ACCEPTED
01-14-01000-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/8/2015 3:36:08 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-01000-CV
In The FILED IN
1st COURT OF APPEALS
COURT OF APPEALS HOUSTON, TEXAS
5/8/2015 3:36:08 PM
FIRST DISTRICT OF TEXAS
CHRISTOPHER A. PRINE
Houston, Texas Clerk
TOBY PAUL COUCHMAN AND PRO-SURV,
Appellants,
vs.
ELIZABETH CARDONA,
Appellee
On Appeal from Case No. 2014-29414
In the 189th District Court of Harris County, Texas
Honorable William R. Burke, Presiding Judge
APPELLEE’S BRIEF
Robert L. Collins
Texas Bar No. 04618100
Audrey E. Guthrie
Texas Bar. No. 24083116
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
HoustonLaw2@aol.com
Christopher D. Lewis
Texas Bar No. 24032546
1721 West TC Jester Blvd.
Houston, Texas 77008
Lewis@TexLaw.info
ATTORNEYS FOR APPELLEE,
ELIZABETH CARDONA
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ...................................................................................... i
TABLE OF AUTHORITIES ............................................................................. iii
STATEMENT OF THE CASE ............................................................................1
STATEMENT REGARDING ORAL ARGUMENT .........................................2
ISSUES PRESENTED .........................................................................................2
1. Whether Appellants, without appealing or otherwise
challenging the dismissal in the previously filed case,
may attack that dismissal in the currently filed case.
2. Whether a court is required to dismiss Tex. Civ. Prac. &
Rem. Code §150 claims with prejudice despite statutory
language specifically authorizing a choice between
dismissals with and without prejudice.
3. Whether the trial court properly held Plaintiffs’ affidavit
met the requirements of Tex. Civ. Prac. & Rem. Code
§150.
4. Whether breach of contract claims are required to comply
with the requirements of Tex. Civ. Prac. & Rem. Code
§150 despite not being based on professional conduct as
required by Tex. Civ. Prac. & Rem Code §150.
STATEMENT OF FACTS ..................................................................................3
SUMMARY OF THE ARGUMENT ..................................................................4
ARGUMENT AND AUTHORITIES ..................................................................5
A. Appellants are indirectly challenging the dismissal in a
different and prior case and stating it should have been made
with prejudice. However, Appellants did not appeal or
i
otherwise challenge the dismissal of that prior case without
prejudice and do not have a legal basis for attacking the
dismissal of a prior case in the currently filed case ............................5
B. Tex. Civ. Prac. & Rem. Code §150.002(e) specifically grants
trial courts the discretion to choose between dismissal with or
without prejudice. Due to this, an interpretation that §150.002(e)
requires dismissal with prejudice is erroneous and renders
statutory language superfluous .................................................................6
C. The trial court properly held Plaintiffs’ affidavit met the
requirements of Tex. Civ. Prac. & Rem. Code §150. Breach
of contract claims are not required to comply with the
requirements of §150...................................................................................9
CONCLUSION AND PRAYER ....................................................................... 13
CERTIFICATE OF COMPLIANCE ................................................................ 14
CERTIFICATE OF SERVICE ......................................................................... 15
ii
TABLE OF AUTHORITIES
Cases Page
Bruington Eng'g, Ltd. v. Pedernal Energy, L.L.C., 2014 Tex. App.
LEXIS 9493 (Tex. App. San Antonio Aug. 27, 2014) ........................................... 8
Bruington Eng'g, L.T.D. v. Pedernal Energy, L.L.C., 403 S.W.3d 523
(Tex. App. San Antonio 2013) ................................................................................ 8
City of San Antonio v. City of Boerne, 111 S.W.3d 22
(Tex. 2003).............................................................................................................................7
Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395 (Tex. App. – Beaumont
2008, no pet.) .........................................................................................................................8
Dunham Eng'g, Inc. v. Sherwin-Williams Co., 404 S.W.3d 785
(Tex. App.-Houston [14th Dist.] 2013, no pet.) .................................................9
Garza v. Carmona., 390 S.W.3d 391
(Tex.App.–Corpus Christi 2002) ..............................................................................9
Howe-Baker Eng'rs, Ltd. v. Enter. Prods. Operating, LLC,
2011 WL 1660715 (Tex.App.-Houston [1st Dist.] Apr. 29, 2011,
no pet.) ...................................................................................................................................9
Medina v. Hatch Assocs. Consultants, Inc., 2014 Tex. App. LEXIS 3044
(Tex.App.–Corpus Christi March 20, 2014) ............................................................9
Siemens Energy, Inc. v. Nat'l Union Fire Ins. Co, 2014 Tex. App.
LEXIS 5923, (Tex.App.–Houston [14th Dist.] June 3, 2014) ........................... 10, 12
Spence v. Fenchler, 180 S.W. 597 (Tex. 1915) ..................................................................7
TDIndustries Inc. v. Rivera, 339 S.W.3d 749
(Tex.App.–Houston [1st Dist.] 2011) ................................................................12
Statutes
Tex. Civ. Prac. Rem. Code §150.002 ............................................ i, ii, 1-10, 12, 13
iii
Tex. Gov’t Code Ann. §311.016 ............................................................................. 7
Rules
Rule 9.4, Tex. R. App. P. ...................................................................................... 14
Rule 162, Texas Rules of Civil Procedure ............................................................ 10
iv
TO THE HONORABLE COURT OF APPEALS:
Appellee Elizabeth Cardona timely submits her brief in this appeal pursuant
to this Court's Order of April 9, 2015.
Statement of the Case
This appeal is from an Order denying Appellants’ Motion to Dismiss in Cause No.
2014-29414. Prior to the filing of the case from which Appellants now appeal, the Hon.
William R. Burke granted Plaintiffs’ unopposed Motion to enter an Order in Cause No.
2014-12614 that severed all Plaintiffs’ claims in that case against Toby Paul Couchman
and Pro-Surv, now Appellants herein, and dismissed all such claims “without prejudice to
the re-filing thereof.” Appellant’s Brief, Appendix 3. Defendants in that case –
Appellants here – filed no appeal of that Order, nor did they file any motion to reconsider
the Order in favor of one dismissing the claims with prejudice, and at that time they did
not request that the court enter an Order dismissing the case with prejudice. The time for
amending the Order, or appealing it, has long ago lapsed. The dismissal of the claims
against Appellants in that case was without prejudice to later re-filing claims against the
parties that are now Appellants in this case.
After the dismissal without prejudice of the earlier claims in Cause No. 2014-
12614, Plaintiff/Appellee filed a new case bearing Cause No. 2014-29414 together with a
“Certificate of Merit” affidavit meeting the requirements of Tex. Civ. Prac. & Rem. Code
§150.002,. CR 40-42. Appellants then sought dismissal with prejudice of this case,
1
Cause No. 2014-29414, claiming that Plaintiff had not complied with Tex. Civ. Prac. &
Rem. Code §150.002(a). CR 47-53. The trial court heard the matter and held Plaintiff’s
affidavit met the Certificate of Merit requirement, found that it was filed
contemporaneously with the first-filed petition in Cause No. 2014-29414, and denied
Appellants’ Motion to Dismiss. CR 138.
Statement Regarding Oral Argument
Because the record is clear that the trial court properly applied the law in denying
Appellants’ Motion to Dismiss, Appellee believes that oral argument is unnecessary for
this Court to decide this appeal, unless oral argument is granted to Appellants, in which
event Appellee requests oral argument.
Issues Presented
ISSUES PRESENTED
1. Whether Appellants, without appealing or otherwise
challenging the dismissal without prejudice in the
previously filed case, Cause No. 2014-12614, may attack
that dismissal in the currently filed case, Cause No. 2014-
29414.
2. Whether a court is required to dismiss Tex. Civ. Prac. &
Rem. Code §150 claims with prejudice despite statutory
language specifically granting a choice to the trial court
between ordering such a dismissal to be with or without
prejudice.
3. Whether the trial court properly exercised it’s discretion
and authority in holding that Plaintiff’s Certificate of
Merit met the requirements of Tex. Civ. Prac. & Rem.
Code §150.
2
Statement of Facts
Appellee, Cardona, filed her petition in Cause No. 2014-12614, based on Pro-
Surv providing to Appellee a land survey which was substantively incorrect, and upon
which Appellee relied to her damage. CR 25. Appellant filed a Motion to Dismiss for
lack of a Certificate of Merit. CR 93-98. After which, Appellee nonsuited her claims
against ProSurv and the trial court dismissed the claims without prejudice pursuant to the
nonsuit. Tab 3 of Appellants’ Brief.
Cardona later filed an Original Petition in Cause No. 2014-29414, this time
contemporaneously filing a Certificate of Merit that sets forth Appellants’ specific
errors and omissions made basis of Appellee’s claims. CR 40. The Certificate of
Merit was an affidavit of a registered land surveyor that identified, among other
things, that one of two errors had been made: 1) that the surveyor failed to exercise
reasonable control over his stamp, thereby creating a false survey and Pro-Surv
acted recklessly in sending a false survey for reliance and use by Appellee or 2)
that the surveyor initially stated an incorrect opinion that the property did not lie in
a flood zone and then attempted to later hide the error by issuing a contrary survey.
CR40-41.
Appellants then filed a Motion to Dismiss the current action stating that 1)
the petition in Cause No. 2014-12614 was the only first-filed petition relevant to
Tex. Civ. Prac. & Rem. Code §150, so Cardona cannot file a later lawsuit despite
3
the dismissal without prejudice of the earlier case and 2) that the Certificate of
Merit filed by Cardona did not satisfy the requirements of Tex. Civ. Prac. & Rem.
Code §150. CR 47-53. The trial court denied the motion to dismiss and held that
Cardona’s Original Petition in the second-filed suit, Cause No. 29414, was the
first-filed petition in this case pursuant to Tex. Civ. Prac. & Rem. Code §150 and
that the Certificate of Merit filed in this case satisfied the requirements of Tex. Civ.
Prac. & Rem. Code. §150. CR 138. Appellants now appeal that Order. CR142.
Summary of the Argument
Appellants’ arguments fail for three reasons:
First, Appellant’s argument is a collateral attack on a prior case’s dismissal
without prejudice and cannot be made in the instant action;
Second, the trial court properly determined that a Certificate of Merit was filed
with the first complaint in this case, just as contemplated by Tex. Civ. Prac.
Rem. Code §150 following a prior dismissal without prejudice. Appellants’
argument that only the first-filed petition in the first-filed suit can satisfy
§150 are contrary to both plain statutory language and legislative intent;
and,
Third, the Certificate of Merit in this case properly sets forth “the… action,
error, or omission of the licensed or registered professional in providing the
professional service… and the factual basis for each such claim” as required
4
by §150.002(b) Tex. Civ. Prac. Rem. Code.
Argument and Authorities
A. Appellants are indirectly challenging the dismissal without
prejudice of a previous case and stating it should have been made
with prejudice. However, Appellants did not appeal or otherwise
challenge the previous dismissal without prejudice and do not
have a legal basis for attacking that dismissal in the currently
filed case.
Appellants’ argument is that the Original Petition filed in the current case, Cause
No. 2014-29414, is not the first-filed complaint pursuant to Tex. Civ. Prac. & Rem. Code
§150, and that the only petition that could possibly satisfy the requirements of §150 is the
petition filed in the previous case that was dismissed without prejudice, Cause No. 2014-
12614. Appellants are functionally arguing that the previous case should have been
dismissed with prejudice, because, they claim, no firs-filed petition in any later filed case
could satisfy the requirements of Tex. Civ. Prac. & Rem. Code §150.
However, the trial court in Cause No. 2014-12614 did order a dismissal without
prejudice. That became a final judgment of dismissal without prejudice for that case
without objection from or appeal by Appellants. Had Appellants in this case been
disappointed with the Court’s ruling in Cause No. 2014-12614, it was incumbent upon
them to seek a modification of the order of dismissal without prejudice while the Court
5
retained jurisdiction to do so, or to appeal it while appeal remained available. Appellants,
Defendants in the previously-dismissed case, did not exercise their rights to challenge
that dismissal pursuant to the Texas Rules of Civil Procedure. Appellants filed no Motion
for Reconsideration of the dismissal without prejudice, filed no Motion for New Trial,
and filed no appeal of the May 2014 Order.
The Rules of Civil Procedure do not authorize Appellants to challenge that
dismissal through an appeal in a later filed suit. Appellants have not provided any
authority that collateral attack on the final judgment of dismissal without prejudice in
Cause No. 2014-12614 became available to them either in Cause No. 2014-29414 or
through the instant appeal. Moreover, Appellants demonstrate no impropriety in the
Court’s exercise of its discretion in Cause No. 2014-12614 to dismiss it without
prejudice.
B. Tex. Civ. Prac. & Rem. Code §150.002(e) specifically grants the trial
court discretion to choose between dismissal with or without prejudice.
Therefore, an interpretation that §150.002(e) requires dismissal with
prejudice is erroneous and renders statutory language superfluous.
Appellants argue that the previous case, Cause No. 2014-12614, should have been
dismissed with prejudice, because no petition in a later filed suit could possibly satisfy
Tex. Civ. Prac. & Rem. Code §150 and any later filed suit, even one satisfying §150,
must therefore be dismissed.
6
However, the very statute on which Appellants rely, forbids the result they
demand. In Texas, "[i]t is an elementary rule of construction that, when possible to do so,
effect must be given to every sentence, clause, and word of a statute so that no part
thereof be rendered superfluous or inoperative." City of San Antonio v. City of Boerne,
111 S.W.3d 22, 29 (Tex. 2003) (citing Spence v. Fenchler, 180 S.W. 597, 601 (Tex.
1915)). The plain language of the statute at issue in this case, §150.002 Tex. Civ. Prac.
Rem. Code, explicitly grants the trial court discretion to determine whether the dismissal
required by the statute will be with prejudice, by using the word “may”. Tex. Civ. Prac.
Rem. Code §150.002(e). Use of the word “may” in this statute creates “discretionary
authority or grants permission or a power” while the word “shall” imposes a duty. Tex.
Gov’t Code Ann. §311.016 (West 2005). The relevant statutory language is as follows:
“The Plaintiff’s failure to file the affidavit in accordance with this section shall result in
dismissal of the complaint against the defendant. This dismissal may be with prejudice.”
Tex. Civ. Prac. & Rem. Code §150 (emphasis added)
If §150.002(a)’s contemporaneous filing requirement applied not to each
case’s first-filed petition, but only to the first-filed petition in the first-filed case,
then the provision in Rule 150.002(e) that dismissal “may” be with prejudice
would be superfluous, because, if Appellant is correct then the effect of any
dismissal would be to preclude any later cause of action and, in effect, require a
mandatory dismissal with prejudice (whether in the first case or in some second or
7
subsequent case). Appellants would have this Court read §150.002 to bootstrap
every dismissal without prejudice into a dismissal with prejudice, which would
render superfluous §150.002(e)’s plain statement that the dismissal under §150.002 “may
be with prejudice.”
To require that each dismissal be a dismissal with prejudice also runs contrary to
the legislative intent of §150. Tex. Civ. Prac. & Rem. Code §150. The effect of requiring
every dismissal to be “with prejudice” would be to prevent valid claims based on
technicalities. The affidavit requirement is not intended to hinder valid claims, but
instead “provide[s] 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.). The affidavit filing requirement shows the court
from the start that the claim has merit and offers a vehicle for quickly dismissing
the suit if the merit isn’t initially shown. Bruington Eng'g, Ltd. v. Pedernal Energy,
L.L.C., 2014 Tex. App. LEXIS 9493 (Tex. App. San Antonio Aug. 27, 2014);
Bruington Eng'g, L.T.D. v. Pedernal Energy, L.L.C., 403 S.W.3d 523, 530 (Tex.
App. San Antonio 2013) (Affidavit must be filed with original petition, not a later
amended petition). Appellees met that burden in the currently-filed case by
contemporaneously filing a Certificate of Merit with the first-filed pleading in this
case as required by the §150. Tex. Civ. Prac. & Rem. Code §150.002.
8
This issue, under nearly identical circumstances, has already been subjected to
appellate review. In Medina v. Hatch Assocs. Consultants, Inc. 2014 Tex. App.
LEXIS 3044 (Tex. App.–Corpus Christi Mar 20, 2014, pet. filed), the Court
determined that a §150.002(a) affidavit does not become untimely simply because it is
filed with the first-filed petition of a new cause following a prior dismissal without
prejudice. Medina, 2014 Tex. App. LEXIS 3044; Garza v. Carmona, 390 S.W.3d
391, 398 (Tex. App.—Corpus Christi 2012, no pet.) (reversing non-dismissal for
determination whether dismissal should be with or without prejudice). The court
determined that the legislative intent of §150 was to make dismissal with prejudice
discretionary. Medina, 2014 Tex. App. LEXIS 3044.
C. The trial court properly held Plaintiff’s affidavit met the
requirements of Tex. Civ. Prac. Rem. Code §150.
A trial court’s Order denying a Motion to Dismiss for want of a compliant
affidavit is reviewed not de novo, but for 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.). In reviewing a trial court's denial of a section 150.002 motion to
dismiss, the appellate court reviews the record in the light most favorable to the
ruling. See Howe-Baker Eng'rs, Ltd. v. Enter. Prods. Operating, LLC, No. 01-09-
01087-CV, 2011 WL 1660715, at *5 (Tex. App.-Houston [1st Dist.] Apr. 29, 2011,
no pet.)(mem. op.).
9
Nothing in §150.002 Tex. Civ. Prac. Rem. Code requires a Certificate of
Merit affidavit to contain legal terms of art; the statute requires only that the
affidavit state “the action, error, or omission of the licensed or registered
professional in providing the professional service … and the factual basis for each
such claim[.]” Tex. Civ. Prac. Rem. Code §150.002(b). Under Texas law, a Court
faced with a bare-bones affidavit that outlines the errors committed “cannot
conclude that [it] fails to set forth the negligence, or other action, error, or omission
… in providing the professional service.” Siemens Energy, Inc. v. Nat'l Union Fire
Ins. Co., 2014 Tex. App. LEXIS 5923 at 19-20 (Tex.App.–Houston [14th Dist.]
June 3, 2014).
The affidavit filed contemporaneously with the Original Petition in Cause
No. 2014-29414 identifies numerous errors committed by Appellants that are the
basis of Appellee’s claims. The certificate identifies that:
Two otherwise identical surveys were produced containing contrary
information – the first, relied upon survey, represented that the subject
property was NOT in any flood plain, while the later produced survey
claimed that the property WAS in a flood plain;
It is foreseeable and reasonable for Appellant to have relied on the
first survey as being the opinion of the surveyor whose seal it bore;
The second survey did not identify any change in date or otherwise
10
identify that it was a revision;
Appellant Couchman, the surveyor, negligently failed to exercise
reasonable control over his surveyor’s seal which is in violation of his
duty as a registered surveyor;
Appellant ProSurv recklessly caused an inaccurate survey, not the
opinion of the surveyor, to be transmitted to its customer Appellee
with a reckless disregard for the truth or falsity of the information
provided;
Safeguarding of the surveyor’s seal would have prevented ProSurv
from providing a false survey to Appellee;
Or Appellant Couchman may have changed his opinion and attempted
to hide that fact by changing the flood plain representation on the
original face of the survey instead of producing a revised survey;
The second survey was transmitted to Appellee after the closing of the
transaction the survey itself states it was created for and the closing
for which both Appellants knew it was going to be relied on; and
In light of the aforementioned errors, Appellants breached their duties
to Appellee.
Appellants argue that the affidavit timely provided with the first-filed
pleading in this case as a Certificate of Merit is insufficient because it does not
11
specifically address the breach of contract claims and set out the elements of
breach of contract. However, the affidavit in this case does set out the basis for the
claims asserted by Appellee and does identify the ways in which Appellants
breached their duty to Appellee by failing to provide an accurate survey in a timely
manner for the closing of the transaction contemplated by the face of the survey.
Moreover, not all claims against licensed professionals lie within §150.002
Tex. Civ. Prac. Rem. Code. For example, in TDIndustries Inc. v. Rivera, 339
S.W.3d 749 (Tex.App.–Houston [1st Dist.] 2011) this Court held that a negligence
suit against an engineer could manage not to implicate §150.002(a) Tex. Civ. Prac.
Rem. Code or invoke its affidavit requirement. Unlike the contract claim in
Siemens, supra, that alleged breach based on a failure to inspect properly, the
contract claim in the instant case is grounded in untimeliness (i.e., withholding the
surveyor’s true report asserting the property to actually be in a flood plain until
after the closing of the transaction for which it was certified had already been
completed). To the extent a breach of contract is based not on competence or
professional diligence but only a purely contractual duty, it lies beyond the bounds
of the affidavit requirement.
As described above, the affidavit timely provided in this case is rich with
factual bases for all Plaintiff’s causes of action and the trial court’s discretion was
properly exercised to deny the Motion to Dismiss.
12
Conclusion and Prayer
Faced with a Motion to Dismiss and a nonsuit in Cause No. 2014-12614, the trial
court was within its sound discretion to, and did, dismiss that cause without prejudice,
and Appellants never appealed that Order. That dismissal order is final, and the time for
appealing it is long gone. To read §150.002(e) to render every dismissal under §150.002
to be in effect a dismissal with prejudice is not only to deprive the Order of dismissal
without prejudice of its stated effect, but to rewrite §150.002 in words the Legislature did
not choose to enact, and to erase the word “may” from §150.002(e). The canons by
which statutes are construed are clear, and Texas law forbids the result Appellants
demand.
The trial court correctly determined that Mrs. Cardona was entitled to bring an
action against Toby Paul Couchman and Pro-Surv following her prior nonsuit without
prejudice, correctly determined that the Certificate of Merit filed with her Original
Petition in Cause No. 2014-29414 was timely filed, and properly exercised the discretion
conferred upon it by statute to find the Certificate of Merit set forth sufficient facts to
support some claim capable of surviving dismissal under §150.002. Moreover, §150.002
does not apply to claims that a contract was not timely performed, and Appellants’ appeal
should be denied with respect to Appellee’s contract and other claims.
WHEREFORE, PREMISES CONSIDERED, Appellee Elizabeth Cardona
respectfully requests that the appeal of Toby Paul Couchman and Pro-Surv be in all
13
things denied and overruled, and for such other and further relief to which she may be
justly entitled.
Respectfully submitted,
_________________________
Robert L. Collins
Texas Bar No. 04618100
Audrey Guthrie
Texas Bar No. 24083116
P.O. Box 7726
Houston, Texas 77270-7726
(713) 467-8884
(713) 467-8883 Facsimile
Houstonlaw2@aol.com
Christopher D. Lewis
SBOT No. 24032546
1721 West T.C. Jester Blvd.
Houston, Texas 77008
Telephone: (713) 553-4104
ATTORNEYS FOR APPELLEE
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point font for text and 12-point font for footnotes. This document also complies
with the word-count limitations of Tex. R. App. P. 9.4(i) because it contains no
more than 3,008 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
Robert L. Collins
14
CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of May, 2015, a true and correct copy of
the foregoing was served on the following by certified mail, return receipt
requested, regular mail, electronic service, and/or facsimile to:
Zandra Foley, Esq.
Kimberly Snagg, Esq.
Thompson, Coe, Cousins & Irons, LLP
One Riverway, Suite 1400
Houston Texas 77056
ZFoley@ThompsonCoe.com
Facsimile (713) 403-8299
Robert L. Collins
15
Toby Paul Couchman and Pro-Surv v. Elizabeth Cardona
Combined Opinion