Opinion
14-20-00817-CV
08-18-2022
KITTEN STRAHAN AND LEOPOLD SISTER PROPERTIES, LLC, Appellants v. JAMES DEAVER SERVICES INC. AND JAMES DEAVER, Appellees
On Appeal from the 10th District Court Galveston County, Texas Trial Court Cause No. 20-CV-0531
Panel consists of Justices Jewell, Bourliot, and Poissant.
MEMORANDUM OPINION
MARGARET “MEG” POISSANT, JUSTICE
In this interlocutory appeal, appellants Kitten Strahan and Leopold Sister Properties, LLC, appeal an order dismissing their claims with prejudice against appellees James Deaver Services Inc. ("JDS") and James Deaver ("Deaver"). See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a), (f). In one issue, appellants argue that the trial court abused its discretion when it dismissed their claims for failure to include a certificate of merit. We affirm.
I. Background
On April 14, 2020, appellants filed suit against Ignacio Larios d/b/a All Roofing & General Contractors ("ARGC"); Abry Brothers, L.P. ("Abry"); JDS; and Deaver. Appellants asserted claims against Abry and ARGC for breach of contract, breach of implied warranty of good and workmanlike manner, and negligence, as well as a claim for professional negligence against JDS and Deaver. Appellants also sought to recover attorney's fees against all defendants. In relevant part, appellants alleged that they entered into a contract with ARGC on or about May 20, 2018, totaling $15,840.00, for the removal and installation of a new roof, which was to be performed according to windstorm regulations in order to pass inspection. ARGC hired JDS to inspect the roof, and JDS issued a WPI-8 form for the new roof-a form verifying that the roof passed the required windstorm inspection for insurability.
On or about September 5, 2018, the roof leaked and collapsed. Appellants complain that JDS and Deaver issued the WPI-8 despite the roof being substandard and out of compliance. Appellants alleged in their original petition that JDS and Deaver inspected and approved a roof that:
suffered from notable defects including: the observation deck being completed using torch down roofing with 5/8-inch plywood. 5/8-inch plywood does not meet the requirements necessary for foot traffic. Deaver approved the use of 5/8-inch torch down plywood. Further, Deaver examined the structure of the Property and failed to notice the support beams were supposed to be replaced completely. However, the beams were not replaced as agreed and as safety required.
Appellants further alleged that JDS and Deaver "owed Plaintiffs the duty to provide engineering services which an engineer of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances."
On October 26, 2020, JDS and Deaver filed a motion to dismiss pursuant to Texas Civil Practice and Remedies Code § 150.002. See id. § 150.002 (requiring a certificate of merit in any action for damages arising out of the provision of professional services by a licensed professional engineer). Appellants filed a response to appellees' motion to dismiss and amended their petition on November 12, 2020, adding a cause of action for negligence against appellees. In their response, appellants argued that windstorm inspections do not require special engineering knowledge or education and that merely being a licensed professional engineer "does not mean [Deaver's] inspection of [appellants'] roof invoked his 'engineering knowledge' or his engineering services.'" Appellants based this argument on their contention that Deaver "did not (1) design the roof in question; (2) he did not provide the labor to build the roof in question; and (3) he only conducted a superficial inspection of the roof."
On November 19, 2020, the trial court granted appellees' motion to dismiss and signed an order dismissing appellees' claims with prejudice. This interlocutory appeal followed. See id. § 150.002(f) ("An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.").
II. Discussion
In their sole issue on appeal, appellants argue a certificate of merit was not required because non-engineers can conduct windstorm inspections under the relevant section of the Insurance Code. See id. § 150.002; Tex. Ins. Code Ann. §§ 2210.2515(d); 2210.254(b). Appellants further argue that they asserted a non-professional negligence claim against appellees in their amended petition that is not subject to the requirement of a certificate of merit, because Deaver failed to uphold the duties imposed on him as a qualified windstorm inspector, which appellants categorize as an inspection consisting of the performance of "non-engineer related duties."
A. Standard of Review
We review a trial court's order dismissing claims pursuant to § 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.). Simply 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. 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.
Issues of statutory construction are reviewed de novo. See TD Industries, Inc. v. Rivera, 339 S.W.3d 749, 752 (Tex. App.-Houston [1st Dist.] 2011, no pet.). Our primary objective in statutory construction is to give effect to the legislature's intent. Id. We first look to the statute's text to determine the legislature's intent. Id. When the statutory text is clear, it is determinative of the legislature's intent. Thompson Hancock Witte & Assocs., Inc. v. Stanley Spurling & Hamilton, Inc., No. 14-21-00091-CV, __S.W.3d__,__, 2022 WL 1010272, at *3 (Tex. App.-Houston [14th Dist.] Apr. 5, 2022, no pet.). In that circumstance, we give the statute its plain meaning without resorting to rules of construction or extrinsic aids. Id. Only when a statute is susceptible to more than one reasonable interpretation does a court look beyond the statute's language for assistance in determining legislative intent. Id. We view statutory terms in context, giving them full effect. Id.
We presume that every word of a statute was used for a purpose, and every omitted word was purposefully not chosen. Tex. Law Shield LLP v. Crowley, 513 S.W.3d 582, 588 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). In determining the plain meaning of a statute, we construe the language according to the rules of grammar and common usage. Id. "As a general principle, we eschew constructions of a statute that render any statutory language meaningless or superfluous." City of Dallas v. TCI W. End, Inc., 463 S.W.3d 53, 57 (Tex. 2015).
B. Applicable Law
A plaintiff is required to file a certificate of merit with a complaint in "any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional." Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a). In this context, a "licensed or registered professional" includes "a licensed architect, licensed professional engineer . . . or any firm in which such licensed or registered professional practices . . . ." Id. § 150.001(1). If a plaintiff's claim for damages implicates the special knowledge and training of an engineer, then it is a claim for damages arising out of the provision of professional services. See, e.g., Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102, 108 (Tex. App.-Houston [1st Dist.] 2010, no pet.), superseded by statute as stated in Pelco Const., Inc. v. Dannenbaum Eng'g Corp., (Tex. App.-Houston [1st Dist.] 2013, no pet.). Failure to file a certificate of merit in such instances requires dismissal of the complaint against the defendant. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e).
In certain geographic areas, for a structure to be insurable by the Texas Windstorm Insurance Association ("TWIA") following construction, alterations, remodeling, enlargement, or repairs, the Texas Insurance Code requires compliance with the plan of operation, evidenced by a certificate of compliance. See Tex. Ins. Code Ann. § 2210.251(a), (d), (g). "A certificate of compliance issued by the Department under Section 2210.2515 demonstrates compliance with the applicable building code under the plan of operation. The certificate is evidence of insurability of the structure by the association." Id. § 2210.251(g).
Section 2210.2515, titled "Issuance of Certificates of Compliance," provides:
(d) A person may apply to the department on a form prescribed by the department for a certificate of compliance for an ongoing improvement. Except as provided by Subsection (e), the department shall issue a certificate of compliance for an ongoing improvement if a qualified inspector under Section 2210.254 inspects the ongoing improvement in accordance with commissioner rule and affirms that the improvement:
(1) conforms to a design of the improvement that has a seal affixed by a professional engineer licensed by the Texas Board of Professional Engineers and Land Surveyors and complies with the applicable building code under the plan of operation; or
(2) complies with the applicable building code under the plan of operation.Tex. Ins. Code Ann. § 2210.2515(d); see also id. § 2210.254(b) ("A windstorm inspection may be performed only by a qualified inspector."). A qualified inspector includes:
(1) a person determined by the department to be qualified because of training or experience to perform building inspections;
(2) a licensed professional engineer; and
(3) an inspector who:
(A) is certified by the International Code Council, the Building Officials and Code Administrators International, Inc., the International Conference of Building Officials, or the Southern Building Code Congress International, Inc.;
(B) has certifications as a buildings inspector and coastal construction inspector; and
(C) complies with other requirements specified by commissioner rule.Id. § 2210.254(a).
C. Analysis
The threshold issue in this case is whether Strahan's claims against JDS and Deaver arise "out of the provision of professional services" by JDS and Deaver. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a). Deaver and JDS qualify as "licensed or registered professional[s]" because Deaver is a Texas licensed professional engineer and JDS is the business entity in which Deaver practices. See id. § 150.001(1-c).
Appellants argue that Deaver's engineering knowledge was not used when he inspected the roof because the Texas Insurance Code allows non-engineers to inspect roofs. See Tex. Ins. Code Ann. § 2210.254(a)(1) (providing that a "qualified inspector" includes an engineer and "a person determined by the department to be qualified because of training or experience to perform building inspections"). However, appellants alleged in their amended petition that the services provided by Deaver and JDS were "engineering services." Specifically, appellants stated in their petition that "ARCG hired JDS to inspect the roof" and "perform structural and roof inspection services" and that JDS and Deaver "owed [appellants] a duty to provide engineering services which an engineer of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances." Therefore, we conclude the trial court did not abuse its discretion when it dismissed appellants' claims for professional negligence with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a); Dunham Eng'g, 404 S.W.3d at 789.
We also note that appellants amended their petition and added a claim for negligence after appellees' motion to dismiss was filed but before the trial court ruled on the motion. In the amended petition, appellants alleged that "Deaver was acting in his capacity as a qualified inspector, as defined by TDI and Tex. Ins. Code § 2210.254. Deaver was not acting in his 'professional engineering' capacity. The roof Deaver certified ultimately failed . . . ." On appeal, appellants argue that "Deaver's status as a licensed professional engineer does not protect him from negligence in his performance of non-engineer related duties." However, as previously noted, appellant's petition provided that the inspection of the roof implicated Deaver's engineering knowledge and experience. Accordingly, this claim is a claim for professional negligence. See Meullion v. Gladden, No. 14-10-01143-CV, 2011 WL 5926676, at *4 (Tex. App.-Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.). We conclude that the trial court did not abuse its discretion when it dismissed appellants' claims with prejudice. See Dunham Eng'g, 404 S.W.3d at 789. We overrule appellants' sole issue.
III. Conclusion
The trial court's order is affirmed.