Dunham Engineering, Incorporated v. the Sherwin-Williams Company , 2013 Tex. App. LEXIS 6574 ( 2013 )

Affirmed and Opinion filed May 30, 2013.
In the
Fourteenth Court of Appeals
NO. 14-12-00369-CV
DUNHAM ENGINEERING, INCORPORATED, Appellant
V.
THE SHERWIN-WILLIAMS COMPANY, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 65387
OPINION
In this interlocutory appeal, Dunham Engineering, Inc. (DEI) appeals the
trial court’s denial of its motion to dismiss the Sherwin-Williams Co.’s (Sherwin-
Williams) claims of intentional interference with prospective business
relationships, business disparagement, and product disparagement based on DEI’s
actions in connection with a municipal water tower project. In three issues, DEI
argues that the certificate-of-merit affidavit Sherwin-Williams attached to its
original petition fails to meet the substantive requirements of section 150.002 of
the Texas Civil Practice and Remedies Code and that the trial court should have
dismissed Sherwin-Williams’ case with prejudice. Finding no abuse of discretion,
we affirm the trial court’s order denying DEI’s motion to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
In fall 2009, the City of Lake Jackson (the City) hired DEI to design and
produce engineering plans and specifications, and a draft set of contract documents
for the repainting and rehabilitation of a 500,000-gallon water tower (the Project).
The City also hired DEI to advertise for contractor bids on, and assist the City in
reviewing the bids and in selecting the winning bid for, the Project.
In its specifications for the Project, DEI specified that Tnemec Co., Inc.’s
(Tnemec) paint products were to be used. The specifications indicated that if a
contractor submitting a bid wanted to substitute another manufacturer’s paint
products, then the contractor needed to apply to DEI and request substitution, and
that DEI has final authority in approving a proposed substitute. The City
advertised and solicited competitive bids on the Project. During the public bidding
process, Sherwin-Williams submitted its paint products to DEI and requested
substitution of Sherwin-Williams’ products for Tnemec’s products. DEI—in
particular, DEI’s president and licensed professional civil engineer, Jimmy
Dunham—informed the City’s director of public works that DEI intended to turn
down Sherwin-Williams’ request because Dunham did not consider Sherwin-
Williams’ products to be “equal” to Tnemec’s products. DEI then rejected
Sherwin-Williams’ request.
Sherwin-Williams filed suit against DEI, alleging counts of intentional
interference with prospective business relationships, business disparagement, and
product disparagement. To its original petition, Sherwin-Williams attached a
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certificate-of-merit affidavit from James O’Connor, a licensed professional civil
engineer and engineering professor at the University of Texas at Austin.
In his affidavit, O’Connor stated that he was familiar with the legal
requirements and industry customs regarding competitive bidding on Texas public
works projects. Based on O’Connor’s review of DEI’s plan specifications, he
concluded that specifications for the Project required competitive bidding, DEI’s
specification on paint products was a closed or sole-source specification, and
DEI’s paint specification did not allow for open competition and thus did not
conform to Texas law. O’Connor also opined that, by drafting and soliciting
Project bids based on the sole-source specification, DEI and Dunham violated their
duty under the Texas Board of Professional Engineers’ rules. O’Connor also
reviewed Sherwin-Williams’ request that its products be considered as a substitute,
Dunham’s communications with the City, and DEI’s response rejecting Sherwin-
Williams’ products. He opined that DEI’s rejection of Sherwin-Williams’ products
as a proposed substitute was in error from an engineering prospective because the
rejection was based on what product has the highest test results, not compliance
with a stated desired minimum value. O’Connor further opined that DEI and
Dunham disparaged Sherwin-Williams and its products when they reported to the
City that Sherwin-Williams’ paint products were not “equal.”
DEI filed a motion to dismiss pursuant to section 150.002(e) of the Texas
Civil Practice and Remedies Code, arguing that Sherwin-Williams’ certificate-of-
merit affidavit failed to meet the requirements of section 150.002. The trial court
denied DEI’s motion, and DEI filed this interlocutory appeal.
DEI brings three issues on appeal. First, DEI argues Sherwin-Williams’
certificate of merit fails to comply with section 150.002(a)(3) because O’Connor’s
affidavit does not demonstrate that he is knowledgeable in the area of practice of
3
DEI. Second, DEI argues that Sherwin-Williams’ certificate of merit fails to
comply with section 150.002(b) because O’Connor’s affidavit does not set forth
the unlawful action, error, or omission, and the factual basis for each claim
Sherwin-Williams alleged against DEI in its original petition. Third, DEI thus
contends that the trial court abused its discretion in not dismissing Sherwin-
Williams’ claims with prejudice. In a cross-issue, Sherwin-Williams argues that it
was not required to file a certificate-of-merit affidavit with regard to its intentional
tort claims. We conclude that section 150.002 applies to Sherwin-Williams’
claims and that the trial court did not abuse its discretion in concluding Sherwin-
Williams’ certificate-of-merit affidavit complies with section 150.002’s
requirements.
II. STANDARD OF REVIEW AND APPLICABLE LAW
An order denying a motion to dismiss for failure to file a certificate of merit
in accordance with section 150.002 is immediately appealable. See TEX. CIV.
PRAC. & REM. CODE ANN. § 150.002(f) (West 2012). We review a trial court’s
order on a motion to dismiss under section 150.002 for an abuse of discretion.
Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265, 269 (Tex.
App.—Houston [14th Dist.] 2011, pet. dism’d) (citing Sharp Eng’g v. Luis, 321
S.W.3d 748, 752 (Tex. App.—Houston [14th Dist.] 2010, no pet.)); Benchmark
Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41, 44 (Tex. App.—Houston
[14th Dist.] 2010, pet. dism’d by agr.) (citations omitted). Merely because a trial
court may decide a matter within its discretion in a different manner than an
appellate court does not demonstrate an abuse of discretion. Benchmark, 316
S.W.3d at 44. However, the trial court abuses its discretion when it acts in an
unreasonable and arbitrary manner, or without reference to any guiding rules or
principles. Id. A trial court also abuses its discretion if it fails to analyze or apply
4
the law correctly. Epco Holdings, 352 S.W.3d at 269; Benchmark, 316 S.W.3d at
44 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
We review matters of statutory construction de novo. Epco Holdings, 352
S.W.3d at 269; Benchmark, 316 S.W.3d at 44. We construe statutory language to
ascertain and effectuate legislative intent, and we look to the statute’s plain
meaning because we presume that the Legislature intends the plain meaning of its
words. Epco Holdings, 352 S.W.3d at 269–70 (citing Sharp Eng’g, 321 S.W.3d at
750). We view statutory terms in context, giving them full effect. Benchmark, 316
S.W.3d at 45 (citation omitted). We presume that every word of a statute was used
for a purpose, and every omitted word was purposefully not chosen. See Epco
Holdings, 352 S.W.3d at 270; Benchmark, 316 S.W.3d at 44–45. “Finally, in
determining the plain meaning of a statute, we read the words in context and
construe the language according to the rules of grammar and common usage.”
Benchmark, 316 S.W.3d at 45 (citing TEX. GOV’T CODE ANN. § 311.011(a)
(Vernon 2005)).
Under the facts of this case, the pertinent version of section 150.002 is the
2009-amended version. Section 150.002 provides, in relevant part:
(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 . . . 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;
5
(C) experience;
(D) education;
(E) training; and
(F) practice.
(b) The affidavit shall set forth specifically for each theory of
recovery for which damages are sought, 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. The third-party . . . licensed professional engineer . . . shall be
licensed or registered in this state and actively engaged in the practice
of . . . engineering . . . .
...
(e) The plaintiff's failure to file the affidavit in accordance with this
section shall result in dismissal of the complaint against the defendant.
This dismissal may be with prejudice.
(f) An order granting or denying a motion for dismissal is
immediately appealable as an interlocutory order.
...
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002.
To the extent that we discuss case law interpreting it, the 2005 version of
section 150.002 provides:
(a) 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 third-party
professional engineer, registered professional land surveyor, or
licensed architect shall be licensed in this state and actively engaged
6
in the practice of architecture, surveying, or engineering.
Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369,
369–70, amended by Act of May 27, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex.
Gen. Laws 1991, 1991–92.
III. ANALYSIS
A. Sherwin-Williams’ intentional tort claims are subject to section 150.002.
We first address the threshold cross-issue raised by Sherwin-Williams.
Sherwin-Williams argues that its intentional tort claims are not subject to section
150.002’s requirements because the claims do not involve negligence or otherwise
arise from DEI’s provision of professional services. We disagree.
1. Each theory of recovery
Under the 2009 version, as well as the 2005 version, a certificate of merit is
required “[i]n any action . . . for damages arising out of the provision of
professional services by a licensed or registered professional.” TEX. CIV. PRAC. &
REM. CODE ANN. § 150.002(a). Under the 2009 version, “[t]he affidavit shall set
forth specifically for each theory of recovery for which damages are sought, the
negligence, if any, or other action, error, or omission of the licensed . . .
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. § 150.002(b). This statutory
language is broader, as compared to the language included in the 2005 version of
section 150.002, which provides that the “affidavit shall set forth specifically at
least one negligent act, error, or omission claimed to exist and the factual basis for
each such claim.” See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005
Tex. Gen. Laws 369, 369–70, amended by Act of May 27, 2009, 81st Leg., R.S.,
7
ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1991–92; Benchmark, 316 S.W.3d at 45
n.2 (“S.B. 1201 broadened the scope of chapter 150 by . . . expanding the affidavit
requirement to set forth ‘for each theory of recovery for which damages are sought,
the negligence, if any, or other action, error, or omission of the licensed or
registered professional in providing the professional service . . . .’”).
Although in Benchmark1 we observed that “[t]he legislature has amended
chapter 150 three times since it was enacted in 2003 and sought to broaden its
application in each amendment,” 316 S.W.3d at 45, this court has not directly
considered the scope of applicability of the 2009-amended section 150.002. In Pro
Plus, Inc. v. Crosstex Energy Services, L.P., the First Court of Appeals considered
whether the 2009 version of section 150.002 applied to a plaintiff’s breach-of-
contract claim against a defendant engineering firm, and concluded that it did. 388
S.W.3d 689, 706–08 (Tex. App.—Houston [1st Dist.] 2012, pet. granted). The
Pro Plus court discounted the 2005-version case law as “of limited value,” and
observed that “[i]n 2009, the Texas Legislature amended the Certificate of Merit
Statute in direct response to the holdings of intermediate appellate courts, which
limited the application of the statute to negligence claims.” Id. at 707. Instead, the
court considered the plain language of the 2009 version in determining that section
150.002 applied to plaintiff’s breach-of-contract claim. Id. at 707–08 (citing TEX.
CIV. PRAC. & REM. CODE ANN. § 150.002(a) & (b)); see also Pelco Constr., Inc. v.
Dannenbaum Eng’g Corp., —S.W.3d—, No. 01-12-00421-CV, 2013 WL
1488025, at *8 (Tex. App.—Houston [1st Dist.] Apr. 11, 2013, no pet. h.)
(applying 2009 version of section 150.002 to fraudulent-inducement claim).
Other courts of appeals have applied the 2009 version of section 150.002 to
1
In Benchmark, discussed further infra, we considered whether the plaintiff’s certificate
of merit met the substantive requirements of the 2005 version of section 150.002, but not section
150.002’s scope of applicability.
8
claims not involving negligence. See, e.g., Robert Navarro & Assocs. Eng’g, Inc.
v. Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475, 479 (Tex. App.—El Paso
Sept. 26, 2012, no pet.) (construing section 150.002, and concluding that statute
requires that affidavit must address each theory of recovery, including breach of
contract and negligent misrepresentation); M-E Engineers, Inc. v. City of Temple,
365 S.W.3d 497, 505–06 (Tex. App.—Austin 2012, pet. denied) (concluding that
the 2009 amendment “served to eliminate any continuing debate or uncertainty as
to whether prior versions of the certificate-of-merit requirement were triggered by
damage claims predicated on professional errors or omissions that were couched in
theories other than negligence”); cf. Jay Miller & Sundown, Inc. v. Camp Dresser
& McKee Inc., 381 S.W.3d 635, 644 (Tex. App.—San Antonio 2012, no pet.)
(noting in dicta that 2009 version of section 150.002 would apply to plaintiff’s
tortious-interference-with-contract claim).
Sherwin-Williams primarily relies on case law construing the 2005 version
of section 150.002 to limit its applicability to claims involving negligence.2 But in
light of the broadened language included in the 2009 amendment, these cases have
very limited applicability when construing the 2009 version of section 150.002.
See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b).
When construing section 150.002’s language, we must presume that the
legislature purposefully included the word “each” to modify “theory of recovery
2
See, e.g., JJW Devel., L.L.C. v. Strand Sys. Eng’g, Inc., 378 S.W.3d 571, 578, 581 (Tex.
App.—Dallas 2012, pet. filed); Sanders v. Wood, 348 S.W.3d 254, 257–58, 261 (Tex. App.—
Texarkana 2011, no pet.); Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728, 735 (Tex.
App.—Texarkana 2010, pet. dism’d w.o.j.); Curtis & Windham Architects, Inc. v. Williams, 315
S.W.3d 102, 108 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Kniestedt v. Sw. Sound &
Elecs., Inc., 281 S.W.3d 452, 455 (Tex. App.—San Antonio 2007, no pet.); Landreth v. Las
Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500 (Tex. App.—Corpus Christi 2009, no
pet.) (discussing Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419 (Tex. App.—
San Antonio Oct. 3, 2007, no pet.) (mem. op.)); Gomez, 2007 WL 2846419, at *3.
9
for which damages are sought.” The ordinary meaning and common usage of
“each” read in context here means no “theory of recovery” is exempt or excluded
from section 150.002’s requirement that the affidavit “set forth specifically . . . the
negligence, if any, or other action, error, or omission of the licensed or registered
profession in providing the professional service . . . and the factual basis for each
such claim.” See id. We also must presume that the legislature by use of the
phrase “if any” and the conjunctive “or” contemplated the very situation where a
plaintiff does not complain of the licensed professional’s negligence, but rather
complains of some “other act, error, or omission” by the licensed professional.
Nothing in the statutory language limits the nature of the complained-of behavior
of the licensed professional only to negligence.
2. Provision of professional services
Sherwin-Williams contends that an engineer committing an intentional tort
is not engaged in providing professional services, and therefore its intentional tort
claims do not require a certificate of merit. Sherwin-Williams again relies on
2005-version case law to support its position. But we do not find these cases
persuasive given their interpretation that the 2005 version limits the certificate-of-
merit-requirement to claims involving allegations of negligence.
Here, Sherwin-Williams asserted claims seeking damages from DEI. To
determine if a certificate of merit was required under section 150.002, we must
decide whether DEI and Dunham were licensed or registered professionals under
the statute, and if so, whether Sherwin-Williams’ claimed damages arose from
DEI’s and Dunham’s provision of professional services. See id. § 150.002(a). As
a licensed professional engineer, Dunham qualifies as a “licensed . . . professional”
for purposes of chapter 150. See id. § 150.001(1). Because DEI is the firm in
which Dunham practices, DEI also qualifies as a “licensed professional.” See id.
10
Contrary to Sherwin-Williams’ assertion, the issue is not whether the alleged
tortious acts constituted the provision of professional services, but rather whether
the tort claims arise out of the provision of professional services. Pelco Constr., —
S.W.3d—, 2013 WL 1488025, at *6 (explaining that section 150.002 “does not
require the specific acts creating the claim for the tort also constitute the provision
of professional services” but instead “the acts creating the claim must ‘aris[e] out
of the provision of professional services’”).
In its petition, Sherwin-Williams alleged that “[t]he City hired DEI to
provide professional engineering services for the Project.” Sherwin-Williams
further alleged that “[a]s part of their professional services, Dunham, acting as
president of DEI, prepared or directed the preparation of plans and specifications
for the Project,” including specifying the use of Tnemec’s paint products.
Sherwin-Williams alleged DEI and Dunham had been made aware that Texas law
precludes using a closed paint specification “such as the Project paint specification
prepared by DEI/Dunham.” Sherwin-Williams alleged that it submitted its paint
products to DEI for approval on the Project as “equal” to Tnemec’s products.
According to Sherwin-Williams, DEI rejected Sherwin-Williams’ substitution
application as not “equal” by letter and published this letter to the City. Sherwin-
Williams alleged that “the City opted to defer to and relied upon the professional
judgment of DEI and Dunham when specifying Tnemec as a sole source and
refusing to approve Sherwin-Williams as Tnemec’s ‘equal’” and awarded the
Project contract to a contractor whose bid included Tnemec’s products. These
allegations clearly indicate that Sherwin-Williams’ tort claims arise out of DEI’s
provision of professional services.
Although Sherwin-Williams asserts that it should not be required to file a
certificate of merit because it alleges that DEI violated the law rather than a
11
professional standard of care, section 150.002 does not provide for any exception
when a plaintiff complains of such violation of law. See TEX. CIV. PRAC. & REM.
CODE ANN. § 150.002. Moreover, Sherwin-Williams’ argument that a certificate
of merit has no relevance to the intentional torts it alleges and thus would not aid
the trial court is unpersuasive because it relies on cases interpreting the 2005
version of section 150.002 as only requiring a certificate of merit for negligence
claims. The current section 150.002 requires that a certificate-of-merit affidavit set
forth “for each theory of recovery for which damages are sought, the . . . 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. § 150.002(b). Requiring Sherwin-Williams to file a
certificate of merit here is not irrelevant, but rather is entirely consistent with the
statute.
All of Sherwin-Williams’ claims against DEI pertain to its preparation of the
Project plans and specifications, and DEI’s actions in evaluating and providing its
(negative) opinion of Sherwin-Williams’ paint products for the Project; thus, these
claims arise out of the provision of professional services by a licensed or registered
professional under the statute. Therefore, we conclude that Sherwin-Williams was
required to submit a certificate of merit with its complaint in this case, and we
overrule Sherwin-Williams’ cross-issue.
B. Sherwin-Williams’ certificate-of-merit affidavit complies with section
150.002(a)(3).
In its first issue, DEI argues Sherwin-Williams’ certificate-of-merit affidavit
fails to comply with section 150.002(a)(3) because it does not demonstrate that
O’Connor is knowledgeable in the area of practice of DEI. That is, DEI contends
12
O’Connor’s affidavit had to demonstrate that he is knowledgeable in “professional
engineering services related to water storage tanks and corrosion control,” as
alleged to be DEI’s practice in Sherwin-Williams’ petition. We cannot agree with
DEI’s overly narrow construction.
We again consider the difference in language between the 2005 and 2009
versions of the statute. The 2009 version requires that the plaintiff file an affidavit
of a third-party licensed professional engineer who “is knowledgeable in the area
of practice of the defendant.” Id. § 150.002(a)(3). The 2005 version requires that
the plaintiff file an affidavit of a third-party licensed professional engineer who
“practic[es] in the same area of practice as the defendant.” Act of May 18, 2005,
79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369–70, amended by Act
of May 27, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1991–
92. Although in Benchmark we were not construing the 2009 version, we
expressly noted that this change in language reflected a “reduc[tion] in the affiant’s
qualification requirement.” 316 S.W.3d at 45 n.2.
Notwithstanding this “reduced” qualification requirement, DEI argues
because O’Connor did not state in his affidavit that he practices an engineering
specialty remotely associated with DEI’s practice, did not include a resume, did
not describe previous work on water-tank projects, and did not indicate that he
previously has drafted specifications for a water-tank rehabilitation project, his
affidavit fails the “strict” requirements of section 150.002(a)(3). Essentially,
relying on 2005-version case law,3 what DEI proposes is that section 150.002(a)(3)
requires that we evaluate certificates of merit on the basis of engineering
specialties. However, the plain language of the 2009 version of section
3
E.g., Landreth, 285 S.W.3d at 500; Belvedere Condos. v. Meeks Design Group, Inc.,
329 S.W.3d 219, 221 (Tex. App.—Dallas 2010, no pet.).
13
150.002(a)(3), which we are bound to apply, specifically states only that the
engineer opining in the certificate of merit be “knowledgeable in the area of
practice of the defendant.” TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)(3).
The statute does not state that the affiant’s knowledge must relate to the same,
much less the same specialty, area of practice. Id.; see Morrison Seifert Murphy,
Inc. v. Zion, 384 S.W.3d 421, 426–27 (Tex. App.—Dallas 2012, no pet.) (citing
Benchmark, 316 S.W.3d at 49, and concluding that plain language of 2009 version
of section 150.002(a) does not “require[] the opining professional to demonstrate
expertise in the defendant’s sub-specialty”); cf. Benchmark, 316 S.W.3d at 49
(interpreting 2005 version of section 150.002(a) and rejecting defendant’s
argument that affiant was required to practice in engineering sub-specialty of
“drainage and drainage design”). Nor does the statute require submission of a
resume. TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)(3). Although DEI
faults O’Connor for not explicitly stating in his affidavit that “he is practicing in
the same area of practice as [d]efendant,” again, the statute no longer requires that
the affiant “practice” in the “same” area. Id. Moreover, the statute does not
require the affiant explicitly establish or address that he is “knowledgeable in the
area of practice of the defendant” on the face of the certificate. Id.; see M-E
Eng’rs, 365 S.W.3d at 503. Indeed, section 150.002 “imposes no particular
requirements or limitations as to how the trial court ascertains whether the affiant
possesses the requisite knowledge.” See M-E Eng’rs, 365 S.W.3d at 503.
DEI further contends that, despite Sherwin-Williams’ insistence that the
“crux” of its case involves improper engineering practices in conjunction with
competitive bidding on a public works project, the actual engineering practice at
issue is whether DEI and Dunham’s recommendations regarding Sherwin-
Williams’ products were false. Sherwin-Williams may need to show that its paint
14
products could be considered an “equal” substitute to ultimately prove that “DEI’s
exclusion of [Sherwin-Williams] from competing to supply paint materials was
unlawful” and DEI’s recommendations to the City involved “false, disparaging
words.” However, at the certificate-of-merit stage, before discovery and before
other dispositive motions are available, the plaintiff is not required to fully
“marshal his evidence.” See CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., —
S.W.3d—, No. 01-11-01033-CV, 2013 WL 125713, at *6 (Tex. App.—Houston
[1st Dist.] Jan. 10, 2013, pet. filed) (also noting that section 150.002 does not
foreclose defendant from later filing motions to exclude expert testimony and for
summary judgment); M-E Eng’rs, 365 S.W.3d at 504.
In this case, the trial court had before it O’Connor’s sworn certificate
indicating that he holds a Ph.D. in civil engineering, is licensed by the State of
Texas as a professional engineer with the designation of “civil,” and currently
serves as a professor in project management within the civil, architectural, and
environmental engineering department at the University of Texas. This sworn
certificate also indicated that O’Connor, “[t]hrough [his] practice, research, and
teaching, [is] familiar with both the legal requirements and industry customs
regarding competitive bidding on public works projects, particularly in the State of
Texas.” In addition, Sherwin-Williams alleged, and DEI does not dispute, that
DEI provides professional engineering services and Dunham is a licensed
professional engineer in Texas, and that DEI and Dunham were involved in the
preparation and direction of plans and specifications for a Texas public works
project. Finally, Dunham’s credentials indicate that he is a professional engineer
licensed in Texas who holds a master’s in civil engineering. On this record, we
cannot conclude the trial court abused its discretion in determining that O’Connor
“is knowledgeable” in DEI’s area of practice, as required by section 150.002(a)(3).
15
Thus, we overrule DEI’s first issue.
C. Sherwin-Williams’ certificate of merit complies with section 150.002(b).
In its second issue, DEI argues that Sherwin-Williams’ certificate of merit
affidavit fails to comply with section 150.002(b) because it does not specifically
set forth the unlawful action, error, and omission, and the factual basis for each
claim Sherwin Williams alleges against DEI. DEI essentially re-argues that
O’Connor has failed to address what DEI describes as the “crux” of the entire
case—whether DEI’s recommendations to the City regarding the suitability of
Sherwin-Williams’ paint products for the needs of the Project were false.
The statute does not define “factual basis,” but the purpose of the certificate
of merit “is to provide a basis for the trial court to conclude that the plaintiff’s
claims are not frivolous.” See CBM Eng’rs, —S.W.3d—, 2013 WL 125713, at
*5.4 In Benchmark, we concluded that the plain meaning of “factual basis” under
the 2005 version of the statute “requires an affiant to describe the facts giving rise
to the claim.”5 316 S.W.3d at 48. As discussed supra, the statute does not require
the plaintiff to marshal all his evidence and does not foreclose the defendant from
later challenging the sufficiency or admissibility of the plaintiff’s evidence. See
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002; CBM Eng’rs, —S.W.3d—, 2013
4
The requirement to show a “factual basis” is less onerous than that imposed on, for
example, health care liability plaintiffs. Compare TEX. CIV. PRAC. & REM. CODE ANN.
§ 150.002(b) (requiring affidavit establishing “factual basis” for each claim) with id.
§ 74.351(r)(6) (West 2012) (requiring plaintiff in a suit against a health care provider to serve an
expert report “that provides a fair summary of the expert’s opinions as of the date of the report
regarding applicable standards of care, the manner in which the care rendered by the physician or
health care provider failed to meet the standards, and the causal relationship between that failure
and the injury, harm, or damages claimed”).
5
Both the 2009 and the 2005 versions of the statute employ the exact same phrase,
requiring that the third-party professional’s affidavit set forth “the factual basis for each claim.”
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b); Act of May 18, 2005, 79th Leg., R.S., ch.
208, § 2, 2005 Tex. Gen. Laws 369, 369–70, amended by Act of May 27, 2009, 81st Leg., R.S.,
ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1991–92.
16
WL 125713, at *6. Because the core focus of section 150.002(b) is ascertaining
and verifying the existence of errors or omissions in the professional services
provided, it does not “require that a certificate address operative facts other than
the professional errors and omissions that are the focus of the statute.” See M-E
Eng’rs, 365 S.W.3d at 505–07. Nor does section 150.002(b) require that the
“third-party” “licensed professional engineer” explain the law to the trial court.
See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b).
In his affidavit, O’Connor stated the following: that based on applicable
authority, sole-source specifications are not permitted for competitively bid public
works projects; that DEI’s paint specification was unlawful and, further, deficient
because no objective requirements are provided; that Dunham violated a
professional duty by drafting and soliciting bids using the restrictive paint
specification; that Dunham and DEI knew about the open-competition requirement
from correspondence on other projects; that DEI’s stated basis for rejecting
Sherwin-Williams’ products (case studies from different products) was invalid;
that the determination of an “equal” substitute must be made on whether the
product achieves an acceptable minimum value not the highest value; that Dunham
and DEI erred by conducting the procurement using an unlawful specification and
advising the City it could do so; that this error prevented Sherwin-Williams from
competing to supply paint; and that DEI and Dunham disparaged Sherwin-
Williams and its products by reporting to the City that Sherwin-Williams’ paints
were not an acceptable substitute. Based on his review of DEI’s Project plans and
specifications and of various correspondence by the parties, O’Connor opined
DEI’s and Dunham’s actions amounted to errors that violated their professional
engineering duties. O’Connor provided factual assertions underlying that
opinion—namely, DEI submitted specifications for the Project that provided for a
17
specific brand of paint products; did not provide objective, minimum-value criteria
for what paint would be acceptable; rejected Sherwin-Williams’ paint products
based on case studies for different products; and reported to the City that Sherwin-
Williams’ products did not meet the Project specification.6 Although DEI takes
particular issue with O’Connor’s not providing any specific facts regarding the
“falsity” of DEI’s evaluation and recommendation, Sherwin-Williams’ theory of
falsity may be shown by the fact that DEI told the City Sherwin-Williams’ paint
products were not an acceptable substitute, which is contrary to Sherwin-Williams’
contention that its products would have been considered “equal” under a properly
submitted paint specification.
Thus, we conclude O’Connor’s affidavit sets forth a sufficient “factual
basis” for Sherwin-Williams’ claims of intentional interference with prospective
business relationships,7 business disparagement,8 and product disparagement9
6
We reject DEI’s argument that O’Connor only provided legal conclusions in his
affidavit. The facts O’Connor provided in support of DEI’s alleged professional errors are not
conclusory because each is “clear, positive, free from inconsistencies, and could have been
readily controverted.” See CBM Eng’rs, —S.W.3d—, 2013 WL 125713, at *6 (citing Trico
Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997)).
7
“The elements of a claim for tortious interference with a prospective business
relationship appear to be: (1) a reasonable probability that the plaintiff would have entered into a
business relationship; (2) an independently tortious or unlawful act by the defendant that
prevented the relationship from occurring; (3) the defendant did such act with a conscious desire
to prevent the relationship from occurring or the defendant knew the interference was certain or
substantially certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm
or damages as a result of the defendant's interference.” Baty v. ProTech Ins. Agency, 63 S.W.3d
841, 860 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
8
In a business-disparagement claim, a plaintiff must establish that (1) the defendant
published false and disparaging information about it, (2) with malice, (3) without privilege, (4)
that resulted in special damages to the plaintiff. Forbes Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 170 (Tex. 2003) (citing Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766
(Tex.1987)).
9
DEI specially excepted to Sherwin-Williams’ product-disparagement claim as
duplicative of SW’s business-disparagement claim and as not being a viable Texas cause of
action. Whether such a claim is properly viable is not before us in this appeal. Solely for
18
because it describes the facts giving rise to Sherwin-Williams’ claims and thus
provided the trial court a basis to conclude that Sherwin-Williams’ claims are not
frivolous. See CBM Eng’rs, —S.W.3d—, 2013 WL 125713, at *5; Benchmark,
316 S.W.3d at 48. On this record, we cannot conclude the trial court abused its
discretion in determining that O’Connor’s affidavit meets the requirement of
section 150.002(b) to “set forth specifically for each theory of recovery for which
damages are sought, the . . . 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 such claim.” See TEX. CIV. PRAC. & REM. CODE
ANN. § 150.002(b). Therefore, we overrule DEI’s second issue.
Because Sherwin-Williams’ certificate of merit sufficiently meets section
150.002’s requirements, the trial court did not abuse its discretion in denying
DEI’s motion to dismiss, and we likewise overrule DEI’s third issue.
IV. CONCLUSION
Accordingly, we affirm the trial court’s order denying DEI’s motion to
dismiss.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, McCally, and Donovan.
purposes of our analysis, we merely presume, without deciding, that product disparagement is a
viable claim. See Forbes, 124 S.W.3d at 171 n.3 (recognizing that United States Supreme Court
has applied “actual malice” requirement to product-disparagement claim).
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