                                      CONCURRING OPINION
                                             No. 04-10-00785-CV

                                Roland HARDY d/b/a Hardy & Associates,
                                            Appellant

                                                         v.

                                     Carol MATTER and Frank Matter,
                                               Appellees

                       From the 37th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2007-CI-18502
                         Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by: Karen Angelini, Justice
Concurring Opinion by: Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: July 20, 2011

           I concur in the judgment because the trial court did not abuse its discretion in denying the

motion to dismiss. I write separately because I disagree with the majority’s interpretation of the

legal requirements for the “certificate of merit” that must be filed contemporaneously with a

lawsuit against certain licensed or registered professionals. See TEX. CIV. PRAC. & REM. CODE

ANN. § 150.002. 1 I believe the statute is not ambiguous and clearly requires the certificate or

affidavit include the affiant’s licensure, area of practice, and competency to testify.




1
  The Legislature amended Section 150.002, effective September 1, 2009. See Act of June 2, 2009, 81st Leg., R.S.,
ch. 789, §§ 3-4, Tex. Gen. Laws 1990-92 (effective Sept. 1, 2009). The citations in this opinion are to the version of
the statute in effect before the 2009 amendments because Matters suit was filed before September 1, 2009. See Act
of May 12, 2005, 79th Leg., R.S., ch. 189, § 12, 2005 Tex. Gen. Laws 348 and Act of May 18, 2005, 79th Leg., R.S.,
ch. 208, § 150.002, 2005 Tex. Gen. Laws 369, 369-70 (current version at TEX. CIV. PRAC. & REM. CODE ANN.
§ 150.002 (West 2011)).
Concurring Opinion                                                                     04-10-00785-CV


         Statutory construction is a question of law. City of Rockwall v. Hughes, 246 S.W.3d 621,

625 (Tex. 2008). We construe statutory language to ascertain and give effect to the Legislature’s

intent. Id. “[W]e construe the statute’s words according to their plain and common meaning,

unless a contrary intention is apparent from the context, or unless such a construction leads to

absurd results.” Id. at 625-26 (citations omitted). Every word included in a statute must be

presumed to have been used for a purpose and every word excluded for a purpose. Laidlaw

Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995); Cameron v.

Terrell and Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). The statute must be read as a whole

and we interpret it to give effect to every part. City of San Antonio v. City of Boerne, 111

S.W.3d 22, 25-26 (Tex. 2003). We cannot adopt a construction that renders any statutory

provision meaningless. Fleming Foods of Tex., Inc,. v. Rylander, 6 S.W.3d 278, 284 (Tex.

1999).

         As quoted in the majority opinion, Section 150.002 states:

         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,
         registered professional land surveyor, or licensed professional engineer competent
         to testify, holding the same professional license as, and practicing in the same
         area of practice as the defendant, which affidavit shall set forth specifically at
         least one negligent act, error, or omission claimed to exist and the factual basis
         for each claim. The third-party professional engineer, registered professional land
         surveyor, or licensed architect shall be licensed in this state and actively engaged
         in the practice of architecture, surveying, or engineering.

Majority opinion, at *5 (emphasis in the opinion). The majority apparently reasons the only

items required to be in the affidavit are those that follow the words “which affidavit shall set

forth.” Majority opinion, at *6. If this were true, then the affidavit need not include any other

information required by the statute – the affiant must be licensed, holding the same professional

license as the defendant, practicing the same area as the defendant, licensed in the State of Texas,

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Concurring Opinion                                                                                 04-10-00785-CV


and actively engaged in the practice of architecture, surveying, or engineering.                               This

interpretation fails to give full effect to all the words in the statute as required by law and

discussed above. City of San Antonio, 111 S.W.3d at 25-26. This interpretation also would lead

to an absurd result in that the affidavit must contain information about the negligent act, but not

contain any information where one could judge the competency of the affiant to render his

opinion. This result would not further the statute’s apparent goal of weeding out frivolous

lawsuits at an early stage. 2 At least one other court that has considered this issue has also

concluded the certificate of merit must demonstrate the affiant practices in the same area as the

defendant. See Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500 (Tex.

App.—Corpus Christi 2009, no pet.).

          Once the statute is properly construed, the appellate court must determine whether the

trial court abused its discretion in the manner in which it applied the statute. Capital One v.

Carter & Burgess, Inc., 02-10-00025-CV, 2011 WL 1901997 (Tex. App.—Fort Worth May 19,

2011, no pet.); Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102, 106 (Tex.

App.—Houston [1st Dist.] 2010, no pet.). A trial court abuses its discretion when its ruling is

arbitrary, unreasonable, or without reference to any guiding rules or legal principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985), cert. denied, 476 U.S. 1159

(1986).

          In his second amended motion to dismiss, Hardy complained that the affidavit failed to

state that the affiant practiced in the same area of practice as Hardy (preparation of builder’s



2
  I was unable to find any legislative history relating to the “certificate of merit” when the statute was originally
enacted in 2003 as part of HB 4 during the 78th regular legislative session. However, when the statute was amended
in 2005, the bill analysis included the following statement of the author’s/sponsor’s intent: “During the 78th
Legislature, Regular Session, 2003, legislation was passed protecting engineers and architects from frivolous
lawsuits. The protection comes from requiring another professionally licensed engineer or architect to act as a third
party, offering a professional opinion about alleged damages caused by the original engineer or architect.”

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Concurring Opinion                                                                     04-10-00785-CV


plans) or that the affiant was actively engaged in the architectural practice. The certificate of

merit stated:

                My name is Lance Tatum. I am over the age of 21, of sound mind,
        capable of making this Affidavit, and fully competent to testify as to the matters
        stated herein. I have personal knowledge of each of the matters stated in this
        affidavit, and they are true and correct. Such personal knowledge has come from
        my research into the facts of this case.

                I am a duly licensed Registered Architect in the State of Texas.

                Through my research into the facts of the above-styled and numbered
        cause, including a review of the drafted house plans and an expert report by J.
        Wall Consulting, dated November 12, 2007, it is my professional opinion that the
        firm of Hardy & Associates, and Roland J. Hardy individually, did not exercise
        ordinary prudence of a Registered Architect in the State of Texas.

                The architectural drawings I have reviewed include a foundation diagram,
        first and second level floor plans, elevations, sections, roof plan, details for
        cabinetry and first and second level electrical plans, all with corresponding notes.
        Whereas, although the drawings demonstrate a general competency of
        architectural drawing standards, they are not specific regarding details of
        assembly of the exterior wall systems, moisture barriers and waterproofing.

                 The subject residence has sustained water penetration of the exterior walls
        and substantial water damage to the structure and interior walls, resulting from
        improper construction procedures. Evidence of deterioration of the building is
        described in the document prepared by J. Wall Consulting, specifically page 2-
        Site Observations and page 3-Discussion and Recommendations, and photographs
        3, 4, 5, 6, 7, 8, 9, and 10, all pertaining to improper installation of the correct and
        necessary components of the exterior wall systems involving conventional
        balloon framing with exterior stucco and interior gyp board.

                Paragraph No. 5 – Exterior Walls in the document, “Description of
        Materials” attached to the set of prints of architectural drawings, outlines “2 x 4 &
        2 x 6 studs to be installed at 16” O.C. (on center) with 15# Felt.” However, there
        is not a drawing on the plans I reviewed that describes the assembly and proper
        location of those materials. Additionally, there is not a drawing of an important
        and typical wall section, typically drawn at a sufficiently large scale, ½ʺ=1ʹ-0ʺ or
        larger, identifying all of the components of the exterior walls and their sequence
        in the construction process. Neither is there a completion of the spaces for
        information outlined in Paragraph No. 5, regarding water proofing, moisture
        barriers, and recommended sealing of the stucco walls.




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Concurring Opinion                                                                    04-10-00785-CV


               Further, the notation in paragraph No. 5-Exterior Walls of the document
        “Description of Materials” for use of 15# Felt is unclear as to whether the 15#
        Felt was intended for use as a moisture barrier between the floor plate of the stud
        wall and the concrete slab or as a waterproofing barrier applied to the sheathing
        (OSB). There should have been a detail drawing of that installation or a written
        note on the first and second level plan drawings describing the intended use of the
        material. However, no such drawings or notes were included in the documents I
        reviewed.

                Since the document “Description of Materials” bears no signature
        denoting the preparer, it was not possible to determine whether that document was
        prepared by the architect; notwithstanding this, the architect should have reviewed
        the document and noted the lack of information and pursued some course of
        action as a result.

                Based upon the document prepared by J. Wall Consulting, it can be
        concluded that there was a serious omission of a vapor barrier and waterproofing
        technology, as evidenced by the photos in the J. Wall Consulting document. The
        water damage to the residence should not have occurred with installation of a
        proper sequence of exterior wall components and proper sealing of the stucco on
        the exterior wall.

               Professional conduct requires that an architect who prepares the drawings
        should be able to observe the construction process and, if any improper
        construction procedure is determined to have been followed, or if any building
        code violations have been discovered, such conditions should be immediately
        addressed, reported to proper jurisdictional authorities and/or the construction
        process stopped until said conditions are corrected.

                By failing to provide detailed instructions regarding the water proofing,
        moisture barriers and recommended sealing of the stucco walls, by failing to take
        any course of action with respect to these architectural implementation issues, and
        by failing to observe the construction process as it occurred and identify the
        improper construction procedures that were occurring, Hardy & Associates, and
        Roland J. Hardy individually, failed to exercise ordinary prudence in the practice
        of architecture design, planning, and implementation in the State of Texas.

        I believe the affidavit could be interpreted as including information demonstrating the

affiant is “competent to testify, holding the same professional license as, and practicing in the

same area of practice as the defendant,” and thus complying with section 150.002. TEX. CIV.

PRAC. & REM. CODE ANN. § 150.002(a). The court in Landreth also recognized that a court

could look to the content of the affidavit even though the affiant did not plainly state he practiced

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Concurring Opinion                                                                    04-10-00785-CV


in the same area as the defendant. Landreth, 285 S.W.3d at 499; see also Benchmark Eng’g

Corp. v. Sam Houston Race Park, 316 S.W.3d 41 (Tex. App.—Houston [14th Dist.]

2010)(judgment vac. and remanded by agreement)(trial court can look to content of affidavit and

resume when affidavit does not contain specific statement regarding affiant’s engineering

practice areas).

        In his affidavit, Tatum states he is a licensed architect. Although he did not state he was

practicing in the same area as the Hardy, the basis of the complaint centers upon the drafting of

architectural drawings. It would be logical to presume absent evidence to the contrary, the

creation of architectural drawings is within the area of practice of an architect. Furthermore, in

the affidavit, Tatum references a purported standard practice when creating architectural

drawings.    For example, Tatum asserts in the third paragraph that the drawings were not

“specific regarding details of assembly of the exterior wall systems, moisture barriers and

waterproofing,” implying architectural drawings should contain this feature.            In the fifth

paragraph, Tatum notes the failure to include a detailed drawing of the wall assembly, something

he notes is “typically” included. In the sixth paragraph, Tatum notes that there should have been

a detailed drawing of the installation of the felt and what purpose it was to serve. A trial court

could read these statements and reasonably conclude the affiant practiced in the same area as the

defendant, as required by the statute. Obviously, the better practice would be to directly and

more completely address these items in the affidavit, but the issue here is whether the trial court

abused its discretion in denying the motion to dismiss. I find the trial court did not abuse its

discretion because a fair reading of the certificate of merit could allow the trial court to conclude

Mr. Tatum is practicing in the same area as the defendant.




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Concurring Opinion                                                         04-10-00785-CV


        With these comments, I concur in the judgment.

                                               Steven C. Hilbig, Justice




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