                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 3D/I + PERSPECTIVA, A TEXAS JOINT                §
 VENTURE,                                                          No. 08-08-00059-CV
                                                  §
                   Appellant,                                         Appeal from the
                                                  §
 v.                                                             County Court at Law No. 3
                                                  §
 CASTNER PALMS, LTD.,                                            of El Paso County, Texas
                                                  §
                   Appellee.                                         (TC# 2004-4188)
                                                  §

                                           OPINION

       3D/I + Perspectiva (“3D/I”) – a joint venture – appeals the jury’s verdict for Castner Palms,

Ltd. (“Castner Palms”) stemming from the latter’s suit for negligence. In two issues, 3D/I contends

that the trial court erred by denying its: (1) motion for instructed verdict when Castner Palms failed

to present expert testimony applicable to a construction-management firm’s standard of care in

pursuit of its negligence claim; and (2) jury instruction on the professional standard of care. Finding

3D/I’s first issue dispositive, we reverse and render judgment for 3D/I.

                                         BACKGROUND

       From the limited record presented to this Court, it appears that Patriot Castner Joint Venture

previously owned several parcels of land, and Glen Kistenmacher, an engineer, prepared a master

drainage plan for the properties in 1994. The master drainage plan provided that each property

should include an underground pipe for proper drainage from rainwater. The pipes were not put in

and portions of those undeveloped properties were later sold to various entities, including the County

of El Paso. Nevertheless, a city ordinance required all drainage plans to conform with the existing
approved master plan.

        The County’s property is adjacent to the Castner Palms’ property. The properties are

separated by a rock wall. In 2002, the County contracted with 3D/I to manage the construction of

an annex building. The relevant provisions of the contract provided that the County would contract

with consultants, architect, engineers, and construction contractors to provide the design,

construction, and construction administration for the project, and that 3D/I would supervise, direct,

and manage the complete construction of the project. The contract also limited 3D/I’s duties to

coordinating and scheduling the parties’ work and funding, reviewing the design documents for

adherence to “requirements, clarity, constructability and completeness,” making recommendations

to the County regarding design programs, design standards, guidelines, and constructability, and

guarding against defects and deficiencies in the contractor’s work as set out in the contracts. The

contract further stated that 3D/I would be judged by the “standards and quality prevailing among

first-rate, nationally recognized design/construction management firms of knowledge, skill and

experience engaged in projects of similar size and complexity.”

        In accordance with the contract, the County, in 2003, contracted with McCormick

Architecture, L.L.C, and Vistacon, Inc. (“Vistacon”) to develop the property and build the annex.

Vistacon, in turn, engaged Roe Engineering, L.C., ( “Roe”) to perform all engineering work required

to prepare the plans for the annex. For drainage purposes, Roe designed a temporary retention pond,

and Vistacon constructed it.1 The pond only accounted for rainwater falling on the County’s property

and not for uphill water that might flow onto the property. It did not comply with the drainage

master plan; therefore, it did not conform to the city ordinance. In the course of the construction of



        1
          W hen construction reached 50 percent, the plans provided that the contractors would connect to an
underground pipe for drainage purposes.
the annex, the retention pond overflowed during a rainstorm, causing the apartments located on the

Castner Palms’ property to flood.

           At trial, Castner Palms presented expert testimony that the drainage pond was responsible

for the flooding.2 Castner Palms did not present any evidence, apart from the contract itself, as to

the standard of care a construction-management firm of the same discipline was required to exercise

in supervising contractors. Accordingly, 3D/I moved for an instructed verdict, arguing that expert

testimony was necessary to show that it had breached the applicable standard of care: “Plaintiff has

not introduced any expert testimony of the standard of care to be exercised by an architectural firm

performing project management services similar to those provided by Defendant.” In response,

Castner Palms argued that because the standard of care was contained in the contract, which was

admitted into evidence, expert testimony was unnecessary. The trial court determined that Castner

Palms was not required to present expert testimony on the professional standard of care and denied

the motion for instructed verdict.

                                                     ANALYSIS

           3D/I’s first issue complains of the trial court’s denial of its motion for instructed verdict.

3D/I does not challenge Kistenmacher’s expert testimony showing the poorly constructed pond was

responsible for the damage to Castner Palms. Rather, 3D/I contends that Castner Palms failed to

present expert testimony as to the standard of care exercised by a construction-management firm in

a supervisory capacity. Castner Palms responds that the jury could have relied on common

knowledge in assessing the appropriate standard of care.

                                                 Standard of Review



           2
               Castner Palms originally sued Roe, Vistacon, and 3D/I; however, the suit against Roe and Vistacon
settled.
       To avoid an instructed verdict, Castner Palms was required to offer evidence for each element

of its negligence claim. Hager v. Romines, 913 S.W.2d 733, 734-35 (Tex. App. – Fort Worth 1995,

no writ). Thus, Castner Palms had to show 3D/I owed a legal duty to Castner Palms, 3D/I breached

that duty, and damages proximately resulted from the breach. Doe v. Boys Clubs of Greater Dallas,

Inc., 907 S.W.2d 472, 477 (Tex. 1995).

       The determination of whether expert testimony is necessary to establish negligence is a

question of law, which we review de novo. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84,

89 (Tex. 2004). Expert testimony is necessary to establish the applicable standard of care “when the

alleged negligence is of such a nature as not to be within the experience of the layman.” Id. at 90;

Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). In determining whether expert testimony is

necessary to establish negligence, we consider whether the conduct at issue involved the use of

specialized equipment and techniques unfamiliar to the ordinary person. FFE Transp. Servs., Inc.,

154 S.W.3d at 91. In such a case, the expert testimony must establish both the standard of care and

the violation of that standard. Simmons v. Briggs Equipment Trust, 221 S.W.3d 109, 114 (Tex. App.

– Houston [1st Dist.] 2006, no pet.); Hager, 913 S.W.2d at 734-35.

                                            Application

       The pleadings alleged that 3D/I failed to properly supervise the contractors’ design and

construction of the drainage retention pond. 3D/I’s understanding of its contractual obligations was

that it would oversee the complete construction of the project, and facilitate the development of the

plans and the construction between the design and construction contractors, and the County. 3D/I

denied that it was responsible for ensuring that adequate provisions for drainage on the site was

sufficient to contain water that flows upon it. Rather, 3D/I claimed that was Roe’s responsibility.

According to 3D/I, its duties were limited to supervising the work as presented to it by the plans,
noting that its obligation to review the design documents only extended to a review for adherence

to requirements, clarity, constructability, and completeness. Because there were no indications of

any problems with the construction of the pond, and because Roe’s plan achieved the required city

permit, 3D/I believed the plans were sufficient to discharge its responsibilities under the contract.

        As noted before, the contract between the County and 3D/I stated that 3D/I would be judged

by the “standards and quality prevailing among first-rate, nationally recognized design/construction

management firms of knowledge, skill and experience engaged in projects of similar size and

complexity.” In other words, the contract provided that 3D/I’s actions would be judged according

to other construction-management firms in the same discipline engaging in similar projects. That

discipline’s standard of care, however, is not stated in the contract. Thus, the question presented is

whether Castner Palms was required to present expert testimony as to the standard of care such a

firm should exercise in supervising a similar project.3

        In determining whether expert testimony was required in this case, we find guidance in two

recent cases. In Fulgham, a trucking company leased a trailer to a long-haul trucker, and while

transporting goods, the trailer’s upper coupler assembly, which contained a loose or rusty bolt, broke

loose, causing the trailer to separate from the tractor and overturn. Fulgham, 154 S.W.3d at 86. The

Court found that expert testimony was required to establish the standard of care since “[t]he upper

coupler assembly, kingpin, and base rail of a refrigerated trailer are specialized equipment, and the

proper inspection and maintenance of those parts involve techniques unfamiliar to the ordinary

person.” Id. at 91. Although the Court recognized that a layman may be able to detect whether a

visible bolt is loose or rusty, the Court held that whether that looseness or rust is sufficient to create


        3
           Castner Palms characterizes the issue as whether 3D/I can limit its common-law duty owed to third parties
by contractual arrangements. However, whether any common-law duty may be contractually limited is not the issue.
Rather, the issue is what standard of care 3D/I should have exercised in supervising the construction project.
a danger required specialized knowledge in the tractor-trailer industry. Id. Thus, an expert was

required to testify as to the standard of care. Id.

        Similarly, in Simmons, a worker brought a negligence action against his maintenance

company when the rail-car mover’s loose or worn hydraulic hose caught fire as he used the mover

to transport railroad cars. Simmons, 221 S.W.3d at 111-12. Finding the practices, procedures, and

industry standards with respect to the inspection and maintenance of a rail-car mover engine not

matters within a lay person’s general knowledge, the court determined that expert testimony

regarding the appropriate standard of care and whether the maintenance company breached that

standard was required. Id. at 114-15. Although the court acknowledged that an ordinary person

would be able to detect whether a hydraulic hose is loose or worn, the court noted that determining

when that looseness or wear was sufficient to create a dangerous condition would require specialized

knowledge. Id. at 115. “Without expert evidence or testimony, there was no evidence that [the

maintenance company] violated the standard of care for the inspection and maintenance of the

engine, hydraulic pump, or other internal parts of [the rail-car mover] . . . [nor was there any] factual

or evidentiary support in the record concerning . . . the actions that a reasonable maintenance

company would have taken with respect to the hydraulic pump and hose.” Id.

        In this case, we cannot conclude that a layman would know whether a construction-

management firm’s supervisory duties extended beyond simply overseeing the construction as set

out in the approved contractors’ design plans. This is not a case where the construction-management

firm hired the contractors and approved their plans; rather, the contract provided, and the record so

reflects, that El Paso County hired the contractors and approved the plans while 3D/I supervised the

construction of those approved plans. Castner Palms argues that Kistenmacher’s expert testimony

that Roe negligently designed the retention pond was sufficient for a layman to determine that 3D/I
breached its supervisory duties under the contract. Although a layman may be able to conclude from

Kistenmacher’s testimony that the pond was poorly designed and caused the flood, we believe that

whether a construction-management firm’s supervisory duties included more than ensuring that the

approved plans were built according to the requisite specifications called for in the plans requires

specialized knowledge in the construction-management firm industry. See, e.g., Fulgham, 154

S.W.3d at 91; Simmons, 221 S.W.3d at 115 (requiring expert testimony of industry standards).

       Castner Palms argues that since the standard of care was contained within the contract,

whether that standard was breached is a question of law reviewed de novo. Although we agree that

interpretations of contractual provisions are reviewed de novo, the contract here did not explain the

standard of care; rather, it simply stated that 3D/I would be held to a standard of care as other

construction-management firms in the same discipline and engaged in similar projects. There was

never any evidence presented as to what that standard of care was. Furthermore, the trial court never

determined whether 3D/I breached the standard of care described in the contract, nor was the jury

instructed that 3D/I did so. Rather, the jury was instructed on “ordinary care,” and the sole question

submitted was whose negligence proximately caused the damage to Castner Palms. In other words,

there was never any evidence, interpretation, or determination of the applicable standard of care for

the jury to properly decide negligence on the part of 3D/I.

       Further, even if we were to impute some explanation of the applicable professional standard

of care into the contract, expert testimony would still be required to establish that standard of care.

In Battaglia, the Supreme Court held that although a contract between a hospital and two

anesthesiologists’ professional associations obligated the associations to ensure that the staff they

supplied or supervised complied with standards specified in the contract, evidence that staff breached

those standards during a patient’s surgery at the hospital did not establish the requisite standard of
care for a medical-malpractice action against the professional association; rather, competent expert

testimony was necessary to establish the standard of care. See Battaglia v. Alexander, 177 S.W.3d

893, 899 (Tex. 2005). Similarly here, even if the contract identified the applicable standard of care,

competent expert testimony was nonetheless required to establish that standard for construction-

management firms.4

         Accordingly, because no expert testimony, much less any evidence, was presented as to the

applicable standard of care, we find the trial court erred by denying 3D/I’s motion for directed

verdict. We therefore sustain 3D/I’s first issue, reverse the judgment of the trial court, and render

judgment for 3D/I. See Hager, 913 S.W.2d at 735-36 (rendering take-nothing judgment against

plaintiffs who failed to produce necessary expert testimony on applicable standard of care). Given

our disposition, we need not reach 3D/I’s second issue.



                                                      GUADALUPE RIVERA, Justice

February 10, 2010

Before Chew, C.J., Rivera, J., and Garcia, Judge
Garcia, Judge, sitting by assignment




        4
           Castner Palms asserts that Kistenmacher’s expert testimony was sufficient to establish a breach of 3D/I’s
contractual duties. However, Kistenmacher’s testimony was solely limited to the cause of the flooding, that is, the
poorly designed and constructed retention pond. Thus, Kistenmacher’s opinion solely concerned the negligence of
Roe and Vistacon, the contractors that designed and constructed the pond. Kistenmacher did not discuss a
construction-management firm’s standard of care in supervising the design and construction of a similar project.
