                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-09-00272-CV

MIKE USTANIK AND WIFE, TERESA USTANIK,
                                    Appellants
v.

NORTEX FOUNDATION DESIGNS, INC.,
JERRY L. COFFEE, P.E., AND READY CABLE, INC.,
                                          Appellees



                             From the 413th District Court
                                Johnson County, Texas
                              Trial Court No. C20070097


                 CONCURRING AND DISSENTING OPINION


         I join the majority’s opinion on the resolution of the first and second issues. I

concur in part and dissent in part to the majority’s opinion and judgment on the third

issue.

         I agree with the majority that the former version of section 150.002, with the 2005

amendments, applies to this case. I join the majority opinion’s ruling that the negligent

misrepresentation and breach of contract causes of action should be dismissed. But I

believe the DTPA cause of action should not be dismissed and therefore dissent.
       In this case, under the necessary analysis of the 2005 act, negligent

misrepresentation and breach of contract are “[actions] arising out of the provision of

professional services.” However, the 2005 act goes further and states that the certificate

of merit affidavit “shall set forth specifically at least one negligent act, error or omission

claimed to exist and the factual basis for each such claim.” How then do we square the

“arising” language and the “negligent” language in a review of an alleged non-

negligence cause of action for the necessity of certification? Our sister courts have

struggled at this point. The analyses by the majority and the dissent in Consolidated

Reinforcement are excellent examples of that struggle. See Consolidated Reinforcement, L.P.

v. Carothers Executive Homes, Ltd., 271 S.W.3d 887 (Tex. App.—Austin 2008, no pet.).

Ultimately, I agree with the dissent in that case that the reconciliation of the language

and its application, as stated above, rests on the characterization of the supporting

alleged facts behind the labeled causes of action and the breaches of duty that are

involved. See id. at 896-97 (Waldrop, J., dissenting); see also Parker County Veterinary

Clinic, Inc. v. GSBS Batenhorst, Inc., No. 2-08-380-CV, 2009 WL 3938051, at *3-5 (Tex.

App.—Fort Worth, Nov. 19, 2009, no pet. h.).

       In the present case, the pleaded breaches of duty, by errors of omission or

commission, speak to tort concepts, even if one of the alleged theories was breach of

contract.    Presently, the elements of negligent misrepresentation, particularly the

namesake element, rely in part on the provision of professional services while alleging

negligence. Looking backward at the breach of contract pleading, it too relies heavily

on the provision of professional services. In summary, the majority, in the present case,

Ustanik v. Nortex Foundation Designs, Inc.                                              Page 2
summarizes the overall breach of the duty owed as being “by failing to design … and

not properly conducting … inspection.” That characterization is consistent with both

negligent misrepresentation and breach of contract as alleged.

       However, the DTPA claim is a legislatively crafted cause of action that relies on

“sponsorship and approval” in this case and has an exemption for a professional

opinion that further buffers it from the statutory professional services concept that

would otherwise have required certification. See TEX. BUS. & COMM. CODE ANN. §§

17.46(b)(5), 17.49(c)(1) (Vernon Supp. 2009). And the laundry list of “false, misleading,

or deceptive acts or practices” significantly emphasizes misrepresentation. See id. §

17.46(b).

       I believe the DTPA claim is a non-negligence claim that does not need a

certificate of merit and may be pursued. Because the majority affirms the complete

dismissal by the trial court and I cannot, I respectfully concur and dissent accordingly.



                                                 REX D. DAVIS
                                                 Justice

Concurring and Dissenting Opinion delivered and filed June 16, 2010




Ustanik v. Nortex Foundation Designs, Inc.                                           Page 3
