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AMEC Foster Wheeler USA Corp. v. Goats

Court of Appeals of Texas, Ninth District, Beaumont

August 22, 2019

AMEC FOSTER WHEELER USA CORPORATION, Appellant
v.
KEVIN GOATS, LORI GOATS, AND AFSHIN FARSHAD, Appellee

          Submitted on April 9, 2019

          On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-198, 294

          Before Kreger, Horton and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice

         This is an interlocutory appeal of the trial court's order denying AMEC Foster Wheeler USA Corporation's (Foster Wheeler) motion to dismiss for the failure of Kevin Goats, Lori Goats, and Afshin "Sean" Farshad (Appellees) to file a certificate of merit with their first-filed complaint in which Foster Wheeler is named as a defendant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 150.001-.002 (West 2019).[1]The trial court denied the motion to dismiss as moot after Appellees amended their allegations against Foster Wheeler. Foster Wheeler presents three issues on appeal asserting: (1) the trial court erred when it denied Foster Wheeler's motion to dismiss as moot; (2) the trial court abused its discretion when it denied Foster Wheeler's motion to dismiss pursuant to section 150.002 because Appellees failed to file a certificate of merit as to Foster Wheeler with their petition; and (3) the court should dismiss the claims against Foster Wheeler with prejudice. See id. We reverse the trial court's order and remand for further proceedings consistent with this opinion.

         I. Background

         Appellees Kevin Goats (Goats) and Afshin Farshad (Farshad) worked as operators for TOTAL.[2] On June 21, 2015, as they attempted to clear a plugged strainer on the Sour Water Pump System, hot steam sprayed them. Appellees sued for damages and named Foster Wheeler as a defendant in their second amended petition, together with Fluor Corporation (Fluor).[3] For clarity, we will refer to this pleading as the first-filed complaint.

         In their first-filed complaint, Appellees included identical allegations against each defendant. They alleged the Sour Water Pump System was defectively designed in that it lacked a bleeder valve that would have relieved the pressure trapped upstream. They also asserted causes of action for a manufacturing defect, marketing defect, negligence, and breach of implied warranty of merchantability. Appellees specifically complained they "relied on Defendants['] skill and judgment to furnish a suitable system that was fit for the ordinary purpose for which it was used." Appellees did not contemporaneously include a certificate of merit as to either defendant with their first-filed complaint.

         Foster Wheeler filed a motion to dismiss Appellees' claims with prejudice for Appellees' failure to comply with Chapter 150 of the Texas Civil Practice and Remedies Code and attached evidence establishing that Foster Wheeler is a company that provides professional engineering services.[4] Appellees amended their petition to allege that Foster Wheeler had a "non-engineering role" and was negligent in a non-engineering capacity. The fourth amended petition omitted all claims of design defects and asserted claims against Foster Wheeler for negligently installing, maintaining, inspecting, assembling, supervising, providing adequate support/personnel, training, and providing instructions related to the Sour Water Pump System.

         Appellees filed a motion to continue the hearing on Foster Wheeler's motion to dismiss, arguing they needed more time to conduct discovery. At the hearing, Appellees asserted that they "just don't have those answers yet" to determine "whether or not Chapter 150 applies[.]" The trial court granted the continuance. After Appellees obtained a continuance of the hearing on Foster Wheeler's motion to dismiss, Foster Wheeler responded to discovery stating it did not participate in the design or construction of the Sour Water Pump System at issue, but the company did have a contract to perform engineering work at the plant.

         At the rescheduled hearing on the motion to dismiss, Appellees' argued that because Foster Wheeler represented in its discovery responses that it had nothing to do with designing the system at issue, a certificate of merit under Chapter 150 was not required. The trial court's order denying Foster Wheeler's motion to dismiss stated "the Court is of the opinion that said motion is moot and should be DENIED." Foster Wheeler timely appealed.

         II. Standard of Review

         A trial court's denial or grant of a motion to dismiss pursuant to section 150.002 is immediately appealable. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f). We review a trial court's order denying a section 150.002 motion to dismiss for an abuse of discretion. See Barron, Stark & Swift Consulting Eng'rs, LP v. First Baptist Church, Vidor, 551 S.W.3d 320, 322 (Tex. App.-Beaumont 2018, no pet.) (citations omitted); CBM Eng'rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 342-43 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). "If a trial court acts arbitrarily or unreasonably, without reference to any guiding rules and principles, it constitutes an abuse of discretion." Barron, Stark & Swift, 551 S.W.3d at 322 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A court abuses its discretion if it fails to analyze or apply the law correctly. Dunham Eng'g, Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 789 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (citations omitted). If our review necessitates statutory interpretation, we conduct that review de novo. See Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (citation omitted); Barron, Stark & Swift, 551 S.W.3d at 322 (citations omitted).

         III. Analysis

         A. Issue One: Mootness

         When an appeal is moot, we must dismiss it, because appellate courts lack jurisdiction to decide moot controversies. See Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) (citation omitted). Since mootness implicates our jurisdiction to consider this appeal, we address it first.

         Section 150.002 of the Texas Civil Practice and Remedies Code requires that in actions for damages arising from the provision of professional services by a licensed or registered architect, engineer, or surveyor, a plaintiff must file an affidavit attesting to the claim's merit. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a); CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 390 S.W.3d 299, 299 (Tex. 2013). "The plaintiff's failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the defendant." Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e). A section 150.002(e) dismissal is a sanction with the purpose of deterring meritless claims and quickly ending them. CTL/Thompson Tex., LLC, 390 S.W.3d at 301.

         In CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc., the trial court denied the defendant's Chapter 150.002 motion to dismiss, but the plaintiff nonsuited its claims before the appeal could be decided. Id. at 300. The Texas Supreme Court considered the issue of whether a defendant's appeal from a trial court's refusal to dismiss an action under Section 150.002(e) is mooted by the plaintiff's nonsuit. Here, after Foster Wheeler filed its motion to dismiss, Appellees amended their complaint against Foster Wheeler purportedly to omit any specific allegation against that company arising from the provision of any engineering services, effectively nonsuiting any such claims. See FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632 (Tex. 2008)(explaining that filing an amended petition omitting a cause of action "effectively nonsuits or voluntarily dismisses the omitted claims as of the time the pleading is filed"). In holding the plaintiff's nonsuit did not render moot the defendant's motion to dismiss based on section 150.002, the Texas Supreme Court explained that the provision for dismissal of the complaint with prejudice is a sanction mandated by Chapter 150. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e). A motion for sanctions is a claim for affirmative relief which survives a nonsuit if the nonsuit would defeat the purpose of sanctions. See CTL/Thompson Tex., LLC, 390 S.W.3d at 300 (citing Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 806-807 (Tex. 1993)). The Court further explained that a sanction for filing a frivolous lawsuit survives a nonsuit, otherwise its imposition would rest completely with plaintiffs, thus defeating the ...


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