A Texas Court’s Take on Syntactic Ambiguity

Reader Patrick Grant told me about a ConstructionRisk.com newsletter describing a Texas case involving syntactic ambiguity. (Syntactic ambiguity derives from uncertainty over which part of a sentence a given word or phrase modifies.)

The case in question was Consolidated Reinforcement v. Carothers Executive Homes, 271 S.W.3d 887 (Tex. App. 2008), a case before the Texas Court of Appeals, Third District. I’ll spare you the details. For our purposes, all that matters is that the court was asked to construe the following statutory language (emphasis added):

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, registered professional land surveyor, or 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 shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.

The question before the court was whether a claimant is required to file a supporting affidavit even if it isn’t claiming negligence. In other words, does “negligent” modify just “act,” or also “error” and “omission”?

The court held that no affidavit was required—that requiring an affidavit was inconsistent with the statute, which made it clear that the legislature had had in mind that an affidavit would only be required if negligence was being claimed. In other words, the court held that “negligent” modifies “act,” “error,” and “omission.”

The court went on to say the following:

The dissent contends that “negligent” only modifies “act” in the phrase in the statute “negligent act, error, or omission” by rewording the phrase “error, omission, or negligent act.” We, however, are to read “words and phrases” in context and construe them “according to the rules of grammar and common usage.” See Tex. Gov’t Code Ann. § 311.011 (West 2005). A straightforward reading leads to the conclusion that the adjective “negligent” modifies the three nouns “act,” “error,” and “omission” that are connected by the conjunction “or.” See, e.g., McIntyre v. Ramirez, 109 S.W.3d 741, 746 (Tex. 2003) (citing and quoting Long v. United States, 199 F.2d 717, 719 (4th Cir. 1952); stating the “rule of grammatical construction” that the use of an adverb before the first of a string of verbs, “‘with the disjunctive construction used only between the last two of them, shows quite plainly that the adverb is to be interpreted as modifying them all'”); see also United States Fidelity & Guaranty Co. v. Fireman’s Fund Ins. Co., 896 F.2d 200, 203 (6th Cir. 1990) (adjective preceding a series of nouns generally modifies every noun in the series: “only reasonable construction” in insurance policy of clause “negligent act, error or omission” is that policy covers only negligent behavior). Further, had the legislature intended for “negligent” to modify only “act,” it would have worded the phrase as the dissent does. See, e.g., Tex. Bus. Orgs. Code Ann. § 301.010(a) (West 2008) (“an error, omission, negligent or incompetent act, or malfeasance committed by a person”); Tex. Ins. Code Ann. § 4102.105(a) (West 2008) (“based on an error, omission, fraud, negligent act, or unfair practice”).

I side with neither the majority nor the dissent. Although the court referred to “the plain language of the statute,” it wasn’t plain—it was ambiguous, in that “negligent” is a modifier preceding three nouns; see MSCD 11.3. You can resolve ambiguity in one of two ways. You can attempt to determine what the parties or, in this case, the legislature had in mind. Or you can be arbitrary about it. In this case, it seems the court chose the latter approach.

And it was a bit optimistic of the court to suggest that if the legislature had intended for “negligent” to modify “just “act” it would have worded the statute differently. You might as well suggest that if the legislature had wanted “negligent” to modify all three nouns it would have drafted the statute so as to make that clear.

Here’s the only way to avoid syntactic ambiguity: familiarize yourself with structures that give rise to it, then avoid those structures like the plague. That’s why MSCD devotes a chapter to the subject.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.