CBM Engineers, Inc. v. Tellepsen Builders, L.P. , 2013 Tex. App. LEXIS 177 ( 2013 )

Opinion issued January 10, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-01033-CV
———————————
CBM ENGINEERS, INC., Appellant
V.
TELLEPSEN BUILDERS, L.P., Appellee
AND
TELLEPSEN BUILDERS, L.P., Appellant
V.
CBM ENGINEERS, INC., Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2006-44489-A
OPINION ON REHEARING1
Tellepsen Builders, L.P. sued CBM Engineers, Inc. and others for
negligence, breach of contract, and breach of warranty. CBM filed a motion to
dismiss alleging that Tellepsen failed to comply with the certificate-of-merit
requirements of the applicable version of Civil Practice and Remedies Code
section 150.002.2 The trial court granted CBM’s motion to dismiss as to
Tellepsen’s negligence claim, but it denied the motion as to the claims for breach
of contract and warranty. Both CBM and Tellepsen appealed.
CBM argues that the trial court erred by denying its motion as to the breach
of contract and breach of warranty claims because they are subject to Chapter 150.
Tellepsen argues that the trial court erred by dismissing its negligence claim
because its affidavit was sufficient to satisfy Chapter 150. Because we conclude
that all of Tellepsen’s claims against CBM were subject to Chapter 150 and that
the affidavit submitted by Tellepsen was sufficient to satisfy the certificate-of-
merit requirement, we reverse the portion of the trial court’s order dismissing
1
Appellant CBM Engineers, Inc. moved for rehearing of our August 30, 2012
opinion and judgment. We deny the motion for rehearing. We withdraw our
prior opinion and judgment and issue the following opinion and judgment in
their stead.
2
See 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 (amended 2009) (current version at TEX. CIV.
PRAC. & REM. CODE ANN. § 150.002 (West 2011)).
2
Tellepsen’s negligence claim, we affirm the portion of the order denying CBM’s
motion to dismiss Tellepsen’s breach of contract and breach of warranty claims,
and we remand the case to the trial court for further proceedings.
Background
Tellepsen sued CBM and others for damages related to the design and
construction of the Camp Allen Retreat and Conference Center. Tellepsen alleged
that it engaged CBM as a design specialist to prepare construction documents and
specifications and to provide administrative services related to construction. After
construction, the project showed signs of structural and water damage. Tellepsen
alleged that the damage was caused by “several deficiencies in the design of the
project” and “deficiencies in the installation of waterproofing systems.”
In its original petition, Tellepsen alleged causes of action for negligence,
breach of contract, and breach of warranty, stating as follows:
Negligence—The defendants owed a legal duty to exercise ordinary
and reasonable care in their respective parts of constructing the
Project. The Defendants failed to exercise ordinary and reasonable
care in the design and construction of their respective parts of the
Project and, as a result, Plaintiff has sustained damages.
....
Breach of Warranty—The Defendants further impliedly warranted
their work on the Project would be performed in a good and
workmanlike manner. The Defendants’ work, however, was not
performed in a good and workmanlike manner or in accordance with
the contract documents. The quality of defendants’ performance of
services did not meet the standards of those who have the knowledge,
3
training, or experience necessary for the successful practice of a trade
or occupation, and the services were not performed in a manner that
would generally be considered proficient by those capable of judging
the work.
....
Breach of Contract–Plaintiff had a valid and enforceable contract with
each of the Defendants. . . . Defendants failed to comply with and
breached the agreements they had with Plaintiff by failing to properly
perform all the work required by the contract documents and to
perform their work in a good and workmanlike manner and in
accordance with the standard of care. . . .
The petition was supported by an affidavit from Roger Aduddell, a licensed
professional engineer. The substance of Aduddell’s affidavit stated:
I am a licensed professional engineer in the State of Texas. I
am competent to testify, and I am actively engaged in the practice of
engineering. A true and correct copy of my resume is attached hereto
as Exhibit A, and incorporated herein by reference for all purposes.
I have reviewed CBM Engineers Inc.’s structural drawings
issued for construction and prepared by Mr. Johnny T. Carson, P.E.
Structural Engineer of Record, Texas Professional Engineer License
No. 42119, for this Facility. It is my opinion that one of the factors
contributing to the instability of the Facility is the structural flitch
beam design error and omission of lateral bracing prepared by
Mr. Johnny T. Carson, P.E.
Aduddell’s resume showed that he has bachelor’s degrees in both architecture and
architectural engineering and that he is a licensed professional structural engineer.
It also described his “twenty-seven years of experience in diversified aspects of
structural engineering analysis, design and management.”
4
CBM moved to dismiss the claims against it for failure to comply with
Chapter 150 of the Civil Practice and Remedies Code, arguing that Aduddell’s
affidavit did not satisfy the certificate-of-merit requirement because it did not
specifically set forth at least one negligent act, error, or omission, nor did it provide
a factual basis for each such claim. Tellepsen responded that the affidavit was
sufficient for purposes of the applicable version of Chapter 150 because it
addressed the “error(s) in CBM’s structural design, and it describe[d] the factual
basis underlying Aduddell’s conclusions as the structural plans prepared by CBM’s
Johnny T. Carson, P.E., his review of the plans, and the instability of the Facility.”
The trial court granted CBM’s motion to dismiss as to the negligence claims only,
and it denied the motion as to the contract and warranty claims.
Both parties appealed. The appeal and cross-appeal present two issues.
First, we must resolve whether Chapter 150’s certificate-of-merit requirement, as
amended in 2005, applies to all of Tellepsen’s claims. Second, we must determine
whether Tellepsen’s certificate of merit satisfies the requirements of Chapter 150.
Analysis
An order granting or denying a motion to dismiss for failure to file a
certificate of merit is immediately appealable. TEX. CIV. PRAC. & REM. CODE ANN.
§ 150.002(f) (West 2011). We review a trial court’s order denying a motion to
dismiss for abuse of discretion. See, e.g., Carter & Burgess v. Sardari, 355
5
S.W.3d 804, 808 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court
abuses its discretion when it acts arbitrarily or unreasonably, without reference to
any guiding rules and principles. Id. at 808–09; see Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). To the extent we are
required to interpret a statute, that aspect of our review is performed de novo.
Carter & Burgess, 355 S.W.3d at 809.
I. Applicability of Chapter 150
Both parties agree that this dispute is governed by a former version of
Chapter 150 as it was amended in 2005, and before it was amended again in 2009.
The applicable version of section 150.002(a) required a certificate of merit in any
action “for damages arising out of the provision of professional services by a
licensed or registered professional.”3 Under the statute, a “licensed or registered
professional” includes a “licensed professional engineer” and “any firm in which
such license or registered professional practices.”4 Thus, to determine whether
3
See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen.
Laws 369, 370 (formerly codified at TEX. CIV. PRAC. & REM. CODE ANN.
§ 150.002, amended 2009); Act of May 12, 2005, 79th Leg., R.S., ch. 189,
§§ 1–2, 2005 Tex. Gen. Laws 348, 348 (formerly codified at TEX. CIV.
PRAC. & REM. CODE ANN. § 150.002, amended 2009).
4
Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 1, 2005 Tex. Gen. Laws
348, 348; 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 § 150.001 ANN. (West 2011)).
6
Tellepsen’s causes of action against an engineering firm were “for damages arising
out of the provision of professional services,” we look to the definition of “practice
of engineering” in the Texas Occupations Code. See TDIndustries, Inc. v. Rivera,
339 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The
Occupations 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) (West 2012).
The practice of engineering includes, among other things, design of engineering
works or systems; development of specifications for engineering works or systems;
engineering for construction of real property; and “any other professional service
necessary for the planning, progress, or completion of an engineering service.” Id.
§ 1001.003(c). Based on these statutory provisions, a claim “arises out of the
provision of professional [engineering] services” if the claim implicates the
engineer’s education, training, and experience in applying special knowledge or
judgment. TDIndustries, 339 S.W.3d at 754.
Tellepsen brought three claims against CBM, all of which stem from the
same allegations. Tellepsen alleged that it hired CBM as a design specialist to
prepare construction documents and specifications and to provide construction
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administration services. In support of its negligence claim, Tellepsen alleged that
CBM failed to exercise ordinary and reasonable care with respect to the design and
construction of its parts of the project. With respect to the contract and warranty
claims, Tellepsen alleged that CBM did not perform its services in a good and
workmanlike manner. In connection with the contract claim, CBM was also
accused of failing to “properly” perform the work required by the parties’ contract
in accordance with the standard of care.5 All of Tellepsen’s claims against CBM
5
Tellepsen argues that the contract and warranty claims are distinguishable
from the negligence claims because they were not based solely on
professional standards constituting the practice of engineering. But the
contract between the parties called for CBM to provide engineering services.
Specifically, the contract provided that CBM would provide the following
basic services:
3.2 BASIC SERVICES The Architect/Engineer’s Basic
Services consist of the provision of the Schematic Design
Documents, Design Development Documents, Construction
Documents, Guaranteed Maximum Price (GMP) Documents (if
required), bidding or negotiation assistance, Construction Phase
Services, and other basic services as may be provided in
Subparagraph 3.2.18, and shall include normal architectural,
structural, mechanical, electrical, and site design. . . .
Section 3.2.18 does not add any basic services. Rather, it states, “The
following basic services shall be included as part of Basic Services: .” The
space after the colon was left blank on the contract.
We reject Tellepsen’s suggested distinction between the negligence claims
and the contract and warranty claims because the basic services in the
parties’ contract fall within the enumerated tasks that the Occupations Code
characterizes as the practice of engineering. See TEX. OCC. CODE ANN.
§ 1001.003 (West 2012).
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pertain to its design, preparation of construction documents and specifications, and
provision of construction administration services. Because the practice of
engineering includes the design and development of specifications for engineering
works, engineering for construction of real property, and other professional
services necessary to complete an engineering service, all of Tellepsen’s claims are
based on CBM’s practice of engineering. See TEX. OCC. CODE ANN.
§ 1001.003(c). Therefore, all of Tellepsen’s claims arise out of the provision of
professional services by a licensed or registered professional.
Relying on Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102,
108 (Tex. App.—Houston [1st Dist.] 2010, no pet.), Tellepsen argues that the 2005
statute required a certificate of merit only for its negligence cause of action.
Because former section 150.002(a) 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 has previously held that the statute’s
certificate-of-merit requirement “does not apply in a suit other than one for
negligent acts, errors, or omissions arising out of the provision of professional
services.” Curtis & Windham, 315 S.W.3d at 108. In Curtis & Windham, this
Court wrote, “It simply makes no sense to require an affidavit of a licensed or
registered professional setting forth ‘at least one negligent act, error, or omission
9
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.
We conclude that the circumstances presented in Curtis & Windham are
distinguishable from this case because the plaintiffs’ cause of action in Curtis &
Windham did not arise from the provision of professional services. Id. In that
case, the owners of a residential property hired an architectural firm to provide
architectural services in connection with the design, construction, and landscaping
of a proposed residence. Id. at 104. When presented with bills that greatly
exceeded their expectations, the property owners refused to pay and instructed the
architectural firm to stop work on their residence. Id. The architects sued for
nonpayment of approximately $47,000. Id. The property owners counterclaimed
for breach of fiduciary duty, fraud, deceptive trade practices, and unjust
enrichment, based primarily on allegations of overbilling. Id. at 105. The property
owners did not file a certificate of merit in support of their counterclaim. Id. at
106. This Court noted that “if a plaintiff’s claim for damages does not implicate
the special knowledge and training of an architect, it cannot be a claim for damages
arising out of the provision of professional services.” Id. at 108. This Court then
concluded that the property owners’ causes of action did not implicate a
professional architect’s “education, training, and experience” in applying “special
knowledge or judgment,” concluding that the “gist” of the property owners’
10
claims, made in response to the architect’s contract claim to recover fees, was that
the architects engaged in “pervasive and systemic overbilling.” Id. Thus, although
the Court also held that the property owners’ claims did not implicate a negligent
act, error, or omission, the Court based this conclusion in part on the fact that the
property owners’ counterclaims did not arise out of the provision of professional
services. See id.
In contrast, Tellepsen’s claims arise out of the provision of professional
services. While the underlying factual basis of the claims in Curtis & Windham
was the allegation an intentional act—overbilling—each of Tellepsen’s claims
allege that CBM’s conduct and performance of engineering services fell below an
applicable standard of care. Thus, all of Tellepsen’s claims allege that CBM
committed a negligent act, error, or omission, despite the fact that two of the
claims bear the labels of “breach of warranty” and “breach of contract.” See
Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 400 (Tex. App.—Beaumont
2008, no pet.) (“Negligence is conduct that falls below the applicable standard of
care.”).
We hold that all of Tellepsen’s claims are subject to the requirements of the
2005 version of Chapter 150. Accordingly, Tellepsen was required to file a
certificate of merit.
11
II. Sufficiency of certificate of merit
We next must determine whether Tellepsen’s certificate of merit satisfied
the requirements of Chapter 150. The applicable statute requires that a certificate
of merit must “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(a), 2005 Tex. Gen. Laws 369, 370 (formerly
codified at TEX. CIV. PRAC. & REM. CODE ANN. § 150.002, amended 2009); Act of
May 12, 2005, 79th Leg., R.S., ch. 189, § 2(a), 2005 Tex. Gen. Laws 348, 348
(formerly codified at TEX. CIV. PRAC. & REM. CODE ANN. § 150.002, amended
2009). 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 Criterium-
Farrell, 248 S.W.3d at 399. The certificate of merit must provide a factual basis
for the allegations of professional errors or omissions. See M-E Eng’rs, Inc. v. City
of Temple, 365 S.W.3d 497, 506 (Tex. App.—Austin 2012, pet. denied). But it
need not recite the applicable standard of care and how it was allegedly violated in
order to provide an adequate factual basis for the identification of professional
errors. See Gartrell v. Wren, No. 01-11-00586-CV, 2011 WL 6147786, at *5 (Tex.
App.—Houston [1st Dist.] Dec. 8, 2011, pet. denied) (mem. op.); Elness Swenson
Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-10-00805-CV, 2011
WL 1562891, at *4 (Tex. App.—Austin Apr. 20, 2011, pet. denied) (mem. op.).
12
Finally, while the affiant must be knowledgeable in the area of practice of the
defendant, he need not explicitly establish such knowledge on the face of the
certificate of merit. M-E Eng’rs, 365 S.W.3d at 503.
CBM contends that Tellepsen’s certificate of merit was insufficient because
it “failed to specifically set forth the factual basis for an alleged negligent act,
error, or omission by CBM” and was, therefore, conclusory. For example, CBM
argued that “[a]ny person reading the Aduddell Certificate would not know which
structural flitch beam to which Mr. Aduddell was referring, nor where the
allegedly omitted lateral bracing should have been located, nor how these alleged
errors caused ‘instability of the Facility.’” But the statute does not require the
certificate of merit to contain that level of detail.
The statute does not require a plaintiff to marshal his evidence or provide the
full range of information that the defendant is entitled to obtain through formal
discovery. See id. at 504. Nor does the statute foreclose the defendant from later
challenging the sufficiency of the plaintiff’s evidence or the admissibility of an
expert’s opinion, such as by filing a motion to exclude expert testimony or a
motion for summary judgment. Chapter 150 requires only that a licensed
professional, practicing in the same area of expertise as the defendant, provide a
sworn written statement certifying that the defendant’s actions were negligent or
erroneous and stating the factual basis for this opinion.
13
The statutory framework contemplates that a motion to dismiss for failure to
file an adequate certificate of merit may be filed early in the litigation, before
discovery and before other dispositive motions may be available. See Act of May
18, 2005, 79th Leg., R.S., ch. 208, § 2(b), 2005 Tex. Gen. Laws 369, 370. Thus
the function of the certificate of merit is to provide a basis for the trial court to
determine merely that the plaintiff’s claims are not frivolous, and to thereby
conclude that the plaintiff is entitled to proceed in the ordinary course to the next
stages of litigation.
Tellepsen’s certificate of merit took the form of a sworn written statement
by a professional engineer, licensed in Texas, who was actively engaged in the
practice of structural engineering. Aduddell stated that he had reviewed the
structural drawings at issue and that one of the factors contributing to the facility’s
instability was a “structural flitch beam design error and omission of lateral
bracing.” Thus, he identified at least one negligent act or omission, namely the
error and omission in the facility’s design. Aduddell opined that this alleged
professional error and omission contributed to “the instability of the Facility.” And
he identified the factual basis upon which he based his professional opinion, which
was his review of the structural drawings issued for construction that were
prepared by a professional structural engineer who worked for CBM.
14
In addition, Aduddell’s statements that the drawings included a “structural
flitch beam design error” and omitted “lateral bracing” are factual assertions.
These assertions are clear, positive, direct, free from inconsistencies, and could
have been readily controverted. That is, they could be “effectively countered by
opposing evidence.” See Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310
(Tex. 1997). Therefore the affidavit is not, as CBM argues, conclusory. See id.
Tellepsen’s certificate of merit fulfilled the statutory requirements, and we
conclude that it is sufficient in this case. Accordingly, we hold that the trial court
erred by dismissing Tellepsen’s negligence claims. We overrule CBM’s issues on
appeal, and we sustain Tellepsen’s sole cross-issue.
Conclusion
We reverse the portion of the trial court’s order that dismissed Tellepsen’s
negligence cause of action, we affirm the portion of the order denying CBM’s
motion to dismiss Tellepsen’s breach of contract and breach of warranty claims,
and we remand the case to the trial court for further proceedings.
Michael Massengale
Justice
Panel consists of Justices Bland, Massengale, and Brown.
15