                                MEMORANDUM OPINION
                                       No. 04-11-00081-CV

                       James ZIMMERHANZEL and Linda Zimmerhanzel,
                                     Appellants

                                                  v.

                             J.M. BUTZ Jr. d/b/a Butz Land Surveying,
                                            Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                   Trial Court No. 2008-0148-CV
                           Honorable Dwight E. Peschel, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Catherine Stone, Chief Justice
                 Phylis J. Speedlin, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: September 14, 2011

REVERSED AND REMANDED

           Appellants James and Linda Zimmerhanzel sued appellee J.M. Butz Jr. d/b/a Butz Land

Surveying for negligence, negligent misrepresentation, and violations of the Texas Deceptive

Trade Practices Act (“DTPA”). The trial court dismissed the Zimmerhanzels’ negligence-related

claims because the Zimmerhanzels failed to timely file a certificate of merit. The trial court then

granted Butz’ special exception and motion to dismiss the DTPA claims on the ground that Butz

was an exempt professional under the DTPA.
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          On appeal, the Zimmerhanzels contend the trial court erred by sustaining Butz’ special

exception and dismissing their DTPA claims. We reverse and remand.

                                                 BACKGROUND

          In 2004, the Zimmerhanzels bought a house along with some additional acreage in

Guadalupe County, Texas. In connection with the Zimmerhanzels’ purchase, Butz conducted a

survey to ascertain if the structure on the property was located in the 100-year flood plain. 1

After conducting the survey, Butz informed the Zimmerhanzels’ lender that none of the

structures on the property were located in the 100-year flood plain. This survey was reviewed

before closing and the Zimmerhanzels’ lender advised them that their home was not located in

the 100-year flood plain.

          After the purchase, in 2007, the Zimmerhanzels’ property flooded due to heavy rain. The

damage to the structure on the property was so severe, the Guadalupe County Flood Plain

Manager ordered the structure be demolished. The Zimmerhanzels subsequently discovered

their property was located in the 100-year flood plain. The Zimmerhanzels sued Butz and others.

The Zimmerhanzels sued Butz for negligence, negligent misrepresentation, and violation of the

DTPA. The trial court granted Butz’ special exception and motion to dismiss on the basis that

Butz rendered professional services and was therefore exempt from the DTPA.                                      The

Zimmerhanzels then perfected this appeal. Only the claims concerning Butz are at issue in this

appeal.




1
  The Federal Emergency Management Agency (“FEMA”) has identified Special Flood Hazard Areas (“SFHA”).
Nast v. State Farm Fire and Cas. Co., 82 S.W.3d 114, 119 n. 2 (Tex. App.—San Antonio 2002, no pet.). SFHAs
are otherwise known as the 100-year flood plain. Id. If any of the property falls within the 100-year flood plain, the
lending institution must notify the purchaser before closing so that flood insurance can be obtained. Audler v. CBC
Innovis Inc., 519 F.3d 239, 245 (5th Cir. 2008).

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                                               ANALYSIS

        On appeal, the Zimmerhanzels contend the trial court erred by sustaining Butz’ special

exception and by dismissing the Zimmerhanzels’ DTPA claim. The Zimmerhanzels first argue a

no-evidence motion for summary judgment, not a special exception, was the proper vehicle to

raise this argument. They also argue the trial court erred because: (1) Butz, a surveyor, is not a

professional under the DTPA; and (2) even if Butz is a professional for purposes of the DTPA,

the exemption is not applicable because Butz made a statement of fact, not opinion.

        We will review the trial court’s ruling on a special exception for an abuse of discretion.

Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex. App.—San Antonio 2000, no pet.). A special

exception informs the opposing party of the defects in its pleadings, so the party, if possible, may

have an opportunity to cure the defect. TEX. R. CIV. P. 91; Horizon/CMS Healthcare Corp. v.

Auld, 34 S.W.3d 887, 997 (Tex. 2000). “Although special exceptions are generally filed to force

clarification of vague pleadings, they may also be used to determine whether the plaintiff has

stated a cause of action by specifically pointing out the defect or reason that the claim is invalid.”

Mowbray v. Avery, 76 S.W.3d 663, 667 (Tex. App.—Corpus Christi 2002, pet. denied). If the

plaintiff failed to state a cause of action, the trial court is entitled to dismiss the entire suit as long

as the plaintiff is given an opportunity to amend the pleadings. Id. But, if the defect is incurable,

the plaintiff need not be given the opportunity to amend and the cause of action is properly

dismissed because the suit is not permitted by law. Id; see also Wayne Duddlesten, Inc. v.

Highland Ins. Co., 110 S.W.3d 85, 96-97 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

        Here, if Butz was entitled to the professional exemption, the Zimmerhanzels’ pleading

defect would be incurable and the granting of the special exception and subsequent dismissal




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would be proper. See Mowbray, 76 S.W.3d at 667. We will, therefore, review the substance of

the trial court’s determination.

       The DTPA was designed to “protect consumers against false, misleading, and deceptive

business practices, unconscionable actions, and breaches of warranty and to provide efficient and

economical procedures to secure such protection.” TEX. BUS. & COM. CODE ANN. § 17.44(a)

(West 2011). The DTPA provides an exemption from liability to those who render professional

services because that service is based on providing advice, judgment, or opinion. TEX. BUS. &

COM. CODE ANN. § 17.49 (c) (West 2011), amended by Act of May 28, 2011, 82d Leg., R.S., ch.

189, § 17.49, 2011 Tex. Sess. Law Serv. (West). A professional service is one that arises “out of

acts particular to the individual’s specialized vocation.” Nast v. State Farm Fire & Cas. Co., 82

S.W.3d 114, 122 (Tex. App.—San Antonio 2002, no pet.). “An act is not a professional service

merely because it is performed by a professional; rather, it must be necessary for the professional

to use his specialized knowledge or training.” Id. However, the exemption does not apply to one

who provides a professional service if he offered “an express misrepresentation of a material fact

that cannot be characterized as advice, judgment, or opinion.” TEX. BUS. & COM. CODE ANN.

§ 17.49 (c)(1) (West 2011), amended by Act of May 28, 2011, 82d Leg., R.S., ch. 189, § 17.49,

2011 Tex. Sess. Law Serv. (West).

       Butz contends the Zimmerhanzels’ cause of action is barred as a matter of law because he

rendered professional services and is exempt from the DTPA. Butz does not offer any case law,

and we find none, that classifies a land surveyor as a professional under the DTPA. However,

whether or not Butz is a professional under the DTPA is not dispositive because we hold he

made a misrepresentation of material fact that could not be characterized as an opinion, barring

him from claiming the professional exemption. See id.



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       In Nast v. State Farm Fire and Cas. Co., a State Farm insurance agent informed the

plaintiffs that their property was not located in the 100-year flood plain and because their

property was not located in the 100-year flood plain, the plaintiffs were not eligible for FEMA

flood insurance. 82 S.W.3d at 122. After the plaintiffs’ house flooded, the plaintiffs discovered

their property was located in the 100-year flood plain. Id. We explained that whether the

plaintiffs’ property was located in the 100-year flood plain, and whether the plaintiffs were

eligible for FEMA flood insurance, was a statement of fact, not an opinion. Id. We therefore

held the agent was not exempt from the DTPA because he made an express misrepresentation of

a material fact that could not be characterized as an opinion or advice. Id.

       Butz informed the Zimmerhanzels their property was not located in the 100-year flood

plain, when in fact it was. Based on Nast, we hold Butz’ statement that the Zimmerhanzels’

property was not located in the 100-year flood plain was a misrepresentation of fact, not an

opinion.   This statement was an express misrepresentation of a material fact that did not

constitute an opinion, and therefore, the trial court abused its discretion by granting Butz’ special

exception and dismissing the Zimmerhanzels’ DTPA cause of action.

                                           CONCLUSION

       Based on the foregoing, we sustain the Zimmerhanzels’ issue. Accordingly, we reverse

and remand this matter to the trial court for further proceedings consistent with our opinion.


                                                  Marialyn Barnard, Justice




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