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Jaster-Quintanilla & Associates, Inc. v. Prouty

Court of Appeals of Texas, Third District, Austin

January 12, 2018

Jaster-Quintanilla & Associates, Inc., Appellant
v.
Jordan Prouty, Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-16-003297, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Justices Pemberton, Goodwin

          OPINION

          Bob Pemberton, Justice

         This appeal challenges a district court order denying a motion to dismiss under Chapter 150 of the Civil Practice and Remedies Code, the statute requiring that a sworn "certificate of merit" accompany a lawsuit "arising out of the provision of professional services" by engineers and certain other "licensed or registered professional[s]."[1] Through intervening Texas Supreme Court guidance, what was originally a broader range of issues on appeal has distilled principally to whether the district court abused its discretion in determining that the certificate in question stated a sufficient "factual basis" for the affiant's opinion that the appellant committed negligence or other professional error.[2] Concluding that the district court did not abuse its discretion, we will affirm its order.

         BACKGROUND

         The underlying litigation arose during the construction of the Consolidated Rent-A-Car Facility at the Austin-Bergstrom International Airport. The claimant and appellee, Jordan Prouty, was employed by a steel-erection subcontractor on the project. Prouty seeks recovery of personal-injury damages allegedly caused when a steel overhead canopy collapsed upon him while he was welding components of it from a scissor lift. From the inception of his suit, Prouty has sought recovery from appellant Jaster-Quintanilla & Associates, Inc. (Jaster), a professional engineering firm, predicated on Jaster's alleged negligence or other breach of professional duties in designing and engineering the structural components of the overhead canopy. These claims principally concern Jaster's specifications that the steel canopy and others like it on the project would each be supported by a 12-foot-tall concrete pier to which it was fastened by means of a baseplate and embedded steel anchors. Prouty pleads that Jaster's design of this "critical anchorage system . . . to support the canopy structure on the top of the concrete piers was deficient, and failed to achieve the necessary design strength needed to safely support the critical connection of the canopy structure to the concrete pier."

          There is no dispute that Prouty's claims against Jaster implicated the certificate-of-merit requirement of Chapter 150.[3] In an attempt to comply, Prouty filed with his original petition an affidavit from a licensed professional engineer, Wesley J. Oliphant. Oliphant averred that he was competent to testify, described his professional background and qualifications (including current Texas licensure as a professional engineer and a practice specialty "in design and fabrication of steel and concrete pole (mast) structures"), and attested to the following in support of Prouty's liability theory:

I have carefully reviewed a number of documents, photographs, drawings etc. provided to me, including construction drawings prepared and sealed by [Jaster] related to the October 22, 2014 failure of a Canopy under construction at the Austin Bergstrom International Airport. Based on that review, and on my knowledge, skill, experience, education, training, and practice as a licensed professional engineer in the state of Texas actively engaged in the practice of engineering, I am of the opinion[] that the critical anchorage system that was specified and detailed in the construction drawings sealed by [Jaster] to support the Canopy structure on the top of the concrete piers was a deficient design detail, and fails to achieve the necessary design strength needed to safely support the critical connection of the canopy structure to the concrete pier. I conclude that the [Jaster] design and detail used in this construction was deficient, not in accordance with good engineering practice, and it[s] use on this construction was negligent and below the applicable standard of care one would expect for such a structure in a very public space.

          Contending that Oliphant's affidavit did not comply with Chapter 150, Jaster filed a motion to dismiss Prouty's claims against it.[4] Although not disputing compliance with other provisions of the chapter, [5] Jaster urged that the affidavit fell short of the requirements, found in Section 150.002, Subsection (b), that the affidavit "shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service . . . and the factual basis for each such claim."[6] Jaster did not dispute that Oliphant had set forth an opinion that it had breached negligence or other professional duties, corresponding to Prouty's theory of recovery-"the [Jaster] design and detail used in this construction was deficient, not in accordance with good engineering practice, and it[s] use on this construction was negligent and below the applicable standard of care one would expect for such a structure in a very public space." However, Jaster urged that Oliphant had failed to set forth an adequate "factual basis" for his opinion. Further, Jaster insisted that Oliphant's affidavit was also insufficient because he had not set forth either opinions or supporting facts to establish the causation element of Prouty's negligence claim, nor described "how the alleged breaches of duty by [Jaster] relate to the incident that allegedly resulted in harm to [Prouty] . . . such that it can be determined that the event being described is the one that gave rise to [Prouty's] claims."

         Prouty filed a response in which he maintained that Oliphant's affidavit satisfied Chapter 150, properly construed. In the alternative, Prouty asserted that Jaster had waived reliance on Chapter 150 in two ways. First, Prouty emphasized that Jaster had not filed its dismissal motion until after first filing an answer and general denial, moving for and obtaining leave to designate responsible third parties, [7] serving discovery requests on Prouty, and presenting for oral deposition two engineers who, as Jaster employees, had been involved in the design of the structural connection that secured the steel canopy structures to the concrete piers. Only after this "substantial invocation of the litigation process"-and one day after limitations had run-did Jaster file its motion to dismiss, Prouty urged. The second asserted "waiver" occurred during the depositions themselves-both witnesses admitted to miscalculations that caused the anchors to be "420 percent underdesigned" in their capacity to bear force, and one of the witnesses (by then no longer a Jaster employee) accepted responsibility for the error. By admitting to the same professional error made the basis for his claims against Jaster, Prouty reasoned, this testimony established that those claims were not frivolous-what is said to be the purpose of Chapter 150's certificate-of-merit requirement-"waiving" Jaster's right to obtain dismissal thereafter based on supposed inadequacies in Oliphant's affidavit.

          Jaster objected to the deposition transcripts as evidence in opposition to its dismissal motion, arguing that the district court could not consider this "extrinsic evidence" in deciding its dismissal motion. The district court sustained Jaster's objection and excluded the deposition transcripts from evidence. On the remaining record, the court denied Jaster's motion without elaborating on its reasoning. Jaster then perfected this appeal of the district court's order.

         ANALYSIS

         In a single issue, Jaster urges that the district court abused its discretion in failing to grant the dismissal motion because, Jaster insists, Oliphant's affidavit did not comply with Chapter 150. Nor, Jaster adds, did it waive reliance on Chapter 150 through its participation in the litigation process prior to filing its motion. Prouty joins issue with Jaster's contentions and also brings a conditional cross-point urging that the district court abused its discretion in excluding the deposition transcripts from evidence in support of his second "waiver" theory.

         Standard of review

         We review an order granting or denying a motion to dismiss under chapter 150 for an abuse of discretion.[8] The general test for an abuse of discretion is whether the trial court acted without regard to any guiding rules or principles.[9] An abuse of discretion occurs when either (1) the trial court fails to analyze or apply the law correctly, or (2) with regard to factual issues or matters committed to its discretion, the trial court could reasonably have reached only one decision and failed to do so.[10]

         To the extent this analysis entails construction of Chapter 150, our review is de novo.[11] Our primary objective when construing a statute is to give effect to the "Legislature's intent."[12] We seek that intent "first and foremost" in the objective meaning of the text chosen.[13] We read statutes contextually and endeavor to give effect to every word, clause, and sentence.[14] When the meaning of text is unambiguous, that meaning is determinative.[15]

         Applicable law

         As the Texas Supreme Court has emphasized recently, the purpose behind the Chapter 150 certificate-of-merit requirement is "merely that the plaintiff[] make a threshold showing that [his] claim[] ha[s] merit" before proceeding further.[16] Likewise, because the certificate is required to be "'filed early in the litigation, before discovery and before other dispositive motions may be available, '" the court added, "the plaintiff is not required to marshal its evidence or establish every element of its claims."[17]

         In this appeal, our specific textual focus is the following portion of Subsection (b) of Section 150.002:

The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim.[18]

         In its opening and reply briefs on appeal, Jaster brought forward its arguments from below that Oliphant's affidavit failed to comply with these requirements by failing to set forth either opinions or supporting facts to establish the causation element of Prouty's negligence claim, nor by describing "how the alleged breaches of duty by [Jaster] relate to the incident that allegedly resulted in harm." Thereafter, the Texas Supreme Court decided Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corporation[19] and put to rest any questions that could have remained following our own M-E Engineers decision[20] as to whether Chapter 150 imposes either set of requirements. Quoting M-E Engineers, the supreme court explained:

Read as a whole, section 150.002, subsection (b), reveals a core focus on ascertaining and verifying the existence of errors or omissions in the professional services provided by a "licensed or registered professional." In particular, the Legislature has required that the certificate of merit "set forth specifically . . . the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service." Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b) (emphases added). And this statement of the defendant's acts or omissions "in providing the professional service" must "includ[e] any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim." Id. § 150.002(b) (emphases added). While appellants ascribe broader implications to the concluding phrase "factual basis for each such claim, " in context "each such claim" plainly refers to the immediately preceding "any error or omission in providing advice, judgment, opinion or a similar professional skill claimed to exist" (emphases added), which is simply the information that a certificate must provide regarding errors or omissions in the professional services at issue. See id.
This core focus on errors and omissions in professional services is not altered by the first portion of subsection (b), which requires a certificate to provide these facts "for each theory of recovery for which damages are sought." See id. The effect of this phrase, which was amended to its current form in 2009, is to emphasize that the certificate must identify and verify the existence of any professional errors or omissions that are elements or operative facts under any legal theory on which the plaintiff intends to rely to recover damages. It thus served to eliminate any continuing debate or uncertainty as to whether prior versions of the certificate-of-merit requirement were triggered by damage claims predicated on professional errors or omissions other than negligence.[21]

         In short, Chapter 150 does not "require the expert's affidavit to address the elements of the plaintiff's various theories or causes of action"[22] or "operative facts other than the professional errors or omissions that are the focus of the statute."[23] Chapter 150 instead merely "obligates the plaintiff to get an affidavit from a third-party expert attesting to the defendant's professional errors or omissions and their factual basis, " which upon motion is examined by the trial court to "determine whether the expert's affidavit sufficiently demonstrates that the plaintiff's complaint is not frivolous."[24] In this respect, among others, the Chapter 150 ...


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