Apex Geoscience, Inc. v. Arden Texarkana, LLC, Dornoch Texarkana, LLC, RP Texarkana, LLC, Texarkana Rancho, LLC, and Narden Texarkana, LLC

370 S.W.3d 14, 2012 WL 2299285, 2012 Tex. App. LEXIS 4840
CourtCourt of Appeals of Texas
DecidedJune 19, 2012
Docket06-11-00128-CV
StatusPublished
Cited by4 cases

This text of 370 S.W.3d 14 (Apex Geoscience, Inc. v. Arden Texarkana, LLC, Dornoch Texarkana, LLC, RP Texarkana, LLC, Texarkana Rancho, LLC, and Narden Texarkana, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Apex Geoscience, Inc. v. Arden Texarkana, LLC, Dornoch Texarkana, LLC, RP Texarkana, LLC, Texarkana Rancho, LLC, and Narden Texarkana, LLC, 370 S.W.3d 14, 2012 WL 2299285, 2012 Tex. App. LEXIS 4840 (Tex. Ct. App. 2012).

Opinions

OPINION

Opinion by Chief Justice MORRISS.

The parking lot of the Texarkana Pavilion shopping center experienced problems. It was alleged that the necessary groundwork was not done to support the paving. Ultimately, in the lawsuit that arose from the problems, Apex Geoscience, Inc. (Apex), was joined as a third-party defen[16]*16dant. Apex seeks1 a dismissal of the lawsuit against it, because the necessary paperwork was not done to support the third-party claims against Apex. We agree.

Texarkana Pavilion, L.P. (Pavilion) purchased and began developing 27.606 acres of land as a retail shopping center. Arden Texarkana, LLC, Dornoch Texarkana, LLC, RP Texarkana, LLC, Texarkana Rancho, LLC, and Narden Texarkana, LLC (collectively referred to as Owners), in October 2006, contracted with Pavilion for the purchase of the property. Pavilion continued development of the land, including “clearing the site, performing the necessary foundational dirt work[,] ... performing the actual construction of the subgrade, foundation, parking lot and buildings” “through the sale date.”

After the sale, Owners “repeatedly complained to Texarkana Pavilion regarding certain issues with the property’s substructure.” They claimed that, before the sale of the property, “subgrade and concrete paving of the parking lot began experiencing material and other defects, such as the development of voids beneath the pavement, washing-out of the pavement subgrade, settling and/or failure of concrete sections, and heaving of concrete sections.” Owners allegedly failed to make payments in accordance with the sale purchase agreement. On July 1, 2008, Pavilion sued Owners, claiming they had breached that agreement.

On April 25, 2011, Owners filed counterclaims against Pavilion for fraud, fraudulent inducement, fraud in a real estate transaction, breach of contract, and negligent misrepresentation. Owners alleged that Pavilion “knew that the storm sewer system ... had experienced numerous failures,” that the failure of the system “was allowing subgrade to be washed out from under the Property,” and that the steps taken in response to the failures were “purely cosmetic in nature.” Owners complained that this “cover-up thwarted” the inspection of the property before the sale and that they would not have purchased the property under the sale purchase agreement had the issues with the parking lot been discovered. Apex provided engineering services related to the construction project. The Owners claimed that “Texarkana Pavilion and/or Third-Party Defendants failed to adhere to the guidelines outlined by Apex in its geotechnical report related to construction of the sub-grade for the Property and utilities.”

With permission of the trial court under Section 83.004(c) of the Texas Civil Practice and Remedies Code, which affords a claimant an additional sixty days beyond any applicable limitation period to join a person who has been designated as a responsible third party, Owners, also on April 25, 2011, alleged third-party claims against Apex and others for negligence, gross negligence, conspiracy to commit fraud, and aiding and abetting tortious acts.

On May 31, 2011, Apex answered the third-party petition, pointing out that

[Owners] have failed to file an affidavit with their petition regarding their claims against Apex, as required by § 150.002. According to Tex. Civ. Prac. & Rem. Code § 150.002(d), the Court must dismiss [Owners’] claims against Apex for their failure to comply with the statute.

On July 11, 2011, Apex filed a motion to dismiss the Owners’ third-party claims on that basis.

[17]*17On July 26, 2011, Owners responded by claiming that their suit failed to contain a qualifying affidavit — what the statute also calls a certificate of merit — “because the affidavit could not be prepared before the expiration of the extended limitations period of Section 33.004(c), Texas Civil Practice & Remedies Code.” A certificate of merit was attached. Also on July 26, Owners moved to extend time to file the certificate of merit for good cause under Section 150.002(c). The motion was supported by affidavit of attorney W. “Trey” R. Dyer, III, who gave the following explanation as to the existence of good cause:

8. ... Texarkana Pavilion merely alleged that Apex “is a materials and testing firm with (sic) contracted with TEX PAV [Pavilion] to perform concrete, soils and materials testing on the Project, including the parking lot.”
10. Given the lack of specificity in the Motion to Designate regarding Apex’s responsibility for the injuries, Owners promptly sought through written discovery information regarding the scope and details of Apex’s work....
11. Owners had already designated Joseph Russ, Sr. as an expert witness and had been consulting with him for an extended period of time. Owners believed that Mr. Russ would be able to give opinion testimony required for a certificate of merit. In his expert report, Mr. Russ, opined regarding Apex’s failures when doing materials testing. Mr. Russ is qualified to review testing reports and opine as to their veracity and accuracy. As such, Owners believed that he was qualified under Section 150.002 of the Texas Civil Practices [sic] & Remedies Code to make the Certificate of Merit Affidavit.
12. Before the filing deadline, it was decided that Mr. Russ may not be qualified under Section 150.002 to make the Certificate of Merit given that he does not regularly do materials testing. That was too close in time to identify a new expert who was able to do the work and qualified to give the opinion testimony for the Certificate of Merit Affidavit. 13. Shortly after Apex filed its Answer, attorneys for Owners learned of the clients’ desire to hire new counsel to continue the Action and have since been substituted by current counsel2 for Owners who, upon information and belief, have now obtained a Certificate of Merit.
14. Good cause exists to allow an extension of time to file the Certificate of Merit for the reasons cited above.

The trial court heard the motion to dismiss November 9, 2011, and ruled December 12, 2011, denying Apex’s motion to dismiss. On appeal, Apex complains that the trial court erred (1) in denying the motion to dismiss because Section 150.002(c) required Owners to act within thirty days of the filing of the third-party claims and (2) in finding good cause.

An order granting or denying a motion to dismiss made pursuant to Chapter 150 of the Texas Civil Practice and Remedies Code is immediately appealable as an interlocutory order, and is reviewable for abuse of discretion. Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728, 731 (Tex.App.-Texarkana 2010, pet. dism’d w.o.j.); WCM Group, Inc. v. Camponovo, 305 S.W.3d 214, 219 (Tex.App.-Corpus Christi 2009, pet. dism’d) (citing Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496 (Tex.App.-Corpus Christi 2009, no pet.)). If resolution of an issue requires the construction of statutory [18]

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370 S.W.3d 14, 2012 WL 2299285, 2012 Tex. App. LEXIS 4840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apex-geoscience-inc-v-arden-texarkana-llc-dornoch-texarkana-llc-rp-texapp-2012.