Opinion
NO. 14-15-00953-CV
05-04-2017
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
MEMORANDUM OPINION
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.
In a pre-submission order, this court granted the Lees' motion for extension of time within which to file their notice of appeal. 149 Pool reasserts in its appellate brief that this court lacks jurisdiction to consider the Lees' untimely appeal, arguing that this "Court's prior grant of the Lees' extension of time to file their notice of appeal is an interlocutory order" and 149 Pool "can incorporate the ruling on the motion in a motion for rehearing filed in this Court or assign it as error in the appellate brief." See Calce v. Dorado Expl., Inc., 309 S.W.3d 719, 730 (Tex. App.—Dallas 2010, no pet.) ("This Court's ruling on the motion at issue before submission of this appeal on the merits is an interlocutory order. . . . 'As such, the complaining party can incorporate the ruling on the motion [for extension of time to file a notice of appeal] in a motion for rehearing filed in this Court or assign it as error in the appellate brief.'").
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 Case Reinstated," and "Order Signed Granting Rehearing."
• According to the Lees, the trial court informed their counsel that "the matter would be set for submission on August 31, 2015 'because [149 Pool's counsel] said he did not know about the hearing on August 24, 2015.'"
• The Lees filed a notice of submission on August 24, 2015, stating that the Lees give "notice that Plaintiff's Motion for New Trial will be submitted to the Court on Monday, August 31, 2015."
• According to the Lees, "[n]o further communication was received from the trial court" thereafter.
• The trial court signed an order granting the Lees' "Request for Rehearing" on August 31, 2015.
• According to the Lees, "[w]hile reviewing the file for preparation of requests for admission and a partial motion for summary judgment against 149 Pool, it was discovered that no signed order had been received from the trial court. . . . Thereafter, a search of the docket
sheet of the trial court revealed that an order [granting the Lees' request for rehearing of the motion to dismiss] had been signed [on August 31, 2015], which was promptly obtained."
• According to the Lees, their "[c]ounsel immediately scheduled a hearing on the motion to dismiss." The Lees filed a Notice of Oral Hearing on October 29, 2015, which stated that "Plaintiff's Request for Rehearing and Motion for New Trial will be heard by the Court on Friday, December 4, 2015."
• The Lees filed an Amended Notice of Oral Hearing on November 2, 2015, which stated that "Plaintiff's Request for Rehearing and Motion for New Trial will be heard by the Court on Friday, November 6, 2015."
• The Lees filed a Second Amended Notice of Oral Hearing on November 2, 2015, which stated that the "Rehearing of Defendant's Motion to Dismiss will be heard by the Court on Friday, November 6, 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. The Lees also filed a motion for extension of time to file their notice of appeal in the court of appeals on November 17, 2015.
• 149 Pool filed a response to the Lees' motion for extension to file a notice of appeal on November 25, 2015.
• The Lees filed a reply to 149 Pool's response on December 1, 2015.
• 149 Pool filed a sur-reply to the Lees' reply on December 1, 2015.When an appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law, the notice of appeal must be filed within 90 days after the date the judgment is signed. See Tex. R. App. P. 26.1(a). Because the trial court's dismissal order constituted a final judgment and the Lees filed a timely motion for new trial, the Lees had 90 days after the dismissal order was signed to file a notice of appeal (assuming that a grant of rehearing or new trial did not occur or was ineffective to reset the appellate timetable, which we need not decide). See id. The 90th day following the date the order was signed was October 29, 2015. Because the Lees filed their notice of appeal on November 13, 2015, the filing was untimely.
• This court granted the Lees' motion for extension of time on December 10, 2015.
Texas Rule of Appellate Procedure 26.3 allows an extension for a notice of appeal filed in the trial court within 15 days of the deadline. See Tex. R. App. P. 26.3. A motion for extension of time is "necessarily implied" when the perfecting instrument is filed within 15 days of its due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Even if a notice of appeal is filed within the 15-day grace period, the appellant still must proffer a reasonable explanation for failing to file the notice of appeal in a timely manner. Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see also Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Entrust, Inc. v. Rice Dist. Cmty. Hosp., No. 14-14-00196-CV, 2015 WL 5458980, at *4 (Tex. App.—Houston [14th Dist.] Sept. 17, 2015, no pet.) (mem. op.).
A reasonable explanation means any plausible statement of circumstances indicating that the failure to file a notice of appeal within the required time period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance. See Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003); Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989); Hykonnen, 93 S.W.3d at 563. "This liberal standard of review encompasses the negligence of counsel as a reasonable explanation for the necessity of an extension." Garcia, 774 S.W.2d at 670. A misunderstanding of the law and the appellate timetables may be considered a reasonable explanation. Easton v. Phelan, No. 01-10-01067-CV, 2012 WL 1650024, at *6 (Tex. App.—Houston [1st Dist.] May 10, 2012, no pet.) (mem. op.); see Garcia, 774 S.W.2d at 669-70 (holding that appellant had provided reasonable explanation when he erroneously believed that appeal bond could only be filed after receiving trial court's findings of fact and conclusions of law). "Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance—even if that conduct can also be characterized as professional negligence." Garcia, 774 S.W.2d at 670; Hykonnen, 93 S.W.3d at 563. "Thus, the proper focus . . . is on a lack of deliberate or intentional failure to comply." Garcia, 774 S.W.2d at 670. "Absent a finding that an appellant's conduct was deliberate or intentional, the court of appeals should ordinarily accept the appellant's explanations as reasonable." Hone, 104 S.W.3d at 887.
The Lees filed their notice of appeal within the 15-day period provided by Rule 26.3, and the Lees filed a motion for extension of time to file a notice of appeal. In their motion for extension and in their reply to 149 Pool's response to the motion for extension, the Lees' proffered excuse for their untimely filing of the notice of appeal was that they believed the trial court had orally granted their motion for new trial at the August 24, 2015 hearing and reinstated the case. Because the Lees did not receive any notice of a contrary ruling, they believed the trial court's oral ruling and grant of new trial was still in place and the case was reinstated.
The Lees stated in their motion for extension that an "extension of time is necessary because of the following events":
The lawsuit filed by the Lees against 149 Pool was dismissed with prejudice. . . . On August 17, 2015, the Lees filed a motion for rehearing, and also a motion for new trial, and set the hearing for August 24. At the hearing[,] the trial judge orally granted the motion and reinstated the case. The trial court docket indicated the case had been reinstated. Thereafter, the trial court informed the undersigned counsel that the motion for new trail [sic] and motion for rehearing would be decided by submission on August 31, 2015. Counsel promptly sent notice to counsel for 149 Pool that the motion would again be considered by submission on August 31, 2015. No further communication was received from the trial court.In their reply to 149 Pool's response to the motion for extension, the Lees further stated: "Appellants believed a clerical mistake or some other inadvertent error by the Court's staff had occurred that would best be solved by the Court. . . . The failure to file the notice of appeal on or before October 29, 2015 was not intentional or due to neglect. Appellants believed that the case had been reinstated based upon the District Clerk's docket sheet and lack of notification that the Court had reconsidered its ruling granting the motion for new trial."
While reviewing the file for preparation of requests for admission and a partial motion for summary judgment against 149 Pool, it was discovered that no signed order had been received from the trial court. A search of the electronically transmitted documents received from the Harris County District Clerk and the trial court, by the undersigned counsel, . . . did not reveal a signed order from the Court. Apparently, no signed order was ever received from the trial court. Thereafter, a search of the docket sheet of the trial court revealed that an order had been signed, which was promptly obtained. . . . The order only addressed the motion for rehearing of the motion to dismiss, which was granted. Counsel immediately scheduled a hearing on the motion to dismiss, and the trial court denied the motion.
The reasons provided by the Lees for failing to timely file their notice of appeal suffice as a reasonable explanation. See Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011) (per curiam) ("This Court has consistently treated minor procedural mishaps with leniency, preserving the right to appeal. . . . We summed up this principle of leniency in Verburgt with the rule that 'appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal.'" (quoting Verburgt, 959 S.W.2d at 616)); Verburgt, 959 S.W.2d at 616-17 ("We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction. . . . Our decisions reflect the policy embodied in our appellate rules that disfavors disposing of appeals based upon harmless procedural defects. . . . Thus, we have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule."); Garcia, 774 S.W.2d at 669 ("Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance—even if that conduct can also be characterized as professional negligence."); Easton, 2012 WL 1650024, at *6 ("A misunderstanding of the law and the appellate timetables may be considered a reasonable explanation.").
Accordingly, this court has appellate jurisdiction, and we overrule 149 Pool's jurisdictional challenge.
II. Dismissal
The Lees argue in their first issue that the trial court erred by dismissing their suit against 149 Pool because they have asserted no claims against a registered or licensed professional arising out of the provision of professional services and no certificate of merit is required by section 150.002. The Lees argue in their second issue that the trial court abused its discretion by dismissing their case with prejudice.
A. Certificate of Merit
We begin by addressing the Lees' contention in issue one that the trial court should not have dismissed their suit because no certificate of merit was required under section 150.002.
We review a trial court's order on a motion to dismiss under section 150.002 for an abuse of discretion. Dunham Eng'g, Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2013, no pet.). "Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court does not demonstrate an abuse of discretion." Id. However, the trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference to any guiding rules or principles. Id. A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Id.
To the extent we are required to interpret a statute, that aspect of our review is performed de novo. See id.; Sharp Eng'g v. Luis, 321 S.W.3d 748, 750 (Tex. App.—Houston [14th Dist.] 2010, no pet.). We look to the statute's plain meaning because we presume that the legislature intends the plain meaning of its words. Dunham Eng'g, Inc., 404 S.W.3d at 789; Sharp Eng'g, 321 S.W.3d at 750. In doing so, we read the words in context and construe the language according to the rules of grammar and common usage. Dunham Eng'g, Inc., 404 S.W.3d at 789; see Tex. Gov't Code Ann. § 311.011(a) (Vernon 2013).
Section 150.002(a) provides in relevant part:
In any action . . . for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who: (1) is competent to testify; (2) holds the same professional license or registration as the defendant; and (3) is knowledgeable in the area of practice of the defendant . . . .Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a). "To determine if a certificate of merit was required under section 150.002, we must decide whether [149 Pool] w[as] [a] licensed or registered professional[] under the statute, and if so, whether [the Lees]' claimed damages arose from [149 Pool]'s provision of professional services." See Dunham Eng'g, Inc., 404 S.W.3d at 792; see also Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a).
"'Licensed or registered professional' means a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices, including but not limited to a corporation, professional corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship, joint venture, or any other business entity." Tex. Civ. Prac. & Rem. Code Ann. § 150.001(1-a) (Vernon Supp. 2016).
The Lees correctly assert that they have not alleged claims against a licensed or registered professional. 149 Pool acknowledges in its brief that it is a "certified professional contractor." However, "a certified professional contractor" is not a licensed or registered professional as defined by Chapter 150. See id. Because the Lees did not allege claims against a licensed or registered professional, they were not required by section 150.002 to file a certificate of merit by "a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who . . . holds the same professional license or registration as the defendant." See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a); Dunham Eng'g, Inc., 404 S.W.3d at 793.
We conclude that the trial court abused its discretion in (1) determining that the Lees were required by section 150.002 to file a certificate of merit with their petition; and (2) granting 149 Pool's motion to dismiss the Lees' suit.
Accordingly, we sustain the Lees' first issue.
In light of our disposition of this issue, we need not address the Lees' second issue.
CONCLUSION
Having sustained the Lees' first issue, we reverse the trial court's order of dismissal and remand this case for further proceedings.
/s/ William J. Boyce
Justice Panel consists of Justices Boyce, Busby and Wise.