Zachry Eng'g Corp. v. Encina Dev. Grp., LLC

672 S.W.3d 534

ZACHRY ENGINEERING CORPORATION, Appellant

v.ENCINA DEVELOPMENT GROUP, LLC, Appellee

NO. 14-22-00265-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion Filed May 18, 2023

Kathryn Skagerberg, Kayla Quintana, Andrea Olsen-Leyden, for Appellee.

James Rowland Old Jr., J. Stephen Barrick, Houston, for Appellant.

Panel consists of Justices Wise, Jewell, and Poissant.

Margaret "Meg" Poissant, Justice

This interlocutory appeal concerns a question of first impression involving the exception to the certificate-of-merit requirement applicable in actions against a licensed or registered professional. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a), (h). Appellant Zachry Engineering Corporation ("Zachry") appeals the denial of its motion to dismiss the counterclaim asserted by appellee Encina Development Group, LLC ("Encina"). See id. § 150.002(f). In one issue, Zachry argues the trial court erred when it denied its motion to dismiss because Encina did not file a certificate of merit in support of its counterclaim for damages against Zachry, which arose out of Zachry's provision of professional engineering services, as required by Texas Civil Practice and Remedies Code § 150.002. See id. § 150.002(a). We affirm.

I. BACKGROUND

On March 8, 2017, Zachry and Encina executed a contract for Zachry to provide engineering services in Encina's project. On January 15, 2021, Zachry filed suit against Encina; Encina Solutions, LLC; Encina Chemicals, LLC; and Charles Costenbader. In its live pleading, Zachry asserted claims for suit on a sworn account, breach of contract, and declaratory judgment and sought actual damages of at least $773,255.98. Zachry alleged that Encina terminated the relationship on June 28, 2018, about one month before Zachry would have completed the work on Task Order 2, and that Encina subsequently refused to pay three of Zachry's invoices.

On April 5, 2021, Encina filed a counterclaim against Zachry for breach of contract, seeking damages, including out-of-pocket costs. Encina alleged that Zachry failed to complete Task Order 2 by December 2017 as agreed by the parties and that Encina terminated the relationship and hired others to perform re-working and re-design efforts that were Zachry's responsibility under the parties’ agreement and Task Order 2.

Zachry filed a motion to dismiss Encina's counterclaim, arguing that Encina failed to attach a certificate of merit to its counterclaim. See id. In response, Encina argued the requirement in § 150.002(a) was inapplicable to its counterclaim because Zachry initiated the lawsuit and sought to recover fees arising out of the provision of professional services. See id. § 150.002(h) ("This statute does not apply to any suit or action for the payment of fees arising out of the provision of professional services.").

On March 22, 2022, the trial court denied Zachry's motion to dismiss. 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 its sole issue, Zachry argues the trial court erred when it denied Zachary's motion to dismiss because Encina did not file a certificate of merit in support of its counterclaim.

A. STANDARD OF REVIEW

We review a trial court's order on a motion to dismiss under § 150.002 for an abuse of discretion. CBM Eng'rs, Inc. v. Tellepsen Builders, L.P. , 403 S.W.3d 339, 342 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985).

We review questions of statutory interpretation de novo. Pedernal Energy, LLC. v. Bruington Eng'g, Ltd. , 536 S.W.3d 487, 491 (Tex. 2017) ; Molinet v. Kimbrell , 356 S.W.3d 407, 411 (Tex. 2011). Our primary objective in construing statutes is to give effect to the Legislature's intent. Molinet , 356 S.W.3d at 411. The plain meaning of the text is the best expression of legislative intent. Id. When a statute is not ambiguous on its face, it is inappropriate to use extrinsic aids to construe the unambiguous statutory language, Fort Worth Transp. Auth. v. Rodriguez , 547 S.W.3d 830, 838 (Tex. 2018), and " ‘we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results.’ " In re Panchakarla , 602 S.W.3d 536, 540 (Tex. 2020) (orig. proceeding) (per curiam) (quoting TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011) ); see also Molinet , 356 S.W.3d at 414 ("Construing clear and unambiguous statutes according to the language actually enacted and published as law—instead of according to statements that did not pass through the law-making processes, were not enacted, and are not published as law—ensures that ordinary citizens are able to rely on the language of a statute to mean what it says.").¹ A statute is ambiguous if its words are susceptible to two or more reasonable interpretations and we cannot discern legislative intent from the language alone. Rodriguez , 547 S.W.3d at 838 ; Tex. State Bd. of Exam'rs of Marriage & Fam. Therapists v. Tex. Med. Ass'n. , 511 S.W.3d 28, 41 (Tex. 2017).

We read statutes contextually to give effect to every word, clause, and sentence because every word or phrase is presumed to have been intentionally used with a meaning and a purpose. Rodriguez , 547 S.W.3d at 838 ; see Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam) ("We presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted."). We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired. See Tex. Gov't Code Ann. § 311.011(b) ; Rodriguez , 547 S.W.3d at 838 ; City of Rockwall v. Hughes , 246 S.W.3d 621, 625 (Tex. 2008). Otherwise, we construe the statute's words according to their plain and common meaning unless a more precise definition is apparent from the statutory context or the plain meaning yields an absurd result. Tex. Gov't Code Ann. § 311.011(a) ; City of Rockwall , 246 S.W.3d at 625–26. To determine a term's common, ordinary meaning, we typically look first to dictionary definitions. Rodriguez , 547 S.W.3d at 838.

B. APPLICABLE LAW

Texas Civil Practice and Remedies Code § 150.002, titled "Certificate of Merit," provides in relevant part:

(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 who:

(1) is competent to testify;

(2) holds the same professional license or registration as the defendant; and

(3) practices in the area of practice of the defendant and offers testimony based on the person's:

(A) knowledge;

(B) skill;

(C) experience;

(D) education;

(E) training; and

(F) practice.

(b) The affidavit shall 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 licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.

....

(e) A claimant'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 Ann. § 150.002(a) – (b), (e) ; see also LaLonde v. Gosnell , 593 S.W.3d 212, 216 (Tex. 2019) ("The certificate-of-merit requirement is a substantive hurdle that helps ensure frivolous claims are expeditiously discharged."). Section 150.002 includes an exemption for the certificate-of-merit requirement, which provides that the 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 Ann. § 150.002(h).

C. ANALYSIS

Zachry argues that the exemption in § 150.002(h) does not apply to Encina's counterclaim, and thus, Encina was required to file a certificate of merit along with its counterclaim. See id. § 150.002(a), (h). This is a question of first impression for this Court.

The plain language of the statute states "[t]his statute does not apply to any suit or action for the payment of fees arising out of the provision of professional services." See id. § 150.002(h). Chapter 150 does not define "suit" or "action." Jaster v. Comet II, Const., Inc. , 438 S.W.3d 556, 563 (Tex. 2014) (plurality op.); see Tex. Civ. Prac. & Rem. Code Ann. § 150.001. Thus, we will give these terms their ordinary meaning. Jaster , 438 S.W.3d at 563 ; see City of Rockwall , 246 S.W.3d at 625–26.

The common meaning of the term "action" refers to an entire lawsuit or cause or proceeding, not to discrete "claims" or "causes of action" asserted within a suit, cause, or proceeding. Jaster , 438 S.W.3d at 563–64 ; Black's Law Dictionary (11th ed. 2019) (defining "action" as "[a] civil or criminal judicial proceeding"). "The term ‘action’ is generally synonymous with ‘suit,’ which is a demand of one's rights in court." Jaster , 438 S.W.3d at 564 (quoting Thomas v. Oldham , 895 S.W.2d 352, 356 (Tex. 1995) ). A suit, in turn, is "any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him." Id. (quoting ...