Jordan and Associates v. Lisa Wells

Opinion

Opinion issued July 30, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00992-CV ——————————— JORDAN AND ASSOCIATES, Appellant V. LISA WELLS, Appellee

On Appeal from the 506th District Court Grimes County, Texas Trial Court Case No. 32055

MEMORANDUM OPINION

This is an interlocutory appeal from the trial court’s denial of appellant

Jordan and Associates’s motion to dismiss based on appellee Lisa Wells’s failure

to timely file a certificate of merit as required by Chapter 150 of the Texas Civil

Practice & Remedies Code. See TEX. CIV. PRAC. & REM. CODE § 150.002. On appeal, Jordan argues that the trial court erred by extending the time for filing a

certificate of merit and by denying its motion.

We reverse and remand.

Background

Appellee Lisa Wells sued Sulik Sheridan Navasota, Inc. and Sulik Health

Care Services, Inc. (collectively, “Sulik”), alleging that she was harmed by

exposure to noxious fumes while working as a hair stylist and beautician at a

retirement community center. On May 24, 2014, just over three years after the

original petition was filed, Sulik sought leave to designate responsible third parties,

including Jordan and Associates, the architectural firm that designed the building

where Wells had worked. On June 19, 2014, Wells amended her petition, adding

Jordan as a defendant and alleging a “cause of action for professional negligence”

against it. She did not concurrently file a certificate of merit. The trial court also

granted Sulik leave to designate Jordan as a responsible third party.

Over a month after being named as a defendant, Jordan filed a motion to

dismiss on the grounds that Wells had failed to timely file a certificate of merit.

After a non-evidentiary hearing, the trial court denied Jordan’s motion to dismiss.

The order stated that the trial court found “by a preponderance of the credible

evidence,” that “[d]ue to the third-party action filed in this cause, it was reasonable

2 to grant an extension of time for the filing of a Certificate of Merit . . . .” Jordan

appealed from the order denying the motion to dismiss.

Analysis

I. Appellate jurisdiction

In her brief, Wells asserts that this court lacks jurisdiction over this case

because Jordan’s notice of appeal was not timely filed. An appeal of an order

denying a motion to dismiss for lack of a certificate of merit under Chapter 150 is

an accelerated, interlocutory appeal. TEX. CIV. PRAC. & REM. CODE § 150.002(f);

TEX. R. APP. P. 28.1(a). The notice of appeal was due 20 days after the court’s

order denying the motion to dismiss, TEX. R. APP. P. 26.1(b), 28.1(a), and Jordan

concedes it was eight days late. However, a motion for extension of time is implied

when a notice of appeal is filed within 15 days of its due date. See Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (regular appeal); In re M.A., 222 S.W.3d

670, 670 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (accelerated appeal); see

also TEX. R. APP. P. 26.3, 28.1(a). Jordan’s counsel filed in this court a sworn

affidavit explaining that he “miscalculated the date necessary to file the notice of

appeal.” We deem this a sufficient explanation for the late filing, and we conclude

that we have jurisdiction over this appeal.

3 II. Denial of motion to dismiss

On appeal, Jordan contends that the trial court erred by denying its motion to

dismiss. More specifically, Jordan argues that the statute permits an extension of

time for filing a certificate of merit only in a narrow circumstance which is not

presented here. Therefore, Jordan asserts that the court erred by concluding that an

extension of time was reasonable.

Wells argues that the court properly denied the motion to dismiss because

Jordan did not comply with Rule of Civil Procedure 91a, a rule governing the

dismissal of baseless causes of action. Wells also argues that notwithstanding

Supreme Court authority to the contrary, the trial court had discretion to grant an

extension of time to file the certificate of merit because the circumstances in this

case were novel. Finally, Wells argues that Chapter 150 did not apply to her claims

because although she asserted “professional negligence” claims against Jordan, an

architectural firm, “her intention was to assert the same sort of negligence claims

she had previously asserted . . . negligence and negligence per se for failing to

provide a ventilation system.”

We review a trial court’s order granting or denying a Chapter 150 motion to

dismiss for abuse of discretion. See CBM Eng’rs, Inc. v. Tellepsen Builders, L.P.,

403 S.W.3d 339, 342 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). A trial

court abuses its discretion when it acts arbitrarily or unreasonably, without

4 reference to any guiding rules and principles. Id. at 342–43; see Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992). To the extent we are required to interpret a

statute, that aspect of our review is performed de novo. CBM Eng’rs, 403 S.W.3d

at 343.

A. Applicability of Chapter 150

In arguing for affirmance, Wells asserts that the requirements of Chapter 150

do not apply in this case. A plaintiff suing for damages “arising out of the

provision of professional services by a licensed or registered professional” must

“file with the complaint” a certificate of merit. TEX. CIV. PRAC. & REM. CODE

§ 150.002(a). “[T]he purpose of the certificate of merit is to provide a basis for the

trial court to conclude that the plaintiff’s claims have merit.” Criterium–Farrell

Eng’rs v. Owens, 248 S.W.3d 395, 399 (Tex. App.—Beaumont 2008, no pet.).

In her second amended petition, Wells alleged a “cause of action for

professional negligence” against Jordan. In particular, she alleged that Jordan and

its codefendants “violated the duty of care it owed . . . to exercise that degree of

care, skill, supervision, and diligence ordinarily possessed and used by other

members of the profession in good standing under the same or similar

circumstances.” She further alleged that Jordan “was negligent in failing to clearly

and properly build” the building in which Wells had worked. Wells argues that

despite the plain language in her petition alleging a cause of action for professional

5 negligence, “her intention was to assert the same sort of negligence claims she had

previously asserted . . . negligence and negligence per se for failing to provide a

ventilation system.”

To determine whether a cause of action against an architectural firm is “for

damages arising out of the provision of professional services,” we compare the

allegations in the petition to the definition of the practice of architecture in section

1051.001 of the Texas Occupations Code. See TEX. CIV. PRAC. & REM. CODE

§ 150.001(2); CBM Eng’rs, 403 S.W.3d at 343; see also TEX. OCC. CODE

§ 1051.001(7). We do not consider a plaintiff’s intention that was not expressed in

the petition. Wells filed a cause of action against Jordan for damages arising out of

the design and construction of the building, which falls within the practice of

architecture. See TEX. CIV. PRAC. & REM. CODE § 150.001(2); TEX. OCC. CODE

§ 1051.001(7); CBM Eng’rs, 403 S.W.3d at 343. We reject Wells’s argument and

hold that the certificate of merit requirement applied in this case.

B. Application of Chapter 150

Wells did not file a certificate of merit contemporaneously with her second

amended petition, which added the cause of action against Jordan, alleging

professional malpractice. Instead, she first filed a certificate of merit pertaining to

Jordan’s actions 73 days after she filed her second amended petition. Jordan and

6 Wells dispute whether the certificate of merit was timely filed in compliance with

an exception provided by Chapter 150.

The consequence for failing to file a certificate of merit within the time

established by the statute is dismissal of the plaintiff’s complaint. See TEX. CIV.

PRAC. & REM. CODE § 150.002(e); Carter & Burgess, Inc. v. Sardari, 355 S.W.3d

804, 812 (Tex. App.—Houston [1st Dist.] 2011, no pet.). However, the statute

provides an exception to the requirement that a certificate of merit be filed with the

petition. Subsection (c) 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 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).

The Supreme Court has held that the final sentence of subsection (c), which

gives the trial court discretion to extend the time for filing a certificate of merit

“for good cause” and as “justice requires,” is limited by the earlier language in

subsection (c). Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391

(Tex. 2014). In Crosstex, the petitioner advocated for a broad good-cause

exception, but the Supreme Court called that “untenable,” explaining that such a 7 broad provision “would swallow the narrow near-limitations exception,” by

permitting a plaintiff to assert “good cause claims independently of when it filed

the suit and without necessity of alleging the basis for delay.” Id. Thus, the Court

held that the “good cause” exception contained in the last sentence of subsection

(c) “does not stand alone, but rather is contingent upon a plaintiff: (1) filing within

ten days of the expiration of the limitations period; and (2) alleging that such time

constraints prevented the preparation of an affidavit.” Id. “A plaintiff who files suit

outside the ten-day window . . . cannot claim protection of the good cause

exception.” Id.

Because the parties agree that the certificate of merit was not filed with the

second amended petition, and was instead filed more than 30 days later, we must

determine if the near-limitations, good-cause exception to the contemporaneous

filing requirement applies.

We first consider whether Wells filed suit against Jordan within ten days of

the expiration of the limitations period. If she did not, then she cannot “claim

protection of the good cause exception.” Id. The statute of limitations for

professional negligence is two years. See TEX. CIV. PRAC. & REM. CODE § 16.003.

In general, a cause of action accrues when the allegedly wrongful act causes an

injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). Wells alleged that

she worked for Sulik from 2006 until 2011. She filed suit on April 14, 2011. She

8 did not specify the last date of her employment with Sulik. However, assuming

April 14, 2011—or even December 31, 2011—as the last date of her employment,

her claims against Jordan ordinarily would have been barred by limitations at the

time she asserted them over two years later, in April 2014. See TEX. CIV. PRAC. &

REM. CODE § 16.003. However, at the time that Wells initially filed suit in this

case, subsection 33.004(e) of the Civil Practice & Remedies Code permitted the

revival of claims otherwise barred by limitations in certain circumstances:

If a person is designated under this section as a responsible third party, a claimant is not barred by limitations from seeking to join that person, even though such joinder would otherwise be barred by limitations, if the claimant seeks to join that person not later than 60 days after that person is designated as a responsible third party.

TEX. CIV. PRAC. & REM. CODE § 33.004(e) (repealed); see Galbraith Eng’g

Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 864 (Tex. 2009). This provision

was repealed in 2011, but it is applicable to this case. See Act of May 25, 2011,

82nd Leg., R.S. ch. 203, § 5.02, 2011 Tex. Gen. Laws 759.

Jordan was designated as a responsible third party on June 24, 2014. Under

section 33.004(e), Wells had until August 25, 2014 to join Jordan as a defendant.

Wells filed her second amended petition on June 19, more than ten days before the

expiration of time to file suit as provided by former section 33.004(e). Thus

because Wells filed her claim against Jordan outside the ten-day window, she

therefore cannot claim protection of the near-limitations, good-cause exception

9 provided by section 150.002(c). See TEX. CIV. PRAC. & REM. CODE § 150.002(c);

Crosstex Energy Servs., 430 S.W.3d at 391.

Wells argues that the Supreme Court of Texas was “incorrect” in deciding

Crosstex. However, “as an intermediate appellate court, we are constrained to

apply the holdings of our superior courts, when applicable.” Ginsburg v.

Chernoff/Silver & Assocs., Inc., 137 S.W.3d 231, 237 (Tex. App.—Houston [1st

Dist.] 2004, no pet.). Wells further argues that this case is distinguishable from

Crosstex because the designation of responsible third parties extended the time in

which she could file suit against Jordan and because she was unable to obtain a

certificate of merit not because of the time constraints but due to a pending sale of

the property. These two facts do not make this case legally distinguishable from

Crosstex. In both this case and Crosstex, the claims against the professional

defendant were filed more than ten days before the end of the relevant period of

limitation. See Crosstex Energy Servs., 430 S.W.3d at 391. And the fact that Wells

offered a reason other than time constraints for failing to obtain a certificate of

merit shows that she was unable to satisfy the statutory requirement, not that the

statutory requirement did not apply to her. See TEX. CIV. PRAC. & REM. CODE

§ 150.002(c).

10 C. Inapplicability of Rule 91a

Finally, we address Wells’s contention that the court correctly denied the

motion to dismiss because Jordan did not comply with Texas Rule of Civil

Procedure 91a, which provides for dismissal of baseless causes of action. Failure to

timely file a certificate of merit under Chapter 150 prompts an independent

procedure for dismissal of claims against a licensed or registered professional. See

TEX. CIV. PRAC. & REM. CODE § 150.002(e) (failure to file certificate of merit

“shall result in dismissal of the complaint against the defendant”); Carter &

Burgess, 355 S.W.3d at 812. We reject the suggestion that the separate procedure

of Rule 91a applies in this circumstance.

Conclusion

Wells did not timely file a certificate of merit as to Jordan, nor did she

satisfy the requirements for the near-limitations, good-cause exception. See TEX.

CIV. PRAC. & REM. CODE § 150.002(c). We hold that the trial court erred by

denying Jordan’s motion to dismiss Wells’s claims. We reverse the judgment of

the trial court and remand for entry of judgment dismissing Wells’s claims.

Michael Massengale Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale. 11