*1 Finаlly, must also consider withdraw its order striking designa- the spare whether will and litigants mandamus tion. public money utterly “the time and eventual im enduring
wasted reversal of properly proceedings.” conducted In re Rocket,
Team at quoting 256 S.W.3d Prudential, at 136. It is be
yond dispute that there will be a substan litigants’
tial waste money time and they if to proceed trial without the error Wife, Mike and USTANIK Teresa corrected, being proceed through ap Ustanik, Appellant, pellate only process have the judgment reversed, retry and then case entire with Dr. a designated responsible Pollet as DESIGNS, NORTEX FOUNDATION party. expense third The additional and Jerry INC., P.E., Coffee, L. effort preparing participating Ready Cable, Inc., Appellee. not, alone, standing justi those trials does fy the a writ issuance of of mandamus. No. 10-09-00272-CV. Walker, (remedy See at Texas, of Appeals Court inadequate appeal merely not it because Waco. may delay involve more or cost man than damus). however, Where, a trial court’s June 2010. judicial error will cause waste of re sources, an appellаte may properly court
consider in determining factor
adequacy remedy of an error appeal question. at id. 843. The potential resources, waste of when combined the possibility that Relators not be may successfully prosecute
able to an appeal, supports our conclusion that do Relators
not adequate remedy have an Ac law.
cordingly, we pre sustain sole issue
sented in petition the mandamus con
ditionally grant mandamus relief. The writ will if the trial only issue court fails to granted trial summary judgment distinguishable court had Our case is it because does favor of SCI Funeral dismissed it from good not concern cause issue as Dr. Pollеt party seeking designa- A case. to file the designated responsible properly had been aas good tion filing must show cause for mo- party third when the struck trial court sixty day period. tion inside of the time Tex. designation non-statutory for a reason. Fur- 33.004(a). CivPrac. & Rem.Code Ann. ther, might we have concluded that Relators appeals court of did address whether the not be able have the error corrected on clearly
trial court abused its but discretion appeal possible appel- direct bеcause it is instead found that un- mandamus relief was late would record not show how trial relatively available because facts were ruling of an im- court’s caused the rendition straightforward and the error cor- could be proper judgment. through regular appellate rected process.
4H *3 Jim Hering, Page Pakis Giotes & Burle- PC, Waco, son for Appellant. Peebles, Firm, C.D. Peebles Law South- lake, Appellee. for GRAY, Before Chief Justice Justice REYNA, and Justice DAVIS.
OPINION GRAY,
TOM
Justice.
Chief
Mike and Teresa Ustanik sued Nortex
Designs,
Jerry
Foundation
Inc. and
Coffеe
when
newly
the foundation on their
built
house failed.
the trial
granted
When
court
dismiss,
Nortex’s and Coffee’s motion to
appealed.
Because
trial
dismissing
court did not err in
the Ustan-
dismiss,
Coffee,
dismisses,
a claim.
or refuses to
Nortex and
against
iks’s suit
Gutierrez,
affirm
trial
111 S.W.3d
court.
judgment
Walker
(Tex.2003);
Bldg.,
Palladian
150.002
Section
However, if resolution of the issue
433.
statutory language,
to construe
requires
filed their suit
us
time the Ustaniks
At the
Coffee,
novo
Texas Civil we review under
de
standard.
against Nortex
States,
Summers,
section
Inc. v.
Entergy
Remedies Code
Practiсe
Gulf
(Tex.2009);
plaintiff,
in a suit
Palladian
150.002
by a
arising
(citing
Dep’t
out of services
at 436
Tex.
damages
Bldg.,
*4
Needham,
314,
complaint
file with the
318
Transp. v.
82 S.W.3d
design professional,
of
(Tex.2002)).
affidavit of a
of merit” —the
prop
a “certificate
Once we determine the
engineer.
statute,
professional
licensed
we
third-party
deter
er construction
R.S.,
18, 2005,
Leg.,
79th
May
Act of
trial court abused its
See
mine whether the
369,
2,
208,
Tex. Gen. Laws
370
§
ch.
2005
ap
manner in which it
discretion in the
2009) (current
(amended
at Tex.
version
to the instant case. See
plied the statute
150.002(a)
§
& Rem.Code
Bldg.,
413
(Tex.2003);
204,
153, 156
Bldg.
10.09,
§
Leg.,
1,
Palladian
Co.
78th
ch.
eff. Sept.
2003,
Inc.,
150.002
Designs,
Found.
section
does
Nortex
165
not contain a
2005,
430,
deadline to file a motion
(Tex.App.-Fort
no
See
434
Worth
dismiss.
18, 2005,
Act
ordinarily
May
R.S.,
79th
Although
Leg.,
waiver is
ch.
pet.).
208,
fact,
§
Tex.
and cir
Gen.
Laws
question
when
facts
(amended 2009) (current
сlearly
version at Tex.
are admitted or
estab
cumstances
150.002(b)
lished,
&
question
of law.
becomes one
Civ. Prac.
Rem.Code
Ann.
(Vernon
2009)).1
Supp.
156;
When a
statute
Jernigan,
S.W.3d at
Palladian
deadline,
does
not contain
the mere fact
Bldg.,
large
waiver. without de Assuming P. 94. actions that were took and Coffee Nortex Tex.R. Civ. Ustaniks, may plaintiffs, to that the as exercising right ciding their inconsistent with affirmative prevent defense to use this dismiss. motion to file a suit, was on their the burden dismissal of Further, in discov participation ele the essential prove the Ustaniks summary judg motions for filing ery and The two essen laches. See id. ments of necessarily an demonstrate not ment do (1) delay by are unreasonable tial elements to move for a right to waive intent rights in having legal equitable or one Jernigan, 111 S.W.3d dismissal. (2) them, change good faith asserting Cull, v. 157; Perry Homes also see to his detriment position by another (Tex.2008) (citing exam Id.; delay. see also Cald because of the discovery where ples participation (Tex. Barnes, 535, 538 v. well of an arbitration find waiver did not Court Inc., 1998); Enterprises, Rogers Ricane clause). about tо learn more Attempting (Tex.1989). party one is a does in which the case right an intent waive demonstrate held that already have We id. And even a dismissal. See move for their did not waive Nortex Coffee filed motions for and Coffee though Nortex dismiss. a motion to rights pursue none of the motions judgment, summary basis, and evi arguments, the same Upon however, on; are not we ever ruled were dence, not an also find that there was *6 obtaining ruling on say to that prepared delay filing them in them unreasonable by necessarily motion is summary judgment did not motion to dismiss. The Ustaniks right to file a motion with the inconsistent In at first element of laches. prove the have not Finally, the Ustaniks to dismiss. element, to establish the second tempting remaining in docu anything the pointed to response in their the stated Ustaniks actions inconsistent with shows ments that they hired a the motion to dismiss the to seek a rely upon right an intent to attorney and incurred an additional new anything have not found We dismissal. $22,000 is not the in fees and costs. This portions the provided either. Even in type “change position” оf sufficient an intent do not show of Coffee deposition Further, the second element. establish right to seek a dismissal. to waive the sup provided no evidence Ustaniks Accordingly, the Us- port this statement. sum, conclude that Nortex’s In is overruled. taniks’s second issue not so inconsistent actions were Coffee’s right to a intent to assert with an Non-negligence Claims 150.002 as to under section dismissal right. issue, argue a waiver of that third the Ustaniks amount to In their dismissing is overruled. in first issue that the trial court erred Ustaniks’ those of their claims because remainder Laches claims and are non-negligence claims are issue, for a certif- subject requirement not to the second Us- In their of In addition to a claim its icate of merit. that the trial court abused allege taniks in their allege negligence, motion to dis granting in discretion Decep- for petition amended claims pre of laches second the doctrine miss because violations, negli- Act tive Trade Practices right to seek and Coffee’s cluded Nortex’s and breach of con- gent misrepresentation, is an affirmative de Laches dismissal. v. tract. estoppel. Ft. Worth John- fense akin to
415 that, 3, 2007, App.-San Some have held under the Antonio Oct. no pet.). courts 150.002, filing However, Court, version of section relying 2005 the First on the of merit certificate is opinion Fort Court’s Worth Parker v. non-negligence claims. Landreth Clinic, County Veterinary v. Inc. GSBS Inc., Co-Owners, Batenhorst, Las Brisas Inc., 2-08-380-CV, Council No. 2009 492, 500 (Tex.App.-Corpus 3938051, Tex.App. WL 2009 LEXIS 8986 2009, pet.); no Christi Consol. 19, 2009, (Tex.App.-Fort Worth Nov. no Reinforce Homes, Ltd., v. Exec. 271 ment Carothers (mem.), pet.) that it by held wаs not bound 887, 2008, no (Tex.App.-Austin S.W.3d 894 by plaintiff labels claims used Elecs., v. Sw. & pet.); Kniestedt Sound and looked to the plaintiffs pleadings to 452, (Tex.App.-San 455 Antonio determine whether the additional claims 2007, 2009, In pet.). the statute was were non-negligence asserted claims. specifically amended to address this deter v. Eng’g Ashkar & Corp. Chem. Met Gulf mination San initiated Antonio 01-09-00855-CV, allurgical Corp., No. Legis. Court 2007. See 2009 Bill Hist. 376076, *8, 2010 WL 2010 LEX Tex.App. (“This S.B. arose TX 1201 issue out of 769, *22 (Tex.App.-Houston IS [1st Dist] couple of 2007 court cases from the San 2010) (mem.) dism’d, (appeal Feb. of Appeals, Antonio 4th Court which said Tex.App. WL LEXIS although the statute was broadened 15, 2010). April believe to be the We this 2005 from actions to ‘negligence’ ‘any ac approach. better arising provision profes tion out many law, reviewing In areas of the services,’ the requirement sional affidavit have not courts bound themselves Therefore, spoke only still to negligence. given party’s labels to a claims. See Zu agree applied the court did not that it Nokia, Inc., rich Am. Ins. Co. despite actions other negligence, than clear (Tex.2008) (‘“[W]e have language in statute the fact it in said that label attached to the cause of specifically was amended to broaden it *7 (HB 1573)”). tort, contract, Thus, it or proper 2005 under action-whether be war analysis may duty if ranty-does of the 2005 act it be that not determine the to de ” Homes, there is not merit fend,’ a certificate of for the quoting Lamar Inc. v. claim, negligence Co., 1, the trial court is 242 13 Mid-Continent Cas. S.W.3d only negligence (Tex.2007) to dismiss not the claim County and Farmers Tex. Mut. “any but to also arising (Tex. dismiss action out 81, v. Griffin, Ins. 82 Co. provision professional of services.” Brown, 63, 1997)); Duerr v. 262 70 S.W.3d will be it explained, As we find unneces 2008, no (Tex.App.-Houston [14th Dist.] sary in this to resolve that proceeding pet.) (legal Pe malpractice); Anglo-Dutch question. Int’l, Haskell, troleum Inc. v. 2006, (Tex.App.-Houston pet. 87 [1st Dist.] urge
The follow specific Ustaniks us to (loan denied) agreements); In re Conseco opinions from the Austin and San Antonio 19 568 Servicing Corp., Fin. that, any analysis courts and hold without (Tex.App.-Waco orig. proceeding) claims, their other claims arе (arbitration no agreements). We see rea negligence claims and therefore are not types by son in these of cases to be bound subject requirement of a to the certificate so as to the labels attached to claims Reinforcement, of merit. See Consol. STFG, Inc., 894; looking pleadings from at the to keep S.W.3d at Gomez v. us No. 04-07-00223-CV, 2846419, *2-3, are determine whether the claims asserted WL (Tex. Thus, non-negligence LEXIS *6-7 claims. Tex.App. actually The by cracking. mortar and Ustaniks the methods used Con- rocks
will not follow Homes which complained Graphic to con- which and Gomez sol. Reinforcement made two separate tacted Nortex. Nortex party only to the label used looked apart, of the four months inspections, for a claim. unlevelness ranging house. Coffee noticed Allegations Factual 2 to 3 inches but denied that either from According to Ustaniks’s second any responsibility Nortex for the he or had January they petition, amended cracked and unlevel foundation. Homes, their Inc. to rebuild Graphic hired Negligence Graphic that had burned down. home claim, the negligence For its Ustaniks design to hired Nortex and Coffee Homes that and Coffee owed contended Nortex for the new plans draft the foundation and duty inspect their design them a to and were also hired Nortex Coffee house. prudent as reasonable and en- foundation of the founda- inspect the construction acting the same or similar gineers under poured. The tion before the concrete was They claimed that Nortex circumstances. they relied on contended that Ustaniks duty they breached their when and Coffee Coffee, design engineers, as Nortex and design failed to the foundation with the use the foundation. The Ustaniks inspect despite piers geotechnical engineer’s they exper- on the also claimed that relied The alleged recommendation. Ustaniks and Coffee to ensure that tise of Nortex Nortex’s breach of this and Coffee’s structurally foundation was sound and duty caused the to fail. foundation pur- performing its intended capable alleged The Ustaniks also Nortex pose. duty to perform and Coffee owed them Homes with a provided Graphic Coffee pre-pour inspection. foundation proper plans engineering an set of foundation plans, engineer per- an was to perAs stamped plans thereon. The certificate pre-pour inspection. Jo- form Steve provided by which the specific depth training had pling, expert who or certi- soil, specif- extend into the beams shоuld fication, Thus, inspection. performed the slab, require- ic thickness for allege Nortex Coffee inspections foundation ment that all for the their duty properly inspect breached “must engineering an seal require prior being poured to it because foundation engineer accomplished design perform inspec- engineer an did not plans The in- record for the foundation.” perform a proper tion. failure *8 not, They did post-tension cluded cables. proximate inspection contributed to the however, piers include the of which use of the failure. cause foundation by geotechnical engineer. a suggested was DTPA poured, Before the foundation was Steve The that Nortex and alleged Ustaniks employee inspected Nortex Jopling, an of Deceptive also Trade Coffee violated of the construction the foundation. Jo- Act. & Practices Tex. Bus. Com.Code pling findings inspec- his on an recorded 2009). 17.46(b)(5) (Vernon Supp. Ann. which, petition tion time the form that Specifically, they аlleged according filed, The was could be located. foun- plans, all stamped engineered inspec- day. poured dation was next by performed design tions were being 7 months the house Within of of for the engineer record foundation. completed, began to notice Ustaniks that They “sponsorship further contended cracking, false, jamming, the floors doors sheet was approval” plans and of the mis- and a moldings separating, leading, deceptive rock and exterior because Nortex аnd employee, Jopling, Steve who was not an The Ustaniks further alleged that as engineer, beneficiaries, intended pre-pour inspec- party conducted third they as- they alleged tion. Ustaniks that re- serted their own direct breach of contract representation plans against lied on the in the and claims Nortex and Specifi- Coffee. cally, they the misrepresentation alleged they that could not be that were to re- advice, ceive the primary or benefit judgment, opin- characterized as of Nortex’s and ion, presumed obligation Coffee’s taking professional properly it out ser- design inspect vices the DTPA. foundation for their exemption of By failing home. to design properly Negligent Misrepresentation perform a pre-pour inspection of the foun- The Ustaniks also claimed that Nortex dation, Nortex Coffee breached their and Coffee liable for negligent were mis- express and implied obligations contractual they representation. Specifically, allеged owed to the Ustaniks. negligently repre- that Nortex and Coffee In reviewing all of these claims to them all inspections sented that allegations and factual in the Ustaniks’s foundation be accomplished would petition, second amended we conclude the design engineer They record. claimed underlying complaint is that the Ustaniks that in representation was made injured by were Nortex’s and Coffee’s course of and as of a part business trans- duty breach of the owed to the Ustaniks as action which Nortex and had Coffee a result of engagement profession their as pecuniary alleged interest. The Ustaniks engineers al by failing to design proper the representations them supplied foundation in not properly conducting upon they with false information which pre-pour Thus, inspection. foundation They relied to their detriment. also Ashkar, like the First Court believe making claimed that in the representation the Ustaniks’s additional claims of engineer perform that an would the in- violations, DTPA negligent misrepresеnta spection Nortex and Coffee not exer- did tion, contract, regardless and breach of cise reasonable care or competence com- labeled, they how are all constitute claims municating the correct information to professional negligence require which them. Wills, certificate of merit. Black v. Cf. Breach Contract (Tex.App.-Dallas claim, their In last alleged (In pet.) legal malpractice the context of a that Nortex and Coffee both expressly and claim, stated, the court “Whichever label impliedly contracted with Graphic Homes action, places Black on this cause of it inis if design plan inspect- foundation the nature of a tort action.... We also ed and properly constructed would fulfill reject the view that is Black’s claim techni ’ They alleged its intended use. that Nor- ”). cally an ‘action for debt ... Accord tex and Coffee breached their contract ingly, the trial court did not err dismiss Graphic designing Homes founda- claims, ing all of the and thеir Ustaniks’s *9 plans were inadequate tion for the third issue is overruled. geographic of location the Ustaniks’s home perform and for failing proper pre- Conclusion pour inspection by engineer a licensed Having overruled each of the Ustaniks’s which did not reveal a lack lack piers, of of on appeal, judgment issues affirm the reinforcement, additional or excessive slab of the trial court. alleged thickness. The Ustaniks
these deficiencies caused the foundation to concurring Justicе DAVIS and fail. dissenting. 2-08-380-CV, Inc., DAVIS, Justice, No. 2009 WL concurring and D.
REX
Worth,
Nov.
(Tex.App.-Fort
at *3-5
dissenting.
h.).
pet.
no
reso-
opinion on the
majority’s
the
join
I
case, the
breach-
present
pleaded
In the
and second issues.
I
of the first
lution
duty,
of
or com-
to the
es of
errors
omission
part
part
in
and dissent in
concur
mission,
even if
speak
concepts,
on the
to tort
one
majority’s opinion
judgment
and
con-
alleged
of
of the
theories was breach
issue.
third
negli-
the
of
Presently,
tract.
elements
for-
that the
agree
majority
I
with the
pаrticularly the
gent misrepresentation,
150.002, with the
mer version of section
element, rely
part
in
on the
namesake
amendments, applies to this case.
I
while al-
of
services
provision
professional
that the
opinion’s ruling
the
join
majority
leging negligence. Looking backward at
misrepresentation and breach
negligent
it too re-
pleading,
the breach of contract
be dis-
causes of action should
contract
heavily
provision
professional
the
lies
on
the
cause of
But I believe
DTPA
missed.
summаry,
majority,
the
In
the
services.
there-
and
action should not be dismissed
case,
the overall
present
summarizes
fore dissent.
duty
being “by
breach of the
owed as
case,
analy
necessary
In this
under
con-
failing
properly
... and not
design
act,
misrepresen
negligent
sis of
...
ducting
inspection.” That character-
tation and
of contract are “[actions]
breach
negligent
ization is consistent with both
arising
provision
professional
out of the
and
of contract
misrepresentation
breach
However,
goes
аct
services.”
alleged.
as
certificate of
further and states
However,
legisla-
the DTPA claim is
specifically
set
merit affidavit “shall
forth
relies
tively
cause of action that
on
crafted
act,
omis
negligent
at least one
error or
this
approval”
and
case
“sponsorship
sion claimed to exist
the factual basis
exemption
professional
and has an
for a
then do we
for each such claim.” How
it from
opinion that further buffers
and the
square
“arising” language
concept
statutory prоfessional
services
“negligent” language in a review of an
have
certifi-
that would otherwise
action for
alleged non-negligence cause of
cation. See
&
Tex. Bus.
Ann.
Comm.Code
necessity
of certification? Our sister
17.49(c)(1) (Vernon
17.46(b)(5),
Supp.
§§
at
struggled
point.
courts have
this
2009).
“false,
laundry
And
mis-
list
analyses by majority
and the dissent
leading,
deceptive
practices”
or
acts or
are excellent
Consolidated Reinforcement
emphasizes misrepresenta-
significantly
examples
struggle.
of that
See Consoli
17.46(b).
tion. See id.
dated
L.P. v. Carothers
Reinforcement,
DTPA
is a non-
I believe the
claim
Ltd.,
Homes,
Executive
action and the that are breaches J., (Waldrop, involved. See id. 896-97 *10 dissenting); County Veter see also Parker Clinic, Batenhorst,
inary Inc. GSBS