Opinion
No. 02-10-00189-CV
Delivered: March 24, 2011.
Appealed from the 43rd District Court of Parker County.
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
This is an interlocutory appeal from the denial of Carter Burgess, Inc.'s and Carter Burgess, Inc. d/b/a Jacobs Carter Burgess's (Carter Burgess) motion to dismiss. Carter Burgess filed its motion based on Crosstex North Texas Gathering, L.P.'s (Crosstex) failure to attach an affidavit to its certificate of merit that complied with section 150.002 of the civil practice and remedies code. See Tex. Civ. Prac. Rem. Code Ann. § 150.002 (Vernon 2011). We hold that the court erred by looking outside the "four-corners" of the affidavit to determine its sufficiency. But, because the error did not cause the rendition of an improper judgment, we affirm the trial court's order denying Carter Burgess's motion to dismiss.
The denial of a motion to dismiss for the plaintiff's failure to submit an affidavit that complies with section 150.002 of the civil practice and remedies code is immediately appealable as an interlocutory order. Tex. Civ. Prac. Rem. Code Ann. § 150.002(f) (Vernon 2011); see also Tex. R. App. P. 28.1.
Background Facts
The facts of this case, as alleged, are as follows. Carter Burgess was hired by WYA The Ranch at Mary's Creek, Ltd. (WYA) on a development project on WYA's property. Carter Burgess agreed to provide certain engineering and surveying services on the project. At the same time, Crosstex was working on a pipeline project which would require an easement through WYA's property. WYA and Crosstex agreed that Crosstex would locate its easement along a route designated by WYA.
WYA hired Mustang Engineering (Mustang) to perform surveying services for the pipeline easement. WYA also asked Carter Burgess to assist with the pipeline project. WYA sent Carter Burgess some documents showing the coordinates for some suggested easement routes and asked Carter Burgess "to chart the locations of the pipelines." Carter Burgess sent WYA a document depicting the route, noted in a different coordinate system than the one previously used in the documents WYA sent to Carter Burgess. This second coordinate system is very similar, but not identical to, the first coordinate system, making it difficult to realize by merely looking at the document that the coordinates were incorrect. Carter Burgess did not tell WYA or Mustang that it was using a different coordinate system.
Not realizing the coordinates were in a different system, Mustang used Carter Burgess's coordinates to prepare the survey depicting the pipeline route. WYA and Crosstex attached that survey to their easement agreement, signed the agreement, and began construction on the pipeline. WYA later discovered that Crosstex was not constructing the pipeline where WYA thought they had agreed to construct it.
WYA sued Crosstex and Mustang for damages to its property. Crosstex filed a third party petition against Carter Burgess, alleging negligence "in establishing the correct coordinates for the location of the [easement]" and seeking contribution. Carter Burgess moved to dismiss Crosstex's petition, arguing that the certificate of merit attached to the petition did not comply with the statutory requirements. See id. Specifically, Carter Burgess noted that Crosstex's expert was a surveyor and argued that because Carter Burgess only provided engineering services in relation to the pipeline, the expert does not "hold the same professional license or registration as the defendant." See id. In support for its argument that Carter Burgess is an engineer and not a surveyor, it attached an affidavit of one of its engineers, who testified as to the services he performed relating to the pipeline project. Crosstex responded and attached twenty-eight exhibits purporting to demonstrate that Carter Burgess did indeed engage in surveying. Carter Burgess replied and objected to many of the exhibits.
Neither WYA nor Mustang is a party to this appeal.
During a hearing on the motion, Carter Burgess again presented the affidavit of its engineer and again objected to Crosstex's evidence. The court subsequently denied Carter Burgess's motion to dismiss and overruled all its objections to Crosstex's evidence. Carter Burgess filed this interlocutory appeal.
Standard of Review
We review the denial of a motion to dismiss for an abuse of discretion. Palladian Bldg. Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex. App.-Fort Worth 2005, no pet.). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
Discussion
In two issues, Carter Burgess argues that the trial court abused its discretion by denying its motion to dismiss, that the court erred in considering evidence outside the certificate to determine its sufficiency, and that the court erred in overruling Carter Burgess's objections to the evidence attached to Crosstex's response.
To determine whether the certificate of merit satisfies the statutory requirements of section 150.002, we must determine whether we may look outside the four corners of the certificate itself. We agree with our sister courts who have concluded that we may not. See Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500 (Tex. App.-Corpus Christi 2009, no pet.) ("Because nothing in the statute suggests or anticipates that the trial court may look outside the `four corners' of the report for guidance, we hold, under the plain language of the statute, it cannot."); see also Belvedere Condominiums at State Thomas, Inc. v. Meeks Design Group, Inc., 329 S.W.3d 219, 221 (Tex. App.-Dallas 2010, no pet.) (determining whether affiant practiced in the same area as defendant by looking only at certificate of merit, "which includes his affidavit and resume . . . pursuant to the plain language in section 150.002(a)").
In Landreth, the court compared section 150.002 to the Medical Liability and Insurance Improvement Act. (MLIIA). See Tex. Civ. Prac. Rem. Code Ann. §§ 74.351, 74.401 (Vernon 2011). The court noted that the expert report under the MLIIA must contain similar content as a report under section 150.002. Landreth, 285 S.W.3d at 499 ("Here the certificate of merit must similarly set forth at least one negligent act, error, or omission and the factual basis for each such claim."); see also Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (requiring an expert report to provide "a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed."). The Landreth court noted, "The supreme court has also instructed that when interpreting the medical liability statute, a report is limited to what is contained within its `four corners.'" 285 S.W.3d at 500 (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). The court concluded that because both statutes focus on what the report is to include, "the only information relevant to the inquiry is the information contained within the four corners of the document." Id. Thus, no factual determinations are necessary to determine sufficiency of a section 150.002 affidavit. See Palacios, 46 S.W.3d at 878.
This court must look to the language of section 150.002 and its plain meaning, presuming every word included was used for a purpose and every word excluded was excluded for a purpose. See Cameron v. Terrell Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). There is nothing in the plain language of the statute nor is there case law that allows for affidavits or evidence to be offered to support or defeat an affidavit filed pursuant to the statute. See Landreth, 285 S.W.3d at 500. This is equally true for extrinsic affidavits or evidence filed by Carter Burgess or Crosstex. We therefore hold that the trial court erred in considering other affidavits or evidence offered by either party in determining whether the certificate of merit was statutorily sufficient. See id. (holding that trial court abused its discretion in denying defendant's motion to dismiss when the certificate of merit did not meet the basic statutory requirements). Because we hold that it was error to rely on extraneous evidence, we do not reach Carter Burgess's issue regarding its objections to Crosstex's evidence. See Tex. R. App. P. 47.1.
To the extent that Carter Burgess argues that the affidavit fails because it states, in conclusory terms, that Carter Burgess engaged in surveying, we also overrule that argument. The purpose of the certificate of merit "is to provide a basis for the trial court to conclude that the plaintiff's claims have merit." Criterium-Farrell Eng'rs v. Owens, 248 S.W.3d 395, 399 (Tex. App.-Beaumont 2008, no pet.); see also Parker Cnty. Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., No. 2-08-00380-CV, 2009 WL 3938051, at *2 (Tex. App.-Fort Worth Nov. 19, 2009, no pet.) (mem. op.) (noting that the statute was adopted to "weed out frivolous claims"). Carter Burgess does not claim that the affidavit fails to set out facts that give rise to an actionable claim, just that the facts are improperly categorized as surveying. However, Carter Burgess is relying on evidence outside the four corners of the affidavit to make that argument. This court will confine its review of the affidavit in conformance with this opinion. We overrule Carter Burgess's objections to the affidavit and hold that the trial court properly denied Carter Burgess's motion to dismiss, despite erroneously considering extrinsic evidence. See Tex. R. App. P. 44.1(a) (allowing an appellate court to reverse a trial court's judgment only when the error probably caused the rendition of an improper judgment or prevented the appellant from properly presenting his case); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005).
Conclusion
The trial court erred by considering evidence beyond the "four corners" of the certificate of merit. However, because the error did not cause the rendition of an improper judgment, we affirm the trial court's order denying Carter Burgess's motion to dismiss.