ACCEPTED 05-15-00103-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 4/20/2015 4:09:30 PM LISA MATZ CLERK
No. 05-15-00103-CV
FILED IN IN THE FIFTH 5th COURT OF APPEALS DALLAS, TEXAS COURT OF APPEALS 4/20/2015 4:09:30 PM AT DALLAS, TEXAS LISA MATZ Clerk
DMH DESIGN, Appellant v. CATHERINE MORZAK, Appellee
Interlocutory Appeal from the County Court at Law No. 3, Dallas County, Texas, Cause No. CC-14-00798-C, the Honorable Sally Montgomery, Presiding
APPELLANT’S REPLY BRIEF
Wade C. Crosnoe Shawn W. Phelan State Bar No. 00783903 State Bar No. 00784758 E-mail: wcrosnoe@thompsoncoe.com E-mail: sphelan@thompsoncoe.com Sara Berkeley Churchin THOMPSON, COE, COUSINS & State Bar No. 24073913 IRONS, L.L.P. E-mail: schurchin@thompsoncoe.com 700 N. Pearl Street, Twenty-Fifth Floor THOMPSON, COE, COUSINS & Dallas, Texas 75201-2832 IRONS, L.L.P. Telephone: (214) 871-8200 701 Brazos, Suite 1500 Facsimile: (214) 871-8209 Austin, Texas 78701 Telephone: (512) 703-5035 Facsimile: (512) 708-8777
Counsel for Appellant DMH Design
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
Table of Contents ........................................................................................................i
Index of Authorities .................................................................................................. ii
I. Introduction......................................................................................................1
II. The Certificate of Merit Attached to Morzak’s First Amended Petition Is Insufficient to Meet the Statute’s Requirements ......................................... 3
III. Morzak Did Not Seek a Timely Extension to the Contemporaneous- Filing Requirement and Is Not Entitled to a “Good Cause” Exception .......... 8
A. The Only Exception to the Contemporaneous Filing Rule Is Stated in the Statute ............................................................................... 8
B. Morzak Did Not Meet the Statutory Prerequisites to Qualify for a Good-Cause Exception .....................................................................11
IV. DHM Design Did Not Waive Its Argument That the Certificate of Merit Filed on June 13th Is Insufficient ........................................................14
Conclusion and Prayer .............................................................................................15
Certificate of Compliance ........................................................................................17
Certificate of Service................................................................................................17
i INDEX OF AUTHORITIES
Cases
Apex Geoscience, Inc. v. Arden Texarkana, LLC, 370 S.W.3d 14 (Tex. App.—Texarkana 2012, pet. granted, judgm’t vacated by agr.) .........................13
Austin Nursing Center v. Lovato, 171 S.W.3d 845 (Tex. 2005) .............................10
Crosland v. Tex. Emp’t Comm’n, 550 S.W.2d 314 (Tex. Civ. App.— Dallas 1977, writ ref’d n.r.e.) ...............................................................................11
Crosstex Energy Servs, L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014) ......................................................................... 8, 9, 10, 11, 12, 13
Dallas Cent. Appraisal Dist. v. Wang, 82 S.W.3d 697 (Tex. App.— Dallas 2002, pet. denied)......................................................................................11 Robert Navarro & Assocs. Eng’g, Inc. v. Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475 (Tex. App.—El Paso 2012, no pet.) ............... 5, 7, 8
Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265 (Tex. App.—Houston [14th Dist.] 2011, pet. dism’d).........................................13 Howe-Baker Eng’rs, Ltd. v. Entr. Prod. Operating, LLC, 2011 WL 1660715 (Tex. App.—Houston [1st Dist.] Apr. 29, 2011, no pet.) ...................6, 7 JJW Dev., LLC v. Strand Sys. Eng’g, Inc., 378 S.W.3d 571 (Tex. App.—Dallas 2012, pet. denied)..........................................................................11
Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex. App.—Corpus Christi 2009, no pet.) ...........................................................9
Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) ....................................................4 Nangia v. Taylor, 338 S.W.3d 768 (Tex. App.—Beaumont 2011, no pet.).......................................................................................................................13 Sharp Eng’g v. Luis, 321 S.W.3d 748 (Tex. App.—Houston [14th Dist.] 2010, no pet.) .............................................................................................12
ii Siemens Energy, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Penn., No. 14-13-00863-CV, 2014 WL 2531577 (Tex. App.— Houston [14th Dist.] June 3, 2014, pet. denied) ................................................5, 8 Sylva Eng’g Corp. v. Kaya, No. 03-12-00334-CV, 2013 WL 1748754 (Tex. App.—Austin Apr. 18, 2013, no pet.) ..........................................................5 TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13- 01021-CV, 2014 WL 4724706 (Tex. App.—Dallas Sept. 24, 2014, pet. filed) ..........................................................................................................8, 11
Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303 (Tex. 1978) ............................10
Statutes
Tex. Civ. Prac. & Rem. Code § 74.351(c) .................................................................8 Tex. Civ. Prac. & Rem. Code § 150.002 ................................ 2, 3, 6, 7, 8, 10, 11, 15
Tex. Civ. Prac. & Rem. Code § 150.002(b).................................................. 3, 4, 5, 8 Tex. Civ. Prac. & Rem. Code § 150.002(c) ............................................ 9, 10, 12, 13 Tex. Civ. Prac. & Rem. Code § 150.002(e) .............................................................16
iii I. Introduction
According to Morzak, her claims have merit and are not frivolous, and
therefore the requirements of section 150.002 should not be applied strictly—by
which she means, applied at all—in this case. But it is the Texas Legislature’s
prerogative to specify the procedure and requirements under which claims against
licensed professionals are determined to have sufficient merit to proceed. Courts
are required to give effect to the Legislature’s determinations as expressed through
a statute’s plain language.
Morzak does not dispute DHM Design’s argument that section 150.002
clearly and ambiguously requires a plaintiff to file a certificate of merit with its
first-filed claim against a licensed design professional. Instead, Morzak argues that
the first-filed certificate of merit—which does not name DHM Design as the
design professional, but rather names only an employee of Barker Rinker Seacat
Architecture (“BRS Architecture”)—is sufficient because it was generally
“directed to the designer of the grandstand area.” To that end, Morzak asks this
Court to ignore the statute’s plain language and construe it in a manner allegedly
consistent with its legislative purpose. This Court should reject Morzak’s
invitation to ignore the plain language of section 150.002, just as it has rejected
similar invitations in the past.
1 Although Morzak complains of “gotcha” tactics, she does not dispute that
she learned approximately two months prior to the filing of her First Amended
Petition that DHM Design had designed the grandstands at issue in this lawsuit.
Morzak thus had two months to investigate, to obtain a proper certificate of merit
naming DHM Design, and to attach it to her first pleading naming DHM Design as
defendant. Morzak failed to do so. Morzak instead waited another thirty-nine days
after filing her first amended petition to request an extension of time to file a
certificate of merit. And when Morzak finally filed a certificate of merit actually
naming DHM Design, that certificate of merit, too, was insufficient under section
150.002.
Morzak’s accusation that DHM Design’s reliance upon the plain language of
section 150 constitutes unfair “gotcha” tactics designed to avoid answering
Morzak’s claims has no merit and should warrant little sympathy. Similarly
unavailing should be her request that the Court rewrite the statute to create an
equitable “relation back” exception. Morzak had the information, the time, and the
opportunity to comply with Texas Civil Practice & Remedies Code section
150.002. Her failure to do so should have resulted in dismissal of her claims
against DHM Design.
2 II. The Certificate of Merit Attached to Morzak’s First Amended Petition Is Insufficient to Meet the Statute’s Requirements
The Certificate of Merit attached to Morzak’s First Amended Petition—the
first to allege claims against DHM Design—sets out specifically that an employee
of BRS Architecture, Kenneth Berendt, was the licensed professional who
committed the “action, error, or omission” forming the basis of the lawsuit (CR
32). Tex. Civ. Prac. & Rem. Code § 150.002(b). DHM Design’s name appears
nowhere in the Certificate of Merit/expert affidavit (CR 32–39). Moreover, the
certificate, which is identical to the certificate of merit attached to Morzak’s
Original Petition, contains no allegations whatsoever concerning DHM Design’s
conduct.
Ignoring contrary case law, Morzak argues that a certificate of merit need
not attribute specific conduct to a particular defendant to satisfy the requirements
of section 150.002(b). Going one step further, Morzak then argues that the
certificate of merit need not even name the design professional-defendant at all to
meet 150.002(b) requirements, so long as the affidavit makes seemingly
meritorious allegations against any landscape design professional.
Not only is Morzak’s argument unsupported by Texas case law construing
section 150.002, it is unsupported by the plain language of the statute itself.
Morzak contends that DHM design “hoists form over substance” and urges this
Court to look beyond the language of the statute to “the purpose of the certificate
3 of merit,” which purpose she claims was met here. The Legislature’s purpose,
however, is best served by following the plain, unambiguous language of section
150.002(b), which provides that:
The affidavit shall set forth specifically . . . the negligence . . . or other action, error or omission of the licensed or registered professional in providing the professional service.
(emphasis added).
“The plain meaning of the text is the best expression of legislative intent
unless a different meaning is apparent from the context or the plain meaning leads
to absurd or nonsensical results.” See Molinet v. Kimbrell, 356 S.W.3d 407, 411
(Tex. 2011). Here, the Legislature’s use of “the licensed . . . professional”—a
definite article indicating a specific person—rather than “a”—an indefinite article
with a more general meaning—makes clear that the affidavit must at minimum
identify the licensed professional whose “negligence . . . other action, error or
omission” forms the basis of the lawsuit. In other words, the affidavit must
identify the licensed professional being sued. Moreover, construed literally, “the
licensed or registered professional” is singular, not plural. This further indicates
that the certificate of merit must tie specified tortious conduct to a particular
licensed or registered professional named therein.
Under Morzak’s reasoning, the name of virtually any licensed
professional(s) (singular or plural) in the certificate of merit is sufficient to meet
4 statutory requirements as to all other licensed professionals, so long as the affidavit
alleges that some licensed professional was negligent in some manner. Taken to its
logical conclusion, Morzak’s stance is that there is no limit to the number of
professionals and claims a single certificate of merit can support. Yet not one
Texas case holds that a certificate of merit that not only fails to name the
defendant, but names some other entity entirely, satisfies the requirements of
section 150.002(b). This case would be the first, and by a long shot.
To the contrary, several Texas courts have held that even where the affiant
identifies the proper licensed professional in the certificate of merit, the certificate
is nevertheless insufficient if it fails to set forth conduct specific to that particular
licensed professional. Texas courts have concluded that certificates of merit
naming more than one professional, but failing to specifically attribute negligent
conduct to each, are insufficient. E.g., Robert Navarro & Assocs. Eng’g, Inc. v.
Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475, 482–83 (Tex. App.—El
Paso 2012, no pet.) (holding that allegations in a certificate of merit must be tied to
a particular defendant); Siemens Energy, Inc. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Penn., No. 14-13-00863-CV, 2014 WL 2531577, at *10 (Tex. App.—
Houston [14th Dist.] June 3, 2014, pet. denied) (same); Sylva Eng’g Corp. v. Kaya,
No. 03-12-00334-CV, 2013 WL 1748754, at *5 (Tex. App.—Austin Apr. 18,
2013, no pet.) (same).
5 Under the rationale of these cases, the Certificate of Merit attached to
Morzak’s First Amended Petition (alleging the negligent conduct of BRS
Architecture, and not naming DHM Design at all), is wholly inadequate as to DHM
Design. That is, if a certificate of merit is insufficient because it fails to tie specific
conduct to a specific defendant, it is surely insufficient if it fails to name the
defendant at all.
Morzak relies in her brief on Howe-Baker to argue that a certificate of merit
need not tie allegedly tortious conduct to a particular defendant. See Howe-Baker
Eng’rs, Ltd. v. Entr. Prod. Operating, LLC, 2011 WL 1660715, at *6 (Tex. App.—
Houston [1st Dist.] Apr. 29, 2011, no pet.). But Morzak ignores that the two
named defendants in that case were alleged to be alter egos, or a single legal entity.
Id. For that reason, the court explained, section 150.002 did not require that the
certificate of merit attribute a negligent act, error, or omission to each of the two
named entities. The court ultimately held that the statute did not require the
certificate of merit to attribute conduct “to a defendant whose alleged liability for a
claim covered by the statute is entirely vicarious of the alleged liability of another
defendant as to which the affidavit did not satisfy the statute.” Id. at *6.
Here, there is no allegation that DHM Design is vicariously liable for BRS
Architecture’s acts or omissions or that the companies were alter egos. Only under
those facts could Morzak’s argument be supported by the rationale set forth in
6 Howe-Baker—even assuming it was correctly decided—and could a certificate of
merit naming only BRS Architecture suffice to meet section 150.002 requirements
as to DHM Design. See id.; see also Robert Navarro & Assocs., 389 S.W.3d at
480 (recognizing that Howe-Baker turns on its facts—i.e., is limited to cases
wherein the defendants are alter egos and liability is vicarious).
Morzak concedes that Navarro & Associates stands for the proposition that a
certificate of merit must tie alleged tortious conduct to a specific defendant
(Appellee’s Brief at p. 9 n.3). Yet Morzak fails to distinguish the case or explain
in her brief why this Court should not reach the same conclusion the El Paso Court
of Appeals reached there. See Robert Navarro & Assocs., 389 S.W.3d at 482. In
that case, the plaintiff filed a certificate of merit that discussed the negligence of
two different defendants using the phrase “and/or.” Id. at 481. The defendants
filed a motion to dismiss on that basis, contending that the certificate of merit was
deficient because “the statute requires a direct and unequivocal statement by the
affiant that attributes a specific act, error, or omission to each defendant.” Id.
The court of appeals agreed, explaining:
[T]he statutory language does not allow for collective assertions of negligence: It cannot be presumed that anytime two defendants are accused of similar conduct that valid claims exist against both of them—if such claims indeed exist, the expert must actually say so, and do so in the form of positive averments made under oath.
7 Id. at 482; see also Siemens Energy, 2014 WL 2531577, at *10 (“Because the
affidavits at issue did not clearly indicate that one particular defendant was
involved in a particular professional error, the trial courts abused their discretion in
denying the motion to dismiss.”).
III. Morzak Did Not Seek a Timely Extension to the Contemporaneous- Filing Requirement and Is Not Entitled to a “Good Cause” Exception
A. The Only Exception to the Contemporaneous Filing Rule Is Stated in the Statute
Section 150.002 requires that the plaintiff “file the certificate of merit with
the first petition filed in the action that raises claims subject to its provisions.” TIC
N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13-01021-CV, 2014 WL
4724706, at *4 (Tex. App.—Dallas Sept. 24, 2014, pet. filed). Texas courts,
including this Court, have uniformly construed this language to require that the
plaintiff file its certificate of merit with the “first-filed petition.” See id.
The exception to this rule is narrow, as the Texas Supreme Court has
recognized. Crosstex Energy Servs, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390–
91 (Tex. 2014). The healthcare liability claim statute, for example, allows a party
filing a deficient expert report one thirty-day extension to cure a deficiency. See
Tex. Civ. Prac. & Rem. Code § 74.351(c). In contrast, the design professional
statute does not. See id. § 150.002(b); see also Landreth v. Las Brisas Council of
Co-Owners, Inc., 285 S.W.3d 492, 499 (Tex. App.—Corpus Christi 2009, no pet.)
8 (comparing the certificate of merit requirement of a design professional claim to
the expert-report requirement of a medical liability claim), superseded by statute
on other grounds as stated in Crosstex, 430 S.W.3d at 393.
To obtain an extension to the certificate of merit requirement, plaintiff must
meet the requirements of section 150.002(c):
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 architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires.
Tex. Civ. Prac. & Rem. Code § 150.002(c) (emphasis added); Crosstex, 430
S.W.3d at 390 (“A plaintiff must allege that its near-limitations filing prevented the
preparation of a certificate of merit.”).
Morzak points out that although she did not assert the time-constraint
allegation in her first amended petition, she made those allegations over two
months later in her second amended petition. For the first time, Morzak argues in
this Court that under the “relation-back doctrine,” her second amended petition
relates back to the time of filing for her first amended petition, making her time-
9 constraint allegation timely to trigger the automatic thirty-day extension
(Appellee’s Brief at p. 15).
Morzak’s newfound reliance on the relation-back doctrine is untenable.
Morzak has no authority to support it either in the text of the statute or in case law.
The case Morzak cites to support this theory is not even a design professional case,
and has nothing to do with section 150.002.1 Morzak does not explain why the
relation-back doctrine, applicable in the context of statute of limitations, should
save her claims here in an entirely different context, and where the Legislature has
expressly required litigants to strictly adhere to a narrow filing timeframe without
mentioning anything about the relation-back doctrine. Crosstex, 430 S.W.3d at
390–91 (recognizing that section 150.002(c) employs a very narrow exception);
see Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex. 1978) (“When
specific exclusions or exceptions to a statute are stated by the Legislature, the
intent is usually clear that no others shall apply.”). Neither does Morzak have
authority to support her argument that section 150.002 allows her to supplant her
first amended petition with her first, for purposes of making her certificate of merit
timely.
1 Austin Nursing Center v. Lovato, 171 S.W.3d 845, 846, 853 (Tex. 2005), concerns whether standing requirements are met where a litigant lacks capacity to bring a lawsuit at the time it is filed, but which defect is later cured by an administrator.
10 “[F]ailure to file a certificate of merit with the original petition cannot be
cured by amendment.” Crosstex Energy Servs., 430 S.W.3d at 395; see JJW Dev.,
LLC v. Strand Sys. Eng’g, Inc., 378 S.W.3d 571, 576 (Tex. App.—Dallas 2012,
pet. denied); TIC N. Cent. Dallas, 2014 WL 4724706, at *3–4. Should Morzak’s
approach prevail, it would effectively eviscerate this rule and the statute’s narrow
exception by allowing litigants to simply amend their petitions to extend the
deadline to file a compliant certificate of merit. The relation-back doctrine is
equitable in nature, but courts are not permitted to assume the legislative
prerogative and rewrite a statute in order to save a litigant from a harsh result. See
Dallas Cent. Appraisal Dist. v. Wang, 82 S.W.3d 697 (Tex. App.—Dallas 2002,
pet. denied) (“We are not free to rewrite the statutes to reach a result we might
consider more desirable, in the name of statutory construction.”) (citation omitted);
Crosland v. Tex. Emp’t Comm’n, 550 S.W.2d 314, 320 (Tex. Civ. App.—Dallas
1977, writ ref’d n.r.e.) (Robertson, dissenting) (“[T]he harshness of a literal
construction’s result is no excuse for judicial improvisation. An unambiguous
statute should be applied and enforced as it reads, regardless of its policy or
purpose or the justice of its effect.”).
B. Morzak Did Not Meet the Statutory Prerequisites to Qualify for a Good-Cause Exception
Section 150.002 allows for supplementation of the pleadings with a
certificate of merit under only limited circumstances. Subsection (c) has two
11 requirements: (1) the limitations period must be about to expire in ten days, and (2)
the plaintiff “has alleged” that because of the time constraints, an affidavit could
not be prepared. If these two requirements are both met, plaintiff has thirty days to
supplement the pleadings with a certificate of merit. On the other hand, if either of
these two requirements is not met, plaintiff does not qualify for an exemption from
the contemporaneous-filing requirement. See Tex. Civ. Prac. & Rem. Code
§150.002(c); Sharp Eng’g v. Luis, 321 S.W.3d 748, 751 (Tex. App.—Houston
[14th Dist.] 2010, no pet.). In that case, plaintiff also does not qualify for a good-
cause exception. Crosstex, 430 S.W.3d at 390–91.
Morzak argues that she met subsection (c)’s twin requisites because “she
filed her first amended petition adding DHM on the date limitations expired” and
then made the time-constraint allegation in her second amended petition, which she
filed two months later (Appellee’s Brief at p. 15). Again, Morzak ignores the plain
language of the statute.
The Legislature’s use of “will expire,” coupled with its use of “has alleged,”
makes clear that to take advantage of the exception to the contemporaneous-filing
rule, the plaintiff must make the allegation that it was unable to obtain a certificate
of merit in the first-filed pleading—i.e., before limitations expires. Here, it is
undisputed that Morzak did not allege in her First Amended Petition that she could
not procure a certificate of merit, and then she waited another thirty-nine days after
12 that initial filing to request an extension to supplement her non-complaint
certificate of merit. At the very least, Morzak was required to make the time-
constraint allegation within the thirty-days following the filing of her First
Amended Petition. Because she did not, the request was untimely. See Nangia v.
Taylor, 338 S.W.3d 768, 772 (Tex. App.—Beaumont 2011, no pet.); Apex
Geoscience, Inc. v. Arden Texarkana, LLC, 370 S.W.3d 14, 22–23 (Tex. App.—
Texarkana 2012, pet. granted, judgm’t vacated by agr.).
Morzak continues to argue that the trial court had discretion to find that good
cause existed to extend the time for filing a supplemental certificate of merit up to
and including June 13, 2014. But Crosstex forecloses this result. Only when the
twin requisites of section 150.002(c) are met, and the automatic thirty-day
supplementation period is triggered, may the trial court then extend that thirty-day
period for good cause. Here, Morzak failed to comply with the statute’s plain
language and intent by filing a certificate of merit and invoking a basis for a
supplementation period within thirty days of filing her first amended petition. The
trial court thus had no discretion to grant a good-cause exception. See Crosstex,
430 S.W.3d at 390; Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352
S.W.3d 265, 269 (Tex. App.—Houston [14th Dist.] 2011, pet. dism’d). Likewise,
the trial court had no discretion but to dismiss the claims against DHM Design.
13 IV. DHM Design Did Not Waive Its Argument That the Certificate of Merit Filed on June 13th Is Insufficient
Morzak argues that DHM Design complained in the trial court only of the
timing of the supplemental certificate of merit (dated June 13, 2014), and that
DHM Design has challenged the sufficiency of the supplemental certificate for the
first time on appeal. Morzak is mistaken. In DHM Design’s Motion to Dismiss,
filed on July 30, 2014, and contained in this record, DHM Design argued the
following to the trial court:
Finally, even if the Court were to decide to consider Mr. DiNicola’s June 13, 2014 Certificate of Merit Affidavit—which, as explained above, would be patently improper—the Court should still grant this motion to dismiss as the late-filed June 13, 2014 Certificate of Merit does not “set forth specifically” the “negligence if any, or other action, error or omission” of DHM. Instead of setting forth any negligence or other act, error, or omission of DHM, the June 13, 2014 Certificate of Merit attempts to modify or supplement Mr. DiNicola’s January 24, 2014 affidavit by alleging that: “The Certificate of Merit, dated 24 January 2014, applies to Barker Rinker Seacat Architecture and DHM Design . . . .”
(CR 143–44).
Again, Morzak fails to address the Texas cases holding that a certificate of
merit, to be sufficient, must tie a specific defendant to specific tortious conduct.
See supra Discussion at Section II. As DHM Design explained in its opening
14 brief, the insufficiency of Morzak’s June 13th Certificate of Merit is yet another
reason why the claims against DHM Design must be dismissed.
CONCLUSION AND PRAYER
The purpose of section 150.002’s certificate of merit requirement is to
provide the trial court an expeditious means to determine whether a plaintiff’s
claims have merit. For the trial court to make this determination properly, the
plain language of the statute must be followed: the certificate of merit must, at
minimum, identify “the licensed professional” being sued, and the conduct for
which he or she being sued. The certificate of merit must also be timely filed. The
statute leaves no question that failure to strictly adhere to the statutory
requirements results in mandatory dismissal.
The trial court abused its discretion by (1) concluding that the statute does
not require that a certificate of merit set forth an act or omission attributable to a
particular licensed professional “specifically for each theory of recovery,” and (2)
concluding that the good-cause exception was available to Morzak and that good
cause existed to extend the statutory time-period up to and including June 13,
2014. For these reasons, Appellant DHM Design requests that this Court reverse
the trial court’s order denying its Motion to Dismiss and instead render judgment
dismissing Morzak’s claims against DHM Design under Texas Civil Practice &
15 Remedies Code section 150.002(e). Appellant also requests all other relief to
which it may be entitled.
Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS, L.L.P.
By: /s/ Sara Berkeley Churchin Wade Crosnoe State Bar No. 00783903 E-mail: wcrosnoe@thompsoncoe.com Sara Berkeley Churchin State Bar No. 24073913 E-mail: schurchin@thompsoncoe.com
701 Brazos, Suite 1500 Austin, Texas 78701 Telephone: (512) 703-5035 Facsimile: (512) 708-8777
Shawn W. Phelan State Bar No. 00784758 sphelan@thompsoncoe.com THOMPSON, COE, COUSINS & IRONS, L.L.P. Plaza of the Americas 700 N. Pearl Street, Twenty-Fifth Floor Dallas, Texas 75201-2832 Telephone: (214) 871-8200 Facsimile: (214) 871-8209
ATTORNEYS FOR APPELLANT DHM DESIGN
16 CERTIFICATE OF COMPLIANCE
This brief complies with the word limit of Tex. R. App. P. 9.4(i)(2)(B) because it contains 3,598 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Sara Berkeley Churchin Sara Berkeley Churchin
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Appellant’s Reply Brief was served on April 20, 2015, via electronic service or email, to the following counsel:
Steve E. Aldous Forshey & Prostok, LLP 500 Crescent Court, Suite 240 Dallas, Texas 75201 Email: saldous@forsheyprostok.com
Mark Alan Goodman Fox Rothschild, LLP Two Lincoln Centre 5420 Lyndon B Johnson Freeway, Suite 1200 Dallas, Texas 75240 Email: magoodman@foxrothschild.com