                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                          No. 07-18-00117-CV


CHESTER T. CARTHEL D/B/A CARTHEL ENGINEERING SOLUTIONS, APPELLANT

                                                    V.

                          ROBERT AND LINDA NEIDERT, APPELLEES

                               On Appeal from the 99th District Court
                                      Lubbock County, Texas
               Trial Court No. 2017-526,408; Honorable William C. Sowder, Presiding

                                            January 15, 2020

                                  MEMORANDUM OPINION
                           Before PIRTLE and PARKER and SCHAAP1, JJ.


       This is a restricted appeal from a no-answer default judgment rendered in favor of

Appellees, Robert and Linda Neidert, and against Appellant, Chester T. Carthel d/b/a

Carthel Engineering Solutions. Carthel argues reversible error is apparent on the face of

the record because the Neiderts failed to comply with the “certificate of merit” requirement

of Civil Practice and Remedies Code section 150.002(a). See TEX. CIV. PRAC. & REM.

CODE ANN. § 150.002 (a) (West Supp. 2019) (requiring the complaint in any dispute arising


       1   Honorable Dan L. Schaap, Judge, 47th District Court, sitting by assignment.
out of the provision of services by a licensed or registered professional to file a “third-

party affidavit” setting forth the theory of recovery and factual basis for each claim).2

Because we find the entry of a default judgment in this case to be error apparent on the

face of the record, we sustain two of Carthel’s appellate issues and reverse the judgment

of the trial court.


        BACKGROUND

        In 2011, the Neiderts sought to purchase a residence in Lubbock. While moving

toward that end, their home inspector noted the presence of cracks in the foundation and

recommended a further inspection by a qualified professional. The Neiderts’ realtor

retained Carthel to perform a structural evaluation. In communications with the Neiderts’

realtor, Carthel attributed most of the cracks in the structure found by the home inspector

to severe cold weather and extended summer heat. According to the testimony given by

Robert Neidert, Carthel believed the cracks were “seasonal” and, if repaired, would not

reappear. As such, Carthel did not find a foundation problem.


        After receiving Carthel’s report,3 the Neiderts purchased the house. About a year

to a year-and-a-half later, they noticed the same cracks reappearing as well as some

exterior cracks not previously seen. They retained a different engineering firm, which

concluded in its August 25, 2016 report that the Neiderts’ house had “experienced settling

of the foundation system as evidenced throughout the exterior . . . .” The report further




         2 Unless otherwise provided, future references herein to “section” or “§” are references to the Texas

Civil Practice and Remedies Code.
        3Neidert also testified that Carthel’s report was reduced to writing. A copy of that report was not,
however, included in the record.

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opined that the “nature of these cracks . . . [were] typical of settling conditions at the

corners where larger roof and floor loads are located.”


        On July 18, 2017, with the 2016 engineering report already in hand, the Neiderts

filed suit against Carthel seeking damages for negligence, negligent misrepresentation,

violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA), and breach

of contract. They did not, however, file a third-party affidavit setting forth their theory of

recovery or the factual basis for each claim as required by section 150.002(a).


        While the record does not contain proof that Carthel was properly served with

process, the parties do not dispute this fact.4 It is likewise undisputed that Carthel did not

answer or otherwise appear in opposition to the Neiderts’ lawsuit. Although not shown

by a separate order, there is a record indication that on September 25, 2017, the trial

court rendered a default judgment as to liability against Carthel. On November 17, 2017,

the trial court conducted an evidentiary hearing for purposes of offering proof of the

Neiderts’ unliquidated damages. A final default judgment was then signed on November

27, 2017, which awarded the Neiderts damages of $122,636.20 and attorney’s fees of

$5,276.32. Carthel did not participate in either hearing, nor did he participate in any other

proceedings, file any post-judgment motions, request any findings of fact and conclusions

of law, or timely file a notice of appeal. Instead, on April 11, 2018, Carthel filed a notice

of restricted appeal.




         4 The Neiderts attached what appears to be a copy of an affidavit of service and citation to their

brief. These items were not, however, included in the appellate record. As such, we are unable to give
them consideration. See, e.g., Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.—Houston [1st Dist.] 1999,
no pet.) (stating an appellate court “cannot consider documents attached to an appellate brief that do not
appear in the record”).

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       APPLICABLE LAW

       A restricted appeal provides a party that did not participate at trial the opportunity

to correct an erroneous judgment. Richardson-Wiggins v. AH4R Props. Two, L.L.C., No.

02-15-00158-CV, 2016 Tex. App. LEXIS 1467, at *2 (Tex. App.—Fort Worth Feb. 11,

2016, no pet.) (mem. op.). As such, it is considered a direct attack on a default judgment.

Eguia v. Eguia, 367 S.W.3d 455, 458 (Tex. App.—Corpus Christi 2012, no pet.). A party

may prevail in a restricted appeal only if the following conditions are satisfied: (1) he has

filed notice of the restricted appeal within six months after the judgment was signed; (2)

he was a party to the underlying lawsuit; (3) he did not participate in the hearing that

resulted in the judgment complained of and did not timely file any post-judgment motions

or requests for findings of fact and conclusions of law; and (4) error is apparent on the

face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)

(citing TEX. R. APP. P. 26.1(c), 30, and Quaestor Invs., Inc. v. State of Chiapas, 997

S.W.2d 226, 227 (Tex. 1999) (per curiam)).


       Here, the first through third requirements of a restricted appeal are satisfied without

dispute. The focus of our analysis, therefore, is whether reversible error is apparent on

the face of the record. DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991) (per

curiam). The “face of the record” consists of the papers on file with the trial court when it

rendered judgment, including the clerk’s and reporter’s records. See Miles v. Peacock,

229 S.W.3d 384, 387 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Campsey v.

Campsey, 111 S.W.3d 767, 771 (Tex. App.—Fort Worth 2003, no pet.). See also Norman

Communs v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (applying

former writ of error procedure).     Accordingly, an appellate court may not consider


                                              4
evidence in a restricted appeal unless it was before the trial court when judgment was

rendered. Campsey, 111 S.W.3d at 771. Furthermore, “a restricted appeal requires error

that is apparent, not error that may be inferred.” Gold v. Gold, 145 S.W.3d 212, 213 (Tex.

2004) (per curiam) (emphasis in original).


       Chapter 150 of the Texas Civil Practice and Remedies Code pertains to suits

brought against certain licensed and registered professionals, including a licensed

professional engineer. TEX. CIV. PRAC. & REM. CODE ANN. §§ 150.001-.004 (West Supp.

2019). “In every suit or arbitration for damages arising out of the provision of professional

services by a licensed or registered professional,” the plaintiff must file the affidavit of a

third-party professional, called a “certificate of merit,” with its complaint setting forth each

theory of recovery and the factual basis of each claim. Id. at § 150.002(a), (b). A

“‘[l]icensed or registered professional’ means a licensed architect, licensed professional

engineer, registered professional land surveyor, registered landscape architect, or any

firm in which such licensed or registered professional practices . . . .” Id. at § 150.001(1-

c). This chapter of the Code further provides that the “defendant shall not be required to

file an answer to the complaint and affidavit until 30 days after the filing of [the third-party]

affidavit.” Id. at § 150.002(d). In addition, the failure to file a certificate of merit “in

accordance with this section shall result in dismissal of the complaint against the

defendant. This dismissal may be with prejudice.” Id. at § 150.002(e) (emphasis added).


       ANALYSIS

       By three issues, Carthel contends that (1) the error is apparent on the face of the

record, (2) the case should have been dismissed as a matter of law, and (3) any testimony



                                               5
offered at trial does not substitute for the requirements of the statute. We will address

these issues in a logical rather than sequential order.


       By his first and third issues, Carthel argues the Neiderts failed to file the mandatory

certificate of merit required by section 150.002(a) and the testimony offered at trial does

not meet the requirements of that section. We agree.


       At the hearing on non-liquidated damages, the Neiderts offered the testimony of

George Timothy Patrick Murfee, a real estate appraiser to establish the extent to which

the existence of structural defects negatively impacted the fair market value of their

property. Although the Neiderts have not contended that this testimony is a viable

substitute for the statutorily required certificate of merit, Carthel argues the appraiser was

incompetent to offer an opinion under section 150.002(a) as the Neiderts’ theory of

recovery or the factual basis for their claim because he was not a licensed professional

engineer. The purpose of chapter 150 is to ferret out non-meritorious claims based upon

the services of a licensed professional at the earliest possible moment. To serve that

purpose, the statute requires that a certificate of merit be filed with the complaint so that

the defendant can determine the merits of the claim and seek an early dismissal where

there is no meritorious claim. As such, the oral testimony of any witness, no matter when

it is offered, is insufficient to meet the purposes of the statute.


       Here, a simple review of the record shows that the Neiderts sought and obtained

the services of a “qualified professional . . . to perform a structural examination of the

Property (the ‘Examination’).”      (Emphasis added).       They then brought suit against

“Chester T. Carthel, an individual doing business as Carthel Engineering Solutions” on


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the very basis of that examination. (Emphasis added). As such, it is apparent that their

claim against Carthel was based on services he provided in his capacity as a licensed

engineer. Because it is undisputed that the Neiderts did not file a certificate of merit,

Carthel was not required to file an answer to the complaint. Id. at § 150.002(d). Where

no answer was required to be filed, a trial court errs in entering a default judgment. See

TEX. R. CIV. P. 239 (providing that a plaintiff may take a default judgment “at any time after

a defendant is required to answer . . . .”) (Emphasis added). Accordingly, error is

apparent on the face of the record. Issues one and three are sustained.


       By his second issue, Carthel argues the Neiderts’ claims should have been

dismissed as a matter of law because they did not file the required statutory affidavit.

While section 150.002(e) does provide that the “Plaintiff’s failure to file the affidavit in

accordance with this section shall result in dismissal of the complaint against the

defendant,” the statute is silent as to when a trial court would be required to impose that

sanction. Where, as here, the Neiderts, as plaintiffs, prematurely sought and obtained a

default judgment before the trial court could consider whether to dismiss their complaint,

we cannot fault the trial court for the failure to dismiss the Neiderts’ complaint. Issue two

is overruled.


       CONCLUSION

       We reverse the judgment of the trial court and remand this matter for further

proceedings consistent with this opinion.




                                                  Patrick A. Pirtle
                                                       Justice

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