Sharp Engineering v. Luis

321 S.W.3d 748, 2010 Tex. App. LEXIS 6445, 2010 WL 3153982
CourtCourt of Appeals of Texas
DecidedAugust 10, 2010
Docket14-09-00645-CV
StatusPublished
Cited by52 cases

This text of 321 S.W.3d 748 (Sharp Engineering v. Luis) 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
Sharp Engineering v. Luis, 321 S.W.3d 748, 2010 Tex. App. LEXIS 6445, 2010 WL 3153982 (Tex. Ct. App. 2010).

Opinions

OPINION

WILLIAM J. BOYCE, Justice.

Appellants Sharp Engineering and Pra-deep Shah appeal from the denial of them motion to dismiss the underlying negligence suit. Sharp Engineering and Shah contend that dismissal is mandated because appellees Sergio R. Luis and Judith Yanet Delgado, individually and as next friend of Sergio Luis Delgado, Jackeline Luis, and Johnatan Luis did not file the statutorily required certificate of merit with their original petition. See Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (Vernon 2005).1 We reverse and remand.

Background

Appellee Sergio R. Luis, a carpenter, was injured when the roof of a house he was framing for Trendmaker Homes, Inc. collapsed. Appellees initially sued Trend-maker Homes on June 8, 2007. The suit settled for a confidential amount. Appel-lees then filed suit against Sharp Engineering and Shah on February 19, 2009, alleging that Sharp Engineering and Shah were negligent because they “failed to follow basic engineering princip[les] in the review, approval and design of the construction drawings, roof framing plan and the swoop cornice.”

It is undisputed that Sharp Engineering and Shah are licensed or registered professionals and that appellees’ claims are subject to Texas Civil Practice and Remedies Code Chapter 150, entitled “Licensed or Registered Professionals.” See id. §§ 150.001-150.003 (Vernon 2005). Under Chapter 150, appellees were required to file a certificate of merit with their “complaint.” See id. § 150.002(a).

The certificate of merit must “set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.” Id. The certificate need not state the applicable standard of care. Benchmark Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41,44-47 (Tex.App.-Houston [14th Dist.] 2010, no pet.). The certificate of merit must be signed by “a third-party licensed architect, registered professional land surveyor, or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant[.]” Id. The “third-party professional engineer, registered professional land surveyor, or licensed architect” also must be “licensed in [Texas] and actively engaged in the practice of architecture, surveying, or engineering.” Id. Section 150.002(d) provides for dismissal of a suit that does not include the certificate of merit required under section 150.002(a). See id. § 150.002(d).

Appellees did not file a certificate of merit with their original petition. Sharp Engineering and Shah filed a motion to dismiss on March 23, 2009, asserting that the trial court should dismiss appellees’ claims because appellees failed to file a [750]*750certificate of merit with their original petition. Appellees filed a certificate of merit contemporaneously with their First Amended Original Petition on April 13, 2009. Sharp Engineering and Shah filed an amended motion to dismiss on May 4, 2009. The trial court denied Sharp Engineering’s and Shah’s amended motion to dismiss in an order signed on July 7, 2009. Sharp Engineering and Shah appeal from this order. See id. § 150.002(e).

Analysis

Sharp Engineering and Shah argue that the trial court erred in denying their motion to dismiss under section 150.002(d) because appellees did not initially satisfy section 150.002(a)’s requirement to file a certificate of merit. Appellees argue that section 150.002(a) does not limit them to filing a certificate of merit with their original petition; according to appellees, section 150.002(a) requires only that they file a certificate of merit with a “complaint” and they did so when they included a certificate with their first amended petition. Appellees do not contend that any exception to the certificate requirement applies here. See id. § 150.002(b).

I. Construction of Section 150.002

We review matters of statutory construction de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). In construing a statute, our primary objective is to determine and give effect to the legislature’s intent. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). We look at the statute’s plain and common meaning because we presume the legislature intended the plain meaning of its words. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). We presume that the legislature intended the entire statute to be effective. See Tex. Gov’t Code Ann. § 311.021 (Vernon 2005). “ ‘[I]t is settled that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible.’ ” Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000) (quoting Perkins v. State, 367 S.W.2d 140, 146 (Tex.1963)). Courts should not adopt a construction that renders statutory provisions meaningless. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999).

Sharp Engineering and Shah argue that section 150.002 “requires a claimant to file his Certificate at the time he first files his complaint against a design professional.” At the time appellees filed their suit against Sharp Engineering and Shah on February 19, 2009, section 150.002, entitled “Certificate of Merit” provided in relevant part as follows:

(a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, registered professional land surveyor, or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party professional engineer, registered professional land surveyor, or licensed architect shall be licensed in this state and actively engaged in the practice of architecture, surveying, or engineering.
(b) 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 [751]*751constraints, the plaintiff has alleged that an affidavit of a third-party licensed architect, registered professional land surveyor, or professional engineer 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.

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Bluebook (online)
321 S.W.3d 748, 2010 Tex. App. LEXIS 6445, 2010 WL 3153982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharp-engineering-v-luis-texapp-2010.