Court of Appeals of Texas, Second District, Fort Worth
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
LEE ANN DAUPHINOT, JUSTICE.
Appellants RCS Enterprises, LP (RCS) and James Martin Montgomery filed a motion to dismiss the lawsuit brought against them by Appellees Darrell G. Hilton and Debbie L. Hilton. The trial court denied that motion, and RCS and Montgomery now appeal. They alternately seek a writ of mandamus ordering the trial court to not consider the Hiltons' supplemental expert affidavit. Because we hold that the Hiltons were not required to file a certificate of merit with their claim, we affirm the trial court's order and deny the mandamus petition.
On June 17, 2011, the Hiltons filed a petition to compel arbitration against Nationwide Housing Systems LP and Oak Creek Homes LP (collectively Oak Creek). The Hiltons alleged that they had entered into a purchase and sales agreement with Oak Creek for a modular home to be constructed by Oak Creek and that Oak Creek had, among other things, failed to remedy numerous construction defects in the home. The Hiltons demanded arbitration in accordance with the arbitration addendum to the sales contract.
Oak Creek filed a motion to designate Americo Housing, Inc. as a responsible third party. The Hiltons then amended their petition to add Americo, RCS, and Montgomery as defendants. The Hiltons alleged that Oak Creek had contracted with Americo to assume Oak Creek's duties under the contract and that Oak Creek had contracted with RCS to prepare the engineered foundation plan for the home. The Hiltons alleged that RCS and Montgomery (RCS's president) had also acted as the third party inspection agency and third party inspector (TPI) for the home and that they had breached their duties that they owed to the Hiltons in that capacity.
The Hiltons' first amended petition did not include a certificate of merit. The Hiltons filed their second amended petition a week later, attaching the affidavit of engineer Tim Hogue.
Montgomery and RCS filed an original answer and a motion to dismiss based on civil practice and remedies code section 150.002. The Hiltons filed a combined response and a motion for leave to file a supplemental affidavit. The trial court signed an order denying the motion to dismiss and granting leave to file a supporting affidavit. The Hiltons then filed a third amended petition along with Hogue's supporting affidavit. Montgomery and RCS now appeal the trial court's denial of their motion to dismiss and the court's granting of leave for the Hiltons to file a supporting affidavit.
Standard of Review
We review a trial court's ruling on a motion to dismiss for an abuse of discretion. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable.
Statutory construction is a question of law, which we review de novo.Once we determine the proper construction of a statute, we determine whether the trial court abused its discretion in the manner in which it applied the statute to the instant case.
In their first issue, Montgomery and RCS argue that the trial court abused its discretion when it denied their motion to dismiss because dismissal was mandatory based on the Hiltons' failure to timely ...