Reverse and Render; Dismiss and Opinion Filed June 19, 2015




                                       S   In The
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                    No. 05-15-00103-CV

                               DHM DESIGN, Appellant
                                       V.
                            CATHERINE MORZAK, Appellee

                      On Appeal from the County Court at Law No. 3
                                  Dallas County, Texas
                          Trial Court Cause No. CC-14-00798-C

                           MEMORANDUM OPINION
                        Before Justices Bridges, Brown, and Stoddart
                                 Opinion by Justice Bridges
       In this interlocutory appeal, DHM Design (DHM) challenges the trial court’s denial of

DHM’s motion to dismiss Catherine Morzak’s claims against it, which are based upon the

allegedly negligent design of bleachers at a city park.      DHM contends the trial court

misinterpreted the statute governing threshold procedures for filing suit against certain

professionals, including architects and landscape architects. See TEX. CIV. PRAC. & REM. CODE

ANN. § 150.002 (West 2011).      We agree that Morzak did not comply with the statute’s

procedural mandates. We reverse the trial court’s order denying the motion to dismiss, and we

render judgment dismissing Morzak’s claims against DHM.
                                                                Background

          On May 5, 2012, Morzak attended a baseball game at Breckenridge Park in the City of

Richardson. The park has a number of ball fields; each field has a covered grandstand, under

which concrete bleachers are located. Morzak alleges the seating area of the bleachers and the

stairs that access the bleachers are made of the same concrete material and have no contrasting

color to distinguish between the stairs and the seating area. She alleges further that she stepped

off the edge of the seating area where it met the stairs and, because she was unable to perceive

the change in depth of the risers between the stairs and the seating area, she fell to the bottom of

the seating area and sustained serious injuries.

          Morzak sought information from the City of Richardson concerning the design and

construction of the bleachers. Based on that information, Morzak filed suit against Barker

Rinker Seacat Architecture, P.C. (BRS) on February 20, 2014, alleging BRS had negligently

designed the seating area and stairway.1 She attached a certificate of merit to her original

petition (the First Certificate) as the statute requires. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 150.002 (discussed below). The First Certificate was prepared by architect Tony DiNicola and

supported Morzak’s claim that BRS, as the architect of record for the bleachers, had negligently

designed the bleachers.

          On March 10, 2014—almost two months before the statute of limitations period on

Morzak’s personal injury suit was to expire—her attorney received information from BRS’s

attorney indicating that (1) BRS had designed only the roof over the grandstands at the park, and

(2) DHM, a landscape architecture firm, had designed the seating area and stairs. On May 5,

2014, Morzak filed her first amended petition, adding DHM as a defendant and alleging DHM



   1
       Morzak also sued the contractor responsible for building the seating area and stairs, but that claim is not before us in this appeal.



                                                                       –2–
had negligently designed the bleachers. Morzak attached the First Certificate to the amended

petition.

        DHM answered and filed a motion to dismiss Morzak’s claims for failure to file a

certificate of merit specifically addressing DHM and its conduct. Morzak filed her response to

the motion—which included an alternative request for an extension of time—and her second

amended petition. This time, Morzak attached a new certificate of merit, again sworn to by

DiNicola, which said the First Certificate applied to both BRS and DHM (the Second

Certificate).

        DHM filed a second motion to dismiss, arguing Morzak failed to provide a sufficient

certificate with her first amended petition and did not timely seek an extension. Following a

hearing, the trial court signed an order denying DHM’s motion to dismiss and finding good cause

existed to extend Morzak’s deadline for filing a certificate of merit until June 13, 2014, the date

she filed her second amended petition and the Second Certificate.

        DHM brings this interlocutory appeal, challenging the trial court’s order denying its

motion to dismiss. See id. § 150.002(f) (providing for interlocutory appeal following grant or

denial of motion to dismiss under this chapter).

                                      Certificate of Merit

        On appeal, DHM seeks our resolution of one question: did the trial court abuse its

discretion by misinterpreting Texas Civil Practice and Remedies Code section 150.002 and

denying DHM’s motion to dismiss? DHM argues for an affirmative answer to that question in

three issues, contending that (1) Morzak failed to file a certificate of merit contemporaneously

with her first petition that asserted claims against DHM, (2) Morzak did not satisfy the statute’s

two requirements to meet the good-cause exception for an extension, and (3) the Second

Certificate that Morzak belatedly filed did not itself meet the statute’s requirements. We review

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the trial court’s denial of DHM’s motion to dismiss for an abuse of discretion. See Morrison

Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421, 424 (Tex. App.—Dallas 2012, no pet.). However,

DHM’s fundamental question is one of statutory construction, which we review de novo. See id.

at 425. Our primary objective when construing a statute is to determine the Legislature’s intent;

when possible, we discern that intent from the plain meaning of the words. State v. Shumake,

199 S.W.3d 279, 284 (Tex. 2006).

       Chapter 150 of the civil practice and remedies code addresses liability of certain licensed

or registered professionals, including architects and landscape architects. See TEX. CIV. PRAC. &

REM. CODE ANN. §§ 150.001–150.004 (West 2011 and West. Supp. 2014). In cases that fall

within the ambit of this chapter, section 150.002 requires the filing of a certificate of merit. The

certificate takes the form of an affidavit from a competent professional and supports the

plaintiff’s theory of recovery. See id. § 150.002 (West 2011). “[T]he purpose of the certificate

of merit is to provide a basis for the trial court to conclude that the plaintiff's claims have merit.”

Morrison Seifert Murphy, Inc., 384 S.W.3d at 425 (quoting Criterium–Farrell Eng’rs v. Owens,

248 S.W.3d 395, 399 (Tex. App.—Beaumont 2008, no pet.)). A plaintiff’s failure to file an

affidavit that complies with section 150.002 “shall result in dismissal of the complaint against

the defendant.” See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e).

                              Contemporaneous Filing of Certificate

       In its first issue, DHM contends the trial court erred in denying its motion to dismiss

because Morzak failed to file a certificate of merit at the time of her first petition asserting claims

against DHM. Subsection (a) of section 150.012 speaks to who may make the required affidavit

and when it must be filed. DHM has not challenged the qualifications of DiNicola to author the

certificate. However, the timing requirement of the statute is critical to DHM’s first issue. The

relevant portion of the subsection states:

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       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.

Id. § 150.002(a) (emphasis added). This requirement of filing “with the complaint” is referred to

later in the statute as “[t]he contemporaneous filing requirement of Subsection (a).”             Id.

§ 150.002(c). The requirement of contemporaneous filing means the certificate of merit must be

filed when the plaintiff first files a complaint asserting its claim for damages arising out of the

provision of professional services. See JJW Dev., L.L.C. v. Strand Sys. Eng’g, Inc., 378 S.W.3d

571, 576 (Tex. App.—Dallas 2012, pet. denied). That first complaint will often be the plaintiff’s

original petition. However, if the plaintiff files more than one petition in a single action, it must

file the certificate of merit with the first petition that raises claims subject to section 150.002’s

provisions. TIC N. Central Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13-01021-CV, 2014

WL 4724706, at *4 (Tex. App.—Dallas Sept. 24, 2014, pet. denied); see also Morrison Seifert

Murphy, Inc., 384 S.W.3d at 423 (denial of motion to dismiss affirmed when plaintiff filed

certificate of merit with amended petition that added architect as party); JJW Dev., 378 S.W.3d

at 576 (filing of certificate became issue when second amended petition—later superseded by

third amended petition—contained first complaints against engineering company).

       In this case, Morzak filed her first amended petition, which added DHM as a defendant

and made claims against DHM that fell within the ambit of section 150.002. Thus, Morzak was

required to file a certificate of merit addressing DHM’s conduct with that first amended petition.

She did not. Instead, she re-filed the certificate initially filed with her original petition that

addressed BRS’s conduct. The statute requires that a certificate:

       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


                                                –5–
           or omission in providing advice, judgment, opinion, or a similar professional skill
           claimed to exist and the factual basis for each such claim.

TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b) (emphasis added). The plain language of the

statute requires the certificate to speak specifically to the conduct of the professional who

provided the service at issue in the theory of recovery. It is not sufficient to submit a certificate

that was drawn and sworn to in reference to another named professional’s conduct.                                                              The

certificate must identify the particular defendant and that defendant’s specific conduct. See id.;

see also Robert Navarro & Assocs. Eng’g, Inc. v. Flowers Baking Co. of El Paso, LLC, 389

S.W.3d 475, 482 (Tex. App.—El Paso 2012, no pet.) (dismissing claims based on “collective

assertions of negligence”); Sylva Eng’g Corp. v. Kaya, No. 03-12-00334-CV, 2013 WL

1748754, at *5 (Tex. App.—Austin April 18, 2013, no pet.) (memo op.) (dismissing claim when

certificate attributed conduct at issue only to different defendant).2

           We conclude Morzak did not comply with the statutory requirement to file a certificate of

merit addressing DHM’s conduct contemporaneously with her first petition asserting claims

against DHM. We sustain DHM’s first issue.

                                              Extension of Time to File Certificate

           In its second issue, DHM argues Morzak did not satisfy the statute’s “twin requirements”

to meet the good-cause exception for an extension of time to file a certificate of merit that would

address DHM’s conduct.                      We agree that the statute’s provision for an extension has two

prerequisites. It states:

           The contemporaneous filing requirement of Subsection (a) shall not apply to any
           case in which [1] the period of limitation will expire within 10 days of the date of
           filing and, [2] because of such time constraints, the plaintiff has alleged that an
           affidavit of a third-party licensed architect, licensed professional engineer,

     2
         We note that our courts have looked to Texas’s Medical Liability Act as “a useful, if imperfect, analogue” to the certificate of merit
procedure. See Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 388 (Tex. 2014). An expert report required by that Act is
insufficient if it fails to identify the defendant and summarize how the defendant breached the standard of care. See, e.g., Eichelberger v. St. Paul
Med. Ctr., 99 S.W.3d 636, 639 (Tex. App.—Dallas 2003, pet. denied).



                                                                       –6–
           registered landscape architect, or registered professional land surveyor could not
           be prepared.

TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(c) (emphasis added). The subsection goes on to

say that in “such cases,” the plaintiff receives an automatic thirty-day extension from the date of

filing the petition to supplement its pleadings with the affidavit. Id.

           It is undisputed that Morzak filed her first amended petition within ten days of the

expiration of limitations on her claim. However, Morzak did not allege in the first amended

petition that, because of the approaching expiration of the limitations period, she could not obtain

an affidavit in compliance with the statute. The Texas Supreme Court has directed that the

exception to contemporaneous filing is dependent on both filing within ten days of the end of the

limitations period and alleging that the late filing prevented the preparation of the certificate of

merit. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014). Absent

compliance with both prerequisites, there is no thirty-day extension. And absent compliance that

would allow the thirty-day extension, we do not reach the possibility of a further good-cause

extension such as the trial court granted in this case. See id. (“Thus, we read the good cause

exception of section 150.002(c) as flowing from compliance with the remainder of the

subsection; it does not stand alone.”).

           We conclude Morzak did not comply with the statutory prerequisites for an extension of

time to file a sufficient certificate of merit in this case. We sustain DHM’s second issue.3

                                                                Conclusion

           We have concluded that Morzak did not timely file an appropriate certificate of merit

with her first amended petition. We have concluded further that she was not entitled to an

     3
         Because we have sustained DHM’s first two issues, we need not reach its third issue, which argues the Second Certificate does not meet
the statute’s substantive requirements. However, because we have addressed the same issue in this opinion in a different context, we note that the
Second Certificate does not speak specifically to any conduct of DHM. Instead, it alleges only that the First Certificate “applies to Barker Rinker
Seacat Architecture and DHM Design.” See Robert Navarro & Assocs. Eng’g, Inc., 389 S.W.3d at 482 (finding “collective assertions of
negligence” insufficient to avoid dismissal).



                                                                      –7–
extension of time to file a sufficient certificate. Accordingly, the trial court abused its discretion

by denying DHM’s motion to dismiss. We reverse the trial court’s order denying DHM’s motion

to dismiss. We render judgment dismissing Morzak’s claims against DHM without prejudice.

See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e).




150103F.P05                                            /David L. Bridges/
                                                       DAVID L. BRIDGES
                                                       JUSTICE




                                                 –8–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DHM DESIGN, Appellant                                On Appeal from the County Court at Law
                                                     No. 3, Dallas County, Texas
No. 05-15-00103-CV          V.                       Trial Court Cause No. CC-14-00798-C.
                                                     Opinion delivered by Justice Bridges.
CATHERINE MORZAK, Appellee                           Justices Brown and Stoddart participating.

    In accordance with this Court’s opinion of this date, the order of the trial court is
REVERSED and judgment is RENDERED that:

       Catherine Morzak's claims against DHM Design are DISMISSED without
       prejudice.

       It is ORDERED that appellant DHM Design recover its costs of this appeal from
appellee Catherine Morzak.


Judgment entered June 19, 2015.




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