Procedural Irregularities with Certificate of Merit Require Dismissal of Suit

In yet another interlocutory appeal regarding procedural irregularities with a certificate of merit, the Dallas Court of Appeals reversed a trial court’s order and mandated dismissal of Plaintiff’s claims. In DHM Design v. Catherine Morzak, Cause No. 05-15-00103-CV (Tex. App.—Dallas June 19, 2015), Plaintiff sued the architect of record for bleachers at Breckenridge Park in Richardson, Texas after sustaining personal injuries from a fall at the park. Plaintiff alleged that the architect did not include sufficient contrasting color to distinguish between stairs and a seating area, preventing her from perceiving the change in depth of the risers between the stairs and the seating area. Plaintiff initially filed suit against the wrong architect, attaching a certificate of merit to her petition. The certificate alleged that the wrong architect had negligently designed the bleachers. Exactly two years after her fall, on the date the statute of limitations was set to expire, Plaintiff filed an amended petition, naming the correct architect of record for the bleachers as a Defendant. She attached the original certificate of

Texas Employers and Open Carry

With the passage of HB 910, beginning in 2016, employees licensed to carry handguns will be able to carry them openly on their person in Texas. Prior to passage of HB 910, individuals licensed to carry handguns were only allowed to carry the gun in a concealed manner. With proper notice, HB 910 will not have a large impact on Texas employers. It is imperative that employers follow the specific statutory provisions if they seek to prevent open carry on their business premises. Employers wishing to prohibit firearms in the workplace must display and/or disclose the following: Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly. Notice is the key requirement if an employer does not want licensed handgun carriers to open carry while they are at work. Employers may provide the statutory notice by providing a document such as an employee handbook

Painting Contractor Liable for Breach of Express Warranty

The Dallas Court of Appeals affirmed the trial court’s judgment that a commercial painting contractor breached its express warranty and is liable for $92,000 in damages. In Contemporary Contractors, Inc. v. WILC/MVL, LLP, et. al. (Tex. App—Dallas May 28, 2015), Cause No. 05-14-00411-CV, Plaintiff and Defendant entered into a contract for Defendant to replace and repair exterior wood on and to paint the exterior of an apartment complex in Grapevine, Texas. The contract contained the following express warranty: “All work described herein shall be warranted and guaranteed to be free from defects and failure and to perform as intended for a period of five years from completion.” About one year after the work was completed, Plaintiff began noticing issues with the exterior paint and asked Defendant to repaint the property. Defendant refused. Plaintiff hired another contractor to repair and repaint the complex for $92,000 and subsequently sued Defendant for breach of express warranty. The Dallas Court of Appeals interpreted the express warranty as having two parts, either of which, if violated, would

Exception to Statute of Frauds Validates Oral Contract for Sale of Property

Using the equitable partial performance exception to the statue of frauds, the Dallas Court of Appeals has upheld an oral contract for transfer of real property. In Beard v. Anderson, Cause No. 05-14-00396-CV (Tex. App.— Dallas June 19, 2015), the Court heard a dispute between family members regarding 2.89 acres of real property in Kaufman County, Texas. Plaintiff, Defendants’ aunt, sued Defendants seeking specific performance or, in the alternative, damages associated with transfer of the property. According to Plaintiff, the parties came to an agreement in 2010 to transfer the property from Defendants to Plaintiff, but never signed any documents memorializing the transaction. Plaintiff began living in her RV on the property, spent money to improve the property, and continued to attempt to negotiate a written agreement for transfer of the property. After communications between Plaintiff and Defendants ceased, Defendants served Plaintiff with a notice to vacate the premises. Plaintiff subsequently filed suit. The statute of frauds requires a contract for sale of real estate to be in writing and signed by

Amendment to Design Professional Anti-Indemnity Statute

In the recently concluded 2015 session, the Texas Legislature amended the anti-indemnity statute pertaining to engineers and architects performing work for certain types of governmental entities. The amendment prohibits a governmental entity from requiring an engineer or architect to defend it for claims based in whole or in part on the fault, breach or negligence of the governmental entity. The purpose of the amendment is to prevent governmental entities from requiring architects and engineers to muster a defense that otherwise falls outside of their professional liability insurance policies. The impacted governmental entities include municipalities, counties, school districts, conservation or reclamation districts, hospital districts or other political subdivisions of the state. The Governor signed the Bill on June 17, 2015 and the amended statute is effective September 1, 2015. The modified anti-indemnity provision, Texas Local Government Code section 271.904, splits out an architect’s and engineer’s indemnification and defense obligations, allows a governmental entity to seek recovery of attorney’s fees in proportion to the design professional’s liability, and imposes a statutory standard or care for design