Jennings, Hackler & Partners, Inc. v. North Texas Municipal Water District , 2015 Tex. App. LEXIS 8028 ( 2015 )

Affirmed in part; and Reverse and Remanded in part; and Opinion Filed July 30, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01043-CV
JENNINGS, HACKLER & PARTNERS, INC., Appellant
V.
NORTH TEXAS MUNICIPAL WATER DISTRICT, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-01197-2013
OPINION
Before Justices Fillmore, Stoddart, and Whitehill
Opinion by Justice Whitehill
The primary area of dispute in this architect liability case is whether the plaintiff had to
provide an expert affidavit from a licensed architect to support its direct and vicarious liability
claims against an architectural firm. The plaintiff asserted claims against a licensed professional
engineering firm and direct and vicarious liability claims against the architectural firm that hired
those engineers for the project at issue. Although the plaintiff filed with its petition an affidavit
from a licensed professional engineer as civil practice and remedies code § 150.002 requires for
the claims against the engineer, it did not file an affidavit from a licensed architect, as the
architect contends was required. The trial court denied the architect’s civil practice and remedies
code § 150.002(e) motion to dismiss, and the architect filed this § 150.002(f) interlocutory
appeal.
In one issue, the architecture firm argues that the trial court erroneously denied its motion
to dismiss because the statute’s plain language mandates the dismissal of every claim arising
from the provision of professional services by a licensed architect if the plaintiff does not serve
with its petition an affidavit of a third party licensed architect who (i) is competent to testify, (ii)
holds the same professional licensure or registration as the defendant, and (iii) is knowledgeable
in the area based on the remaining § 150.002(a)(3) predicates. For the reasons discussed below,
we affirm the trial court’s order denying the architect’s motion regarding the plaintiff’s purely
vicarious liability claims but reverse the trial court’s denial of that motion regarding the
plaintiff’s direct liability claims.
I. BACKGROUND
A. The Parties’ Factual Allegations
Appellee North Texas Municipal Water District’s (the District) live pleading alleges the
following facts. The District wanted an environmental services building to be built in Wylie,
Texas. In 2005, it hired appellant Jennings, Hackler & Partners, Inc. (Jennings), an architecture
firm, “to provide architectural, civil engineering, MEP engineering, structural engineering and
geotechnical engineering services, as well as additional services, to the [District] for the purpose
of designing” the building. Jennings hired co-defendant TurkWorks Engineering, LLC
(TurkWorks) to provide mechanical engineering services under the design contract. TurkWorks
was Jennings’s agent or independent contractor for the building’s mechanical engineering
design. In 2006, the District hired defendant Imperial Construction, Ltd. to build the building.
After the District started using the building in or about January 2008, District personnel
reported problems with the building, such as “uncomfortable room temperatures, high humidity
levels, excessive condensation, water dripping from some of the original windowsills and
causing damages to the drywall, equipment, and similar issues.” The District hired other
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mechanical engineering firms to assess the problems, and those firms reported many design and
construction defects. The primary defects included inadequacies in the design and installation of
the air conditioning and heating system. Jennings, TurkWorks, and Imperial refused to make
most of the recommended repairs. The building’s defects caused the District thousands of
dollars of damages, and the District expects future repairs and remediations to cost over
$500,000.
B. Procedural History
In March 2013, the District sued Jennings, TurkWorks, and Imperial. It attached an
affidavit by Gregory G. Schober, M.S., P.E. to its original petition. Schober’s affidavit stated
that TurkWorks failed to exercise reasonable care when it designed the building’s HVAC
system, and he provided a factual explanation for his opinion.
Jennings eventually filed a motion to dismiss under Texas Civil Practice and Remedies
Code § 150.002, arguing that Schober’s affidavit did not satisfy chapter 150 as to Jennings
because Jennings is an architect and Schober is not. Jennings also argued that Schober’s
affidavit was inadequate because Schober did not identify any negligence or other breach of a
legal duty by Jennings.
The District then filed its second amended petition in which it asserted claims against
Jennings for breach of contract, negligence, and negligent hiring and retention of TurkWorks.
The District alleged that Jennings breached the contract by failing to deliver a “fully
conditioned” building as promised. The District alleged that Jennings and TurkWorks were
liable for “their negligent provision of mechanical engineering services under the circumstances
in their defective design of the Building’s HVAC system.” The District’s negligence count also
alleged that Jennings was vicariously liable for TurkWorks’ negligence.
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The trial judge denied Jennings’s motion after a hearing. Jennings timely appealed. See
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(f) (West 2011) (authorizing interlocutory
appeal).
II. ANALYSIS
A. Standard of Review and Rules of Statutory Construction
This case concerns the proper application of § 150.002 of the Texas Civil Practice and
Remedies Code. We employ a de novo standard of review when deciding questions of statutory
interpretation. Belvedere Condos. at State Thomas, Inc. v. Meeks Design Grp., Inc., 329 S.W.3d
219, 220 (Tex. App.—Dallas 2010, no pet.). Once we construe the statute, we determine
whether the trial court abused its discretion in applying the statute to the facts. Morrison Seifert
Murphy, Inc. v. Zion, 384 S.W.3d 421, 425 (Tex. App.—Dallas 2012, no pet.).
When we interpret a statute, we strive to ascertain and effectuate the legislature’s intent.
TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13-01021-CV, 2014 WL 4724706,
at *3 (Tex. App.—Dallas Sept. 24, 2014, pet. denied). We take the text’s plain meaning as the
best expression of legislative intent unless a different meaning is apparent from the context or the
plain meaning yields absurd or nonsensical results. Id. We read a statute as a whole and do not
construe its provisions in isolation. Id. We thus endeavor to read the statute contextually and to
give effect to every word, clause, and sentence. Id.
In interpreting the statute, we may consider, among other things, the object the legislature
sought to accomplish and the consequences of a particular interpretation. TEX. GOV’T CODE
ANN. § 311.023(1), (5) (West 2013); see also Challenger Gaming Sols., Inc. v. Earp, 402 S.W.3d
290, 296 (Tex. App.—Dallas 2013, no pet.) (“In construing a statute, the court’s primary
objective is to give effect to the legislature’s intent, considering the purpose of the statute, its
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legislative history, and the consequences of a proposed construction.” (citing GOV’T
§ 311.023(1), (3), (5))).
B. Section 150.002
A plaintiff must file a certificate of merit in any action for “damages arising out of the
provision of professional services by a licensed or registered professional.” CIV. PRAC.
§ 150.002(a). The term “licensed or registered professional” includes licensed architects,
licensed professional engineers, and firms in which licensed architects or licensed professional
engineers practice. CIV. PRAC. § 150.001(1–a) (West Supp. 2014).
If a certificate of merit is required, the general rule is that the plaintiff must file the
certificate with its original petition. See id. § 150.002(a). There is an exception to this rule, see
id. § 150.002(c), but no one contends the exception applies here.
A certificate of merit must be an affidavit by a person who is competent to testify, holds
the same professional license or registration as the subject defendant, and is knowledgeable
about the defendant’s area of practice based on the affiant’s knowledge, skill, experience,
education, training, and practice. Id. § 150.002(a)(1)–(3). The affiant must also be licensed or
registered in Texas and actively engaged in the practice of architecture, engineering, or
surveying. Id. § 150.002(b).
For “each theory of recovery for which damages are sought,” the affidavit must
specifically state “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.
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“The plaintiff’s failure to file the affidavit in accordance with [§ 150.002] shall result in
dismissal of the complaint against the defendant. This dismissal may be with prejudice.” Id.
§ 150.002(e).
The certificate of merit requirement’s purpose is to provide a basis for the trial court to
conclude that the plaintiff’s claims are not frivolous. CBM Eng’rs, Inc. v. Tellepsen Builders,
L.P., 403 S.W.3d 339, 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
C. Application of § 150.002 to the Facts
To determine whether and how § 150.002 applies, we consider the live pleadings when
the trial court ruled on the motion to dismiss. JJW Dev., L.L.C. v. Strand Sys. Eng’g, Inc., 378
S.W.3d 571, 576 (Tex. App.—Dallas 2012, pet. denied). The threshold questions are (i) whether
Jennings is a “licensed or registered professional” and (ii) whether the District’s damages arise
out of the provision of professional services by such a professional. See CIV. PRAC.
§ 150.002(a). The District’s response to the dismissal motion conceded that Jennings is a
“licensed or registered professional” under chapter 150. We therefore proceed to consider
(i) whether the District’s claims against Jennings arise out of the provision of professional
services and, if so, (ii) whether the Schober affidavit satisfies § 150.002’s requirements as to
those claims.
1. Does § 150.002 apply to the District’s direct liability claims against Jennings?
a. What does “arose out of the provision of professional services” mean?
A pivotal question is whether the District’s direct liability claims against Jennings
“ar[ose] out of the provision of professional services.” CIV. PRAC. § 150.002(a). If they did, a
compliant affidavit was required; otherwise, it was not required and the trial court properly
denied Jennings’s motion to dismiss.
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In determining whether claims arise out of the provision of professional services, we look
to the substance of the plaintiff’s pleadings. TIC N. Cent. Dallas 3, 2014 WL 4724706, at *6.
The question is not whether the alleged mal-acts themselves constituted the provision of
professional services, but whether the claims arise out of the provision of professional services.1
Id.
The statute does not define “the provision of professional services.” But our sister courts
have held, and we agree, that a claim arises out of the provision of professional services if the
claim implicates a professional’s education, training, and experience in applying special
knowledge or judgment. See Pelco Constr., Inc. v. Dannenbaum Eng’g Corp., 404 S.W.3d 48,
53 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“If a plaintiff’s claim [against an architect]
implicates the special knowledge and training of an architect, it is a claim for damages arising
out of the provision of professional services.”); TDIndustries, Inc. v. Citicorp N. Am., Inc., 378
S.W.3d 1, 5 (Tex. App.—Fort Worth 2011, no pet.) (claim against professional engineer “arises
out of the provision of professional services” if it “implicates the engineer’s education, training,
and experience in applying special knowledge or judgment”).
Chapter 150 further explains the meaning of “professional services” in architect cases by
adopting the Occupations Code’s definition of “practice of architecture.” See CIV. PRAC.
§ 150.001(2); see also Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804, 809 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) (using Occupations Code to flesh out meaning of “professional
services” under § 150.002). Under that definition, “practice of architecture” means
1
In JJW Development, we held that a prior version of § 150.002 applied only to negligence claims because that version of the statute
required the certificate to “set forth specifically at least one negligent act, error, or omission.” 378 S.W.3d at 578–79. The current version of
§ 150.002 requires the certificate to set forth “specifically for each theory of recovery . . . the negligence, if any, or other action, error, or
omission of the licensed or registered professional in providing the professional service.” CIV. PRAC. § 150.002(b). Thus, the certificate of merit
requirement now applies to all theories of recovery, and our holding in JJW Development has been legislatively abrogated. See Dunham Eng’g,
Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 791–92 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (collecting cases regarding the expanded
scope of amended § 150.002(b)). For a discussion of § 150.002’s history, see S&P Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390, 394–
95 (Tex. App.—Austin 2011, no pet.) (en banc).
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a service or creative work applying the art and science of developing design
concepts, planning for functional relationships and intended uses, and establishing
the form, appearance, aesthetics, and construction details for the construction,
enlargement, or alteration of a building or environs intended for human use or
occupancy, the proper application of which requires education, training, and
experience in those matters. The term includes:
(A) establishing and documenting the form, aesthetics, materials, and
construction technology for a building, group of buildings, or environs
intended to be constructed or altered;
(B) preparing, or supervising and controlling the preparation of, the
architectural plans and specifications that include all integrated building
systems and construction details, unless otherwise permitted under Section
1051.606(a)(4);
(C) observing the construction, modification, or alteration of work to evaluate
conformance with architectural plans and specifications described in
Paragraph (B) for any building, group of buildings, or environs requiring an
architect; [and]
***
(F) consulting, investigating, and analyzing the design, form, aesthetics,
materials, and construction technology used for the construction, enlargement,
or alteration of a building or environs and providing expert opinion and
testimony as necessary . . . .
TEX. OCC. CODE ANN. § 1051.001(7)(A)–(C), (F) (West 2012) (emphasis added).
b. Do the District’s direct claims against Jennings “arise out of the
provision of professional services”?
We first examine the District’s direct claims against Jennings, bearing in mind that the
question is not whether the specific acts giving rise to the District’s claims constitute the
provision of professional (architectural) services, but whether those claims arise out of the
provision of those services. See TIC N. Cent. Dallas 3, 2014 WL 4724706, at *6.
First, the District alleges that Jennings breached its contract by not delivering a “fully
conditioned” building. Second, the District’s direct negligence claims against Jennings assert
that: (1) Jennings and TurkWorks negligently provided “mechanical engineering services under
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the circumstances in their defective design of the Building’s HVAC system,” and (2) Jennings
negligently hired and retained TurkWorks.2
The crux of these theories is that Jennings, as a result of its services, provided a building
that was not “fully conditioned.” Although the parties do not explain the precise meaning of that
phrase, the District’s factual allegations show that it is complaining about the quality, condition,
or characteristics of the finished building, particularly its HVAC system.
The District retained Jennings to provide professional architectural services regarding the
design for, construction of, and integration of building systems in the District’s new
environmental services building in Wylie, Texas. The selection of, planning and coordination
with, and integration of the HVAC systems in that building, and hiring of engineers for that
project, were among the services Jennings provided the District that implicate Jennings’s
professional education, training, and experience in applying special knowledge or judgment to
that project. Because the District’s direct claims against Jennings derive from those
circumstances, we conclude that these claims arise out of Jennings’s provision of professional
(architectural) services and are subject to chapter 150. See Carter & Burgess, 355 S.W.3d at
810–11 (claims against architect for personal injuries caused by door’s sharp edge implicated
special architectural knowledge and the practice of architecture).
2. Does the Schober affidavit satisfy § 150.002’s requirements regarding the
District’s direct claims against Jennings?
The next question is whether the Schober affidavit satisfied the District’s § 150.002
obligations as to its direct claims against Jennings. Schober identified himself as a Texas
licensed professional engineer and opined that TurkWorks “failed to exercise reasonable care
2
The District argues that Jennings failed to preserve its challenge to this claim in the trial court. Jennings did not attack the negligent hiring
claim by name in its motion to dismiss because that claim had not been pleaded yet. But Jennings attacked all of the District’s then-pleaded
claims in its motion to dismiss, contending that all of them arose from the provision of professional services. Because Jennings’s motion was
broad enough to encompass the later added theory of negligent hiring, the District’s argument fails. Cf. Callahan v. Vitesse Aviation Servs., LLC,
397 S.W.3d 342, 350 (Tex. App.—Dallas 2013, no pet.) (summary judgment may be granted as to later added claims if the motion is broad
enough to encompass the new claims).
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and act within industry standards when it designed the HVAC system at the premises.” He
substantiated his opinions against TurkWorks with some factual explanation. He did not offer
any opinions about Jennings.
Under § 150.002(a), however, the certificate of merit must be an affidavit by a third party
licensed architect, licensed professional engineer, registered landscape architect, or registered
professional land surveyor who:
(1) is competent to testify;
(2) holds the same professional license or registration as the defendant; and
(3) is knowledgeable in the area of practice of the defendant and offers
testimony based on the person’s:
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
(F) practice.
CIV. PRAC. § 150.002(a) (emphases added).
That statute unambiguously provides that a certificate of merit must be authored by
someone holding the same professional license or registration as the defendant. It is undisputed
that Jennings is a licensed architect and that Schober is a licensed professional engineer. There
is no allegation or evidence that Jennings is a licensed professional engineer, nor is there any
evidence that Schober is a licensed architect. There is also no evidence that Schober is
knowledgeable in Jennings’s area of practice, as required by § 150.002(a)(3). For these reasons,
the Schober affidavit is not a sufficient certificate of merit for the District’s direct liability claims
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against Jennings. Accordingly, we conclude that the trial court abused its discretion by refusing
to dismiss the District’s direct claims against Jennings pursuant to § 150.002(e).
3. Does § 150.002 require dismissal of the District’s vicarious liability claims
against Jennings?
We next turn to the District’s vicarious liability claims against Jennings. The District
bases those claims on TurkWorks’ allegedly negligent conduct, which the District seeks to
impute to Jennings under theories of “respondeat superior, vicarious liability, and/or
principal/agent.”3
The District’s vicarious liability claims against Jennings arise out of the provision of
professional services, but the provider of those professional services was the mechanical
engineering firm, TurkWorks, not Jennings. This fact determines the proper application in this
case of § 150.002(b), which requires the supporting affidavit to state specifically “the negligence,
if any, or other action, error, or omission of the licensed or registered professional in providing
the professional service.” CIV. PRAC. § 150.002(b) (emphasis added). The District’s pure
vicarious liability claims, however, do not assert any negligence or other act, error, or omission
by Jennings in providing professional services. They assert only negligence by TurkWorks for
which Jennings is allegedly vicariously liable.
Because for each theory of recovery for which damages are sought and that arises from
the provision of professional services a plaintiff must provide an affidavit that (i) complies with
§ 150.002(a) and (ii) states the “negligence, if any, or other action, error, or omission of the
licensed or registered professional in providing the professional services,” that is, that describes
the covered professional’s wrongful conduct, the negative implication is that a qualified affidavit
is not, on this case’s facts, required for a pure vicarious liability claim that does not depend on
3
We do not address whether any of these theories have merit in this case.
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any wrongful conduct by the professional. See generally United Servs. Auto. Ass’n v. Brite, 215
S.W.3d 400, 403 (Tex. 2007) (applying maxim expressio unius est exclusio alterius); Dallas
Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 493 n.7 (Tex. 1993)
(same). It thus follows that the District was not required to file with its petition an affidavit from
an architect that meets § 150.002(a)’s standards regarding its pure vicarious liability claims.
III. DISPOSITION
We affirm the trial court’s order denying Jennings’s motion to dismiss regarding the
District’s vicarious liability claims against Jennings. We reverse the trial court’s order denying
Jennings’s motion to dismiss with respect to the District’s direct claims against Jennings, and we
remand this case for rendition of an order dismissing those claims after the trial court determines
whether the dismissal should be with or without prejudice, and for proceedings otherwise
consistent with this opinion.
141043F.P05 /Bill Whitehill/
BILL WHITEHILL
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JENNINGS, HACKLER & PARTNERS, On Appeal from the 296th Judicial District
INC., Appellant Court, Collin County, Texas
Trial Court Cause No. 296-01197-2013.
No. 05-14-01043-CV V. Opinion delivered by Justice Whitehill.
Justices Fillmore and Stoddart participating.
NORTH TEXAS MUNICIPAL WATER
DISTRICT, Appellee
In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order
denying appellant Jennings, Hackler & Partners, Inc.’s motion to dismiss with respect to appellee
North Texas Municipal Water District’s claims against appellant Jennings, Hackler & Partners,
Inc. for direct liability for breach of contract, negligence, and negligent hiring and retention.
We REMAND the case to the trial court for rendition of an order granting appellant
Jennings, Hackler & Partners, Inc.’s motion to dismiss with respect to appellee North Texas
Municipal Water District’s claims against appellant Jennings, Hackler & Partners, Inc. for direct
liability for breach of contract, negligence, and negligent hiring and retention after it determines
whether the dismissal should be with or without prejudice.
We AFFIRM the trial court’s order denying appellant Jennings, Hackler & Partners,
Inc.’s motion to dismiss with respect to appellee North Texas Municipal Water District’s claims
against appellant Jennings, Hackler & Partners, Inc. for vicarious liability for the negligence of
TurkWorks Engineering, Inc.
We ORDER each party to bear its own costs of this appeal.
Judgment entered July 30, 2015.
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