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Lee v. 149 Pool LLC

Court of Appeals of Texas, Fourteenth District

May 4, 2017

KENNETH & VIVIAN LEE, Appellants
v.
149 POOL, LLC, Appellee

         On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 2015-20903

          Panel consists of Justices Boyce, Busby and Wise.

          MEMORANDUM OPINION

          William J. Boyce Justice.

         Kenneth and Vivian Lee appeal the trial court's order granting dismissal of their suit against 149 Pool, LLC with prejudice because they failed to file a certificate of merit. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (Vernon 2011). The Lees contend the trial court abused its discretion by dismissing their suit with prejudice because they did not assert claims against a licensed or registered professional arising out of the provision of professional services and thus were not required to attach a certificate of merit to their petition. Because 149 Pool is not a licensed or registered professional as defined by statute, we conclude that the trial court abused its discretion in dismissing the Lees' suit against 149 Pool with prejudice. We reverse the trial court's order of dismissal and remand this case for further proceedings.

         Background

         The Lees entered into a contract with 149 Pool for the construction of a swimming pool designed by Gessner Engineering, LLC. The contract allegedly required 149 Pool to construct the pool structure with gunite to achieve a minimum strength of 4, 000 pounds per square inch (PSI). The Lees allege that Gessner twice tested gunite samples, and 149 Pool itself tested the gunite, but the gunite failed to achieve a strength of 4, 000 PSI. 149 Pool allegedly failed to cure this issue, and the Lees issued a stop work notice to 149 Pool.

         The Lees sued 149 Pool on April 10, 2015, alleging claims for negligence, breach of contract, breach of warranty, and violations of the Deceptive Trade Practices Act. 149 Pool filed an answer on May 21, 2015. 149 Pool filed a motion to dismiss the Lees' suit with prejudice, arguing that the Lees were required to file a certificate of merit pursuant to section 150.002. The Lees responded to 149 Pool's motion to dismiss, arguing that section 150.002 is inapplicable in this case because the Lees (1) "have not sued Gessner, the engineering firm that designed the pool" and "[t]here are no allegations of negligence against a licensed or registered architect or engineer in this lawsuit;" and (2) "are not alleging claims against a registered professional, nor are they claiming the damages arose out of the provision of professional services."

         The trial court signed an order granting 149 Pool's motion to dismiss on July 31, 2015. The Lees filed a Request for Rehearing and Motion for New Trial on August 11, 2015. The trial court signed an "Order Denying Request For Rehearing And Motion For New Trial" on November 6, 2015. The Lees filed their notice of appeal on November 13, 2015.

         Analysis

         Before we can consider the merits of the Lees' two issues raised on appeal, we first address 149 Pool's contention that we lack jurisdiction to hear the Lees' appeal.

         I. Jurisdiction

         149 Pool contends that "[t]his court lacks jurisdiction over this appeal because the Lees did not timely file their notice of appeal" and failed to offer a reasonable explanation for the late filing. 149 Pool contends that we must dismiss the Lees appeal for lack of jurisdiction.[1]

         We begin our analysis with a timeline.

• The trial court signed an order granting 149 Pool's motion to dismiss the Lees' claims with prejudice for failure to file a certificate of merit on July 31, 2015.
• The Lees filed a Request for Rehearing and Motion for New Trial on August 11, 2015.
• 149 Pool filed a response to the Lees' motion on August 13, 2015.
• The trial court signed an order on August 17, 2015, granting the Lees' motion and setting a hearing "to reconsider the Motion to Dismiss of 149 Pool" for August 24, 2015.
• According to the Lees, the trial court held a hearing on their motion on August 24, 2015, and "orally granted the motion and reinstated the case." 149 Pool did not attend the hearing. The trial court's docket sheet does not contain an entry for August 24, 2015, but it contains an entry for August 17, 2015, stating: "Motion To Reinstate Granted, " "Motion For New Trial Granted, " "New Trial Granted ...

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