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Thomas v. EFI Global, Inc.

Court of Appeals of Texas, Second District, Fort Worth

November 16, 2017

KELLY THOMAS APPELLANT
v.
EFI GLOBAL, INC. AND MICHELE BOGDON APPELLEES

         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NO. CV-2016-01893

          PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH, CHIEF JUSTICE.

         I. Introduction

         Pro se Appellant Kelly Thomas sued her insurance company, among others-including Appellees EFI Global, Inc. and Michelle Bogdon-in connection with her various home insurance claims and complaints. EFI is the engineering firm that the insurance company used for Thomas's home inspection, and Bogdon is EFI's senior engineer who inspected Thomas's home and completed a wind and water intrusion assessment report on May 18, 2015. In five issues, Thomas appeals the trial court's order granting EFI and Bogdon's motion to dismiss with prejudice.[2] We affirm.

         II. Background

         In her original petition, which she filed on August 18, 2016, Thomas alleged that EFI and Bogdon's report on the property was "in error" and that Bogdon had allegedly omitted findings in it and had damaged her house by lifting roof shingles and breaking shingle seals during the inspection. Thomas filed her first amended petition seven days later. In her second amended petition-the live pleading against all of the defendants, which she filed on September 9, 2016-Thomas alleged that Bogdon had written "a false report, broke seals of roof shingles, omitted findings[, ] and totally mislead" her.

         On September 29, 2016, EFI and Bogdon moved to dismiss Thomas's claims under civil practice and remedies code chapter 150 because Thomas had not included with any of her pleadings the certificate of merit required for a suit arising out of the provision of professional services by a licensed professional engineer. See Tex. Civ. Prac. & Rem. Code Ann. § 150.001(1-a) (West Supp. 2017), § 150.002(a)-(e) (West 2011); Tex. Occ. Code Ann. § 1001.003(c)(1)- (12) (West 2012). They further requested that Thomas's claims be dismissed with prejudice "[b]ecause of the vexatious nature of this proceeding, the ambiguity in [Thomas's] pleadings, and the unlikelihood that [she] will be able to satisfy the certificate of merit requirement." They attached the wind and water intrusion assessment report to their motion and incorporated it therein.

         On October 1, 2016, Thomas objected to EFI and Bogdon's motion as premature because she had not yet received her requested jury trial, had not yet served them with citation, and was "potentially" suing Bogdon for having "lifted up the shingles and br[eaking] the seals in the roof on the south side of the home allowing" more rain to intrude, "[a]nd not for reasons listed by defense attorney." But Thomas also stated in her objection that Bogdon's report was "so very incorrect" and filled with errors. And Thomas complained that the certificate of merit was not due yet because her case fell under chapter 150's limitations exception, giving her thirty days after filing her second amended petition on September 9, 2016, i.e., until October 9, 2016. Thomas asserted that she could and would satisfy the certificate of merit requirement.

         The trial court held a hearing on the motion on October 3, 2016. At the hearing, Thomas stated that while Bogdon had been at her house, she did not believe that Bogdon wrote the report because it was "ridiculous" and "not the right house" but that she did blame Bogdon for lifting shingles. She also asserted that the "statute of limitations of the original policy would have been up on August 18, 2016, " thus entitling her to the limitations exception for filing the certificate of merit. In response, EFI and Bogdon's attorney pointed out that even if the limitations exception applied, because Thomas had filed her original petition on August 18, 2016, the certificate of merit would have been due September 19, 2016.[3] They filed their motion on September 29-ten days later-and they pointed out that any alleged interaction with the shingles "was performed during the investigation, " and thus was within the scope of the professional engineering services in occupations code section 1001.003. See Tex. Occ. Code Ann. § 1001.003(c) (describing items that fall under the broadly termed "practice of engineering, " as including "any other professional service necessary for the planning, progress, or completion of an engineering service").

         The trial court granted EFI and Bogdon's motion and dismissed Thomas's claims against them with prejudice. On October 21, 2016, someone-apparently Thomas, from context-filed an attempt at a certificate of merit[4] but did not file a motion for reconsideration or for a new trial or seek any sort of relief from the trial court. On October 25, Thomas nonsuited the defendants who had not yet been dismissed.

         We gave Thomas multiple extensions to file her appellate brief.[5] On May 5, 2017, after ordering her tendered brief filed, we informed Thomas that her brief did not comply with rule of appellate procedure 38.1(i) and (k), in that it did not contain a clear and concise argument for the contentions made, with appropriate citations to legal authorities and to the record and did not contain an appendix. We asked Thomas to file an amended brief complying with rule 38.1(i) and (k) by May 15, 2017, and informed her that failure to do so could result in striking her brief, dismissal of the appeal, or waiver of noncomplying points. See Tex. R. App. P. 38.8(a), 38.9(a), 42.3. We also informed Thomas that no additional or different points should be raised in the amended brief without filing a motion and obtaining an order from the court permitting her to do so. We subsequently granted Thomas until June 16, 2017 to file her amended brief.

         After Thomas filed her amended brief, EFI and Bogdon moved to dismiss the appeal because Thomas had failed to correct one of the deficiencies we identified in her original brief and because she had raised new points without first asking for the court's permission. We denied the motion but granted EFI and Bogdon an extension of time to file their brief.

         III. ...


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