Uop LLC v. Shanda Kozak, Individually and as Personal Representative of the Heirs and Estate of Walter Scifres, and Keith Kozak

Opinion issued May 20, 2010 In The Court of Appeals For The First District of Texas ____________ NO. 01-08-00896-CV ____________ UOP, L.L.C. F/K/A UNIVERSAL OIL PRODUCTS, Appellant V. SHANDA KOZAK, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF WALTER SCIFRES, DECEASED, AND KEITH SCIFRES, Appellees * * * SHANDA KOZAK, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF WALTER SCIFRES, DECEASED, AND KEITH SCIFRES, Appellants V. UOP, L.L.C. F/K/A UNIVERSAL OIL PRODUCTS, Appellee On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2008-17991 MEMORANDUM OPINION By motion to dismiss and motion for summary judgment, Universal Oil Products, L.L.C. ("UOP") moved against all claims asserted by Shanda Kozak, individually and as personal representative of the heirs and estate of Walter Scifres, deceased, and Keith Scifres ("the Kozak Plaintiffs") on the basis that the Kozak Plaintiffs had failed to obtain a certificate of merit (dismissal motion) and on the claims' merits or on the basis of the statute of repose (summary-judgment motion). By two interlocutory orders, the trial court dismissed or rendered judgment on all of the Kozak Plaintiffs' claims against UOP, except for a claim based on UOP's alleged failure to warn of the dangers of asbestos. Both parties appeal the ruling on the motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f) (Vernon Supp. 2009). We affirm the order in part, reverse it in part, and remand the case with instructions. BACKGROUND Walter Scifres worked at the Sun Oil refinery in Duncan, Oklahoma for several decades. The Kozak Plaintiffs alleged that UOP designed the Sun Oil refinery and acted afterwards as a general contractor at the refinery facility. In 2005, Walter died of mesothelioma, a form of cancer usually linked to asbestos exposure. A. The Pleadings Two years after Walter's death, the Kozak Plaintiffs, many of whom were his heirs, filed suit against UOP and another defendant who is not a party to this appeal under a variety of theories. Their first amended petition, the "live" pleading at the time of the dismissal ruling, asserted some allegations against UOP, some against the other defendant, and some against both defendants. In the section of the first amended petition relating exclusively to UOP, the Kozak Plaintiffs claimed that UOP had "acted as an engineering design service provider [and] acted as a general contractor during construction by handling the bid process, evaluating the bids and communicating with the bid winner." The petition then alleged a claim against UOP for the failure to warn of the dangers of asbestos, in UOP's capacities both as designer and general contractor. The specifics of this claim will be set out further below. The petition also asserted claims against both defendants for gross negligence, fraud, conspiracy, and loss of consortium. B. The Motion to Dismiss UOP filed a "Motion to Dismiss for Failure to File a Certificate of Merit all Claims Brought by Plaintiffs," as required under former section 150.002 of the Texas Civil Practice and Remedies Code. See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (Vernon Supp. 2009)). The only evidence submitted in support was the affidavit of an employee, who averred: UOP LLC is a limited liability company that employs licensed professional engineers who provide chemical and process engineering services for refineries. For more than ninety years, UOP has been developing licensing process technology for the refining industry. To develop its proprietary information, UOP employs licensed professional engineers to generate refinery process designs and refinery process technology. At the hearing on the motion, the trial court granted the Kozak Plaintiffs an extra two weeks either to obtain a certificate of merit or "to come up with a real good cause" why they could not produce one. The Kozak Plaintiffs did not procure a certificate of merit, but instead moved for leave to avoid filing one because the facility no longer existed. Alternatively, they asserted that they had sued UOP "under theories of negligence, gross negligence, and strict liability"; that the certificate requirement applied only to negligence claims, not non-negligence claims or claims not arising out of the provision of professional services; that UOP had acted not simply as a designer, but also "as a general contractor who purchased and supplied the asbestos-containing products to which [the decedent] was exposed"; and that the certificate requirement did not apply to their claims based on UOP's "negligent conduct in its capacity as a general contractor and in its failure to warn." In its response, UOP argued that former section 150.002 did not give the trial court discretion to waive the certificate, that it had provided only professional engineering design services, that UOP had never worked as a general contractor, and that the Kozak Plaintiffs were attempting to "plead their way" out of the requirement. However, UOP did not produce any evidence in support of its factual assertions. The trial court ruled on both parties' motions on September 26, 2008. First, the trial court ruled that former section 150.002 was procedural, implicitly recognizing that it applied to the case. Second, the court ruled that UOP's motion to dismiss "should be GRANTED in part and DENIED in part . . . ." The portion of the motion that was granted was as follows: [UOP's] Motion to Dismiss for Failure to File a Certificate of Merit is GRANTED with respect to [Plaintiffs'] claims for the personal injuries and wrongful death of Walter Scifres that arise from UOP's provision of professional engineering services for the Sunray/Sun Oil refinery . . . and are dismissed with prejudice. Third, the trial court denied the Kozak Plaintiffs' request to avoid filing a certificate of merit. The order did not identify which claims were those "aris[ing] from UOP's provision of professional services." However, when the parties' motions and responses are read together with the order, it appears that the trial court dismissed only those claims against UOP that arose out of its provision of professional services as an engineering designer, rather than as a general contractor, and that the failure-to-warn claim survived to some extent. This interpretation of the September 26 order is supported by the parties' subsequent actions, discussed below. C. Summary Judgment and the Second Amended Petition On the same day that the dismissal order was signed, UOP filed a motion for summary judgment against what it identified as the Kozak Plaintiffs' remaining claims. In that motion, UOP asserted that the Kozak Plaintiffs' "negligence claims that UOP acted as a general contractor, products liability and failure to warn, conspiracy, malice, and gross negligence . . . as well as derivative claims relating thereto, remain[ed] pending against UOP" after the dismissal order. (Emphasis added.) It is somewhat unclear from this pleading whether UOP construed the failure-to-warn claim that remained after dismissal as being asserted against UOP only in its capacity as general contractor or also in its capacity as designer. The Kozak Plaintiffs' response asserted that UOP performed services at the refinery that "are separate and apart from . . . UOP's professional engineering services and . . . UOP is subject to liability for [its] negligent actions and failure to warn in this capacity." (Emphasis added.) These pleadings indicate that the parties believed that the failure-to-warn claim survived dismissal at least to the extent that it was alleged against UOP in its capacity as a general contractor, if not also in its capacity as designer. On October 17, 2008, the trial court "granted [UOP's summary-judgment] Motion in all respects, except for failure to warn." (Emphasis added.) The trial court did not specify whether it was refusing to render judgment on the failure-to-warn claim asserted against UOP in its capacity as designer, in its capacity as general contractor, or in both capacities. The Kozak Plaintiffs' summary-judgment response recited that they had filed a second amended petition on October 16, 2008, the day before the summary-judgment ruling. However, the petition was not file-stamped until October 20, 2008, three days after that ruling. The second amended petition reasserted the failure-to-warn claim against UOP in both of its capacities, but added allegations of additional general consulting work that UOP had performed over several decades. D. The Appeals On October 27, 2008, UOP appealed both the October 17 summary-judgment order and the September 26 dismissal order. (1) By cover letter dated November 7, 2008, the Kozak Plaintiffs mailed their notice of "cross-appeal" to the clerk; that notice of appeal was filed on November 12, 2008. (2) PRELIMINARY MATTERS We address three preliminary matters before reaching the appeals' merits. First, Section 150.002 of the Texas Civil Practice and Remedies Code authorizes an interlocutory appeal relating only to "an order granting or denying a motion for dismissal" for failure to obtain the certificate. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f). No other statute or rule makes the interlocutory summary-judgment order of October 17, 2008 appealable at this time. Accordingly, we may review only the September 26, 2008 order on UOP's motion to dismiss in this appeal, not the ruling on its motion for summary judgment. Both parties have raised arguments concerning the merits of the remaining failure-to-warn claim, specifically, whether UOP had a duty to warn under Oklahoma law. Because this issue relates to the interlocutory summary-judgment ruling, we cannot address it in this interlocutory appeal. Second, UOP did not move to strike, or reassert its motion to dismiss with respect to, the second amended petition's failure-to-warn claim alleged against UOP in its designer and contractor capacities. On appeal, both parties implicitly assume that UOP may nonetheless pursue its appellate challenges to the dismissal ruling. Because the parties assume this, so do we. We do not address what effect, if any, the filing of the second amended petition had on the prior dismissal ruling. However, for purposes of our review, we consider only the first amended petition's allegations, as this was the live pleading at the time of the trial court's ruling on the dismissal motion. Third, in their challenges to the dismissal ruling, both parties rely on summary-judgment evidence that was not proffered in conjunction with UOP's motion to dismiss and which was not before the trial court when it ruled on that motion. We may not consider this summary-judgment evidence in our analysis. See Methodist Hosps. of Dallas v. Tall, 972 S.W.2d 894, 898 (Tex. App.--Corpus Christi 1998, no pet.) ("It is axiomatic that an appellate court reviews actions of a trial court based on the materials before the trial court at the time it acted."). STANDARD OF REVIEW We review an order pursuant to section 150.002 for abuse of discretion. See Curtis & Windham Architects, Inc. v. Williams, No. 01-09-00760-CV, 2010 WL 670584, at *2 (Tex. App.--Houston [1st Dist.] Feb. 25, 2010, no pet. h.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules and principles. Id. ANALYSIS In the sole issue in their appeal, the Kozak Plaintiffs contend that they should be excused from the certificate requirement because the facility in question no longer exists, and they contend that it was error to conclude otherwise. In the sole issue in its appeal, UOP contends that the trial court abused its discretion by not dismissing the remaining failure-to-warn claim. The applicable version of former section 150.002 provides, in relevant part: § 150.002. Certificate of Merit (a) In any action . . . 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 professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit will set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. . . . (b) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit . . . could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires. . . . . (d) The plaintiff’s failure to file the affidavit in accordance with Subsection (a) or (b) shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice. 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 (emphasis added) (amended 2009). A. Waiver of Certificate of Merit (The Kozak Plaintiffs' Appeal) By its plain language, the certificate-of-merit statute is compulsory, not discretionary. Although the statute gives the trial court discretion to allow a plaintiff more time in which to obtain the certificate in the one circumstance identified, it does not grant the trial court discretion to waive the requirement altogether, and it mandates dismissal of any claims for which a certificate is required and not produced. We thus hold that the trial court did not err in denying the Kozak Plaintiffs' motion for leave to avoid filing a certificate of merit. We overrule the sole issue in the Kozak Plaintiffs' appeal. B. Failure-to-Warn Claim (UOP's Appeal) In its ruling on UOP's motion to dismiss, the trial court refused to dismiss, among other claims, the Kozak Plaintiffs' claim for failure to warn of the dangers of asbestos. On appeal, UOP challenges the refusal to dismiss only this claim; it does not challenge the denial of its request to dismiss any other claim. We thus consider the propriety of the trial court's ruling on the motion to dismiss only with respect to the failure-to-warn claim. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) ("We have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error."). 1. The Law Former section 150.002(a) requires a certificate of merit only in actions or arbitration proceedings "for damages arising out of the provision of professional services by a licensed or registered professional . . . ." 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. In determining what "the provision of professional [engineering] services" in former section 150.002(a) means, we are guided by the Texas Occupation Code's definition of the practice of engineering. See Ashkar Eng'g Corp. v. Gulf Chem. & Metallurgical Corp., No. 01-09-00855-CV, 2010 WL 376076, at *9 (Tex. App.--Houston [1st Dist.] Feb. 4, 2010, no pet.) (memo. op.) (looking to Texas Occupation Code to ascertain same issue, with respect to practice of engineering); see also Williams, 2010 WL 670584, at *4 (same, with respect to practice of architecture). The Occupation Code defines the practice of engineering as "the performance of . . . any public or private service or creative work, the adequate performance of which requires engineering education, training, and experience in applying special knowledge or judgment of the mathematical, physical, or engineering sciences to that service or creative work." Tex. Occ. Code Ann. § 1001.003(b) (Vernon Supp. 2009). The practice of engineering includes, among other things, design of engineering works or systems; engineering for construction of real property; engineering for preparation of operating or maintenance manuals; and "any other professional service necessary for the planning, progress, or completion of an engineering service." Id. § 1001.003(c). Based on the definitions provided in the Occupation Code, and the plain language of former section 150.002(a), a claim for damages asserted against a professional engineer arises out of the provision of professional services (and thus requires a certificate of merit) if the claim implicates the engineer's education, training, and experience in applying special knowledge or judgment. See Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at *3 (Tex. App.--San Antonio Oct. 3, 2007, no pet.) (memo. op.) (holding that claims for tortious interference, conspiracy, breach of contract, wrongful termination, and breach of fiduciary duty, loyalty, and good faith and fair dealing did not require certificate of merit because they did not "implicate a professional engineer's education, training, and experience in applying special knowledge or judgment."). Conversely, "if a plaintiff's claim for damages does not implicate the special knowledge and training of [the subject professional], it cannot be a claim for damages arising out of the provision of professional services." Williams, 2010 WL 670584, at *4. Additionally, because former section 150.002(a) also requires that the certificate of merit "set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim," this Court recently held in Williams that the statute's certificate requirement "does not apply in a suit other than one for negligent acts, errors, or omissions arising out of the provision of professional services." Id. We reasoned that "[i]t simply makes no sense to require an affidavit of a licensed or registered professional setting forth 'at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim' when, in fact, a plaintiff's causes of action do not concern negligence." Id. at *5. However, in determining whether a claimant is asserting a claim for such negligent acts, errors, or omissions, we are not bound by the labels that the claimant applies to its claim. See Ashkar Eng'g Corp., 2010 WL 376076, at *8. "Rather, we look to the pleadings to determine the nature of the claims asserted." Id. 2. Application We must determine whether a claim for failure to warn of the dangers of asbestos as pleaded in this case against an alleged general contractor and consultant--UOP, which had previously provided engineering design services--is a claim for negligent acts, errors, or omissions arising out of the provision of professional services that implicated UOP's engineering education, training, and experience in applying its special knowledge or judgment. Against UOP, which was sued "as a Contractor Defendant," the Kozak Plaintiffs alleged: 18. . . . [UOP] designed and provided the specifications for [the refinery] . . . . In that capacity, [UOP] acted as an engineering design service provider [and] acted as a general contractor during construction by handling the bid process, evaluating the bids and communicating with the bid winner, reviewed and approved Operation and Maintenance Manuals, evaluated the efficiency of the equipment and made recommendations for improving operations of the powerhouse(s). The first amended petition thus alleged two categories of claims against UOP: (1) those asserted against it in capacity as designer, and (2) those asserted against it in its capacity as a general contractor. In both of these capacities, UOP was sued for failure to warn of the dangers of asbestos-containing equipment, materials, or machinery: 19. As the refinery's designer, Defendant [UOP] was responsible for the selection of equipment and materials to be used to operate the refinery. This included decisions regarding the manufacture of the equipment that was installed in the refinery, the equipment's placement, and how the equipment would be insulated. Further, [UOP] was responsible for ordering and installing the equipment and all appurtenances to that equipment. 20. [UOP] owed a duty of care to the men and women who worked in the Sunray/Sun Oil refinery it designed. Plaintiff contends that [UOP] was negligent in its performance of its duty in that it failed to protect workers such as Plaintiff from the hazards of asbestos that [UOP] specified and approved for use in the Sunray/Sun Oil refinery. If [UOP] had exercised due care and used the knowledge of an expert that it is presumed to have had, it would have known that asbestos insulation, gaskets and packing were hazardous to the health of the Sunray/Sun Oil refinery workers and should not have specified such material or required the placement of warnings concerning the health hazards of asbestos exposure on all asbestos-containing products, and on all machinery or equipment insulated with or containing such products. The Plaintiff, and all similar refinery workers, relied upon the expertise of [UOP] in designing the Sunray/Sun Oil refinery to be as safe and free of hazards as possible, and [UOP] breached that duty by specifying asbestos containing products including insulation products despite knowledge of the hazards of asbestos, and by failing to require warnings. 21. Further, [UOP] was responsible for the actual procurement of the same equipment described above. [UOP] was responsible for assuring that the installation, operation and maintenance manuals for the equipment in question provided safe and effective techniques to avoid the hazards posed by working on the material and equipment in closed, confined spaces, and thus should have required the placement of warnings concerning the health hazards of asbestos exposure on all asbestos-containing products, and on all machinery or equipment insulated with or containing such products. (Emphasis added.) a. whether the failure-to-warn claim was one "arising out of the provision of professional services" The Kozak Plaintiffs alleged that it was UOP's knowledge of the dangers of asbestos (and its failure to warn of them despite that knowledge) that underlay its liability. The basis for UOP's knowledge, as alleged, was its expertise as a designer of the unit and as an "expert." For example, in their first amended petition and with respect to their failure-to-warn claim alleged against UOP as a designer, the Kozak Plaintiffs alleged that if "[UOP] had exercised due care and used the knowledge of an expert that it is presumed to have had, it would have known that asbestos insulation, gaskets and packing were hazardous . . . ." They also alleged that the refinery workers "relied on the expertise" of UOP "in designing the [refinery] to be as safe and free of hazards as possible" and that UOP "breached that duty by specifying asbestos containing products . . . despite knowledge of the hazards of asbestos and by failing to require warnings." Although their allegations in the first amended petition against UOP as a contractor did not state the basis for UOP's knowledge of the danger of asbestos, the basis had to be the same. The alleged source of UOP's knowledge concerning asbestos--the engineering expertise that allowed it to design the refinery--was thus the same regardless of the capacity in which UOP was sued. Former 150.002(a) requires a certificate of merit if a claim for damages implicates a professional engineer's education, training, and experience in applying special knowledge or judgment. See Gomez, 2007 WL 2846419, at *3; see also Tex. Occ. Code Ann. § 1001.003(b). As pleaded here, the failure-to-warn claim alleged against UOP in either capacity implicated UOP's engineering education, training, and experience because it was premised on knowledge of asbestos that UOP was alleged to have had from its design experience. That is, it was this engineering expertise that underlay UOP's liability for having failed to warn--whether UOP failed to warn of asbestos's dangers when it designed the refinery or when it procured the facility's equipment, installed that equipment, and developed various manuals for that equipment. Additionally, the Occupation Code defines the provision of engineering services to include "engineering for preparation of an operating or maintenance manual"; "a service, . . . analysis, or other work performed . . . in connection with a utility, structure, building, machine, equipment, process, system, work, project, or industrial . . . product or equipment of a mechanical . . . [or] . . . hydraulic. . . nature"; and "any other professional service necessary for the . . . progress, or completion of an engineering service"--all of which describe many of the first amended petition's contractor allegations against UOP on which the failure-to-warn claim was based. Tex. Occ. Code Ann. § 1001.003(c)(8), (10), (12). For these reasons, we hold that the failure-to-warn claim, whether alleged against UOP in its capacity as a designer or general contractor, was a claim for damages arising out of the provision of professional services by a licensed or registered professional engineer within the meaning of former section 150.002(a). b. whether the failure-to-warn claim was, in essence, one for negligence Our above holding is only the first part of the inquiry. We must also determine whether this same claim was one "for negligent acts, errors, or omissions arising out of the provision of professional services." See Williams, 2010 WL 670584, at *4. Only if it can be characterized as such a claim was a certificate of merit required. See id. The parties do not contest the trial court's ruling that Oklahoma's substantive law applied. The Oklahoma Supreme Court has adopted the rule of section 388 of the Second Restatement of Torts that sets out a supplier's duty to warn of known dangers in the ordinary use of its products. See Grover v. Superior Welding, Inc., 893 P.2d 500, 503 (Okla. 1995); Duane v. Okla. Gas & Elec. Co., 833 P.2d 284, 286 (Okla. 1992). That rule provides: One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, of the supplier (a) Knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. Restatement (Second) of Torts § 388 (1965). The Oklahoma Supreme Court has applied this rule of supplier-liability in a negligence case. See Grover, 893 P.2d at 502-04. Likewise, as pleaded, the failure-to-warn claim alleged against UOP in either capacity sounded in negligence. For example, regarding UOP's capacity as designer, the Kozak Plaintiffs alleged that UOP "was negligent in its performance of its duty," should have "exercised due care," and "breached [its] duty by . . . failing to require warnings." Although their failure-to-warn allegations concerning UOP's capacity as general contractor were not as explicit in this regard, the Kozak Plaintiffs alleged that because UOP was "responsible for the actual procurement of the same equipment" and for "assuring that the installation, operation and maintenance manuals . . . provided safe and effective techniques to avoid" asbestos's hazards, UOP "should have required the placement of warnings" on all relevant equipment and products. This is an allegation that UOP failed to exercise reasonable care to inform the facility's workers of the dangers of asbestos when it was doing these things. As pleaded, this claim sounded in negligence. See id. at 501-03 (providing that negligence claim requires duty, violation of duty, and resulting injury and adopting standard of Restatement section 388 with respect to supplier of product to determine element of duty). We hold that the failure-to-warn claim, whether alleged against UOP in its capacity as a designer or general contractor, was one "for negligent acts, errors, or omissions arising out of the provision of professional services." See Williams, 2010 WL 670584, at *4. 3. Holding Because we conclude that the failure-to-warn claim alleged against UOP was both a claim for damages arising out of the provision of professional services by a licensed or registered professional and one for negligent acts, errors, or omissions arising out of the provision of those services, we hold that the trial court abused its discretion in denying UOP's motion to dismiss the Kozak Plaintiffs' failure-to-warn claim alleged against UOP, whether that denial applied to the claim alleged against UOP in its capacity solely as general contractor or also in its capacity as designer. We sustain UOP's sole issue in its appeal. CONCLUSION We reverse the trial court's September 26, 2008 order to the extent that it denied UOP's motion to dismiss the failure-to-warn claim against UOP. We affirm the trial court's September 26, 2008 order in all other respects. We remand the case with instructions for the trial court to dismiss the referenced claim. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Bland and Massengale. 1. An appeal of an order denying a motion to dismiss under section 150.002 is an interlocutory, accelerated appeal. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f) (Vernon Supp. 2009); Tex. R. App. P. 28.1(a). The first notice of appeal (here, UOP's) was thus due 20 days after the dismissal order's signing on September 26, 2008. Tex. R. App. P. 26.1(b), 28.1(a). Twenty days after that date was October 16, 2008, but UOP did not file its notice until 11 days later. However, the notice was filed within 15 days of its due date, so that a motion for extension of time is necessarily implied. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (regular appeal); In re M.A., 222 S.W.3d 670, 670 (Tex. App.--Houston [14th Dist.] 2007, no pet.) (accelerated appeal); see also Tex. R. App. P. 26.3; Tex. R. App. P. 28.1(a). We further deem UOP to have given the required explanation for the late filing: its appellant's brief reflects that the somewhat confusing procedural history of this case led it to mistakenly believe that the trial court had dismissed, but then "revived" by its later summary-judgment ruling, the failure-to-warn claim alleged against it in at least one of its capacities. 2. The Kozak Plaintiffs' notice of appeal was due 14 days after UOP's notice of appeal was filed--November 10, 2008. See Tex. R. App. P. 26.1(d). Their notice was timely filed under the "mailbox rule." See Tex. R. App. P. 9.2(b)(1), (2); Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007).