Cameron County, Texas v. Francisco Salinas and Gregoria Salinas, Individually, and as Representatives of the Estate of Lupita Estella Salinas (Decedent)

NUMBER 13-11-00594-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MELDEN & HUNT, INC., Appellant,

v.

ALBERTO R. GARZA AND
LETICIA I. GARZA, INDIVIDUALLY
AND AS NEXT FRIENDS OF
ALEXANDRA I. GARZA AND
KASSANDRA R. GARZA, Appellees.

On appeal from the 92nd District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez, and Justices Benavides, and Perkes
Memorandum Opinion by Justice Perkes

Melden & Hunt, Inc., a surveying and engineering firm, appeals from a trial court

order denying its motion to dismiss pursuant to section 150.002 of the Texas Civil
Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §150.002 (West

2003). By three issues, Melden & Hunt argues: (1) the trial court abused its discretion

in denying the motion to dismiss because the affiant did not practice in the same area of

practice as Melden & Hunt and the certificate of merit was untimely filed; (2) statements

made in Melden & Hunt’s summary judgment motion on statutes of repose and limitations

were not judicial admissions with respect to the date the Garzas’ causes of action

accrued; and (3) the Garzas were not entitled to a good-cause extension under §150.002

of the Texas Civil Practice and Remedies Code. We dismiss this interlocutory appeal for

lack of jurisdiction.

I. BACKGROUND

Alberto and Leticia Garza, individually and as next friends of Alexandra I. Garza

and Kassandra R. Garza (“the Garzas”), filed suit against Melden & Hunt and Gary Burch

d/b/a/ Burch Construction, Inc. on April 22, 2008, urging that Melden & Hunt had

negligently prepared the survey of their home in the Chateau Estates subdivision and

negligently furnished and finished the floor elevation of their home, causing the home to

flood several times in 2007. The Garzas claimed a total loss in value to their home, mold

issues, and associated health problems. On December 4, 2008, the Garzas filed a

certificate of merit that had been prepared by Gerard H. Duhon, who stated that he

practiced in the same engineering field as Melden & Hunt. Duhon opined that Melden &

Hunt failed to direct surface drainage from surrounding properties away from the Garzas’

home and failed to provide for drainage of water from the home.

2
 On June 1, 2010, Melden & Hunt filed a motion to dismiss, stating that the

certificate of merit did not comply with section 150.002 of the Texas Civil Practice and

Remedies Code. See id. § 150.002. Melden & Hunt later supplemented its motion to

dismiss, urging that the certificate of merit was also untimely filed.

Melden & Hunt had previously filed a traditional and no-evidence motion for

summary judgment on grounds that the claims were barred by statutes of repose and

limitations because at least ten years had elapsed since the completion of the survey

work on Chateau Estates. The trial court denied the motion for summary judgment,

which is not before us in this appeal. The trial court also held a hearing on the motion to

dismiss and denied it. This appeal ensued.

II. APPELLATE JURISDICTION

Melden & Hunt seeks to appeal from an interlocutory order; however, interlocutory

orders are not appealable unless explicitly made so by statute. Stary v. DeBord, 967

S.W.2d 352, 352–53 (Tex. 1998); see also Hughes v. Bay Area Montessori House, Inc.,

No. 14-09-00410-CV, 2010 WL 862861, at *1 (Tex. App.—Houston [14th Dist.] March 11,

2010, no pet.) (mem. op.). Appellate courts are obligated to review sua sponte issues

affecting their own jurisdiction. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673

(Tex. 2004); see also Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812 (Tex.

App.—Corpus Christi 2009, pet. denied). When construing a statute that establishes

appellate jurisdiction, this court cannot expand its jurisdiction beyond that conferred by

the legislature. Jani-King of Memphis, Inc. v. Yates, 965 S.W.2d 665, 668 (Tex.

App.—Houston [14th Dist.] 1998, no pet.); see also Hughes, 2010 WL 862861, at *1.

3
 Chapter 150 of the Texas Civil Practice and Remedies Code is the only statute that

might provide Melden & Hunt with an interlocutory appeal in this case. However, the

original version of this statute did not provide for an interlocutory appeal from a trial court’s

denial of a motion to dismiss for failure to comply with Chapter 150. See Act of June 2,

2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847, 896–97 (amended

2005, 2009); see also Hughes, 2010 WL 862861, at *1. The 2009 amendments to

Chapter 150 apply “only to an action or arbitration filed or commenced on or after the

effective date of this Act [September 1, 2009].” Act of May 29, 2009, 81st Leg., R.S., ch.

789, §§ 3, 4, 2009 Tex. Sess. Law Serv., ch. 789 (S.B.1201); see also Hughes, 2010 WL

862861, at *1. The action in this case was filed before September 1, 2009. The 2005

amendments to Chapter 150 that provide for an interlocutory appeal apply “only to a

cause of action that accrues on or after the effective date of this Act [September 1, 2005].”

Act of May 18, 2005, 79th Leg., R.S., §§ 4, 5 ch. 208, 2005 Tex. Gen. Laws 369, 370; see

also Hughes, 2010 WL 862861, at *1. Therefore, we have appellate jurisdiction in this

case only if the Garzas’ cause of action accrued on or after September 1, 2005.

III. ACCRUAL OF CAUSE OF ACTION

The determination of when a cause of action accrues is a legal question. See

Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990). Generally, a cause of

action accrues and the statute of limitations begins to run when facts come into existence

that authorize a claimant to seek a judicial remedy. Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 221 (Tex. 2003); see also Hughes, 2010 WL 862861, at *2 (citing

Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001)). This principle applies even

4
if all resulting damages have not yet occurred. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996);

see also Hughes, 2010 WL 862861, at *2. In cases involving allegedly faulty

professional advice, the claimant suffers legal injury when the advice is taken. Murphy v.

Campbell, 964 S.W.2d 265, 270 (Tex. 1997).

Presuming, for the sake of argument only, that the discovery rule applies, then the

Garzas’ cause of action accrued when they knew or in the exercise of ordinary diligence

should have known of Melden & Hunt’s alleged negligence and the alleged injury

resulting therefrom. See id. at 271. The undisputed evidence shows that before

September 1, 2005, all of the following occurred: (1) Melden & Hunt completed its

survey, supervision, and any grading work for the home; (2) Alberto Garza purchased the

home from the builder in November 1998; (3) according to Alberto Garza’s sworn

testimony, in the summer of 1999 or 2000, the Garzas experienced “ponding” in their

backyard that prompted Alberto to call the builder and to “plead” with the builder “for

assistance with the ponding;” (4) the Garzas’ former neighbor, Rosendo Hinojosa,

testified at his deposition that prior to December 2004, Alberto Garza complained to him

about water from the backyard coming inside the home and flooding the family room; and

(5) prior to March 2005, Hinojosa witnessed Alberto building a “berm” around his house

‘to prevent another flooding incident.’ Therefore, we conclude that the Garzas cause of

action accrued before September 1, 2005. See Hughes, 2010 WL 862861, at *2.

IV. CONCLUSION

Even if the discovery rule applies, the Garzas’ cause of action accrued before

September 1, 2005. Because the cause of action accrued before September 1, 2005,

5
the version of Chapter 150 effective before this date applies to this case. See Act of May

18, 2005, 79th Leg., R.S., §§ 4, 5, ch. 208, 2005 Tex. Gen. Laws 369, 370. That version

does not provide for an interlocutory appeal from the denial of a motion to dismiss under

Chapter 150. See Act of 2003, 78th Leg. R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws

896, 897 (amended 2005, 2009); see also Hughes, 2010 WL 862861, at *2.

Accordingly, we lack appellate jurisdiction, and we dismiss this appeal.

GREGORY T. PERKES
Justice

Delivered and filed the
11th day of July, 2013.

6