### 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

NO. 03-10-00191- CV

Gar y Wayne Jaster , Appellan t

v. Com et II Constr uction, Inc.; Joe H. Schneid er; Laura H. S chneider;

and Au stin Design Group, Appellees

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 274 TH JUDICI AL DISTRICT NO. 08- 0847 , H ONO RAB LE WI LLIAM H ENRY, JUDGE P RESIDING

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

The majority conclude s that s e c ti o n 1 5 0

. 0 0 2 o f th e T e xa s Ci v il Pr a ctice and Remedies Code does not require a cer tificate of merit from a party who files a third-par ty complaint or crossclaim ag ainst a licensed or reg istered profe ssional. Be cause I wo u l d i n s t ead hold that third-par ty plaintiffs and cross-c laimants must comply with section 150.002’s cer tificate- of-mer it require ment,
I respe ctfully

dissent.
As the majority

corr ectly points out, section 150.002(a) e x pressly provides that “in
any action or arbitra tion proce eding for damag es arising out of the provision of profe ssional service s by a license d or re g istered profe ssional, the plaintif f shall be require d to f

ile with the complaint” a

cer tificate of merit. See former Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (empha sis added)

. 1

L ike the majority opinion, a ny ref ere nces to se ction 150.002 in this dissent will be to the 1 version of the s tatute t hat became effe ctive in 2005 unless o t h er wi se not ed. See footnote 1 of t he majority opinion.I n Consolidat ed Reinforcem ent, L.P. v. Carothers Exe cutive Homes , Ltd. , we considere d the ty pe of claims for which a cer

tificate of merit is require d under section 150.002(a)

. 271 S.W .3d 887, 894 (Tex. App.—Austin 2008, no pet.), overruled by S & P Consulti ng Eng’rs, PLLC v. Bake r , 334 S.W .3d 390, 399-400 (Tex. App.—Austin 2011, no pet.). I n t er p re t i n g the same version of section 150.002 at issue in this case , we held that a cer tificate of merit was not required fo r n onneg lige nce cause s of action. Id

. at 891, 894; see a l s o N atex Corp. v. Paris Indep. Sch. Dist ., 326
S.W .3d 728, 733 (Tex. App.—Texarkana 2010, pet. dism’d w.o.j.); Landreth v. Las Brisas Council of Co-Owners, Inc. , 285 S.W .3d 492, 500 (Tex. App.—Corpus Christi 2009, no pet.); Kneiestedt v. Sou t h w es t S

ound & Elecs., Inc ., 281 S.W .3d 452, 455 (Tex. App.—San Antonio 2007, no pet.); Parker Cnty. Veterinary Clini c, Inc. v. GSBS Batenhorst, Inc. , No. 02-08-380- CV, 2009 Tex. App.
L EXI S 8986, at *9-10 (Tex. App.—For t Worth Nov. 19, 2009, no pet.) (mem. op); Gomez v. STFG,
Inc. , No. 04-07-00223- CV, 2007 Tex. App. L EXI S 7860, at *6-7 (Tex. App.—San Antonio Oct. 3, 2007, no pet.) (mem. op). Howeve r, during the pendenc y of this appea l, this Court, sitti ng en banc,

rec onsidered the issue and overr uled this holding of Consolidated Reinforcem ent

. See S & P Consulti ng Eng’rs, PLLC v. Baker , 334 S.W .3d 390, 403-04 (Te x . App.—Austin 2011, no pet.).

I n S & P Consulti ng Engineers , we he ld that a cer tificate of merit must be filed “in

a n y a c ti o n f o r d a ma g e s a r is in g o u t o f th e p r o v is io n o f p r o f e s s io n a l s e r

v ic e s b y a d e s ig

n p r o f e s s io n a l, ” including, but not limit ed to, c ases alleg ing neg lige nce. Id

. at 403 (empha sis added). In that case , the appellee homeown er s h ad s u ed S & P Consulti ng Eng ineer s (“S & P”) for potential costs and losses associate d with the fac t that their subdivision proper ties wer e within a flood plain. Id

. at 393. The homeowner s alleg ed that S & P was responsible for cer tification of the development plat for four

2phases of development and that S & P’s repr esenta tions in and regarding the plat constituted

violations of t he deceptive trade practice s act, statutory fra ud, and common-la

w fra ud. Id . at 393,
404. We c oncluded that these claims rela ted to S & P’s pe rfor mance of profe ssional se rvice s, and

as a r esult, the homeowne rs wer e re quired to file a cer tificate of merit. Id . at 404.
I n th is c a s e , Co me t w a s s u e d b y a h o me o w n e r , D a w o u d , f o r v io la ti o n s o f th e d e c e p ti v e
tr a d e p r a c ti c e s a c t, c o mm o n - la w f r a u d , b r e a c h o f c o n

t r a c t , n e g l i g e n c e , a

n d n e g l ig e n t mi s r e p r e s e n ta ti o n . Dawoud alleg ed that defic iencies in const ruction and desig n of his home resulted in “excessive foundation settlement which in turn cause d cra cks and distortions.” I n turn, Comet filed a third-par ty complaint seeking contribution and indemnity from J aster and ADG, alleg ing that “the [foundation] plans we re p re p ar ed by [J aster], a professional enginee r reg istered in the S tate of Texas” and that
J aster and ADG “ar e or may be liable to [C omet ] fo r all or part of the Plaintiff’s complaint.” Simi larly , afte r being added a s a third-pa rty defe ndant by Comet, A DG filed a cr oss-claim ag ainst
J aster for contribution and indemnity alleg ing that “to the extent there is any defe ct in the foundation,

w h e th e r b y d e s ig

n o r c o n s tr

u c ti o n , it is th e f

a u lt o f [Ja s te r ] o r [C o me t]

. ” A f te r Ja s te r f il e d h is mo ti o n s
to dismiss , Comet amende d its third-par ty complai nt and added claims for violations of the dece ptive trade prac tices ac t, neg lige nce, f raud, a nd brea ch of c ontrac t. Under our holding in S & P Consulti ng Engineers , there can be n o d i spute that
Comet’s third-par

ty claims and ADG’ s cross-c laim ag ainst J aster are rela ted to J aster’ s perf ormanc e of profe ssional service s. Upo n fi l i ng , these claims beca me part of the lawsuit filed by Dawoud, and acc ording ly , the claims bec ame pa rt of an “ac tion .

. . for damag es arising out of the provision of profe ssional service s by a licensed or reg istered p ro fessional.” See former Tex. Civ. Prac. &

3Rem. Code Ann. § 150.002(a)

. Section 150.002 require s a “plaintiff” filing such claims t o file a

cer tificate of merit with the complaint. See id .; S & P Consulti ng Eng’rs , 334 S.W .3d at 403. Thus, the is s u e in this case become s 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) (re quiring “plaintiff” to file ce rtificate of merit “w ith the complaint”).

The majority conclude s that the term “plaintiff” strictly ref ers to the party (or parties) initiating the lawsuit and does not include third-par ty plaintiffs or cross-c laimants. I n other words, the majority would hold that J aster is stripped of the protec tions aff orded by section 150.002 when the claims ag ainst hi m , whi ch otherwise fall within the scope of the statute, are broug ht by parties other than the plaintiff who initiated the lawsuit. For the following rea sons, I would instead conclude that the term “ plaintiff” include s any party that has asserted a claim for damag es aga inst the profe ssional arising out of his or her pr ovision of professional se rvice s.

When construing a statute, our primary object i ve is to asce rtain and g ive eff ect to the leg islature’s intent as expressed by the lang uag e of the statute. See City of Rock wall v. Hughes , 246 S.W .3d 621, 625 (Tex. 2008). We g ener ally construe a statute’s words acc ording to their plain and common meaning

. See National Liab. & Fire Ins. Co. v. Allen , 15 S.W .3d 525, 527 (Tex. 2000).
Howeve r, we must decline to adopt such a constructio n i f i t wo u ld lead to absurd results or if a contrary intention is apparent f rom the conte x t of the statute. See City of Rock wall , 246 S.W .3d
at 625-26. The p lain lang uag e of section 150.002 “re flec ts a leg islative g oal of requiring

mere ly that plaintiffs make a threshold showing that their claims have merit.” M-E Eng’rs, Inc. v.

4City of Temple , 365 S.W .3d 497, 504 (Tex. App.—Austin 2012, pet. denied) ; see former Tex. Civ.

Prac. & Rem. Code Ann. § 150.002. The statute does not nece ssarily require a plaintiff to marshal expert testimony that would be admissible at trial. M-E Eng’rs , 365 S.W .3d at 504. Rather, the
p u rp ose of the cer

tificate- of-mer it require ment is to provide a method by which cour t s ca n quickly dismiss meritless claims. See Criterium-Farrell Eng’rs v. Ow en s , 248 S.W .3d 395, 399 (Tex. App.—B eaumont 2008, no pet.) (“[T]he purpose of the cer tificate of merit is to provide a basis for the tr ial court to conc lude that the plaintiff’ s claims have me rit.”).

I n the context of const ruction case s, like this one, eng ineer s and other licensed

or reg istered profe ssionals are routinely broug ht into the lawsuit as t h i rd -par ty defe ndants. This aff ords the defe ndant/third-par ty plaintiff a method by which to shift liability

. Under the majority ’s 2 construction, the defe ndant/third-par ty plaintiff in such case s would not have to file a cer tificate of merit, though the plaintiff asser ting the ve ry

same c laims would. This is an absurd result, and the
purpose of the plain l an gu age o f the statute would be thwarte d if third-par ty plaintiffs and crossclaimants wer e not require d to file cer tificates of merit in such case s. Conversely , a construction of the term “plaintiff” that includes third-par ty plaintiffs and cross-c laimants would require any party

asser ting a claim within the scope of the statute to make a thre shold showing of merit upon filing. This construction is clea

rly consistent with the overa ll intent of the statute.
Fur ther, as the majority points out, and I ag ree , third-par ty p l ai n tiffs and crossclaimants have some cha

rac teristics of plaintiffs. Most notably , when a party asser ts a third-pa

rty

At the s ame tim e, the third-par ty defe ndant m ay offe r t estimony in his own defense t h at 2 supports the defe ndant/third-par ty plaintiff’s defe nse, in essenc e providing “fr ee” expert testimony in defe nse of the pla intiff’s claims. 5claim or cross-c laim, he or she asser ts a claim for relief ag ainst another party , and those parties become adver se. See Getty Oil Co. v. Insurance Co. of N. Am. , 845 S.W .2d 794, 800 (Tex. 1992)

. Thus, from the standpoint of the licensed or reg istered profe ssional, third-par ty plaintiffs and crossclaimants are cer

tainly “plaintiffs” with reg ard to the third-par ty claims and cross-c laims ag ainst them. I n conclusion, it is appar ent from the context of section 150.002, that “plaintiff” must include third-par ty plaintiffs and c ross-cla imants. Finally , I would note that this construction of “plaintiff” —to include bo t h thirdp arty plaintiffs and cross claimants—comports with our sister court’s well-re asoned holdi n g i n CTL /Thompson Texas, L L C v. Morrison Homes , 337 S.W .3d 437 (Tex. App.—For t Worth 2011, pet. denied)

. I n that case , Morrison Homes sued Sheffield Deve lopment Co m p an y (“Shef field”) for claims arising out of Sheffield’ s sale of land to Morrison Homes. Id

. at 439. Morrison Homes al s o sued sever al profe ssional defe ndants (collec tively , “CTL ”), who had provided g eotec hnical engi neer ing service s for Sheffield, alleg ing neg lige nce, profe ssional neg lige nce, and brea ch of

war ranty , and filed a cer

tificate of merit with its orig inal petition. Id

. at 439-40. Sheffield then filed

a cr oss-claim see king c ontribution and indemnity from CTL , but did not f

ile a ce rtificate of merit. Id

. at 440, 444. The For

t Worth court aff

irmed the trial court’s de nial of CTL ’s motion to dismiss Sheffield’ s cross-c laim, holding that Sheffield, a cross-c laimant, was not require d to file a cer tificate of merit under section 150.002. Id

. at 445-46. The court rea soned that “a cross-c laiming defe ndant
may rely on the cer

tificate of merit filed by the plaintiff and is n o t re q u i red to file a second, independe nt cer

tificate of merit.” Id

. at 446. Conversely , the court pointed out, “whe n a defe ndant files a t h ird-par

ty petition ag ainst a licensed or reg istered profe ssional that the plaintiff has not

6sued, then obviously the plaintiff has not f

iled a cer tificate of merit conce rning the conduc t of that licensed or reg ist e r e d p r o f e s s io n a l; c o n s equently , the defe ndant acting as third-par ty plaintiff seeking contribution and indemnity must do so.” Id

. at 445-46. I mplicit in the For t Worth court’s rea soning is that third-par

ty plaintiffs and cross-c laimants are subject to section 150.002’s cer tificate- of-mer it require ment, but may satisfy the require ment by rely ing on a cer

tificate of merit previously filed by another party

. See id. I ag ree , and if a ny party had pre viously

timely filed a c ertificate of mer it in this case , both Comet and ADG would have been entitled to rely on that cer tificate of merit in

connec tion with their claims.

I would conclude that both Comet and ADG are “plaintiffs” within the meaning of section 150.002. See former Tex. Ci v. Prac. & Rem. Code Ann. § 150.002. Fur ther, under S & P Consulti ng Engineers , the claims asser ted by Comet and ADG are asser ted in an “ac tion for damag es arising out of t he provision of professional services by a li cense d or reg istered professional.” See
S & P Consulti ng Eng’rs , 334 S.W .3d at 404. C o n s eq u en tly , under S & P Consulti ng Engineers , both Comet and AD G wer e eac h separ ately require d to either (1) file a cer tificate of merit contempora

neously with their complaint or (2) re l y o n a cer tificate of merit previously filed by another party in the case . See former Tex. Ci v. Prac. & Rem. Code Ann. § 150.002(a ). Howeve r, neither Comet nor ADG filed a cer tificate of merit in this case . Fur ther, no other party in this case 3

Wh il e Co me t s u

b s e q u e n tl y f il e d a c e r ti f ic a te o f me r it w it

h it s a me n d e d th ir d

- p a

r ty c o mp la in

t, 3 almost two months afte r filing its orig inal third-par ty complai nt, Comet does not contend that it reque sted or obtained any extension of time un d er s u b s ection (b) of section 150.002. See former T e x. Ci v . Pr a c . & Re m. Co d e A n n . § 1 5 0

. 0 0 2 ( b ) (

p ro v i d i n g t

h a t “ c o n te mp o r a

n e o u s f il in g r e q u ir e me n t” does not apply when period of limit ation will expire within ten day s of date of filing and that court may g rant, upon motion, extension for filing of more than thirty day s); see also Sharp Eng’g v. Luis , 321 S.W .3d 748, 752 (Tex

. App.—Houston [14t h Dist.] 2010, no pet.) (holding that trial court abused its discre tion in deny ing motion t o dismiss wher e plainti ff failed to file ce rtificate of merit 7timely filed a cer tificate of merit upon which Comet or ADG could rely

. See CTL /Thompson Tex. , 337 S.W .3d at 445-46. Acc ording ly , both ADG and Comet failed to comply with section 150.002’s

cer tificate- of-mer it requireme nt.

Ordinar ily , under these circumstances, I would conclude that the t rial court abused its discretion in deny ing J aster’ s motions to dismiss

. Fur ther, I would reve rse the trial court’s order and rema nd the cause fo r t h e t ri al court to dismiss the claims afte r deter mining whether eac h dismiss al is with or without prejudice

. See former Tex. Civ. Prac. & Rem. Code Ann. § 150.002(d) (providing that failure to file ce rtificate of merit “shall re sult in di smissal of the complaint ag ainst th e d e f e n d a n t” a n d th a t “ d is mi s s a l ma

y b e w it h p r e ju d ic e ” ) ; S

h a r p E n g ’ g v
. Lu is , 3 2 1 S. W. 3 d 7 4 8 , 7 5 2 (Tex. App.—Houston [14t h Dist.] 2010, no pet.). Howeve r, like this Court did in S & P Consulti ng Engineers , I would conclude that a differ ent result is war rante d in this case . See 334 S.W .3d at 404.
I n S & P Consulti ng Engineers , this Court deter mined that th e h o meowner s had failed
to file a cer

tificate of merit as required by section 150.002. See id

. Howev er , rathe r t han remand the cause for the trial court to dismiss the homeowner s’ claims, we rec og nized that “the parties and the tr i al court wer e proce eding under the authority of [ Consolidat ed Reinforcem ent ]” and thus “justice require [d] a differ ent result.” Id

. There fore , instead of rema nding the cause to the trial court for dismissal, we a dapted the statutory g rac e period desig ned for case s filed within ten day s of the limit ations period and allowed the homeowner s an additional thirty day s to file a ce rt i fi cate of merit. See id .; see also former Tex. Civ. Prac. & Re m . C o de Ann. § 150.002(b) (providing that
“conte m p o ra n eo u s filing require ment” does not apply when limit ations period will expire within

with first-filed complaint and did not contend that exception set forth i n s ection 150.002(b) was applicable ). 8ten day s of date of fili ng and that court may g rant, upon motion, extension for filing of more than

thirty day s). Simi larly , in this case , the parties, in choosing not to file a cer tificate of merit, may have relied upon Consolidat ed Reinforcem ent , our controlling prec edent at the time. See S & P Consulti ng Eng’rs , 334 S.W .3d at 392. The trial court, in deny ing the motions to dismiss , may have also relied on that same a uthority

. See id . Acc ording ly , I would conclude that “justice re quires a

4
differ ent re sult” in this case. See id

.

I would reve rse the trial court’s orders deny ing the motions to dismiss and remand the cause to the trial court. I would also all o w C o m et an d ADG thirty day s from the date this judgme nt is man d at ed t o fi le a cer tificate of merit satisfy ing the require ments of section 150.002.
See Tex. R. App. P. 43.3; former Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b) (in case s in which orig inal petition is filed within ten day s of the expiration of the limit ations period, plaintiffs may file aff idavit within thi rty

day s of filing of petition).

As previously discussed, Consolidat ed Reinforcem ent and simil ar case s held t h at non- 4 n e g li g e n c e c a

u s e s o f a c ti o n d o n o t r e q

u ir e a c e r ti f ic a te o f me r it

. S

e e , e
. g
. , Co n s o li d

a te d R e in fo r c e m e n t v. Carothers Exe cutive Homes , Ltd. , 271 S.W .3d 887, 894 (Tex. App.—Austin 2008, no pet.), overruled by S & P Consulti ng Eng’rs v. Bake r , 334 S.W .3d 390, 399-400 (Tex. App.—Austin 2011, no pet.). I n addition, Consolidat ed Reinforcem ent and its associate d case s are unclea r and confusing w it h r e g a r d to e xa c tl y w h a

t c la im s c o n s ti tu

te a “ n o n - n e g li g e n c e c a

u s e o f a c ti o n . ” Co m

p a r e Kn e ie

s te d t v. Southw est Sound & Elecs., Inc ., 281 S.W .3d 452, 455 (Tex. App.—San Antoni o 2007, no pet.) (“When the plaintiff does not claim a neg lige nt act, err or or omi s s i o n ex ists, and is not require d to make such an alleg ati o n as an element of its cause of action, a cer tificate of merit is not require d under section 150.002(a) .”) with Parker Cnty. Veterinary Clini c v. GSBS Batenhorst, Inc. , No. 02-08-380- CV, 2009 Tex. App. L EXI S 8986, at *9-10 (Tex. App.—For t Worth Nov. 19, 2009, no pet.) (mem. op.) (consider ing “t h e s o u rce of the duty and nature of the reme dy soug ht” in d et er m i ning whether brea ch of contra ct claim was neg lige nce claim within the scope of sec t i o n 1 5 0

. 0 0 2 ) ; s e e ge n e r

a ll y A s h k a r E n g ’ g Co r p
. v
. G u lf Ch e m
. & M

e ta ll u r g ic a l Co r p
. , N o . 0 1

- 0 9

- 0 0 8 5 5

- CV , 2010 Tex. App. L EXI S 769, at *11-28 (Tex. App.—Houston [1st Dist.] Fe b. 4, 2010, no pet.) (mem. op.) (summarizing differ ent approa ches t ak en b y courts in deter mining which claims are “neg lige nce” claims under se ction 150.002). 9__________________________________________ Diane M. H enson, Jus tice
Be fore J ustices Henson, Rose a nd Goodwin Filed: Aug ust 31, 2012

10