ORAL ARGUMENT REQUESTED NO. 05-10-01359-CV 5th Court of Appeals FILED: 8/19/11 14:00 Lisa Matz, Clerk IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS JJW DEVELOPMENT, LLC and JOHN J. WINGFILED, JR., Appellants v. STRAND SYSTEMS ENGINEERING, INC., Appellee On appeal from the 219 th Judicial District Court Collin County, Texas Trial Court Cause No. 219-00638-2009 APPELLANTS REPLY BRIEF THE BUSH FIRM, P.C. Carl J. Wilkerson State Bar No. 21478400 Russell H. Daniels State Bar No. 00790559 Daniel R. McCabe State Bar No. 00794253 4025 Woodland Park Blvd., Suite 190 Arlington, Texas 76013 Telephone: (817) 274-5992 Facsimile: (817) 261-1671 Attorneys for Appellants
STATEMENT REGARDING ORAL ARGUMENT Appellants originally requested oral argument for this appeal by including ORAL ARGUMENT REQUESTED in the document header of the upper right hand corner of the cover of Appellants Brief. When Appellants filed Appellants Amended Brief in response to this Court s request, Appellants counsel mistakenly deleted that document header. Appellants did not intend to waive nor withdraw their request for oral argument. In agreement with Appellee, Appellants desire oral argument before this Court and believe the parties arguments would assist this Court s consideration of this appeal. Appellants respectfully request that this Court permit oral arguments for this appeal. ii
TABLE OF CONTENTS Statement Regarding Oral Argument..ii Table of Contents....iii Index of Authorities.....iv Argument. 1 Issue One: The live pleadings at the time of the trial court s dismissal order should be evaluated for the applicability of former Tex. Civ. Prac. & Rem. Code 150.002 [in response to Appellee s Argument issues C.2, C.3., C.4.]...1 Issue Two: Former Tex. Civ. Prac. & Rem. Code 150.002 does not require a Certificate of Merit to support a breach of contract claim [in response to Appellee s Argument issues C.4., D.]...3 Issue Three: Appellants do not need to prove a written contract to bring a breach of contract claim [in response to Appellee s Argument issues C.4., D.1.].7 Prayer....8 Certificate of Service.10 iii
INDEX OF AUTHORITIES Texas Supreme Court FKM Partnership, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619 (Tex. 2008) 2 Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998)..2 Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547 (Tex. 1981) 6 Int l Printing Pressmen & Assistants Union of N. Am. v. Smith, 198 S.W.2d 729 (Tex. 1947) 7 Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986)...7 Texas Court of Appeals Consolidated Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887 (Tex. App. Austin 2008, no pet.) 1,3 Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102 (Tex. App. - Houston [1st Dist.] 2010, no pet.)...3 Erwin v. Steele, 228 S.W.2d 882 (Tex. Civ. App. Dallas 1950, writ ref d n.r.e.).5 Kniestadt v. Southwest Sound & Electronics, Inc., 281 S.W.3d 452 (Tex. App. - San Antonio 2007, no pet.)..3 Landreth v. Las Brisas Council of Co-Owners, 285 S.W.3d 492 (Tex. App. - Corpus Christi 2009, no pet.)...3 Natex Corp. v. Paris ISD, 326 S.W3d 728 (Tex. App. - Texarkana 2010) (pet. filed Dec. 20, 2010) 3 Parker County Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., 2009 WL 3938051 (Tex. App. Fort Worth 2009, no pet.) (mem. op.)...2,3,7 S & P Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390 (Tex. App. Austin 2011, no pet.) (en banc).1,4,5 iv
Sanders v. Wood, No. 06-11-00015-CV, Aug. 12, 2011, 2011 WL 3524207 (Tex. App. Texarkana 2011, n.p.h.) 6,7 TDIndustries, Inc. v. Rivera, 2011 WL 1233470 (Tex. App. Houston [1 st Dist.] 2011, n.p.h.).1 UOP, L.L.C v. Kozak, 2010 WL 2026037 (Tex. App. -Houston [1st Dist.] 2010, no pet.) (mem. op.).1 Texas Statutes & Rules former Tex. Civ. Prac. & Rem. Code 150.002..1,3,4,5,6,8 Tex. R. Civ. P. 63.2 Tex. R. Civ. P. 65..2,3 v
ARGUMENT Issue One The live pleadings at the time of the trial court s dismissal order should be evaluated for the applicability of former Tex. Civ. Prac. & Rem. Code 150.002 [in response to Appellee s Argument issues C.2., C.3. & C.4.]. Appellee argues that, since Appellants did not file a certificate of merit with their first-filed petition against Appellee, the trial court had no discretion but to dismiss [Appellants ] claims against [Appellee] under the mandatory language of section 150.002. Brief of Appellee, at 12. Appellee s argument imagines limiting/prohibitive language within former Tex. Civ. Prac. & Rem. Code 150.002 that wrongly restricted the trial court s discretion to consider Appellants pleadings amendments and/or wrongly resurrected Appellants Second Amended Petition for the trial court s consideration. Contrary to Appellee s imagination, the statute s plain language is grounded by courts construction of complaint to mean the live pleadings at the time of the trial court s ruling/dismissal order. See TDIndustries, Inc. v. Rivera, 2011 WL 1233470 (Tex. App. Houston [1 st Dist.] 2011, n.p.h.) (evaluating fifth amended petition); UOP, L.L.C v. Kozak, 2010 WL 2026037 (Tex. App. -Houston [1st Dist.] 2010, no pet.) (mem. op.) (evaluating first amended petition); Consolidated Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887 (Tex. App. Austin 2008, no pet.) (evaluating first amended petition); S & P Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390, 399 (Tex. App. Austin 2011, no pet.) (en banc) (evaluating live petition to determine applicable version of statute). This comports with parties longstanding right to freely 1
amend their pleadings, provided they do not operate as a surprise to the opposite party. Tex. R. Civ. P. 63. Appellee s argument wrongly forecloses claims before they can be asserted or even discovered. Here, through discovery, Appellants may learn that Appellee s conduct was beyond negligence or breach of contract. Perhaps Appellee promised to provide professional services by a licensed or registered professional without intending to do so. See, e.g., Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998) (promise made with intent not to perform). Unfortunately, the trial court s dismissal with prejudice foreclosed Appellants discovery of and assertion of any such claim. Under Appellee s first-filed petition argument, were Appellants required to preventively allege every possible claim against Appellee, regardless of the existence of a reasonable basis in fact or law? That seems to encourage frivolous allegations, which is contrary to the purported basis for the statute. See Parker County Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc. 2009 WL 3938051, *2, n. 12 (Tex. App. Fort Worth 2009, no pet.) (mem. op.) ( protecting engineers and architects from frivolous lawsuits ). Appellee s argued construction/application of the statute is also unworkable because it conflicts with the rule of civil procedure that provides that once a party files an amended pleading, such pleading supersedes the previous version and makes it obsolete. See Tex. R. Civ. P. 65; FKM Partnership, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 632 (Tex. 2008). The causes of action not contained in the amended pleadings are effectively dismissed at the time the amended pleading is filed. Id. 2
Here, Appellants Second Amended Petition was superseded and shall no longer be regarded as a part of the pleading in the record of the cause. Tex. R. Civ. P. 65. Under these circumstances, Texas law did not provide the trial court with discretion to enter judgment on Appellants Second Amended Petition because it was superseded by Appellants Third Amended Petition. Likewise, former Tex. Civ. Prac. & Rem. Code 150.002 did not limit the trial court s discretion to evaluation of the first-filed petition against Appellee. Issue Two Former Tex. Civ. Prac. & Rem. Code 150.002 does not require a Certificate of Merit to support a breach of contract claim [in response to Appellee s Argument issues C.4. and D.] Former Tex. Civ. Prac. & Rem. Code 150.002 does not require a Certificate of Merit to support a breach of contract claim. The statute s plain language, read as a whole, is unambiguous and may be construed according to the rules of grammar and common usage. Regarding this issue, most courts of appeals have determined that former Tex. Civ. Prac. & Rem. Code 150.002 does not apply to breach of contract claims because it would be illogical to require an affidavit setting forth at least one negligent act, error, or omission in a case that does not involve negligence. See Kniestadt v. Southwest Sound & Electronics, Inc., 281 S.W.3d 452 (Tex. App. - San Antonio 2007, no pet.); Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102 (Tex. App. - Houston [1st Dist.] 2010, no pet.); Landreth v. Las Brisas Council of Co-Owners, 285 S.W.3d 492 (Tex. App. - Corpus Christi 2009, no pet.); Parker County Veterinary Clinic, Inc. v. GSBS 3
Batenhorst, Inc., 2009 WL 3938051, 2009 Tex. App. LEXIS 8986 (Tex. App. - Fort Worth 2009, no pet.) (mem. op.); Consolidated Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887 (Tex. App. - Austin 2008, no pet.); Natex Corp. v. Paris ISD, 326 S.W3d 728 (Tex. App. - Texarkana 2010) (pet. filed Dec. 20, 2010). The en banc Austin Court of Appeals recently bucked the trend (and its panel s prior opinion in Consolidated Reinforcement) by holding that negligent modifies only the word act in the above-quoted statutory clause. S & P Consulting, 334 S.W.3d 390, 403-404. That Court decided that former Tex. Civ. Prac. & Rem. Code 150.002 can apply to breach of contract claims without requiring an affidavit of negligence, the statute merely required that the affidavit set forth at least one not-necessarily-negligent error or one not-necessarily-negligent omission. Id. ( the certificate of merit must specify (1) a negligent act, (2) an error, or (3) an omission, on which the claim is based. ). That Court acknowledged its departure from the rules of grammar and precedent which prefers that a single adjective preceding a list of nouns modifies each of the nouns. Id. at 402. This Court need not follow. The statute s plain language may be construed, respectful of grammar, common usage and stare decisis, without need for revisionist legislative history. Former Tex. Civ. Prac. & Rem. Code 150.002 (a) begins In any action. The common usage of the word any, by itself, is ambiguous. It can mean one, some or every. Webster s New Universal Unabridged Dictionary (2d ed.) (1983). Thus, the first clause of that first sentence, by itself, generally expresses a requirement for an affidavit of a comparable professional to support one, some or every type of action against a 4
licensed/registered professional arising out of provision of professional services. It is a dependent clause that needs more information, i.e. what kind of affidavit, to qualify the requirement and complete the statute s intent. Without more, the generality/ambiguity of any requires more to complete the statute s intent. The Legislature s own language fills in the blank. The second clause of that first sentence qualifies the general requirement and completes the statute s intent by expressing what kind of affidavit must be filed with the complaint, i.e. an affidavit that specifically states at least one claimed negligent act, error, or omission and the supporting factual basis for such claim. Under the doctrine of ejusdem generis, when: words of general nature follow, or are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation. General words are not to be construed in their widest meaning or extent, but are to be treated as limited and applying only to persons or things of the same kind or class as those expressly mentioned. Erwin v. Steele, 228 S.W.2d 882, 884 (Tex. Civ. App. Dallas 1950, writ ref d n.r.e.). Thus, in former Tex. Civ. Prac. & Rem. Code 150.002 (a), any action is not to be construed in its widest meaning, i.e. every action, but limited and applying only to one or some actions of the same kind as a negligent act, error, or omission. The two clauses do not conflict. They cooperate to provide a coherent construction consistent with the remainder of the statute. The alternative construction by the en banc Austin Court of Appeals in S & P Consulting, in reliance upon legislative history for 2009 amendments, renders the 5
Legislature s 2009 amendments to Chapter 150 futile. The 2009 amendments were specifically adopted to broaden the scope of Chapter 150 beyond actions of the same kind as a negligent act, error, or omission. See House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. S.B. 1201, 81st Leg. R.S. (2009). That bill analysis certainly relates to the 2009 amendments, but should not be used as revisionist legislative history to construe former Tex. Civ. Prac. & Rem. Code 150.002. If former Tex. Civ. Prac. & Rem. Code 150.002 already extended the Certificate of Merit requirement beyond negligence claims, the Legislature need not have enacted its 2009 amendments. The Legislature is never presumed to do a useless act. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex. 1981). Most recently, the Texarkana Court of Appeals succinctly dismissed the revised reasoning and construction of S & P Consulting: We find the Austin court s reasons for the reversal of its position unpersuasive. We will not utilize the legislative history for a later statutory amendment to determine why an earlier, different Legislature had taken a particular act. We also note that the rules of grammar, in a profession based upon the use of words, are neither unimportant nor to be ignored. We therefore continue to hold that under the September 1, 2005, version of the statute, the certificate of merit requirement applies only to negligence claims. Sanders v. Wood, No. 06-11-00015-CV, Aug. 12, 2011, 2011 WL 3524207, *3 (Tex. App. Texarkana 2011, n.p.h.). This Court should follow the Texarkana Court of Appeals and the majority of other Texas Courts of Appeal regarding former Tex. Civ. Prac. & Rem. Code 150.002 and hold that the certificate of merit requirement applies only to negligence claims. 6
Issue Three Appellants do not need to prove a written contract to bring a breach of contract claim [in response to Appellee s Argument issues C.4. and D.1.]. In distinguishing between contract and tort actions, courts analyze the source of the duty owed and the nature of the remedy sought. Parker County, 2009 WL 3938051 at *3 4. Generally, an action in contract is for breach of a duty arising out of a contract (either express or implied). Id. On the other hand, an action in tort is for breach of a duty imposed by law. Id. (citing Int l Printing Pressmen & Assistants Union of N. Am. v. Smith, 198 S.W.2d 729, 735 (Tex. 1947)). A contractual relationship between the parties may create duties under both contract and tort law, and the acts of a party may breach duties in contract or tort alone, or simultaneously in both. Id. (citing Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986)). The record in this case shows that Appellants alleged a breach of contract claim against Appellee for violating its promise to measure the depth of the slab in its promised inspection. CR 46, 50. Absent Appellee s promises, Appellee had no duty to inspect construction nor to measure the depth of the slab. Although there is no written contract, absence of a written contract does not mean absence of a contract nor absence of a claim for breach of contract. See Sanders, at *5 - *6. The terms of the contract and the contractual duties encompassed by those terms will be shown by the parties to the contract, not by a third-party s testimony. Because of Appellee s conduct, Appellants claimed damage to the foundation, the subject of the parties contract. CR 50. Appellants 7
requested relief, e.g. repair costs, dimunition in value, are benefit of the bargain and economic loss damages that indicate a breach of contract claim. Although Appellee performed foundation design services prior to the foundation pour, the actual measuring of the foundation forms/excavation does not involve design or engineering. Measuring the depth of the foundation forms before the concrete was poured hardly requires an engineering degree. The fact finder does not need the testimony of another engineer to state what Appellee promised to do nor that Appellee failed to perform its promises. Here, Appellee simply failed to perform its end of the bargain, and Appellants claim is for Appellee s breach of contract. Because breach of contract claims are not subject to the certificate of merit requirements of former Tex. Civ. Prac. & Rem. Code 150.002, the trial court abused its discretion in dismissing Appellants breach of contract claim. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellants JJW Development, LLC and John J. Wingfield, Jr. pray that this Court: issue its opinion reversing the trial court s grant of Defendant Strand Systems Engineering, Inc. s Motion to Dismiss With Prejudice; render judgment vacating the trial court s Sept. 22, 2010 Order Granting Defendant Strand Systems Engineering, Inc. s Motion to Dismiss With Prejudice and remanding this suit to the trial court for further proceedings consistent with this Court s opinion; award Appellants their costs of appeal; and award Appellants such other relief to which Appellant may be justly entitled. 8
Alternatively, and without waiving Appellants right to further appeal, should this Court approve of the trial court s decision and Order, based upon S & P Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390 (Tex. App. Austin 2011, no pet.), Appellants pray that this Court render judgment vacating the trial court s Sept. 22, 2010 Order Granting Defendant Strand Systems Engineering, Inc. s Motion to Dismiss With Prejudice and remanding this suit to the trial court for further proceedings in the interest of justice, including the opportunity to file a certificate of merit pursuant to former TEX. CIV. PRAC. & REM. CODE 150.002. Respectfully submitted, By: /s/ Carl J. Wilkerson State Bar No. 21478400 The Bush Firm, P.C. 4025 Woodland Park Blvd., Suite 190 Arlington, Texas 76013 Telephone: (817) 274-5992 Facsimile: (817) 261-1671 Attorney for Appellants 9
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of this foregoing instrument has been served upon Appellee s counsel of record and the Clerk of this Court on August 17, 2011. Michelle E. Robberson Cooper & Scully, P.C. Founders Square 900 Jackson Street, Suite 100 Dallas, Texas 75202 VIA EMAIL & U.S. FIRST CLASS MAIL /s/ Carl J. Wilkerson 10