COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

3D/I + PERSP ECTI VA, A TEX AS J OI NT VENTURE, Appellant,

v. CASTNER PAL MS, L TD., Appellee

. § § § § § § No. 08-08-00059- CV

Appea l from the County Court at L aw No. 3 of El Paso County , Texas (TC# 2004-4188)

O P I N I O N 3D/I + Perspec tiva (“3D /I ”) – a joint venture – appea ls the jury ’s verdic t for Castner Palms,
L td. (“Castne r Palms”) stemming from the latter’s suit for neg lige nce. I n two issues, 3D/I contends that the trial court err ed by deny ing its: (1) motion for instructed verdic t when Castner Palms failed
to prese nt expert testimony applicable to a construc t i o n -m anag ement firm’s standard of car e in pursuit of its neg lige nce claim; and (2) jury instruction on the profe ssional standard of car e. Finding 3D/I ’s first issue dispositive, we re verse and re nder judg ment for 3D/I

. BACK GR OUND
Fr om the limit ed rec ord prese nted to this Court, it appea rs that Patriot Castner J oint Venture previously owned se vera l parc els of land, and Glen Kistenmache r, an eng ineer , prepa red a master d ra i n age plan for the proper ties in 1994. The master draina g e plan provided that eac h proper ty should include an underg round pipe for proper draina g e from rainwa ter. The pipes wer e not put in and portions of those undevelope d proper ties wer e later sold to various entities, including the County of El Paso. Neve rtheless, a city ordinanc e require d all draina g e plans to confor m with the exis tingapprove d master plan.

T h e C o u n t y ’s proper

ty is adjac ent to the Castner Palms’ proper ty

. The proper

ties are
separ ated by a roc k wall. I n 2002, the County contra cted with 3D/I

to manag e the construction of

an annex building. The rele vant provisions of the contra ct provided that the County would contra ct with consultants, arc hitect, eng ineer s, and construction contra ctors to provide the desig n, construction, and construction administration for the projec t, and that 3D/I would supervise, direc t, and manag e the complete construction of the projec t. The contra ct also limit ed 3D/I ’s duties to coordina ting and scheduling the parties’ work and funding , review ing the desig n documents for adher ence to “re quirements, clar ity , constructa bility and completene ss,” making rec ommendations
to the County reg arding desig n prog rams, desig n standards, gu i d el i nes, and constructa bility , and
g uarding ag ainst defe cts and deficienc ies in the contra ct o r’s work as set out in the contracts. The
contra ct further stated that 3D/I would be judge d b y the “standa rds and quality preva iling among first-ra te, nationally rec og nized desig n/construction manag ement firms of knowledg e, skill and experience eng ag ed in projec ts of simil ar size and c omplex ity .”
I n acc ordanc e wit h the contra ct, the County , in 2003, contra cted with McCormick
Arc hitecture , L .L .C, and Vistacon, I nc. (“V istacon”) to de velop the prope rty and build the anne x . Vistacon, in turn, eng ag ed Roe Eng ineer ing, L .C., ( “Roe” ) to perf orm all eng ineer ing work require d
to prepa re the plans for the annex. For draina g e purposes, Roe desig ned a temporar y rete ntion pond, and Vistacon constructe d it. The pond only acc ounted for rainwa ter falling on the County ’s proper ty 1
and not for uphill water that might flow onto the proper ty

. I t did not comply with the draina g e
master plan; there fore , it did not confor m to the city ordinanc e. I n the course of the construction of

W h e n c o n s t r u c t i o n r e a c h e d 5 0 p e r c e n t , t h e p l a n s p r o v i d e d t h a t t h e c o n t r a c t o r s w o u l d c o n n e c t t o a n 1

u n d e r g r o u n d p i p e f

o r d r a i n a g e p u r p o s e s .the annex, the rete ntion pond overf lowed during a rainstorm, causing the apar tments located on the Castner Palms’ prope rty

to flood.
At trial, Castner P alms prese nted ex pert testim ony that the drainag e pond was responsibl e for the flooding

. Castner Palms did not present any evidenc e, apa

rt from the contrac t itself, as t o 2
the standard of car e a construction-ma nag ement firm of the same discipline was require d to exercise in supe rvising contra ctors. Acc ording ly , 3D/I moved for an instructed verdic t, a rg uing that expert testimony was nece ssary to show that it had brea ched the applicable standard of car e: “Plaintiff has
not introduced any expert testimony of the standard of car e to be exercised by an arc hitectura l firm perf orming projec t man ageme nt service s simil ar to those provided by Def endant.” I n response , C as t n er P al m s arg ued that beca use the standard of car e was contained in the contra ct, which was admitted into evidenc e, expert testimony was unnece ssary . The trial court deter mined that Castner Palms was not require d to prese nt expert testimony on the profe ssional standard of car e and denied the motion for instructed ve rdict.
ANALYSIS 3D/I ’s first issue complains of the trial court’s denial of i ts motion for inst ructe d verdic t. 3D/I does not challeng e Kistenmache r’s expert testimony showing the poorly constructe d pond was responsible for the damag e to Castner Palms. Rather, 3D/I contends that Castner P al m s failed to
prese nt expert testimony as to the standard of car e exercised by a construction-ma nag ement firm in

a supervisory capa city

. Castner Palms responds that the jury could have relied on common knowledg e in assessing the appr opriate standa rd of c are . Standard of Review

C a s t n e r P a l m s o r i g i n a l l y s u e d R o e , V i s t a c o n , a n d 3 D / I ; h o w e v e r , t h e s u i t a g a i n s t R o e a n d V i s t a c o n 2

s e t t l e d

.T o a void an instructed verdic t, Castner Palms was require d to offe r evidenc e for eac h e le me n t of its neg lige nce claim. Hager v. Romines , 913 S.W .2d 733, 734-35 (Tex. App. – For t Worth 1995,

no writ). Thus, Castner Palms had to show 3D/I owed a leg al duty to Castner Palms, 3D/I brea ched that duty , and damag es proxi mately resulted from the brea ch. Doe v. Boys Clubs of Greater Dallas,
Inc. , 907 S.W .2d 472, 477 (Tex. 1995). The deter mination of whether expert tes t i m ony is nece ssary to establish neg lige nce is a question of law, whic h we r eview de novo

. FFE Transp. Servs., Inc . v. Fulgham , 154 S.W .3d 84,
89 (Tex. 2004). Ex pert testimony is nece ssary to establish the applicable standard of car e “whe n the alleg ed neg lige nce is of such a nature as not to be within the experience of the lay man.” Id . at 90; Roark v. Allen , 633 S.W .2d 804, 809 (Tex. 1982). I n deter mining whether expert testimony is

nece ssary to establish neg lige nce, we consider wh et h er t he conduct at issue involved the use of specia liz ed equipment and techniques unfamiliar to the ordinary person. FFE Transp. Servs., Inc. , 154 S.W .3d at 91. I n such a case , the expert testimony must establish both the standard of car e and the violation of that standard. Simmons v. Briggs Equipment Trust , 221 S.W .3d 109, 114 (Tex. App. – Houston [1s t Dist.] 2006, no pet.); Hager , 913 S.W .2d at 734-35. Application The pleading s alleg ed that 3D/I failed to proper ly super v i s e the contra ctors’ desig n and construction of the draina g e rete ntion pond. 3D/I ’s understanding of its contra ctual obliga tions was that it would overse e the complete construction of the projec t, and fac ilitate the development of the plans and the c onstruction betwee n the desig n and construc tion contrac tors, and the County

. 3D/I d en i ed t h at i t was responsible for ensuring that adequate provisions for draina g e on the site was sufficie nt to contain water that flows upon it. Rather, 3D/I claimed that was Roe’s responsibility

. Acc ording to 3D/I , its duties wer e limit ed to supervi s i n g the work as prese nted to it by the plans,noting that its obliga tion to revie w t he design documents only extended to a re view for adher ence to require ments, clarity , constructa bility , and complete ness. Beca use t here wer e no indications of
any problems with the construction of the pond, and beca use Roe’s plan achie ved the require d city permit, 3D/I believed the plans wer e sufficie nt to discharg e its re sponsibili ties under the contra ct. As noted befor e, the contra ct betwee n the County and 3D/I stated that 3D/I would be judge d by the “standa

rds and quality preva iling among first-ra te, nationally rec og nized desig n/construction
manag ement firms of knowledg e, skill and experience eng ag ed in projec ts o f s i m ilar siz e and complexit y .” I n other words, the contra ct provided that 3D/I ’s actions would be judge d acc ording
to other construction-manag ement firms in the same discipline e ng ag ing in similar projects. That discipline’s standard of car e, howeve r, is not stated in the contra ct. Thus, the question prese nted is whether C as t ner Palms was require d to prese nt expert testimony as to the standard of car e such a firm should exercise in super vising a simil ar pr oject. 3
I n deter mining whether expert testimony was require d in this case , we find g uidance in two

rec ent case s. I n Fulgham , a trucking compan y l ea s ed a trailer to a long- haul trucke r, and while transporting g oods, the trailer’ s upper coupler assembly , which contained a loose or rusty bolt, broke loose, causing the trailer to separ ate from the trac tor and overturn. Fulgham , 154 S.W .3d at 86. The
Court found that expert testimony was require d to e stablish the standard of car e since “[t] he upper coupler assembly , kingpin, and base rail of a ref rig era ted trailer are specia liz ed equipment, and the
p ro p er inspection and maintenanc e of those parts involve techniques unfamiliar to the ordin ar y person.” Id

. at 91. Although the Court rec og nized that a l ayman m ay be able to detec t whether a visible bolt is loose or rusty , the Court held that whether that looseness or rust is sufficie nt to cre ate

C a s t n e r P a l m s c h a r a c t e r i z e s t h e i s s u e a s w h e t h e r 3 D / I c a n l i m i t i t s c o m m o n - l a w d u t y o w e d t o t h i r d p a r t i e s 3 b y c o n t r a c t u a l a r r a n g e m e n t s . H o w e v e r , w h e t h e r a n y c o m m o n - l a w d u t y m a y b e c o n t r a c t u a l l y l i m i t e d i s n o t t h e i s s u e . R a t h e r , t h e i s s u e i s w h a t s t a n d a r d o f c a r e 3 D / I s h o u l d h a v e e x e r c i s e d i n s u p e r v i s i n g t h e c o n s t r u c t i o n p r o j e c t

.a dang er require d spec i al i z ed knowledg e in the trac tor-tra iler industry

. Id

. Thus, an expert was

require d to testify

as to the standar d of ca

re. Id

. Simi larly , in Simmons , a worke r broug ht a neg lige nce action ag ainst his maintenanc e
company when the rail-c ar mover’s loose or worn hy draulic hose caug ht f ire as he used the mover
to transport railroa d car s. Simmons , 221 S.W .3d at 111-12. Finding the prac tices, proce dures, and industry standards with respe ct to the inspection and maintenanc e of a rail- ca r m o v er eng ine not
matters within a lay person’ s g ener al knowledg e, the court deter mined th at ex p er t testimony regard i n g t h e appropr iate standard of car e and whether the maintenanc e company brea ched that standard was require d. Id. at 114-15. Although t he court acknow ledg ed that an ordinary person would be able to detec t whether a hy draulic hose is loose or worn, the court noted that deter mining when that looseness or wea r was sufficie nt to cre ate a dang erous condition would require specia liz ed
k n o wl ed ge. Id

. at 115. “Without expert evidenc e or testimony , there was no evidenc e that [ t h e maintenanc e company ] violated the standard of car e for the inspection and maint en an ce o f t he
eng ine, hy draulic pump, or other internal parts of [t he rail-c ar mover]

. . . [nor was there any ] fac tual

or evidentiar

y support in the rec ord concerning

. . . the actions that a rea sonable maintenanc e
company would have taken with re spect to the hy draulic pump a nd hose.” Id

. I n this case , we cannot conclude that a lay man wou ld know whether a constructionmanag ement firm’ s supervisory duties ext ended bey ond simply overse eing the construction as set
out in the approve d contra ctors’ desig n plans. This is not a case wher e the construction-ma nag ement firm hired the contra ctors and approve d their plans; rathe r, the contra ct provided, and the rec ord so ref lects, that El Paso County hired the contra ctors and approve d the plans while 3D/I supervised the construction of those approve d plans. Castner Palms arg ues that Kistenmache r’s expert testimony that Roe neg lige ntly desig ned the rete ntion pond was sufficie nt for a lay man to deter

mine that 3D/Ibrea ched its supervisory duties under the contra ct. Although a lay man may be able to conclude from Kistenmache r’s testimony that the pond was poorly desig ned and cause d the flood, we believe that whether a construction-ma nag ement firm’s supervisory duties included more than ensuring that the
appr o v ed plans wer e buil t acc ording to the requisite specific ations called for in the pl ans requires specia liz ed knowledg e in the con s t ru ct ion-manag ement firm industry

. See, e.g., Fulgham , 154
S.W .3d at 91; Simmons , 221 S.W .3d at 115 (re quiring expert testimony of industry

standards)

. Castner Palms ar gu es that since the standard of car e was contained within the contra ct, whether that standard was brea ched is a question of law revie wed de novo . Although we ag ree that interpre tations of contra ctual provisions are revie wed de novo , the contra ct here did not explain the standard of car e; rathe r, i t s i m p l y s t ated that 3D/I would be held to a standard of car e as other construction-ma

nag ement firms in the same discipline and eng ag ed in simil ar projec ts. There was

never any evidenc e prese nted as to what that standard of car e was. Fur thermore , the trial court never deter mined whether 3D/I brea ched the standard of car e described in the contract, nor was the jury instructed that 3D/I did so. Rather, the jury was instructed on “ordina ry car e,” and the sole question submitt ed was whose neg lige nce proxi mately cause d the damag e to Castner Palms. I n other words, there was never any evidenc e, interpre tation, or deter mination of the applicable standard of car e for the jury to properly

decide neg lige nce on the part of 3D /I

. Fur ther, even if we wer e to impute some explanation of the applicable profe ssional standard of car e into the contra ct, expert testimony would still be require d to establish that standard of car e. I n Battaglia , the Supreme Court held that althoug h a contract b et wee n a hospital and two anesthe siologists’ professional associations obl iga ted t he associations to ensure that the s taff they supplied or supervised complie d w it h s ta n d a r d s s pecif ied in the contra ct, evidenc e that staff brea ched those standards dur ing a

patient’s surg ery

at the hospital did not e stablish the requisite standard ofcar e for a medical- malprac tice action ag ainst the profe ssional association; rathe r, competent expert

testimony was nece ssary to establish the standard of car e. See Battaglia v. Alexande r , 177 S.W .3d 893, 899 (Tex. 2005). Simi larly here , even if the contra ct identified the applicable standard of car e, competent expert testimony was nonetheless require d to establish that standard for constructionmanag ement firms. 4
Acc ording ly , beca

use no expert testimony , much less any evidenc e, was prese nted as to the applicable standard of ca re , we fi nd the trial court err ed by deny ing 3D/I ’s motion for direc ted verdic t. We there fore sustain 3D/I ’s first issue, re verse the judg ment of the trial c ourt, and re nder judgme nt for 3D/I

. See Hager , 913 S.W .2d at 735-36 (re ndering take- nothing jud gm en t aga inst plaintiffs who failed to produce nece ssary expert testimony on applicable standard of car e). Given our disposition, we need not re ach 3D /I ’s sec ond issue.

GUADA L UPE RI VERA, J ustice
Fe bruar y 10, 2010
Be fore Chew, C.J ., Rivera, J., and Garc ia, J udg e Gar cia, Judge , sitti ng by

assig nment

C a s t n e r P a l m s a s s e r t s t h a t K i s t e n m a c h e r ’ s e x p e r t t e s t i m o n y w a s s u f f i c i e n t t o e s t a b l i s h a b r e a c h o f 3 D / I ’ s 4
c o n t r a c t u a l d u t i e s . H o w e v e r , K i s t e n m a c h e r ’ s t e s t i m o n y w a s s o l e l y l i m i t e d t o t h e c a u s e o f t h e f l o o d i n g , t h a t i s , t h e p o o r l y d e s i g n e d a n d c o n s t r u c t e d r e t e n t i o n p o n d

. T h u s , K i s t e n m a c h e r ’ s o p i n i o n s o l e l y c o n c e r n e d t h e n e g l i g e n c e o f R o e a n d V i s t a c o n , t h e c o n t r a c t o r s t h a t d e s i g n e d a n d c o n s t r u c t e d t h e p o n d

. K i s t e n m a c h e r d i d n o t d i s c u s s a c o n s t r u c t i o n - m a n a g e m e n t f i r m ’ s s t a n d a r d o f c a r e i n s u p e r v i s i n g t h e d e s i g n a n d c o n s t r u c t i o n o f a s i m i l a r p r o j e c t

.