Opinion
NO. 01-22-00483-CV
05-09-2023
MCDOWELL OWENS ENGINEERING, INC., Appellant v. The TIMAEUS LAW FIRM, PLLC, Appellee
Brian J. Comarda, Heidi J. Gumienny, Gordon Rees Scully Mansukhani LLP, 1900 West Loop South, Ste.1000, Houston, TX 77027, for Appellant. Dickinson & Wheelock, P.C., Thomas A. Dickinson, Gregory P. Propes, 1001 S. Dairy Ashford Road, Suite 375, Houston, Texas 77077, for Appellee. Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
On Appeal from the County Court at Law No. 4, Harris County, Texas, Trial Court Case No. 1173938
Brian J. Comarda, Heidi J. Gumienny, Gordon Rees Scully Mansukhani LLP, 1900 West Loop South, Ste.1000, Houston, TX 77027, for Appellant.
Dickinson & Wheelock, P.C., Thomas A. Dickinson, Gregory P. Propes, 1001 S. Dairy Ashford Road, Suite 375, Houston, Texas 77077, for Appellee.
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
OPINION
Gordon Goodman, Justice
McDowell Owens Engineering, Inc. appeals from the trial court’s order denying its motion to dismiss The Timaeus Law Firm PLLC’s counterclaim. McDowell argues Timaeus was required to file with its counterclaim a certificate of merit—an affidavit describing the theory of recovery and factual basis for the counterclaim, required in some circumstances by Section 150.002 of the Texas Civil Practice and Remedies Code. Because we conclude Timaeus was not required to file a certificate of merit under the statute, we affirm the trial court’s order.
BACKGROUND
The relevant facts are undisputed. Timaeus, a law firm, hired McDowell, an engineering firm, to provide expert witness testimony and consultation services for a lawsuit Timaeus was litigating. A dispute arose between them, and McDowell filed suit against Timaeus to recover its unpaid fees. Timaeus then filed a counterclaim against McDowell, alleging breach of contract and seeking damages. Timaeus did not file a certificate of merit with its counterclaim.
McDowell filed a motion to dismiss Timaeus’s counterclaim under Section 150.002 of the Texas Civil Practice and Remedies Code because Timaeus did not file the certificate of merit required by that statute. Timaeus argued in response that it was not required to file a certificate of merit because Section 150.002’s certificate-of-merit requirement does not apply to counterclaims asserted by a defendant in a suit for unpaid fees initiated by a design professional.
The trial court agreed with Timaeus and denied McDowell’s motion to dismiss. McDowell now appeals.
DISCUSSION
In two related points of error, McDowell argues the trial court erred in concluding Section 150.002 does not apply to Timaeus’s counterclaim and in denying McDowell’s motion to dismiss on that basis.
Applicable Law
[1] Section 150.002 of the Texas Civil Practice and Remedies Code requires a claimant seeking damages against a design professional to file a certificate of merit with the complaint. Tex. Civ. Prac. & Rem. Code § 150.002(a). The certificate of merit is an affidavit by a similarly licensed design professional "certifying the defendant’s professional actions or omissions were negligent or otherwise erroneous." Id. § 150.002(b); Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 897 (Tex. 2017). The purpose of this requirement is to ensure claimants make a threshold showing that their claim has merit. Melden & Hunt, 520 S.W.3d at 897 (citing M-E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 504 (Tex. App.—Austin 2012, pet. denied)). Subsection (h) of the statute creates an exception for fee disputes. That subsection provides:
Section 150.002(a) provides:
(a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, a claimant 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 ….
Tex. Civ. Prac. & Rem. Code § 150.002(a). A licensed or registered professional, also called a design professional, is defined as "a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices." Id. § 150.001(1-c).
(h) This statute does not apply to any suit or action for the payment of fees arising out of the provision of professional services.
Tex. Civ. Prac. & Rem. Code § 150.002(h).
Before 2019, the certificate-of-merit requirement only applied to plaintiffs filing suits against design professionals. This language led the Supreme Court to conclude that defendants or third-party plaintiffs who did not initiate the action for damages against the design professional were not required to file a certificate of merit with their complaint, even though they filed a claim for damages against a design professional. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 571 (Tex. 2014). Dissatisfied with that conclusion, in 2019 the legislature amended the statute to its current form, replacing "plaintiff" with "claimant," so that any claimant is required to file a certificate of merit in an action against a design professional. Act of May 23, 2019, 86th Leg., R.S., ch. 661, § 2, 2019 Tex. Gen. Laws 1917, 1918 (codified at Tex. Civ. Prac. & Rem. Code § 150.002(a)). The legislature also defined claimant as "a party, including a plaintiff or third-party plaintiff, seeking recovery for damages, contribution, or indemnification." Id. § 1, 2019 Tex. Gen. Laws 1917, 1917 (codified at Tex. Civ. Prac. & Rem. Code § 150.001(1-a)).
The pre-2019 version of Section 150.002(a) provided:
(a) In any action or arbitration proceeding 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 ….
Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code § 150.002(a)) (emphasis added).
The question in this case is whether, in a suit for the payment of fees initially filed by a design professional, a counterclaiming defendant seeking damages from the design professional is required to file a certificate of merit with its complaint. The counterclaiming defendant is a "claimant" within the meaning of Subsection (a) who would normally be required to file a certificate of merit, but the suit is one for the payment of fees, in which the certificate-of-merit requirement does not apply. The Dallas Court of Appeals addressed this precise question in Stillwater Capital v. HKS, Inc. and concluded the counterclaiming defendant was not required to file a certificate of merit. No. 05-20-00749-CV, 2021 WL 2154617, at *3 (Tex. App.—Dallas May 27, 2021, pet. dism’d) (mem. op.).
Standard of Review
[2] Generally, we only have jurisdiction to review final judgments unless a statute specifically authorizes an appeal from an interlocutory order. Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 736 (Tex. 2019). Section 150.002(f) provides that an order granting or denying a motion to dismiss under the statute is immediately appealable as an interlocutory order; thus, we have jurisdiction to consider this appeal. Tex. Civ. Prac. & Rem. Code § 150.002(f).
[3, 4] We review a trial court’s ruling on a motion to dismiss under Section 150.002 for abuse of discretion. See Melden & Hunt, 520 S.W.3d at 889. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and principles. In re Academy, Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding). [5] But when a motion to dismiss hinges on a question of statutory construction, as here, we construe the statute de novo. See Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017); see also In re Fox River Real Est. Holdings, Inc., 596 S.W.3d 759, 763 (Tex. 2020) (orig. proceeding) (trial court has no discretion "in determining what the law is or in the application of the law to the facts’’).
[6–8] In construing a statute, we must interpret the statute "as written" and "refrain from rewriting text that lawmakers chose." Jaster, 438 S.W.3d at 562 (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)). We look to the specific words of the statute and apply their plain meaning "unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results." Id. (quoting Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011)). We look at the statute as a whole rather than as "isolated provisions." Id. (quoting TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)). We "read the statute contextually, giving effect to every word, clause, and sentence." Id. (quoting In re Office of Att’y Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding)). Thus, we begin our analysis with the statute’s words and then consider the apparent meaning of those words in context. Id.
A. Certificate-of-Merit Requirement
[9] McDowell first argues the trial court erred in concluding Timaeus was not required to file a certificate of merit with its counterclaim.
The statute requiring a claimant to file a certificate of merit plainly states it "does not apply to any suit or action for the payment of fees arising out of the provision of professional services." Tex. Civ. Prac. & Rem. Code § 150.002(h). Neither party disputes this is a suit or action for the payment of fees. Thus, the certificate-of-merit requirement, on its face, does not apply to this suit.
Instead, McDowell argues we should interpret "action" in Subsection (h) to mean a specific cause of action, claim, or counterclaim, not the entire suit. Under that interpretation, the certificate-of-merit exception in Subsection (h) would apply to McDowell’s claim for unpaid fees but not Timaeus’s claim for negligence. McDowell argues that "action" can have different meanings, and if we interpret "action" as a claim, then we are adopting a meaning consistent with the legislature’s original purpose, but if we interpret "action" as a synonym for "suit," then the phrase "suit or action" in Subsection (h) is redundant.
[10–12] We must apply the plain, common meaning of a word used in a statute unless the context indicates another meaning. Jaster, 438 S.W.3d at 562. The Supreme Court explained in Jaster v. Comet II Construction, Inc., that the plain, common meaning of "action" is an "entire lawsuit or cause or proceeding, not … discrete ‘claims’ or ‘causes of action’ asserted within a suit, cause, or proceeding." Id. at 563–64. "The term ‘action’ is generally synonymous with ‘suit,’ which is a demand of one’s rights in court." Id. at 564 (quoting Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995)). "Action" and "suit" are different from a "claim" or "cause of action," which typically refer to a "legal right that party asserts in the suit that constitutes the action." Id. Thus, applying the plain, common meaning of "action" as used in Subsection (h), the certificate-of-merit requirement does not apply to an entire lawsuit or proceeding for the payment of fees. See id. at 563–64; Tex. Civ. Prac. & Rem. Code § 150.002(h). [13] McDowell asserts that the Supreme Court’s interpretation of "action" in Jaster is limited to Subsection (a) of the statute; the Court did not address the meaning of "action" in Subsection (h). But when the legislature has used a word in a statute with one meaning, and later uses the same word in the same subject matter, the meaning of the latter word will usually be the same. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 647 (Tex. 2020); see Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (current version at Tex. Civ. Prac. & Rem. Code § 150.002(h)) (adding what is now Subsection (h) to statute after Subsection (a) enacted). McDowell points out that the legislature has defined "action" to include a claim or counterclaim in other statutes. See, e.g., Tex Bus. & Com. Code § 1.201(b)(1) (defining "action" to include counterclaim); Tex. Civ. Prac. & Rem. Code § 27.001(6) (defining "legal action" to include lawsuit, cause of action, complaint, cross-claim, or counterclaim). However, in those statutes, the legislature chose to define the term "action"; with no statutory definition applicable to Section 150.002, we must apply the plain, common meaning of the word, which the Supreme Court has said is an entire suit or proceeding. Jaster, 438 S.W.3d at 563–64 ("When a statute uses a word that it does not define, our task is to determine and apply the word’s common, ordinary meaning.").
McDowell points out that Section 150.002(b) uses the term "action" with a different meaning. That subsection requires the certificate of merit to "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 design professional. Tex. Civ. Prac. & Rem. Code § 150.002(b) (emphasis added). The context clearly indicates the term "action" in that subsection does not mean a "suit" or "proceeding," but an "act" or "deed." That is the only reasonable construction of the term as used in that subsection. There is no such limiting context in Subsection (a) or (h). See id. § 150.002(a), (h).
[14] McDowell argues that if we interpret "action" in Subsection (h) to be synonymous with "suit," then the statute is redundant. Generally, we must give effect to all words in a statute and not render any language surplusage. In re CenterPoint Energy Hous. Elec., LLC, 629 S.W.3d 149, 159 (Tex. 2021). But the Supreme Court rejected a similar argument in construing Subsection (a) of the statute. The Court explained that Subsection (a) uses the phrase "action or arbitration proceeding," and using the terms together with the conjunction "or" means the statute treats the two terms as having similar meaning. Jaster, 438 S.W.3d at 566. "[I]n both terms the statute refers to a legal proceeding in which a plaintiff asserts a claim or cause of action," and if "action" referred to a singular claim or cause of action, there would be no reason to refer to "arbitration proceeding" as well, "because parties resolve claims and causes of action in both types of legal proceedings." Id.
The same reasoning applies to the use of "suit or action" in Subsection (h). The statute treats them as having similar meaning, and both refer to a legal proceeding. Historically, "action" refers to a proceeding in a court of law, while "suit" refers to a proceeding in a court of equity, id. at 564, so the terms have slightly different but very similar meanings. And if the term "action" in Subsection (h) referred to a claim or cause of action, there would be no reason to refer to a suit, because a suit would encompass any and all causes of action asserted. See id. at 566.
McDowell also asserts that, under the pre-2019 version of the statute, the exception in Subsection (h) only applied to a plaintiff’s claim for unpaid fees because the certificate-of-merit requirement only ap- plied to a plaintiff's claim for damages. The legislature has since expanded the class of people for whom the certificate of merit is required, McDowell argues, but there is no indication that the legislature intended to similarly expand the exception in Subsection (h). While the legislature did not amend Subsection (h) in 2019, it amended another part of the same statute, which forms the context for Subsection (h). If the exception in Subsection (h) is broader after 2019, that is because the legislature amended its context.
[15] McDowell argues we should interpret the exception in Subsection (h) narrowly to limit it only to claims by design professionals for the payment of fees, consistent with the legislature’s original intent. But the plain language of a statute is the "most reliable guide" to the legislature’s intent. Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). We must interpret the statute as written and "refrain from rewriting text that lawmakers chose." Jaster, 438 S.W.3d at 562 (quoting Entergy Gulf States, 282 S.W.3d at 443). Thus, we cannot narrow the meaning of Subsection (h) when the legislature has not done so. See Stillwater Cap., 2021 WL 2154617, at *3 ("[I]f the [l]egislature wanted to limit the applicability of the exception in [S]ection 150.002(h), they could have done so.").
[16] Lastly, McDowell argues that design professionals would lose certain protections—the benefit of the certificate-of-merit requirement—by filing suit first, and there is no indication the legislature intended to make the certificate-of-merit requirement dependent on who files suit first. McDowell is correct that the purpose of the certificate-of-merit requirement is to benefit design professionals by allowing a court to quickly dismiss unmeritorious claims against them. Jaster, 438 S.W.3d at 570 (stating Section 150.002’s purpose is to deter and quickly dismiss meritless claims). But that benefit is not an absolute right—it can be waived in some circumstances. See Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 393 (Tex. 2014) (design-professional defendant may waive right to dismissal based on failure to file certificate of merit under Section 150.002). The statute is silent as to whether a design professional loses the benefit of the certificate-of-merit requirement by filing suit first, so we must apply the plain, common meaning of the words used in the statute—the statute does not apply to a suit for the payment of fees. A design professional who files suit first and essentially waives the benefit of the certificate-of-merit requirement may lose the benefit of an early dismissal, but the opposing party must still prove the merits of any claim for damages against the design professional.
[17] In sum, the plain language of Section 150.002 provides that when a design professional files suit for the payment of fees arising out of the provision of professional services, and the defendant counterclaims for damages arising out of the provision of professional services, the counterclaiming defendant is not required to file a certificate of merit with its counterclaim. See Tex. Civ. Prac. & Rem. Code § 150.002(a), (h); see also Stillwater Cap., 2021 WL 2154617, at *3 (concluding Section 150.002(h) "makes it unnecessary for any party to file a certificate of merit in an action for the payment of fees arising out of the provision of professional services").
We overrule McDowell’s first point of error.
B. Denial of Motion to Dismiss
McDowell argues in its next point of error that the trial court abused its discre- tion in denying McDowell’s motion to dismiss Timaeus’s counterclaim for failing to file a certificate of merit. Because we have already concluded that Section 150.002 of the Texas Civil Practice and Remedies Code does not require a counterclaiming defendant like Timaeus to file a certificate of merit, the trial court did not abuse its discretion in denying McDowell’s motion to dismiss.
We overrule McDowell’s second point of error.
CONCLUSION
We affirm the trial court’s order denying McDowell’s motion to dismiss.