Full Opinion (html_with_citations)

                                      NUMBER
                                   13-11-00324-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

CHARLES DURIVAGE, P.E.,                                                      Appellant,

                                            v.

LA ALHAMBRA CONDOMINIUM
ASSOCIATION,                                                                 Appellee.


                    On appeal from the 357th District Court
                         of Cameron County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Benavides
               Memorandum Opinion by Justice Garza
       In this interlocutory appeal, appellant Charles Durivage, P.E. challenges the trial

court‘s denial of his motion to dismiss the claims brought by appellee, La Alhambra

Condominium Association (―La Alhambra‖). By three issues, Durivage argues that the

trial court abused its discretion by concluding that the affidavit filed by La Alhambra was
sufficient to serve as a certificate of merit for purposes of section 150.002 of the civil

practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (West

2011). We affirm in part and reverse and remand in part.

                                          I. BACKGROUND

       In 2005, La Alhambra hired Durivage, a professional engineer, to inspect the roof

of a condominium building it was developing in Brownsville, Texas. Durivage certified

that the roof complied with applicable roofing windstorm standards.                   In July 2008,

Hurricane Dolly caused damage to the building.                La Alhambra subsequently sued

Durivage for negligence, gross negligence, and breach of contract, alleging that he

failed to properly inspect and certify the roof.1

       La Alhambra‘s second amended original petition, filed on November 1, 2010,

included an affidavit executed by Richard T. Frantz, a professional engineer.                     The

affidavit stated, in its entirety, as follows:

       My name is Richard T. Frantz, P.E. I am of sound mind, over the age of
       eighteen (18) and am competent in all respects to make this Certificate of
       Merit and testify.

       I hold the same professional license or registration as the defendant and
       am knowledgeable in the area of practice of the defendant. I offer
       testimony based on my knowledge, skill, experience, education, training,
       and practice. My curriculum vitae is attached as a part of this certification
       of merit.[2]

       I am licensed and registered in the State of Texas and am actively
       engaged in the practice of engineering.


       1
          La Alhambra‘s original petition named only its insurer, Texas Windstorm Insurance Association
(―TWIA‖), as a defendant. La Alhambra‘s second amended petition named Durivage as well as TWIA and
the builder of the condominiums, Hispania Development Company (―Hispania‖), as defendants. Neither
TWIA or Hispania are parties to this appeal.
       2
          Frantz‘s curriculum vitae does not appear in the record before this Court. However, a
curriculum vitae is not required under the relevant statute. See TEX. CIV. PRAC. & REM. CODE ANN. §
150.002 (West 2011).
                                                  2
       I am familiar with the standard of care in the practice of engineering.
       Charles M. Durivage, P.E. failed to exercise reasonable care and diligence
       and committed errors while he was in responsible charge of inspecting
       and certifying the roofing installation in Building B (Units 3 & 4) in 2004,
       Building C (Units 5 & 6) in 2005 and Building A (Units 1 & 2), Building D
       (Units 7, 8 & 9), and Building G (Unit 16) in 2006 of the La Alhambra
       condominiums property located at 2200 Laredo Road, Brownsville, Texas.
       Specifically, Charles M. Durivage, P.E. failed to ensure the roofing
       installation in 2004 and 2005 conformed to the International Building Code
       (IBC) or the International Residential Code (IRC). Charles M. Durivage,
       P.E. did not ensure the roof installation complied with the IBC or IRC, and
       Texas Department of Insurance certificate. The new tile roof on the units,
       as installed, was insufficient to withstand code[-]specified wind speed
       requirements.

       Durivage moved to dismiss La Alhambra‘s suit on the basis that the affidavit did

not meet the requirements for a certificate of merit as set forth in chapter 150 of the civil

practice and remedies code. See id. After a hearing, the trial court denied the motion.

This interlocutory appeal followed. See id. § 150.002(f) (authorizing immediate appeal

of interlocutory order denying motion to dismiss for failure to file certificate of merit).

                                          II. DISCUSSION

A.     Applicable Law and Standard of Review

       Section 150.002 of the civil practice and remedies code 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, licensed professional engineer, registered
       landscape architect, or registered professional land surveyor . . . .

Id. § 150.002(a).3 The affiant must (1) be competent to testify, (2) hold the same

professional license or registration as the defendant, and (3) be knowledgeable in the

area of practice of the defendant and offer testimony based on the person‘s knowledge,


       3
          This opinion uses the current version of the statute as amended by the Legislature in 2009.
Though La Alhambra‘s cause of action arguably accrued as early as 2005, the 2009 amendments apply
to any ―action filed or commenced on or after [September 1, 2009],‖ such as La Alhambra‘s. Act of June
19, 2009, 81st Leg., R.S., ch. 789, § 3, 2009 TEX. SESS. LAW SERV. 1989, 1990 (West).
                                                  3
skill, experience, education, training, and practice. Id. The affiant must also be licensed

or registered in Texas and be ―actively engaged‖ in his practice. Id.

       To qualify as a certificate of merit under the statute, the affidavit must

       set forth specifically for each theory of recovery for which damages are
       sought, the negligence, if any, or other action, error, or omission of the
       licensed or registered professional in providing the professional service,
       including any error or omission in providing advice, judgment, opinion, or a
       similar professional skill claimed to exist and the factual basis for each
       such claim.

Id. § 150.002(b).     If a plaintiff fails to file an affidavit in accordance with these

requirements, the trial court must dismiss the complaint. Id. § 150.002(e).

       We review a trial court‘s ruling on a motion to dismiss under section 150.002 for

an abuse of discretion. Sharp Eng’g v. Luis,
321 S.W.3d 748, 752
 (Tex. App.—Houston

[14th Dist.] 2010, no pet.). A trial court abuses its discretion if it fails to analyze or apply

the law correctly.
Id.
 To the extent the issues presented require us to construe the

statute, we essentially conduct a de novo review. Walker v. Packer,
827 S.W.2d 833, 840
 (Tex. 1992) (―A trial court has no ‗discretion‘ in determining what the law is or in

applying the law to the facts.‖).

B.     Analysis

       Durivage first contends that Frantz‘s affidavit does not comply with section

150.002 because it contains conclusory statements. An expert‘s opinion is conclusory if

it ―state[s] a conclusion without any explanation‖ or ―express[es] a factual inference

without stating the underlying facts on which the inference is based.‖ Arkoma Basin

Exploration Co. v. FMF Assocs. 1990-A, Ltd.,
249 S.W.3d 380, 389
, 390 n.32 (Tex.

2008). Conclusory statements in expert affidavits have been considered insufficient to

raise a question of fact at the summary judgment stage, see McIntyre v. Ramirez, 109
4 S.W.3d 741
, 749 (Tex. 2003), and will be legally insufficient to support a trial verdict,

see Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227, 229
 (Tex.

2004). However, Durivage directs us to no authority, and we find none, establishing

that a certificate of merit must fail if its statements are conclusory, or even that it must

comply with rules of evidence. See Benchmark Eng’g Corp. v. Sam Houston Race

Park,
316 S.W.3d 41, 47
 (Tex. App.—Houston [14th Dist.] 2010, pet. granted, judgm‘t

vacated w.r.m.) (―[T]he legislature did not include a requirement that statements in a

certificate of merit must be competent as evidence when the affiant provides the ‗factual

basis‘ for claims.‖).

       Durivage next argues that the affidavit fails because it does not ―show‖ that

Frantz possesses the requisite qualifications. In Landreth v. Las Brisas Council of Co-

Owners, Inc.,
285 S.W.3d 492, 499
 (Tex. App.—Corpus Christi 2009, no pet.), we held

that a certificate of merit failed under the 2005 version of the statute because it did not

state or show that the affiant was practicing in the same area as the defendant. In

comparison, Frantz‘s affidavit explicitly stated, under oath, that he possessed the

requisite qualifications.   Though Frantz‘s statements regarding his qualifications are

indeed conclusory, no further or more detailed proof of Frantz‘s credentials was

required.

       Finally, Durivage argues that Frantz‘s affidavit fails because it ―provides no

factual basis‖ for La Alhambra‘s three causes of action. ―Factual basis‖ is not defined in

the statute, but courts have held that the purpose of the certificate of merit ―is to provide

a basis for the trial court to conclude that the plaintiff‘s claims have merit.‖ Criterium-

Farrell Eng’rs v. Owens,
248 S.W.3d 395, 400
 (Tex. App.—Beaumont 2008, no pet.);

see Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-10-
                                             5
00805-CV,
2011 Tex. App. LEXIS 3063
, at *4 (Tex. App.—Austin Apr. 20, 2011, pet.

denied) (mem. op.). Our evaluation of whether a ―factual basis‖ has been established

should be performed with this purpose in mind. See TEX. GOV‘T CODE ANN. § 312.005

(West 2005) (―In interpreting a statute, a court shall diligently attempt to ascertain

legislative intent and shall consider at all times the old law, the evil, and the remedy.‖).

       Frantz stated in his affidavit that Durivage breached the applicable standard of

care by certifying the roof as code-compliant even though it ―was insufficient to

withstand code[-]specified wind speed requirements.‖ Though Durivage suggests that

Frantz was obligated to state precisely how the roof was insufficient and to specify

which code provisions it violated, the statute does not explicitly require such details.

See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b). The requirement to show a

―factual basis‖ is less onerous than that imposed on, for example, health care liability

plaintiffs. Compare id. (requiring affidavit establishing ―factual basis‖ for each claim)

with id. § 74.351(r)(6) (West 2011) (requiring plaintiff in a suit against a health care

provider to serve an expert report ―that provides a fair summary of the expert‘s opinions

as of the date of the report regarding applicable standards of care, the manner in which

the care rendered by the physician or health care provider failed to meet the standards,

and the causal relationship between that failure and the injury, harm, or damages

claimed‖). Frantz‘s affidavit explains that Frantz is familiar with the applicable standard

of care and how Durivage allegedly breached that standard. See, e.g., IHS Cedars

Treatment Ctr. of Desoto, Tex., Inc. v. Mason,
143 S.W.3d 794
, 798 (Tex. 2004) (―The

elements of a negligence cause of action are the existence of a legal duty, a breach of

that duty, and damages proximately caused by the breach.‖); see also Criterium-Farrell

Eng’rs,
248 S.W.3d at 400
 (holding that, with respect to negligence claims, ―the
                                              6
certificate of merit must necessarily address the applicable standard of care and the

defendant‘s failure to meet the standard‖). The affidavit therefore provides a sufficient

―factual basis‖ for La Alhambra‘s negligence claim because it gives the trial court a

basis to conclude that the claim has merit. See Criterium-Farrell Eng’rs,
248 S.W.3d at 400
.

        However, unlike the 2005 version of the statute, the current version of the statute

—the one applicable to La Alhambra‘s suit—requires that the affiant set forth a factual

basis for ―each theory of recovery for which damages are sought.‖
Id.
 § 150.002(b)

(emphasis added); see Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 TEX.

SESS. LAW SERV. 369, 370 (West) (requiring that affidavit ―set forth specifically at least

one negligent act, error, or omission claimed to exist and the factual basis for each such

claim‖ (emphasis added)). Frantz‘s affidavit does not state any factual basis for La

Alhambra‘s gross negligence cause of action. See, e.g., Columbia Med. Ctr. of Las

Colinas, Inc. v. Hogue,
271 S.W.3d 238, 248
 (Tex. 2008) (―Two elements comprise

gross negligence.         First, viewed objectively from the actor‘s standpoint, the act or

omission complained of must depart from the ordinary standard of care to such an

extent that it creates an extreme degree of risk of harming others. . . . Second, the

actor must have actual, subjective awareness of the risk involved and choose to

proceed in conscious indifference to the rights, safety, or welfare of others.‖). Nor does

the affidavit provide any factual basis for La Alhambra‘s breach of contract claim,

because it does not state any facts regarding the existence or breach of any contract. 4


        4
          We note that the 2009 amendments to section 150.002 altered the statute so that it now clearly
applies to causes of action other than negligence. Compare TEX. CIV. PRAC. & REM. CODE ANN. § 150.002
(―The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the
negligence, if any, or other action, error, or omission of the licensed or registered professional in providing
the professional service . . . .‖ (emphasis added)) with Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2,
                                                      7
See, e.g., Sauceda v. GMAC Mortgage Corp.,
268 S.W.3d 135, 140
 (Tex. App.—

Corpus Christi 2008, no pet.) (―The elements of a breach of contract action are: (1) the

existence of a valid contract; (2) performance or tendered performance by the plaintiff;

(3) breach by the defendant; and (4) damages sustained by the plaintiff as a result of

the breach.‖). The affidavit fails to state a ―factual basis‖ for those claims because it

does not give the trial court a basis to conclude that the claims have merit.                      See

Criterium-Farrell Eng’rs,
248 S.W.3d at 400
. Because the affidavit is deficient as to

those claims, the trial court was without discretion to deny Durivage‘s motion to dismiss

those claims.

                                          III. CONCLUSION

        We reverse that portion of the trial court‘s judgment denying Durivage‘s motion to

dismiss the gross negligence and breach of contract claims brought by La Alhambra,

and we remand for determination of whether the dismissal of those claims shall be with

or without prejudice. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e) (stating that

dismissal for failure to file a certificate of merit in accordance with the statute ―may be

with prejudice‖). The remainder of the trial court‘s judgment is affirmed.



                                                        ________________________
                                                        DORI CONTRERAS GARZA
                                                        Justice


Delivered and filed the
21st day of December, 2011.



2005 TEX. SESS. LAW SERV. 369, 370 (West) (requiring that affidavit ―set forth specifically at least one
negligent act, error, or omission claimed to exist and the factual basis for each such claim‖ (emphasis
added)). Accordingly, the certificate of merit requirement of section 150.002 applies to La Alhambra‘s
gross negligence and breach of contract claims.
                                                   8