Affirmed in part; Reverse and Remand and Opinion Filed July 25, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-00713-CV HYDROTECH ENGINEERING, INC. AND SWABACK PARTNERS, PLLC, Appellants V. OMP DEVELOPMENT, LLC., ICI CONSTRUCTION, INC., PAVECON COMMERCIAL CONCRETE, LTD., G&D POOL & SPA, INC., H.E. JONES &

COMPANY, INC. d/b/a LASTIN G IMPRESSIONS LANDSCAPE, AND 2600 MONTGOMERY, LLC, Appellees
On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-11-05103-A 

### OPINION Before Justices FitzGera ld, Francis, and Myers Opinion by Justice FitzGerald This consolidated interlocutory appeal concerns alleged defects in a commercial construction project and the question of whethe r cross-claimants and third-party plaintiffs seeking contribution or indemnity in suits agai nst licensed or registered professionals are obligated to comply with the certificate of merit requirement prescribed by Chapter 150 of the civil practice and remedies code . Appellants Hydrotech Engineer ing, Inc. (“Hydrotech”) and Swaback Partners, PLLC (“Swaback”) (together, “Appe llants”) assert that third-party plaintiffs and cross-plaintiffs must comply with Chapte r 150, and therefore the trial court abused its discretion in denying their motions to dismiss th e claims of ICI Construction, Inc. (“ICI”),–2– Pavecon Commercial Concrete, Ltd. (“Pavecon”), G&D Pool & Spa, Inc. (“G&D”), and H.E. Jones & Company, Inc. d/b/a/ Lasting Impressions Landscap e (“Lasting Impressions”) (collectively, “Appellees”). Hydrot ech further asserts that one of the certificates of merit upon which Appellees relied was deficient, and Swaback claims the parties are not entitled to rely on a late-filed certificat e of merit. The Texas Supreme Court r ecently concluded that cross-claimants and third-party plaintiffs are no t required to file a certificate of merit in suit arising under Chapter 150. In a separate decision, the court also concluded that the failure to file a certificate of merit with the original peti tion cannot be cured by amendment. Therefore, we affirm the trial court’s orders denying Swaback’s and Hydrotech’s motions to dism iss the cross-claims and third party-claims, and reverse the trial court’s orde r denying Swaback’s motion to dismiss the fifth amended petition. BACKGROUND This lawsuit arises from a commercial co nstruction project known as One Montgomery Plaza in Fort Worth, Texas. OMP Development, LLC (“OMP”), a real estate development company, hired ICI as the general contractor fo r construction of a rooftop pool and deck (“the Project”). OMP hired Hydrotech, a profe ssional engineering firm, to provide certai n engineering and design services relating to the Project. Swaback was the arch itect of record for the Project and provided architectural and design services. ICI hired various subcontractors, including G&D, Pavecon, and Lasting Impressions to perform vari ous aspects of the cons truction work for the Project. The lawsuit was initiated by OMP, and OMP was subsequently joined by 2600 Montgomery, LLC (together, “Plaintiffs”). On e Montgomery Plaza Residential Condominium Association (“Intervenor”) intervened in the laws uit. ICI and Pavecon were named as defendants. Plaintiffs and Intervenor claimed that the poo l for the Project leake d, and sought to recover damages for this and other alle ged construction deficiencies.–3– Numerous third-party claims and cross-claims among and against the va rious parties followed. The pleadings pertinent to this appeal include the third-party claims of ICI and Pavecon against Hydrotech and Sw aback, Plaintiffs’ fifth amended petition, and the cross-claims of G&D and Lasting Impressions against Hydrot ech and Swaback. We limit our recitation of the procedural posture accordingly. ICI’s third-party petition against Hydrotech a nd Swaback sought contribution in the event ICI was found liable to Plaintiffs or Intervenor. ICI attached a certificate of merit to its thirdparty petition. The certificate, from Warren Maie rhoffer, P.E., Jerry Jackson, P.E., and Scott Kenzer, P.A. (the “Maierhoffer Affidavit”) offered several r easons why Hydrotech’s alleged errors, acts, and omissions on the Project caused th e problems for which Plaintiffs and Intervenor sought recovery. Pavecon filed a similar third-party petition and also attached the Maierhoffer Affidavit. The next business day, ICI filed an amende d third-party petition because the initial pleading referenced, but failed to attach a cer tificate of merit from David Yarbrough (the “Yarbrough Affidavit”). The Yarb rough Affidavit support ed the claims against Swaback. A few days later, Pavecon amended it s third-party petition to attach and incorporate the Yarbrough Affidavit. Hydrotech moved to strike the thir d-party claims of ICI and Pavecon based on the failure of the parties to obtain leave of court to file the claims and the alleged insufficiency of the certificate of merit. Swab ack joined in the motion. After these motions were filed, G&D filed a cross-claim against Hydrotech, Swaback, and others. G&D’s cross-claim attached an d referenced the Maierhoffer and Yarbrough Affidavits. Hydrotech amended its motion to dismiss to include G&D’s cross-claim. Lasting Impressions then filed its cross- claim against ICI, Swaback, Hydrotech, G&D and others. The cross-claim did not include, reference, or inco rporate any previously filed–4– certificates of merit. Hydrotech amended its moti on to dismiss to include the Lasting Impressions cross-claim. Plaintiffs also filed a fifth amended petiti on asserting claims against ICI and numerous third-party defendants, includi ng Hydrotech and Swaback. With regard to the third party defendants, the amended petition states, “If Defenda nt ICI’s allegations are accurate, the work by third-party defendants . . . was in sufficient and resulted in a propert y that was not pr operly built.” The fifth amended petition did not include a cer tificate of merit. Swab ack answered and moved to dismiss the fifth amended petition. 1 The trial court conducted a hearing, and si gned orders denying Hydrotech’s motion to dismiss and Swaback’s motions to dismiss. Hydrot ech and Swaback initiated separate appeals of these orders, but the cases were consolidated by this Court on its own motion. We have jurisdiction over this interloc utory appeal pursuant to T EX
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. § 150.002(f) (West 2011). ANALYSIS Swaback and Hydrotech assert the trial cour t erred in denying their motions to dismiss because cross-claimants and third-party plaintiffs seeking contribution or indemnity are required to file a certificate of merit in a lawsuit arising under se ction 150.002 of the civil practice and remedies code. 2 Appellees respond that a certificate of merit is not required under the circumstances present here. We review a trial court’s decision on a defendant’s motion to dismiss under section 150.002 under an abuse of discretion standard. 3 A trial court abuses its discretion when it reaches

1 Hydrotech also filed a motion to dismiss Plaintiffs’ cl aims, but the Plaintiffs subsequently non-suited Hydrotech. 2 T EX
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. § 150.002 (West 2011). 3 See Palladian Bldg. Co. v. Nortex Found

. Designs, Inc ., 165 S.W.3d 430, 433 (Tex. App.—Fort Worth 2005, no pet.).–5– a decision so arbitrary and unreasonable as to amount to a clear and pr ejudicial error of law. 4 A trial court acts arbitrarily and unreasonably if appl ication of the law to th e facts dictates only one correct decision, but the trial court reaches a different one. 5 A trial court abuses its discretion when it fails to analyze or apply the law correctly. 6 Chapter 150 applies to lawsuits against cer tain licensed or registered professionals, including architects, engineers, land surveyors, and landscape architects, or any firm in which such a licensed or registered professional practices. 7 Section 150.002(a) requires “a plaintiff” to file a certificate of merit “with the complaint.” 8 Specifically, the statut e provides in pertinent part: Certificate of Merit In any action or arbitration procee ding for damages arising out of the provision of professional se rvices by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, license d professional engineer, registered landscape architect, or registered pr ofessional land surveyor . . . . 9 The purpose of the statutory certificate of merit is to be sure that the plaintiff’s claims have merit. 10 The statute further provides that the failu re to file the affidavit “shall result in dismissal of the complaint against the defendant.” 11 The Texas Supreme Court recently considered whether the statute’s certificate of merit requirement applies to third-part y plaintiffs or cross-claimants. 12 In a plurality decision, the court

4 BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 800 (Tex. 2002). 5 Rivenes v. Holden , 257 S.W.3d 332, 336 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
6 See In re Sw. Bell Tel. Co ., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding).
7 See T EX
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. § 150.001 (West 2011). 8 T EX
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. § 150.002 (a) (West 2011). 9 T EX
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. § 150.002(a) (West 2011). 10 See Criterium-Farrell Eng’rs v. Owens , 248 S.W.3d 395, 399 (Tex. App.—Beaumont 2008, no pet.). 11 Id . § 150.002(e).–6– concluded that “cross-claimants an d third-party plaintiffs are not ‘t he plaintiff’ in an ‘action or arbitration proceeding’” and therefore “the statut e’s expert affidavit requirement does not apply to them.” 13 The court resolved the issue by exam ining the language of the statute. 14 In so doing, the court reasoned that because the statute does not de fine the terms “plaintiff” or “action,” the terms should be given their ordinary meaning. 15 Applying the terms’ common, ordinary meanings, the court noted that the term “action” means “suit,” a nd the term “plaintiff” is the party who initiates the action or suit, “not any party who asserts claims or causes of action within the suit.” 16 After determining that the context of the terms within the statute supports th ese common meanings, the court held that “section 150.002’s certificate-of-merit requirement applies to a party who initiates the lawsuit, and not to defendants or third-party defendants who asse rt claims for relief within a suit.” 17 In a concurring opinion, Justice Willett joined the plurality opinion, but wrote separately “to underscore the centrality of semantic context in statutory interpretation and the perils of resting on a statute’s supposed purpose.” 18 Justice Willett agreed with the plurality’s analysis of the word “action,” but added “sev eral other contextual considerat ions” to support the conclusion “that the statute does not requi re third-party plaintiffs to file expert affidavits.” 19

12 See Jaster v. Comet II Constr., Inc. , No. 12-0804, 2014 WL 2994503, at *1 (Tex. July 3, 2014). The Court construed the 2005 version of the statute, but noted that the current version still imposes th e certificate of merit requirement, and stated “our constructio n of the 2005 version also applies to the current version of the statute.” Id . at *21 n.4. 13 Id

. 14 Id . at *4. 15 Id. 16 Id . at *6. 17 Id . at *9.
18 Id . at *11 (Willett, J., concurring). 19 Id

.–7– The concurring opinion noted that use of the article “the,” which emphasizes a particular plaintiff, supports a conclusion that the statute is directed toward the plaintiff who initiated the suit. 20 The concurrence also noted that “section 1 50.002 does not apply to third-party plaintiffs seeking indemnity and contribution because the affidavit requirement is limited to actions ‘for damages.’” 21 In this regard, Justice Willett noted: When a defendant files a third-party action against a third-party defendant seeking contribution and indemnity, th e defendant does no t increase the possible scope of damages that the pl aintiff will ultimately recover. The only changing dynamic is the proportiona te share of the damages to be paid. 22 Justice Willett also cautioned against the di ssent’s use of the absurdity doctrine to effectuate the statute’s purpose. 23 To this end, he observed that “[l]iberal use of the absurdity doctrine too often devolves into purposive interp retation of statutes. And reliance on legislative purpose always tempts but rarely tempers.” 24 Swaback advances the same absurdity argument here. But Justice Willett suggested that “[i]n order to carefully police our limited role, the bar for the application of the absurdity doctrine must remain high. Peculiarity or unfairness is not sufficient to trigger the absurdity doctrine.” 25 Otherwise, “when legislatur es come to see courts as editors rather than adjudicators, busy legislators may leave the judiciary to tighten the screws on loose language down the road.” 26

20 Id

. 21 Id . at *13. 22 Id

. 23 Id. 24 Id . at *14. 25 Id. 26 Id.–8– Because the substantive issues in the presen t case are identical to those addressed in Jaster , Jaster is controlling here. 27 Therefore, we conclude the tr ial court did not err in denying the motions to dismiss the third- party claims and cross-claims. Although we need not reach Swaback’s argumen t concerning the timeliness of the filing of the Yarbrough Affidavit in connection with th e third-party claims a nd cross-claims, Swaback also moved to dismiss Plaintiffs’ fifth amended petition. On appeal Swab ack argues that it was “brought into the lawsuit by two third-party petitions that did not attach a certificate of merit,” and that Plaintiffs are not entitled to rely on a certificate of merit that was untimely filed. In the court below, Plaintiffs argued th at when the fifth amended petiti on was filed, there was already a certificate of merit on file, attach ed to ICI’s amended petition. Pl aintiffs have not responded to Swaback’s argument on appeal. Swaback does not challenge whether Plainti ffs were entitled to rely on the Yarbrough Affidavit filed by ICI. Instead, its complaint is that the affidavit was filed with an amended petition the day after the original filing. The record reflects that ICI filed its amended third-party petition with the Yarbrough Affidavit attached be fore Swaback answered and moved to dismiss, and Swaback does not dispute these facts. Nonetheless, Swaback insi sts that a certif icate of merit must be filed with the first-filed petition an d this “contemporaneous filing requirement is mandatory.” 28 We note at the outset that ICI’s original third-party peti tion referenced the Yarbrough Affidavit, but simply failed to attach it. The fail ure to attach the referen ced affidavit, described by ICI as a clerical error, was remedied the ve ry next business day. We are loathe to impose

27 See Univ. of Tx. Med. Branch v. York , 871 S.W.2d 175, 176–77 (Tex. 1994) (discussing precedential value of plurality decision). 28 Although the statute refers to a “complaint,” a “petition” is the document initiating a lawsuit in a Texas state court. See T EX
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. P. 45.–9– hyper-technical applications of the statute that do not advance the purpose of the statute — to protect engineers and architect s from frivolous lawsuits. 29 We are not unsympathetic to the fact that clerical errors do occur. Bu t we are constrained to follow the Texas Supreme Court’s recent decision in Crosstex Energy Svcs, L.P. v. Pro Plus, Inc

. 30 And Crosstex unequivocally stated that “failure to file a certificate of merit with the original peti tion cannot be cured by amendment.” 31
In Crosstex , plaintiff’s original petition named Pr o Plus, a professional engineering firm, as a defendant. The original peti tion was filed without a certificat e of merit. Pro Plus answered the lawsuit, participated in discovery, joined in continuance and docket control orders, and entered into a Rule 11 agreement before it ra ised the lack of a certificate of merit. 32 After the statute of limitations had expired, Pro Plus filed a motion to dismiss. The trial court denied the motion and granted Crosstex an extension of time to file the certificate of merit. 33 The court of appeals reversed the trial cour t’s ruling and remanded the case. 34 The Texas Supreme Court granted Crosstex’s petition for review to dete rmine: (1) whether the court of appeals had jurisdiction to consider the interlocutory appeal of the extension order; (2) whether section 150.002’s “good cause” extension is available only when a party filed suit with in ten days of the expiration of the limitations period; (3) whethe r a defendant’s conduct can waive the certificate of merit requirement; and (4) whether Pro Plus’s conduct constituted waiver. 35

29 S ee EPCO Holdings, Inc. v. Chi Bridge & Iron Co. , 352 S.W.3d 265,272 (Tex. App.—Houston [14th Dist.] 2011, pet dism’d). 30 430 S.W.3d 384, 395–96 (Tex. 2014). 31 Id . at 395 (citing Landreth v. Las Brisas Council of Co-Owners, Inc ., 285 S.W.3d 492, 499 (Tex. App.—Corpus Christi 2009, no pet.).
32 See id. at 394. 33 Id . at 396. 34 Id. 35 Id.–10– The court concluded th at the court of appeals did not err in exercising jurisdiction. 36 Then, the court examined whether the statutor y provision allowing a “go od cause” extension of time to file the certificate of merit applied to Crosstex’s failure to file. 37 The “good cause” extension is set forth in s ubsection (c) of the statute, and states: The contemporaneous filing requiremen t of Subsection (a) shall not apply to any case in which the period of lim itation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of a third-pa rty licensed . . . professional . . . could not have been prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplemen t the pleadings with the affidavit. The court may, on motion after hearing and for good cause, extend such time as justice requires. 38 Pro Plus argued that the foregoi ng exception only applies if the plai ntiff files the lawsuit within ten days of the limitations period. Crosstex asserted the trial cour t may extend the time to file the certificate of merit regardless of when the lawsuit is filed. 39 The court concluded that the “good cause” exception does not stand alone, and can be r ead only in conjunction with the remainder of subsection (c). 40 Thus, a plaintiff who files suit out side the ten day window cannot claim protection of the good cause exception. 41 In the context of considering whether the certificate of merit requirement can be waived, the court noted that section 150.002(a) (regarding the contemporaneous filing of a certificate of

36 Id. at 299. 37 Id

. 38 T EX
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. § 150.002 (c). 39 Id. at 390. 40 Id . at 391. 41 Id

.–11– merit with the original petition) imposes a mandatory duty, but th at duty is not jurisdictional.” 42 Therefore, a defendant can waive its right to seek dismissal under the statute. 43 In support of its argument that Pro Plus waived its right to complain about the absence of a certificate of merit, Crosstex asserted Pro Plus was required to specially except to any alleged pleading defect. 44 The court rejected this argument, stating that “failure to file a certificate of merit with the original petiti on cannot be cured by amendment.” 45 The court further stated that “[i]f a defect in the pleadings is incurable by amendment, a special exception is unnecessary.” 46 The court concluded that Pro Plus had not waived its right to complain about the lack of a certificate of merit to accompany the original filing. 47 In the instant case, there was no motion for an ex tension of time to file the certificate of merit, nor did Plaintiffs invoke the “good cause” exception to the contemporaneous filing requirement. Indeed, Plaintiffs si mply argued that the ICI certificate upon whic h they relied had been filed by the time they served the fifth ame nded petition. In light of the court’s holding in Crosstex , we are not persuaded by this argument. The only statutory exception to an untimely filing is set forth in subsection (c), a nd this exception is inapplicable here. 48 The Yarbrough Affidavit was not timely filed, and the amended pleading did not remedy the failure to comply with the contemporaneous filing requirement manda ted by the statute. Therefore, the trial court

42 Id . at 392–393. 43 Id . at 393.
44 See T EX
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. § 150.002 (c).–12– erred in denying Swaback’s motion to dismiss Plai ntiffs’ fifth amended peti tion as to the claims asserted against Swaback. CONCLUSION We affirm the trial court’s orders denying Sw aback’s and Hydrotech’s motions to dismiss the cross-claims and third-party claims, revers e the trial court’s order denying Swaback’s motion to dismiss the fifth amended petition as to the claims against Swaback, and remand to the trial court for further proceedings consistent with th is opinion. ICI’s motion to dismiss the appeal is overruled.

130713F.P05
/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE–13– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SWABACK PARTNERS, PLLC, AND HYDROTECH ENGINEERING, INC., Appellants
No. 05-13-00713-CV V. OMP DEVELOPMENT, LLC, ICI CONSTRUCTION, INC., PAVECON COMMERCIAL CONCRETE, LTD., G&D POOL & SPA, INC., H.E. JONES & COMPANY, INC. d/b/a LASTING IMPRESSIONS LANDSCAPE, AND 2600 MONTGOMERY, LLC, Appellees On Appeal from the County Court at Law No. 1, Dallas County, Texas Trial Court Cause No. CC-11-05103-A. Opinion delivered by Justice FitzGerald. Justices Francis and Myers participating.

In accordance with this Court’s opinion of th is date, the trial cour t’s orders denying the motions to dismiss the third-part y claims and cross-claims are AFFIRMED . The trial court’s order denying Appellant SWABAC K PARTNERS, PLLC’s motion to dismiss plaintiffs’ fifth amended petition as to the claims against SWABACK is REVERSED and the case is remanded to the trial court for furt her proceedings consistent with this court’s opinion. It is ORDERED that appellees OMP DEVELOPMNET, LLC, ICI CONSTRUCTION, INC., PAVECON COMMERCIAL CONCRETE , LTD., G&D POOL & SPA, INC., H.E. JONES & COMPANY, INC. d/b/a LAST ING IMPRESSIONS LANDSCAPE, AND 2600 MONTGOMERY, LLC recover their costs of this appeal from appellants SWABACK PARTNERS, PLLC, AND HYDROTECH ENGINEERING, INC..
Judgment entered July 25, 2014