002, 2005 Tex. Gen. Laws 369, 369-70 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (West 2011)). The Legislature amended Section 150.002, effective September 1, 2009. See Act of June 2, 2009, 81st Leg., R.S., ch. 789, §§ 3-4, Tex. Gen. Laws 1991-92 (effective Sept. 1, 2009). Because the Matters’ suit was filed before September 1, 2009, the amendments do not apply to this case. The citations in this opinion are to the version of the statute in effect before the 2009 amendments. See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 12, 2005 Tex. Gen. Laws 348; and Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 150.002, 2005 Tex. Gen. Laws 369, 369-70 (current version at TEX CIV PRAC. & REM. CODE ANN. § 150.002 (West 2011)).
2
I was unable to find any legislative history relating to the “certificate of merit” when the statute was originally enacted in 2003 as part of HB 4 during the 78th regular legislative session. However, when the statute was amended in 2005, the bill analysis included the following statement of the author‘s/sponsor‘s intent: “During the 78th Legislature, Regular Session, 2003, legislation was passed protecting engineers and architects from frivolous lawsuits. The protection comes from requiring another professionally licensed engineer or architect to act as a third party, offering a professional opinion about alleged damages caused by the original engineer or architect.”
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