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

S 

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 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 

Before Justices FitzGerald, Francis, and Myers 

Opinion by Justice FitzGerald 

 This consolidated interlocutory appeal concerns alleged defects in a commercial 

construction project and the question of whether cross-claimants and third-party plaintiffs 

seeking contribution or indemnity in suits against 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 Engineering, Inc. (“Hydrotech”) and 

Swaback Partners, PLLC (“Swaback”) (together, “Appellants”) assert that third-party plaintiffs 

and cross-plaintiffs must comply with Chapter 150, and therefore the trial court abused its 

discretion in denying their motions to dismiss the claims of ICI Construction, Inc. (“ICI”), 
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Pavecon Commercial Concrete, Ltd. (“Pavecon”), G&D Pool & Spa, Inc. (“G&D”), and H.E. 

Jones & Company, Inc. d/b/a/ Lasting Impressions Landscape (“Lasting Impressions”) 

(collectively, “Appellees”). Hydrotech 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 certificate of merit. The Texas Supreme Court recently concluded that cross-claimants 

and third-party plaintiffs are not 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 petition cannot be cured by amendment. Therefore, we affirm the trial 

court’s orders denying Swaback’s and Hydrotech’s motions to dismiss the cross-claims and third 

party-claims, and reverse the trial court’s order denying Swaback’s motion to dismiss the fifth 

amended petition. 

BACKGROUND 

This lawsuit arises from a commercial construction 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 for construction of a rooftop pool and deck (“the 

Project”). OMP hired Hydrotech, a professional engineering firm, to provide certain engineering 

and design services relating to the Project. Swaback was the architect of record for the Project 

and provided architectural and design services. ICI hired various subcontractors, including G&D, 

Pavecon, and Lasting Impressions to perform various aspects of the construction work for the 

Project. 

The lawsuit was initiated by OMP, and OMP was subsequently joined by 2600 

Montgomery, LLC (together, “Plaintiffs”). One Montgomery Plaza Residential Condominium 

Association (“Intervenor”) intervened in the lawsuit. ICI and Pavecon were named as defendants. 

Plaintiffs and Intervenor claimed that the pool for the Project leaked, and sought to recover 

damages for this and other alleged construction deficiencies. 
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Numerous third-party claims and cross-claims among and against the various parties 

followed. The pleadings pertinent to this appeal include the third-party claims of ICI and 

Pavecon against Hydrotech and Swaback, Plaintiffs’ fifth amended petition, and the cross-claims 

of G&D and Lasting Impressions against Hydrotech and Swaback. We limit our recitation of the 

procedural posture accordingly. 

ICI’s third-party petition against Hydrotech and 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 Maierhoffer, P.E., Jerry Jackson, P.E., and Scott 

Kenzer, P.A. (the “Maierhoffer Affidavit”) offered several reasons why Hydrotech’s alleged 

errors, acts, and omissions on the Project caused the 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 amended third-party petition because the initial 

pleading referenced, but failed to attach a certificate of merit from David Yarbrough (the 

“Yarbrough Affidavit”). The Yarbrough Affidavit supported the claims against Swaback. A few 

days later, Pavecon amended its third-party petition to attach and incorporate the Yarbrough 

Affidavit. Hydrotech moved to strike the third-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. Swaback 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 and 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 incorporate any previously filed 
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certificates of merit. Hydrotech amended its motion to dismiss to include the Lasting Impressions 

cross-claim. 

Plaintiffs also filed a fifth amended petition asserting claims against ICI and numerous 

third-party defendants, including Hydrotech and Swaback. With regard to the third party 

defendants, the amended petition states, “If Defendant ICI’s allegations are accurate, the work by 

third-party defendants . . . was insufficient and resulted in a property that was not properly built.” 

The fifth amended petition did not include a certificate of merit. Swaback answered and moved 

to dismiss the fifth amended petition.1

The trial court conducted a hearing, and signed orders denying Hydrotech’s motion to 

dismiss and Swaback’s motions to dismiss. Hydrotech 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 interlocutory appeal pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 

150.002(f) (West 2011). 

ANALYSIS 

 Swaback and Hydrotech assert the trial court 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 section 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’ claims, but the Plaintiffs subsequently non-suited Hydrotech. 

2

 TEX. CIV. PRAC. & REM. CODE ANN. § 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.). 
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a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.4

 A 

trial court acts arbitrarily and unreasonably if application of the law to the 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 certain 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 statute provides in pertinent 

part: 

Certificate of Merit 

In any action or arbitration proceeding for damages arising out of the 

provision of professional services by a licensed or registered professional, 

the plaintiff shall be required to file with the complaint an affidavit of a 

third-party licensed architect, licensed professional engineer, registered 

landscape architect, or registered professional 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 failure 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-party 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 TEX. CIV. PRAC. & REM. CODE ANN. § 150.001 (West 2011). 

8

 TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (a) (West 2011). 

9

 TEX. CIV. PRAC. & REM. CODE ANN. § 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). 
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concluded that “cross-claimants and third-party plaintiffs are not ‘the plaintiff’ in an ‘action or 

arbitration proceeding’” and therefore “the statute’s expert affidavit requirement does not apply 

to them.”13 

The court resolved the issue by examining the language of the statute.14 In so doing, the 

court reasoned that because the statute does not define 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,” and 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 these 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 assert 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 “several other contextual considerations” to support the conclusion 

“that the statute does not require 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 the certificate of merit requirement, and stated “our construction 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. 
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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 150.002 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, the defendant does not increase the 

possible scope of damages that the plaintiff will ultimately recover. The 

only changing dynamic is the proportionate share of the damages to be 

paid.22

Justice Willett also cautioned against the dissent’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 interpretation 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 legislatures 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. 
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Because the substantive issues in the present case are identical to those addressed in 

Jaster, Jaster is controlling here.27 Therefore, we conclude the trial court did not err in denying 

the motions to dismiss the third-party claims and cross-claims. 

 Although we need not reach Swaback’s argument concerning the timeliness of the filing 

of the Yarbrough Affidavit in connection with the third-party claims and cross-claims, Swaback 

also moved to dismiss Plaintiffs’ fifth amended petition. On appeal Swaback 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 that when the fifth amended petition was filed, there was already a 

certificate of merit on file, attached to ICI’s amended petition. Plaintiffs have not responded to 

Swaback’s argument on appeal. 

 Swaback does not challenge whether Plaintiffs 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 before Swaback answered and moved to dismiss, 

and Swaback does not dispute these facts. Nonetheless, Swaback insists that a certificate of merit 

must be filed with the first-filed petition and this “contemporaneous filing requirement is 

mandatory.”28

We note at the outset that ICI’s original third-party petition referenced the Yarbrough 

Affidavit, but simply failed to attach it. The failure to attach the referenced affidavit, described 

by ICI as a clerical error, was remedied the very 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 TEX. R. CIV. P.

45. 
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hyper-technical applications of the statute that do not advance the purpose of the statute — to 

protect engineers and architects from frivolous lawsuits.29 We are not unsympathetic to the fact 

that clerical errors do occur. But 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 petition cannot be cured by amendment.”31 

In Crosstex, plaintiff’s original petition named Pro Plus, a professional engineering firm, 

as a defendant. The original petition was filed without a certificate 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 raised 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 court’s ruling and remanded the case.34 The Texas Supreme Court 

granted Crosstex’s petition for review to determine: (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 within ten days of the 

expiration of the limitations period; (3) whether a defendant’s conduct can waive the certificate 

of merit requirement; and (4) whether Pro Plus’s conduct constituted waiver.35

 29 See 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.
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The court concluded that the court of appeals did not err in exercising jurisdiction.36

Then, the court examined whether the statutory provision allowing a “good 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 subsection (c) of the statute, and states: 

The contemporaneous filing requirement of Subsection (a) shall not apply 

to any case in which the period of limitation 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-party licensed . . . professional . . . could 

not have been prepared. In such cases, the plaintiff shall have 30 days after 

the filing of the complaint to supplement 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 foregoing exception only applies if the plaintiff files the lawsuit within 

ten days of the limitations period. Crosstex asserted the trial court 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 read only in conjunction with the remainder of 

subsection (c).40 Thus, a plaintiff who files suit outside 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 TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (c). 

39 Id. at 390. 

40 Id. at 391. 

41 Id. 
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merit with the original petition) imposes a mandatory duty, but that 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 petition 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 extension of time to file the certificate of 

merit, nor did Plaintiffs invoke the “good cause” exception to the contemporaneous filing 

requirement. Indeed, Plaintiffs simply argued that the ICI certificate upon which they relied had 

been filed by the time they served the fifth amended 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), and 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 mandated by the statute. Therefore, the trial court 

 42 Id. at 392–393. 

 43 Id. at 393. 

44 See TEX. R. CIV. P. 90. 

45 Id. at 394. 

46 Id.

47 See id.

48 See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (c). 
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erred in denying Swaback’s motion to dismiss Plaintiffs’ fifth amended petition as to the claims 

asserted against Swaback. 

CONCLUSION 

We affirm the trial court’s orders denying Swaback’s and Hydrotech’s motions to dismiss 

the cross-claims and third-party claims, reverse 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 this opinion. ICI’s motion to dismiss the appeal is 

overruled. 

 

 

130713F.P05 

 

/Kerry P. FitzGerald/ 

KERRY P. FITZGERALD 

JUSTICE 
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S 

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 this date, the trial court’s orders denying the 

motions to dismiss the third-party claims and cross-claims are AFFIRMED. The trial court’s 

order denying Appellant SWABACK 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 further 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 LASTING 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