### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

BEFORE THE COURT FOR EN BANC CONSIDERATION

NO. 03-10-00108- CV

S & P Consul ting En gineers, P LLC, App ellant

v. Sherm an Bak er, D enessa Baker, Aundi Bennett, David Cer vantes, Me lissa Cervantes, Quin cy Davis, Mary Davis, Antonio Gonzales, Sand ra G onzales, Anthony Grim es, Jessica G rim es, Mar ia Herre ra, Oliver Koenig, Heather Koenig, Bryan Par ks, Nicoshia Par ks, Angela Par tida, Gilbert P artida, David Pe na, Jessica P ena, Diane P ere z, Joe P ere z, Angel Ram irez , F rances R am irez , Melissa Rebolloso, Tam m y Lynn Ross, Catalino Serrano, Juana S err ano, Joseph Silva, JoAn na Si lva, Daniel Su staita, Sam antha S ustaita, Lydi a Torre s, and Maria Z uni ga, Appellees

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 207 TH JUDICI AL DISTRICT NO. 08- 0942 , H ONO RAB LE CHARLES R. RAMSAY , JUDGE P RESIDING

D I S S E N T I N G O PI N I O N

I respe ctfully dissent fr o m t h e m ajority opinion in this case . I would hold that the 2009 amendments to civil prac tice and reme dies code section 150.002 g overn the appellee s’ claims ag ainst S & P. See Act of May 29, 2009, 81st L eg ., R.S., ch. 789, § 2, 2009 Tex. Gen. L aws 1991, 1992 (now codified at Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (West Supp. 2010)). Be cause the 2009 version of section 150.002 require s a cer tificate of merit for any claim for damag es arising
out of the provisio n o f p ro fe s sional service s by a design profe ssional, I would reve rse and rende r judgme nt dismi ssing a

ppellees’ claims on that basis. See id.Prior to the 2009 amendments to section 150.002, the require d cer tificate of merit for

cer tain claims arisingfrom design service s was to “se t forth spec ifically at least one neg lige nt act,

err or, or omission claimed to exis t and the fac tual basis for eac h such claim.” Act of May 18, 2005, 79th L eg ., R.S., ch. 208, § 2, 2005 Tex. Gen. L aws 369, 370. Ba sed on this languag e, this Court and other courts of appea ls held that the 2005 version of section 150.002 did not require a cer tificate of merit for non-neg ligen t cause s of action. See Curtis & W indham Architects, Inc. v. W illiams , 315 S.W .3d 102, 107-08 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Parker County Vet. Clini c, Inc. v . GSBS Batenhorst, Inc. , No. 02-08-00380- CV, 2009 Tex. App. L EXI S 8986, at *9-10 (Te x . App.—For

t Worth Nov. 19, 2009, no pet.) (m em. op.); Landreth v. Las Brisas Council of CoOwners, Inc. , 285 S.W .3d 492, 500 (Tex. App.—Corpu s Christi 2009, no pet.); Consolidat ed Reinforcem ent, L.P. v. Carothers Exe cutive Homes, Ltd. , 271 S.W .3d 887, 894 (Tex. App.—Austin 2008, no pet.); Kniestedt v. Southwest Sound & Elecs., Inc. , 281 S.W .3d 452, 455 (Tex

. App.—S an Antonio 2007, no pet.). In the prese nt case , the majority reve rses Consolidat ed Reinforcem ent and holds that the 2005 version of section 150.002 applies to both neg lige nt and nonneg lige nt cause s of action arising from the provision of design service s. It is unnece ssary to overturn this Court’s prec edent, which is consistent with the holdings of all other courts of appea ls that have addre ssed the i s s ue, beca use the appellee s’ claims ag ainst S & P are not g overne d by the 2005 version of the statute.

In 2009, the leg islature amende d section 150.002 t o p rovide that the cer tificate of merit must “set forth specific ally for eac h theory of rec overy for which d amage s are sought, the neg lige nce, if any , or other action, err or, o r omission of the licensed or reg istered profe ssional

. . . and the fac tual basis for eac h such claim.” S ee Act of May 29, 2009, 81st L eg ., 2R.S., ch. 789, § 2, 2009 Tex. Gen. L aws 1991, 1992 (now codified at Tex. Civ. Prac. & Rem. Code

Ann. § 150.002 (West Supp. 2010)). The appellee s do not dispute that i f t h i s v er s i o n of section 150.002 applies, a cer

tificate of merit was require d in connec tion with their non-neg lige nce claims ag ainst S & P. In making the 2009 amendments to section 150.002, the leg islature provided that the chang e in law “applies only to an action or arbitration filed or commence d on or afte r the eff ective date of this Ac t,” with the eff ective da te beingSeptember 1, 2009. See id. §§ 3-4. The leg islature further provided that a

n “ac tion or arbitra

tion filed or commenced be fore the ef fec tive date of

this Act is g overne d by the l aw in ef fec t immediately befor e the eff ective date of this Act.” Id. Thus, if the appellee s’ claims aga i n s t S & P repr esent an action filed or commence d on or afte r September 1, 2009, the 2009 version of se ction 150.002 applies.

The appellee s orig inally filed suit in M ay 2008, but S & P was not added as a defe ndant until Nove mber 2009. The appellee s contend, and the major ity agree s, that beca

use the orig inal suit was filed prior to the eff ective date of the 2009 amend m en ts, the 2005 version of section 150.002 applies, despite the fac t that S&P was not made a party until afte r the eff ective date. S & P, on the other hand, takes the position that no action was “filed or commence d” ag ainst it until it was made pa

rty to the suit in November 2009. In Haye s v. Carroll , this Court considere d a simil ar issue in connect i o n wi t h t he expert-re port require ment for health ca re liability claims. 314 S.W .3d 494, 499-501 (Tex. App.—Austin 2010, pet. filed). T he statute at issue stated that expert repor ts must be served “not later than the 120th day afte r the date the orig inal petition was filed.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2010). Reviewing this statutory languag e, this Court deter mined that

3the 120-day deadline is trig g ere d for a particula r defe ndant on the date the orig inal petition naming that defendant

was filed. Haye

s , 314 S.W .3d at 500. The Court e x plained:

I f a defe ndant has not been added to a case , there has yet to be a lawsuit filed ag ainst that defe ndant. Even if the lawsuit ag ainst a particula r defe ndant comes in the 10th amende d petition filed in a cause number, that petition is the first document in which a lawsuit has be en filed a g ainst that defe ndant.

Id. Simi larly , if a defe ndant has not been added to a case , there has yet to be “an action

. . . filed or

commence d” ag ainst that defe ndant. See 2009 Tex. Gen. L aws at 1992. Thus, under the rea soning of Haye s , the appellee s’ action was not filed or commence d ag ainst S & P u n t i l November 2009, when S & P was first named as a defe ndant, and there fore the 2009 version of the statute should apply

. Fur

thermore , the leg islature has demonstrated its willingness to expressly state when

an otherwise prospec tively filed amendment does not apply to a defe ndant joined or designated afte r the eff ective date in a suit filed befor e the eff ective date. In the enabling languag e of the 2003 tort ref orm leg islation, the leg islature specific ally stated that unless otherwise provided, an action filed befor e the eff

ective date of the leg islation, “including an action filed befor e that date in which a party is joined or designated afte r t h at date,” was to be g overne d by the law as it exis ted prior to the eff ective date. See Act of J une 2, 2003, 78th L eg ., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. L aws 847, 899; see also Act of May 25, 2005, 79th L eg ., R.S., ch. 1319, § 2, 2005 Tex. Gen. L aws 4128, 4129 (employ

ing same languag e in enac ting financ e code sections 276.002 and 276.003). In 2005, the leg islature used this same languag e in a bill amending section 150.002 to expand the definition

4of design profe ssionals cover ed by the statute. See Act of May 12, 2005, 79th L eg ., R.S., ch. 189, 1 § 4, 2005 Tex. Gen. L aws 348, 348. Spec ifically , the enabling langua g e st ated, “This Act applies only to an action filed on or afte r the eff ective date of this Act. An action filed befor e the eff ective date of this Ac t, including an action filed be fore that date in which a party is joined or designated after that date , is g overne d by the law in e ffe ct immediately befor e the chang e in law made by this Act, and that law is continued in eff ect f or that purpose .” Id. (empha sis added). In the 2009 amendments to section 150.002, the leg islature did not include languag e expressly stating that actions ag ainst parties joined or designated afte r the eff ective date in suits filed prior to the eff

ective date would not be subject to the amendments. Rather, it provided only that an “ac tion or arbitra

tion filed or commence d befor e the eff ective date of this Act is g overne d by the law in effe ct immediately

befor e the eff

ective date of this Ac t.” Act of Ma y 29, 2009, 81st L eg ., R.S., ch. 789, § 3, 2 0 0 9 Tex. Gen. L aws 1991, 1992. We must presume that the l eg islature chooses its words car efully and ref

rains from using redunda nt or superf

luous languag e. See Spradlin v. Jim W alter Homes, Inc. , 34 S.W .3d 578, 580 (Tex. 2000). We must also presume t h at words not included wer e omitted for a purpose. See Cameron v. Terrell & Garrett, Inc. , 618 S.W .2d 535, 540 (Tex. 1981). It appea

rs that when the leg islature i n t ends to provide that an amendment does not apply to actions ag ainst parties joined or designated afte r the eff ective date in suits filed befor e the

This leg islation repr esente d one of two amendments to section 150. 0 0 2 during the 2005 1 leg islative session. The enabling languag e of the other amendment provided that the chang e in law would be applied “only to a cause of action that accrue s on or after t h e effective date.” Act of May 18, 2005, 79th L eg ., R.S., ch. 208, § 4, 2005 Tex. Gen. L aws 369, 370 (empha sis added)

. That languag e prese nts no question as to which law would apply to a defe ndant joined or designated afte r the eff ective date in a suit filed prior to the eff ective date, as the cause of action would nece ssarily have a ccr ued prior to the e ffe ctive date

. 5eff

ective date, it is inclined to say so expressly

. Be cause it did not do so here , I would hold that the 2009 amendments apply to actions ag ainst parties who wer e not joined or designated until afte r September 1, 2009, reg ardle ss of when the suit was orig i n al l y filed ag ainst other defe ndants. Be cause S & P was not made a party to this suit until afte r September 1, 2009, the appellee s’ claims ag ainst it should be gove rned by the 2009 ver sion of section 150.002. The appellee s do not dispute that the 2009 version of section 150.002, if applicable , require s a cer

tificate of merit for all claims for damag es arising out of the provision of profe ssional service s by

a design profe ssional. See Tex. Ci v. Prac. & Rem. Code Ann. § 150.002 (West Supp. 2010). It is also undisputed that no cer tificate of merit wa s fi l ed i n th is case . Acc ording ly , the appellee s’ claims ag ainst S & P for fra ud and deceptive trade prac tices in connec tion with the provision of profe ssional design service s should be dismiss ed. See id. Whil e the majority rema nds in the interest of justice due to the parties’ and t h e t ri al co urt’s potential relianc e on this Court’s prec edent in Consolidat ed Reinforcem ent , 271 S.W .3d at 894, no rema nd is nece ssary if the holding of Consolidat ed Reinfo r ce me n t rema ins undisturbed. Rather than rema nding this case to the t rial court, I would reve rse a

nd rende r judg ment dismiss ing the appellee s’ claims ag ainst S & P.

Diane M. H enson, Jus tice Be fore Chief Justice Jones, J ustices Puryear , Pemberton, He nson, Rose, and Goodwin Filed: F ebrua

ry 18, 2011

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