Chester T. Carthel D/B/A Carthel Engineering Solutions v. Robert Neidert and Linda Neidert

• Court: Court of Appeals of Texas
• Decided: January 15, 2020
• Docket: 07-18-00117-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00117-CV

CHESTER T. CARTHEL D/B/A CARTHEL ENGINEERING SOLUTIONS, APPELLANT

V.

ROBERT AND LINDA NEIDERT, APPELLEES

On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. 2017-526,408, Honorable William C. Sowder, Presiding

January 15, 2020

DISSENTING OPINION Before PIRTLE and PARKER and SCHAAP1, JJ.

Because I would hold that, in this restricted appeal, error is not apparent on the

face of the record, I would affirm the judgment of the trial court. I therefore respectfully

dissent.

I agree with the majority’s conclusion that, in the present case, the only disputed

element is whether error is apparent on the face of the record. I also agree with its

1 Honorable Dan Schaap, Judge, 47th District Court, sitting by assignment. recitation of the applicable law. Thus, if the face of the record shows that Carthel was a

licensed professional engineer at the time he rendered services for the Neiderts, then a

certificate of merit was required. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 150.001(1-c)

(defining licensed or registered professional), 150.002 (West Supp. 2019) (certificate of

merit requirement). In the absence of a certificate of merit filed by the Neiderts, Carthel

was entitled to wait until thirty days after a certificate of merit was filed to file his answer.

Id. § 150.002(d). And, if Carthel had no obligation to file an answer, the trial court was

not authorized to render judgment by default. TEX. R. CIV. P. 239. It is apparent the

majority’s analytical construct depends wholly on the face of the record establishing

Carthel’s status as a licensed professional engineer. But I do not believe that this status

is apparent on the face of the record. See Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004)

(per curiam) (“a restricted appeal requires error that is apparent, not error that may be

inferred.” (emphasis in original)).

In order to reach its conclusion, the majority, contrary to Gold, must resort to

speculation. Essential to the court’s analysis and conclusion are allegations in the

Neiderts’ petition that a property inspector discovered foundation cracks and

recommended a further inspection by a “qualified professional,” and that the Neiderts’

realtor hired Carthel to perform a “structural evaluation.” The property inspector’s report,

attached as an exhibit to the petition, states the inspector found “an indication of possible

shifting/settling of the foundation and or wall structure . . . .” He “[r]ecommend[ed] further

evaluation by a professional contractor.” (emphasis added). From these pleading

allegations and the fact that Carthel was “doing business as Carthel Engineering

Solutions,” the majority concludes, “it is apparent that [the Neiderts’] claim against Carthel

2 was based on services he provided in his capacity as a licensed engineer.” These

assumptions are insufficient to establish that Carthel is a licensed professional engineer

and, consequently, fail to establish that he was entitled to a certificate of merit. We may

not speculate and, because this a restricted appeal, we are prohibited from relying on

inferences. Gold, 145 S.W.3d at 213; see Lozano v. Lozano, No. 04-12-00361-CV, 2013

Tex. App. LEXIS 792, at *5-6 (Tex. App.—San Antonio Jan. 30, 2013, no pet) (mem. op.)

(declining appellant’s request to apply “common sense” based on postal procedures and

infer that answer was timely postmarked for filing by mail when record contained no

evidence of when answer was mailed). Yet, the majority looks beyond the face of the

record to reach its conclusion.

Because the face of the record does not establish Carthel’s status as a licensed

professional engineer, it likewise does not show that he was excused from filing an

answer under section 150.002(d). The trial court, therefore, did not err in rendering

judgment by default against Carthel. Based on the foregoing discussion, I respectfully

Judy C. Parker Justice