parker-county-veterinary-clinic-inc-dba-parker-county-veterinary ( 2009 )


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  •                           COURT OF APPEALS
                              SECOND DISTRICT OF TEXAS
                                   FORT WORTH
    
    
                                   NO. 2-08-380-CV
    
    
    PARKER COUNTY VETERINARY                                           APPELLANTS
    CLINIC, INC., D/B/A PARKER
    COUNTY VETERINARY HOSPITAL,
    INC., PAT JARRETT, INDIVIDUALLY,
    AND JARRETT PROPERTIES, LLC
    
                                            V.
    
    GSBS BATENHORST, INC.                                                  APPELLEE
    
                                        ------------
    
                FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
    
                                        ------------
    
                             MEMORANDUM OPINION 1
    
                                        ------------
    
          In one issue, Appellants Parker County Veterinary Clinic, Inc., d/b/a Parker
    
    County Veterinary Hospital, Inc., Pat Jarrett, and Jarrett Properties, LLC, argue
    
    that the trial court erred by dismissing their claim against Appellee GSBS
    
    
    
    
          1
              … See Tex. R. App. P. 47.4.
    Batenhorst, Inc., an architecture firm. Because we hold that the trial court
    
    erred by dismissing the claim, we reverse the trial court’s order of dismissal and
    
    remand this case to the trial court.
    
                                   Background Facts
    
          Appellants and Appellee entered into an agreement for Appellee to design
    
    a new veterinary clinic for Appellants. This agreement was in the form of a
    
    letter to Appellants from Appellee and signed by Thomas E. Batenhorst, an
    
    architect with Appellee.    In the letter agreement, Batenhorst stated, “Our
    
    Design Services will include: . . . Research and apply local and state codes and
    
    city ordinances.”
    
          According to Appellants’ petition, Appellee solicited an engineer to
    
    provide engineering services, and Appellants contracted with the engineer to
    
    provide those services, with those services to be incorporated into the work
    
    provided by Appellee. The engineer’s plan called for waste disposal at the clinic
    
    via a septic system. Appellants secured financing to cover the project based
    
    on the plans that included a septic system.
    
          As the project was nearing completion, the City of Hudson Oaks notified
    
    Appellants that it could not issue a septic system permit because (1) Texas
    
    Commission on Environmental Quality (TCEQ) regulations prohibit disposal of
    
    medical waste through a septic system; (2) TCEQ regulations prohibit a septic
    
                                            2
    system at the location, which was too close to a waterway; and (3) the project
    
    had insufficient space for a septic field. Appellants alleged in their petition that
    
    they had two options if they wanted to operate a veterinary clinic at the site:
    
    install a tanked wastewater disposal system that would cost $18,000 a month,
    
    or pay for an extension of the city’s wastewater line to the project at an
    
    estimated cost between $225,000 to $250,000. Appellants chose the second
    
    option and obtained a loan for that purpose. Appellants alleged that to secure
    
    the loan, they were forced to offer as collateral “virtually all personal and
    
    business assets.”     To cover the loan payments, Appellants had to convert
    
    Jarrett’s existing clinic into a twenty-four-hour emergency clinic.
    
                                    Procedural History
    
          Appellants sued Appellee and the engineer. Appellee filed a motion to
    
    dismiss, arguing that Appellants had failed to file a certificate of merit as
    
    required under section 150.002 of the civil practice and remedies code. 2 The
    
    trial court granted the motion, and Appellants filed this appeal. They argue that
    
    the trial court erred by dismissing their breach of contract suit under section
    
    150.002 when the contract specifically required the architect to “[r]esearch and
    
    apply local and state codes and city ordinances.”
    
    
    
    
          2
              … See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (Vernon 2005).
    
                                             3
                                   Standard of Review
    
          We review a trial court’s ruling on a motion to dismiss for an abuse of
    
    discretion. 3 To determine whether a trial court abused its discretion, we must
    
    decide whether the trial court acted without reference to any guiding rules or
    
    principles; in other words, we must decide whether the act was arbitrary or
    
    unreasonable. 4
    
          Statutory construction is a question of law, which we review de novo. 5
    
    Once we determine the proper construction of a statute, we determine whether
    
    the trial court abused its discretion in the manner in which it applied the statute
    
    to the instant case. 6
    
                                Former Section 150.002
    
          Section 150.002 requires a plaintiff to provide a “certificate of merit,”
    
    that is, an affidavit from an expert, in certain cases against certain professionals
    
    licensed by the state of Texas, including engineers and architects. 7           The
    
    
    
          3
          … Jernigan v. Langley, 
    195 S.W.3d 91
    , 93 (Tex. 2006); Palladian Bldg.
    Co., Inc. v. Nortex Found. Designs, Inc., 
    165 S.W.3d 430
    , 433 (Tex.
    App.—Fort Worth 2005, no pet.).
          4
              … Cire v. Cummings, 
    134 S.W.3d 835
    , 838–39 (Tex. 2004).
          5
              … Palladian Bldg., 165 S.W.3d at 436.
          6
              … Id.
          7
              … Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a).
    
                                             4
    affidavit must set forth “at least one negligent act, error, or omission claimed
    
    to exist and the factual basis for each such claim.” 8
    
          The section as originally adopted in 2003 applied to “any action for
    
    damages alleging professional negligence by a design professional.” 9 This court
    
    has noted that the legislative history does not provide any indication of the
    
    purpose for the statute. 10 The Beaumont Court of Appeals has nevertheless
    
    concluded that the legislature’s purpose in adopting the statute was to weed
    
    out frivolous claims. 11 A bill analysis for an amendment to the statute also
    
    states that the statute was enacted for that purpose. 12
    
    
    
    
          8
              … Id.
          9
          … Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex.
    Gen. Laws 847, 896–97 (amended as discussed below).
          10
               … See Palladian Bldg., 165 S.W.3d at 436.
          11
            … See Criterium-Farrell Eng’rs v. Owens, 
    248 S.W.3d 395
    , 399 (Tex.
    App.—Beaumont 2008, no pet.) (stating 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”).
          12
            … Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 854, 79th
    Leg., R.S. (2005) (stating that the 2003 legislation was passed “protecting
    engineers and architects from            frivolous lawsuits”), available      at
    http://www.legis.state.tx.us/tlodocs/79R/analysis/html/HB00854E.htm; see
    also Landreth v. Las Brisas Council of Co-Owners, Inc., 
    285 S.W.3d 492
    , 496
    (Tex. App.—Corpus Christi 2009, no pet.) (“Chapter 150 may have been
    enacted to limit actions against architects and engineers by ensuring that there
    is some basis for the lawsuit.”).
    
                                           5
                                   2005 Amendment
    
          In 2005, the legislature amended the statute. 13 As amended, the section
    
    applied to actions “arising out of the provision of professional services.” 14 The
    
    Austin, San Antonio, and Corpus Christi Courts of Appeals have concluded that
    
    no certificate of merit is required under amended section 150.002 when the
    
    plaintiff does not allege a negligent act, error, or omission. 15 In Kniestedt, the
    
    San Antonio Court of Appeals held that the plain wording of the statute led to
    
    that conclusion because otherwise the legislature would not have specified that
    
    the affidavit “shall set forth specifically at least one negligent act, error, or
    
    omission claimed to exist.” 16 In another case, that court again rejected the idea
    
    
    
    
          13
            … Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen.
    Laws 348, 348; Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005
    Tex. Gen. Laws 369, 370. The legislature again amended this statute in 2009.
    See Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Sess. Law.
    Serv. 1989, 1989. The 2009 amendment was not retroactive and is not
    applicable here. Our analysis in this opinion is limited to the statute as
    amended in 2005; we make no determination of the effect of the 2009
    amendment. Throughout this opinion, we use “section 150.002” to refer to the
    statute as amended in 2005 but prior to the 2009 amendment.
          14
               … Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a).
          15
           … See Landreth, 285 S.W.3d at 500; Consol. Reinforcement, L.P. v.
    Carothers Executive Homes, Ltd., 
    271 S.W.3d 887
    , 892 (Tex. App.—Austin
    2008, no pet.); Kniestedt v. Sw. Sound & Elecs., 
    281 S.W.3d 452
    , 455 (Tex.
    App.—San Antonio 2007, no pet.).
          16
               … Kniestedt, 281 S.W.3d at 455.
    
                                            6
    that the statute applied to any claim with merely a “causal connection . . . to
    
    the rendition of professional services.” 17   The court held that the plaintiff’s
    
    breach of contract claim against an engineering firm did not arise out of the
    
    provision of professional services because the acts complained of did not fit
    
    within the occupation code’s definition of the practice of engineers. 18
    
          In Landreth, the Corpus Christi Court of Appeals agreed with the San
    
    Antonio court that the statute did not apply when the plaintiff was not claiming
    
    a negligent act, error, or omission. 19 It remanded the case back to the trial
    
    court to determine which of the plaintiff’s claims, if any, were for professional
    
    services.20
    
          The Austin Court of Appeals similarly declined to expand the scope of
    
    section 150.002 to causes of action “generally arising from” services provided
    
    by licensed professionals such as engineers and architects. 21 The court noted
    
    
    
    
          17
           … Gomez v. STFG, Inc., No. 04-07-00223-CV, 
    2007 WL 2846419
    , at
    *2–3 (Tex. App.—San Antonio Oct. 3, 2007, no pet.) (mem. op).
          18
               … Id.
          19
               … Landreth, 285 S.W.3d at 500.
          20
               … Id. at 500–01.
          21
               … Consol. Reinforcement, 271 S.W.3d at 892.
    
                                           7
    that under a straightforward reading of the plain language of statute, the filing
    
    of a certificate of merit is not required for non-negligent causes of action. 22
    
          Even though the bill analysis on the amendment provides that the statute
    
    was amended to clarify, among other things, that the section applies when “the
    
    suit is for damages arising out of the providing of any professional services,
    
    except a suit or action for the payment of fees for professional services, rather
    
    than only suits alleging professional negligence,” 23 the statute after amendment,
    
    by its plain language, nevertheless continues to require the expert affiant to set
    
    forth “at least one negligent act, error, or omission claimed to exist and the
    
    factual basis for each such claim.” 24 To require such an affidavit outside the
    
    context of a negligence cause of action would require an affidavit that had no
    
    relevance to the suit and would render the statute meaningless. 25
    
    
    
    
          22
               … Id. at 892–94.
          23
            … Senate Comm. on Bus. & Commerce, Bill Analysis, Tex. H.B. 1573,
    79th     Leg.,   R.S.,     (2005)(em phasis      added),    available  at
    http://www.legis.state.tx.us/tlodocs/79R/analysis/html/HB01573S.htm.
          24
               … Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (emphasis added).
          25
           … Consol. Reinforcement, 271 S.W.3d at 892 (“To construe [section
    150.002] to require an affidavit for non-negligent causes of action would render
    the requirement that the affidavit set forth a negligent act, error, or omission
    meaningless.”).
    
                                            8
          Appellee argues that the dissenting opinion in Consolidated was correct
    
    that the word “negligent” in the statute only modifies the word “act” and that
    
    the terms “error” and “omission” stand on their own and are not modified by
    
    the word “negligent.” 26 Thus, Appellee argues, the statute requires a certificate
    
    of merit pointing out a negligent act, an error, or an omission, and therefore the
    
    plain language requires a certificate of merit in this case. We disagree with
    
    Appellee and agree with the majority in Consolidated that under the rules of
    
    grammatical construction, the word “negligent” modifies each of the nouns that
    
    follow it. 27 Accordingly, we agree with our sister courts of appeals and hold
    
    that this statute does not apply in a suit other than one for negligence arising
    
    out of the provision of professional services.
    
                                      Appellants’ Claim
    
          Appellants assert that because they brought a breach of contract action
    
    and section 150.002 applies only to negligence claims, they were not required
    
    to file a certificate. Appellee disagrees with Appellants’ characterization of their
    
    cause of action as one for breach of contract. Because we are not bound by
    
    
    
    
          26
               … Id. at 897 (Waldrop, J., dissenting).
          27
               … Id. at 893 (citing cases and a statute in support of its construction).
    
                                              9
    the labels used by the parties, 28 we look to Appellants’ pleadings and determine
    
    for ourselves what claim Appellants assert.
    
          As the Supreme Court of Texas has noted, “‘[W]hile the general
    
    distinction between actions in contract and in tort is clearly defined and well
    
    understood, it is often difficult to determine whether a particular action is the
    
    one or the other.’” 29   Over the years, the supreme court has analyzed the
    
    distinction between tort and contract by analyzing the source of the duty owed
    
    to the plaintiff, by considering the nature of the remedy sought by the plaintiff,
    
    and, most recently, by conducting an analysis of both the source of the duty
    
    and the nature of the remedy sought. 30
    
          In looking at the source of the duty, while there is no universally accepted
    
    method of classification, “generally speaking, ‘actions in contract and in tort are
    
    to be distinguished in that an action in contract is for the breach of a duty
    
    
    
          28
           … Murphy v. Gruber, 
    241 S.W.3d 689
    , 697 (Tex. App.—Dallas 2007,
    pet. denied); see also Kimleco Petroleum, Inc. v. Morrison & Shelton, 
    91 S.W.3d 921
    , 924 (Tex. App.—Fort Worth 2002, pet. denied) (disregarding the
    theory pled by plaintiff and looking at the crux of the complaint to determine
    whether the plaintiff asserted a claim for legal malpractice).
          29
           … Int’l Printing Pressmen & Assistants’ Union of N. Am. v. Smith, 
    145 Tex. 399
    , 
    198 S.W.2d 729
    , 735 (1947).
          30
           … Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc.,
    
    960 S.W.2d 41
    , 45 (Tex. 1998); Sw. Bell Tel. Co. v. DeLanney, 
    809 S.W.2d 493
    , 494–95 (Tex. 1991).
    
                                            10
    arising out of a contract either express or implied, while an action in tort is for
    
    a breach of duty imposed by law.’” 31 Thus, when the plaintiff’s cause of action
    
    arises only from the violation of a duty imposed by law, the cause of action
    
    sounds in tort, and when the plaintiff’s cause of action arises only from the
    
    violation of a duty imposed by contract, the cause of action is for breach of
    
    contract. 32 A contractual relationship between the parties may create duties
    
    under both contract and tort law, and “[t]he acts of a party may breach duties
    
    in tort or contract alone or simultaneously in both.” 33
    
          The nature of the remedy sought is also instructive on the issue. 34 “When
    
    the only loss or damage is to the subject matter of the contract, the plaintiff’s
    
    action is ordinarily on the contract.” 35
    
          In this case, the practice of architecture as defined by the occupations
    
    code includes “programming for construction projects, including identification
    
    of economic, legal, and natural constraints and determination of the scope and
    
    
    
          31
               … Int’l Printing Pressmen, 198 S.W.2d at 735.
          32
               … Id. at 735–36; see also DeLanney, 809 S.W.2d at 494.
          33
               … Jim Walter Homes, Inc. v. Reed, 
    711 S.W.2d 617
    , 618 (Tex. 1986).
          34
               … DeLanney, 809 S.W.2d at 495.
          35
             … Id. at 494; see also Jim Walter Homes, 711 S.W.2d at 618 (“When
    the injury is only the economic loss to the subject of a contract, itself the action
    sounds in contract alone.”).
    
                                            11
    spatial relationship of functional elements.” 36 Thus, because the practice of
    
    architecture includes identifying the legal constraints of a project, which
    
    Appellants contend Appellee failed to do, Appellants’ complaint implicates the
    
    quality of the professional services provided by Appellee. 37
    
          But a specific provision of the contract also gave rise to a duty on
    
    Appellee to research and incorporate applicable laws, and it is the breach of this
    
    duty that Appellants complain about. Furthermore, the damages sought were
    
    for economic loss directly related to the subject matter of the contract itself.
    
          In their petition, Appellants asserted that Appellee breached the contract
    
    and caused “the direct and consequential damages of [Appellants] described
    
    herein.” The damages described by Appellants related to their having to secure
    
    additional financing in order to remedy Appellee’s error and to obtain a permit
    
    to operate the business in the building for which Appellee’s design skills were
    
    solicited. Appellants asserted damages that were directly related to the subject
    
    matter of the contract. Additionally, Appellants alleged that the vet clinic for
    
    which they sought Appellee’s services cannot be opened until Hudson Oaks
    
    
    
          36
               … Tex. Occ. Code Ann. § 1051.001(7) (Vernon 2004).
          37
            … See Kimleco Petroleum, 91 S.W.3d at 924 (“Regardless of the theory
    a plaintiff pleads, as long as the crux of the complaint is that the plaintiff’s
    attorney did not provide adequate legal representation, the claim is one for legal
    malpractice.”).
    
                                           12
    completes construction of the wastewaterline extension and that the city had
    
    not begun construction as of the time of their pleadings. They asserted that
    
    because of this delay, they were incurring damages of additional interest and
    
    lost profits. 38 Appellants sought to recover economic damages in order to put
    
    themselves in the position that they would have been in had it not been for
    
    Appellee’s breach. 39    These damages are contract damages.            Because
    
    Appellants complain about a breach of a provision in a contract and seek
    
    contract damages, their claim appears to be one for breach of contract.
    
          Appellee asserts that although Appellants frame their cause of action as
    
    one for breach of contract, because of the nature of suits against professionals,
    
    Appellants’ cause of action sounds in tort. In support, Appellee points to this
    
    court’s holding in Averitt v. PriceWaterhouseCoopers L.L.P. 40 Averitt involved
    
    
    
          38
            … See Bowen v. Robinson, 
    227 S.W.3d 86
    , 96 (Tex. App.—Houston
    [1st Dist.] 2006, pet. denied) (noting that benefit-of-the-bargain damages in
    breach of contract cases may include lost profits); see also Formosa Plastics,
    960 S.W.2d at 50 (noting that lost profits may be recovered under the benefit-
    of-the-bargain measure of damages).
          39
           … See City of The Colony v. N. Tex. Mun. Water Dist., 
    272 S.W.3d 699
    , 739 (Tex. App.—Fort Worth 2008, pet. filed) (“The normal measure of
    damages in a breach of contract case is the benefit of the bargain, the purpose
    of which is to restore the injured party to the economic position it would have
    been in had the contract been performed.”); see also Mays v. Pierce, 
    203 S.W.3d 564
    , 577 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
          40
               … 
    89 S.W.3d 330
     (Tex. App.—Fort Worth 2002, no pet.).
    
                                           13
    a dispute between PriceWaterhouseCoopers (PWC) and Averitt, a longstanding
    
    client of PWC. 41     In the context of a contractual relationship between the
    
    parties, PWC performed tax, consulting, and estate planning services for
    
    Averitt.42 In that role, PWC advised Averitt to create a trust in order to take
    
    advantage of a tax exemption under the Internal Revenue Code. 43 Several years
    
    after the trust’s creation, the trustee inquired as to whether a gift tax return
    
    had been filed in connection with the trust’s formation, and PWC assured the
    
    trustee that it had been done. 44 It was subsequently discovered that PWC had
    
    not filed a gift tax return. 45
    
          Averitt and others (Averitt) sued PWC in federal court for breach of
    
    contract, accounting malpractice, breach of fiduciary duty, and fraud. 46 They
    
    nonsuited their claims after discovering that they had named the wrong party
    
    but then refiled against PWC in state court. 47 Two days prior to their refiling,
    
    
    
          41
               … Id. at 332.
          42
               … Id.
          43
               … Id.
          44
               … Id.
          45
               … Id.
          46
               … Id.
          47
               … Id.
    
                                           14
    PWC filed a declaratory judgment action against Averitt. 48 Averitt moved for,
    
    among other things, summary judgment on the ground that PWC failed to state
    
    a cause of action for which declaratory relief could be granted. 49 In response,
    
    PWC asserted that it had properly brought a declaratory judgment action
    
    because any claim Averitt could assert against it would be in contract as PWC’s
    
    primary duty to her arose from their contractual relationship. 50
    
          This court disagreed with PWC.         We noted that “a contract for
    
    professional services gives rise to a duty by the professional to exercise the
    
    degree of care, skill, and competence that reasonably competent members of
    
    the profession would exercise under similar circumstances.” 51 We held that
    
    when a cause of action is based on an alleged failure to perform a professional
    
    service, the issue is “whether the professional exercised that degree of care,
    
    skill, and diligence that professionals of ordinary skill and knowledge commonly
    
    possess and exercise.” 52     Thus, even if the parties have a contractual
    
    relationship, the cause of action is a tort rather than for breach of contract.
    
    
    
          48
               … Id.
          49
               … Id. at 332–33.
          50
               … Id. at 334.
          51
               … Id.
          52
               … Id.
    
                                           15
    And in Averitt, the issue, as acknowledged by PWC, was whether PWC owed
    
    a duty to Averitt to file a gift tax return and, if it did, whether it breached that
    
    duty.53
    
          Averitt is distinguishable. In that case, there was no assertion that PWC
    
    breached any specific or particular provision of a contract. Thus, the contract
    
    between the parties only served as the “foundation for the plaintiff’s right to
    
    enjoy the benefits of the duty imposed by law.” 54 That is, the parties had a
    
    contract in which PWC agreed to perform professional services, and in so
    
    doing, PWC took on the duty to perform its services with the degree of care
    
    applicable to accountants. When PWC breached that duty, it gave rise to a
    
    cause of action in tort. 55 But in that case, there was no discussion of any
    
    specific contractual provision alleged to have been breached.
    
          In this case, as in Averitt, Appellee agreed to perform professional
    
    services for Appellants, and by so doing, Appellee took on the duty to exercise
    
    the degree of care, skill, and competence that reasonably competent architects
    
    would exercise under similar circumstances. 56 The breach of that duty would
    
    
          53
               … Id. at 335.
          54
               … Int’l Printing Pressmen, 198 S.W.2d at 735.
          55
               … See Averitt, 89 S.W.3d at 334.
          56
               … See id.
    
                                            16
    give rise to a tort action. 57 But Appellee also made promises to perform specific
    
    acts in the contract. If Appellee breached a specific provision of the contract,
    
    that breach would also give rise to a breach of contract action. 58 Appellants
    
    pursued a contract action, as was their right. 59 Because Appellants brought a
    
    breach of contract action, and because section 150.002 only applies to
    
    negligence actions, we hold that Appellants were not required to file a
    
    certificate of merit in this case.
    
          Appellee argues that a certificate of merit from an architect would be
    
    necessary for the trial court to determine if Appellants’ claim has merit because
    
    
    
          57
             … See Aranda v. Ins. Co. of N. Am., 
    748 S.W.2d 210
    , 212 (Tex. 1988)
    (“‘[A]ccompanying every contract is a common law duty to perform with care,
    skill, reasonable expedience and faithfulness the thing agreed to be done, and
    a negligent failure to observe any of these conditions is a tort as well as a
    breach of contract.’”) (quoting Montgomery Ward & Co. v. Scharrenbeck, 
    146 Tex. 153
    , 157, 
    204 S.W.2d 508
    , 510 (1947)).
          58
           … See Jim Walter Homes, 711 S.W.2d at 618 (“The acts of a party
    may breach duties in tort or contract alone or simultaneously in both.”).
          59
            … See id.; see also Beck v. Law Offices of Edwin J. (Ted) Terry, Jr.,
    P.C., 
    284 S.W.3d 416
    , 427 (Tex. App.—Austin 2009, no pet.) (“[W]hen cases
    say that clients cannot divide or fracture their negligence claims against their
    attorneys into other claims, this does not mean that clients can sue their
    attorneys only for negligence.”) (quoting Deutsch v. Hoover, Bax & Slovacek,
    L.L.P, 
    97 S.W.3d 179
    , 189 (Tex. App.—Houston [14th Dist.] 2002, no pet.));
    Murphy v. Gruber, 
    241 S.W.3d 689
    , 696–97 (Tex. App.—Dallas 2007, pet.
    denied) (recognizing that “claims regarding the quality of the lawyer’s
    representation of the client are professional negligence claims, but that not all
    claims by clients against lawyers are professional negligence claims”).
    
                                           17
    an architect’s expertise is necessary to establish whether Appellee failed to
    
    adequately perform under the contract. It asserts that “applying a code or
    
    ordinance to a particular set of facts is most often subjective, requiring some
    
    measure of judgment,” and that Appellee’s judgment must be measured by the
    
    standard applicable to architects, which is beyond the common knowledge of
    
    the trier of fact. We disagree with Appellee’s conclusion. There may well be
    
    fact issues at trial, and expert testimony may be helpful to determine those fact
    
    issues, but we disagree with Appellee that testimony as to whether Appellee
    
    breached an architect’s standard of care would serve any relevant purpose for
    
    the trial court prior to trial. A trial court is perfectly capable of determining
    
    whether the contract required Appellee to apply the law in its design, 60 whether
    
    the law prohibits the use of a septic system, 61 and whether the design included
    
    
          60
            … See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 
    252 S.W.3d 605
    ,
    617 n.10 (Tex. App.—Austin 2008, pet. granted) (stating that expert opinion
    on proper interpretation of the legal effect of a notice of substitute trustee’s
    sale and other instruments had “no probative value”); Akin v. Santa Clara Land
    Co., Ltd., 
    34 S.W.3d 334
    , 339 (Tex. App.—San Antonio 2000, pet. denied)
    (holding trial court did not abuse its discretion by excluding expert testimony
    on the interpretation of an unambiguous lease agreement); Pegasus Energy
    Group, Inc., v. Cheyenne Petroleum Co., 
    3 S.W.3d 112
    , 134 (Tex.
    App.—Corpus Christi 1999, pet. denied) (holding that when a term in a contract
    had no specialized meaning within the industry, expert testimony is not required
    to aid the court in its legal interpretation of the provision).
          61
            … See E.H. Stafford Mfg. Co. v. Wichita Sch. Supply Co., 
    118 Tex. 650
    , 
    23 S.W.2d 695
    , 697 (Tex. 1930) (“The rule is too elementary to require
    the citation of authority that all persons are conclusively presumed to know the
    
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    a septic system. 62 Thus, a certificate of merit would not be required for the
    
    trial court to determine if the claim has merit.      Accordingly, we sustain
    
    Appellants’ sole issue.
    
                                      Conclusion
    
          Having sustained Appellants’ issue, we reverse the trial court’s order of
    
    dismissal and remand this cause to the trial court for further proceedings.
    
    
    
    
                                                     LEE ANN DAUPHINOT
                                                     JUSTICE
    
    PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
    
    DELIVERED: November 19, 2009
    
    
    
    
    law.”); City of Dallas v. Coffin, 
    254 S.W.2d 203
    , 206 (Tex. Civ.
    App.—Austin1953, writ ref’d n.r.e.) (“[A] person, even though he is a
    nonresident, who deals with property within the limits of an incorporated city
    is charged with notice of ordinances of the city regulating the use of such
    property.”); Shoemaker v. Harrington, 
    30 S.W.2d 539
    , 544 (Tex. Civ.
    App.—Fort Worth 1930) (“All persons are presumed to know the law.”), aff’d,
    
    48 S.W.2d 612
     (Tex. Comm’n. App. 1932, judgm’t adopted).
          62
            … See Mega Child Care, Inc. v. Tex. Dep’t of Protective & Regulatory
    Servs., 
    29 S.W.3d 303
    , 310 n.2 (Tex. App.—Houston [14th Dist.] 2000, no
    pet.) (noting that expert testimony on issue of ultimate fact may be excluded
    “[w]here the trier of fact is equally competent to form an opinion” on the issue
    and that appellants’ conduct did not appear so complex as to require expert
    testimony on the issue of whether it complied with the statute).
    
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