Kudela & Weinheimer, L.P. Smallwood, Reynolds, Stewart, Stewart & Associates, Inc. And Robinson & Company Landscape Architecture, Inc. v. Juan De Dios Arriaga, Suni Arriaga, Juan Arriaga, and Herick Arriaga ( 2023 )

Affirmed in Part, Reversed in Part, and Memorandum Opinion filed May 11,
2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00300-CV
KUDELA & WEINHEIMER, L.P.; SMALLWOOD, REYNOLDS,
STEWART, STEWART & ASSOCIATES, INC.; AND ROBINSON &
COMPANY LANDSCAPE ARCHITECTURE, INC., Appellants
V.
JUAN DE DIOS ARRIAGA, SUNI ARRIAGA, JUAN ARRIAGA, AND
HERICK ARRIAGA, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2021-05887
MEMORANDUM OPINION
This interlocutory appeal concerns the procedures required in a lawsuit for
damages arising out of the provision of professional services by a licensed or
registered architect or landscape architect. Appellees, Juan de Dios Arriaga, Suni
Arriaga, Juan Arriaga, and Herick Arriaga (the “Arriagas”), sued appellants,
Kudela & Weinheimer, L.P. (“Kudela,” landscape architects); Smallwood,
Reynolds, Stewart, Stewart, & Associates, Inc. (“Smallwood,” architects); and
Robinson Company Landscape Architecture, Inc. (“Robinson,” landscape
architects); among other defendants, for personal injury damages. Section
150.002(a) of the Texas Civil Practice and Remedies Code requires in such
lawsuits that the plaintiffs file with their petition a certificate of merit affidavit
from a third-party who holds the same professional license or registration as the
defendant.
Each of the appellants filed a motion to dismiss asserting the Arriagas failed
to timely file a proper certificate of merit in this case and did not qualify for an
extension of the filing deadline contained in section 150.002(c). Appellants
contended that the affidavit the Arriagas filed was generally deficient, and Kudela
and Robinson also argued that the affidavit was insufficient as to them because
they are landscape architects and the third party who prepared the affidavit is an
architect. The trial court denied each of the motions, and this interlocutory appeal
ensued. Holding that the Arriagas qualified for an extension and therefore the
certificate of merit was filed timely and that the certificate of merit affidavit was
sufficient as to Smallwood but not as to Kudela and Robinson, we affirm in part
and reverse in part.
Governing Law
We review a trial court’s ruling on a section 150.002 motion to dismiss
under an abuse of discretion standard. LJA Eng’g Inc. v. Santos, 652 S.W.3d 916,
919 (Tex. App.—Houston [14th Dist.] 2022, no pet.). To the extent our analysis in
this case requires us to interpret a governing statute, such review is de novo. See id.As mentioned, section 150.002 mandates the filing of certificates of merit in
certain types of cases against certain design professionals. It provides in relevant
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part as follows:
§ 150.002. Certificate of Merit
(a) In any action or arbitration proceeding for damages arising out of
the provision of professional services by a licensed or registered
professional, a claimant shall be required to file with the complaint an
affidavit of 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) practices 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.
(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 architect, licensed professional
engineer, registered landscape architect, or registered professional
land surveyor shall be licensed or registered in this state and actively
engaged in the practice of architecture, engineering, or surveying.
(c) The contemporaneous filing requirement of Subsection (a) shall
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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, a claimant has alleged that an affidavit of a third-party
licensed architect, licensed professional engineer, registered landscape
architect, or registered professional land surveyor could not be
prepared. In such cases, the claimant 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. . . .
(e) A claimant’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.
Tex. Civ. Prac. & Rem. § 150.002.
Procedural History
The Arriagas allege that Juan De Dios Arriaga was working as a valet at the
SkyHouse River Oaks high rise apartments on March 3, 2019, when he attempted
to retrieve a set of keys from a storm drain in the center of a driveway connecting
the apartment garage to the roadway and a pickup truck ran over him causing
serious injuries. On January 29, 2021, the Arriagas sued SkyHouse, the driver of
the truck, and several design professionals allegedly involved in the design and
construction of the driveway. In their original petition, the Arriagas did not name
any of the appellants in this appeal as defendants, but the Arriagas did attach a
certificate of merit by licensed professional engineer Moises Cruz, who alleged
that faulty design of the driveway was a cause of the accident and Juan De Dios’s
injuries.
On February 26, 2021, the Arriagas requested that the trial court shorten the
time allotted for the original defendants to answer Rule 194 Requests for
Disclosures, which was granted on March 4. On March 10, 2021, the day before
the applicable two-year statute of limitations was to expire, the Arriagas filed their
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Third Amended Petition adding appellants as defendants. See generally Tex. Civ.
Prac. & Rem. Code § 16.003(a) (providing two-year statute of limitations for torts
resulting in personal injuries). In their Third Amended Petition, the Arriagas did
not allege that, because of time constraints, certificates of merit by a licensed
architect and a registered landscape architect could not be prepared, and they did
not request any extension in order to file such certificates. Instead, the Arriagas
attached a new affidavit by Cruz, which added allegations against the new
defendants, even though Cruz is an engineer and not an architect or landscape
architect.
On April 5, 2021, Smallwood filed a motion to dismiss based on the lack of
a proper certificate of merit. On April 7, the Arriagas then filed their Fourth
Amended Petition attaching a certificate of merit by architect Paul Davis, making
similar allegations to those previously raised by Cruz and, indeed, at times just
adopting Cruz’s allegations. At that time, the Arriagas also filed a separate
document asserting that they had been unable to provide a certificate of merit by a
licensed architect earlier due to the quickly running limitations period. Later that
same day, the Arriagas filed their Fifth Amended Petition and an amended notice
of late-filed certificate of merit containing substantially similar allegations. Kudela
and Robinson subsequently filed motions to dismiss, and the trial court denied all
three motions to dismiss. We will begin our analysis by discussing the timeliness
of the certificate of merit before turning to whether it was sufficient in regards to
the landscape architects Kudela and Robinson, and whether it was generally
sufficient under section 150.002.
Timeliness of Certificate
Appellants first argue that the trial court erred in denying their motions to
dismiss because the Arriagas (1) failed to file a certificate of merit by a licensed
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architect or registered landscape architect before the running of the statute of
limitations and (2) failed to assert prior to the running of the statute that, because
of time constraints, a certificate of merit by a licensed architect or registered
landscape architect could not be prepared. The Arriagas concede that they did not
file a proper certificate of merit before the running of limitations. They assert,
however, that they qualified for the automatic 30-day extension for filing a
certificate of merit—set forth in section 150.002(c)—because they filed their Third
Amended Petition within ten days of the running of limitations and filed a separate
document within the 30-day extension period asserting that they had been unable
to provide a certificate of merit by a licensed architect earlier due to the quickly
approaching limitations deadline. Appellants, on the other hand, assert that the
Arriagas needed to have filed their lack-of-time allegation prior to the running of
the statute in order to be entitled to the 30-day extension. Based on governing
precedent, we agree with the Arriagas.
As an intermediate appellate court in Texas, we are bound to follow
precedent set by the Texas Supreme Court as well as our own prior precedent. See,
e.g., Apache Corp. v. Castex Offshore, Inc., 626 S.W.3d 371, 384 (Tex. App.—
Houston [14th Dist.] 2021, pet. denied); Abdullatif v. Choudhri, 561 S.W.3d 590,
623 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); Hebert v. Hopkins, 395
S.W.3d 884, 902 n.16 (Tex. App.—Austin 2013, no pet.). In Epco Holdings, Inc. v.
Chi. Bridge & Iron Co., a majority of a panel of this court concluded that section
150.002 did not require a plaintiff’s allegation under subsection (c) to be made in
the first petition naming a particular design professional as a party but instead was
satisfied so long as the subsection (c) allegation was made within the thirty-day
extension period. 352 S.W.3d 265, 269 (Tex. App.—Houston [14th Dist.] 2011,
pet. dism’d) (citing Nangia v. Taylor, 338 S.W.3d 768, 772 (Tex. App.—
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Beaumont 2011, no pet.)). Here, as in Epco, the Arriagas made their subsection (c)
lack-of-time allegation within the 30-day extension period after having filed their
lawsuit against appellants shortly before the running of limitations. Barring
contrary direction from the Texas Supreme Court, we are bound to follow our
precedent in Epco. See Mitschke v. Borromeo LLC, 645 S.W.3d 251, 256–57 (Tex.
2022).Subsequent to our decision in Epco, the Texas Supreme Court in Crosstex
Energy Services, L.P. v. Pro Plus, Inc., described the first sentence of subsection
(c) as providing “an exception to the contemporaneous filing requirement, made
available when a plaintiff both files within ten days of the end of the limitations
period and alleges that the late filing prevented the preparation of a certificate of
merit.” 430 S.W.3d 384, 390 (Tex. 2014) (emphasis in original). The issue in
Crosstex concerned whether a plaintiff who filed suit outside the final ten days of
the limitations period might receive a “good cause” extension as set forth in the
final sentence of subsection (c). In holding that “[a] plaintiff who files suit outside
the ten-day window, as Crosstex did, cannot claim protection of the good cause
exception,” the court further explained that
[T]he “good cause” exception in subsection (c) does not stand alone,
but rather is contingent upon a plaintiff: (1) filing within ten days of
the expiration of the limitations period; and (2) alleging that such time
constraints prevented the preparation of an affidavit. A plaintiff
satisfying these requirements “shall” receive an extension of thirty
days; upon motion, a trial court may, for good cause, extend this thirty
day period as justice requires. A plaintiff who files suit outside the
ten-day window, as Crosstex did, cannot claim protection of the good
cause exception.
Id. at 391.
A few of our sister courts have interpreted this language from Crosstex as
indicating that a subsection (c), lack-of-time allegation filed after the running of
limitations, as occurred here and in Epco, would not entitle the plaintiff to the 30-
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day extension under that section even though the plaintiff’s lawsuit had been filed
within ten days before expiration of limitations. See, e.g., Barron, Stark & Swift
Consulting Eng’rs, LP v. First Baptist Church, Vidor, 551 S.W.3d 320, 323 (Tex.
App.—Beaumont 2018, no pet.) (disregarding Epco and Nangia in light of
Crosstex); Emerald Waco Invs., Ltd. v. Petree, No. 05-15-00863-CV, 2016 WL
4010056, at *4 (Tex. App.—Dallas July 25, 2016, no pet.) (mem. op.) (same). For
several reasons, we decline to join these court’s conclusion regarding the
precedential value of Crosstex.
To begin with, the issue in Crosstex was not whether the lack-of-time
allegation had to be made prior to the running of limitations or whether it could be
made within the 30-day extension period so long as the lawsuit was filed within the
ten-day period before the running of limitations. As stated, the issue in Crosstex
was whether a plaintiff who files suit outside the ten-day window can claim
protection of the good cause exception. 430 S.W.3d at 391. Moreover, the Crosstex
court made no overt reference to or ruling regarding whether a plaintiff who files
suit within the ten-day period before limitations runs has to also make their lack-
of-time allegation before limitations runs in order to be entitled to the 30-day
extension. The court essentially just restated the requirements of subsection (c) for
the 30-day extension, i.e., that the lawsuit be filed within ten days of limitations
running and the plaintiff must make a lack-of-time allegation. See id. The court did
not explicitly state that the allegation need be made before limitations expires. The
Crosstex court certainly did not expressly overrule Epco or Nangia; indeed, neither
case is even cited in Crosstex. For these reasons, we conclude Crosstex did not
overrule our prior opinion in Epco. Accordingly, we are bound to continue to
follow our precedent and hold that the Arriagas’ lack-of-time allegation was not
untimely. See Chase Home, 309 S.W.3d at 630. We therefore overrule appellant’s
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issues to the extent that they contain this argument.1
Landscape Architects
Next, we turn to Kudela and Robinson’s argument that the trial court erred
in denying their motions to dismiss because the Arriagas never filed a certificate of
merit affidavit by a registered landscape architect. The Arriagas do not deny that
Kudela and Robinson are landscape architecture firms that provided landscape
architecture services to the SkyHouse River Oaks building project or that they
were required to present a certificate of merit affidavit regarding these defendants.
See generally Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804, 809 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (“An action for damages against a firm in
which a ‘licensed or registered professional’ practices must be supported by a
certificate of merit if the action arises out of the firm’s provision of professional
services.”) (citing Tex. Civ. Prac. & Rem. §§ 150.001(1-c), 150.002(a)). The
Arriagas instead urge us—as they did the trial court—to “ignore landscape
architecture as a subspecialty” of architecture or design professionals and instead
focus on the fact that the affidavits they did provide spoke broadly regarding
deficient conduct by “design professionals.” We agree with Kudela and Robinson
that the Arriagas were required to file an affidavit by a registered landscape
architect and failed to do so.
As set forth above, section 150.002 requires that in lawsuits such as this
against certain design professionals, the plaintiffs must file an affidavit by an
affiant who “holds the same professional license or registration as the defendant.”
Tex. Civ. Prac. & Rem. § 150.002(a)(2). The two affidavits the Arriagas filed in
1
We further note that the circumstances in the present case are readily distinguishable
from those we encountered in Texas Southern University v. Kirksey Architects, Inc., where the
plaintiff failed to ever make a subsection (c) lack-of-time allegation and thus was not entitled to a
30-day extension. 577 S.W.3d 570, 577 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
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this case were by a licensed professional engineer (Cruz) and a licensed architect
(Davis). The Arriagas did not file an affidavit by a registered landscape architect as
was required by the statute to support their claims against Kudela and Robinson.
The statute is unambiguous on this point and clearly requires an affidavit by an
affiant who “holds the same professional license or registration as the defendant.”
See Kayne Anderson Cap. Advisors, L.P. v. Hill & Frank, Inc., 570 S.W.3d 884,
886–87 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (explaining that the section
150.002 requirements that an affiant be competent to testify and be
“knowledgeable in the area of practice of the defendant” are separate from, in
addition to, and cannot take the place of the requirement the affiant hold “the same
professional license or registration as the defendant”); Jennings, Hackler &
Partners, Inc. v. N. Tex. Mun. Water Dist., 471 S.W.3d 577, 583 (Tex. App.—
Dallas 2015, pet. denied) (“Th[e] statute unambiguously provides that a certificate
of merit must be authored by someone holding the same professional license or
registration as the defendant.”).
Because the Arriagas failed to provide a certificate of merit affidavit by a
registered landscape architect, the trial court erred in denying Kudela and
Robinson’s motions to dismiss. We therefore sustain Kudela and Robinson’s
issues.2
2
The Arriagas attempt to analogize the section 150.002 requirements to those contained
in Civil Practice and Remedies Code Chapter 74 regarding expert reports in medical malpractice
cases, apparently analogizing “design professionals” as a whole to physicians as a whole, and
arguing that the affidavits by Cruz and Davis were sufficient because the claims in this case fall
within the basic understandings of design professionals as a group. As Kudela points out,
however, unlike section 150.002, which clearly requires an affidavit from someone holding the
same professional license or registration as the defendant, Chapter 74 “focuses not on the
defendant doctor’s area of expertise, but on the condition involved in the claim.” Rittger v.
Danos, 332 S.W.3d 550, 558 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Blan v. Ali,
7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). Accordingly, reference to
chapter 74 is not applicable to the clear language in section 150.002.
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Adequacy of Affidavit
Lastly, we turn to Smallwood’s arguments regarding the general adequacy of
Davis’s qualifications and opinions as set out in his certificate of merit affidavit
and attached documents. As relevant to Smallwood’s arguments and as set out
above, section 150.002(b) requires that (1) the affiant “practices in the area of
practice of the defendant” and (2) the affidavit specifically set forth for each theory
of recovery “the negligence, if any, or other action, error, or omission . . . claimed
to exist and the factual basis for each such claim.” Tex. Civ. Prac. & Rem. §
150.002(a)(3), (b).
Smallwood first contends that it is apparent from Davis’s affidavit and
curriculum vitae that while he may be a licensed architect in Texas, he is not
actively engaged in the practice of architecture. Smallwood correctly notes that the
only explicit comments Davis makes in his affidavit about his career or practice is
where he states, “during my architectural career I have worked on multiple projects
across the country with civil engineers. Those projects included the design of high-
volume parking garages, driveways, roadways, and entry/exit intersections.”
Smallwood then asserts that Davis’s CV indicates he has not practiced as an
architect since 2007 when he was an architect on a project at the Valero Aruba
Refinery. Smallwood apparently chose this entry on Davis’s CV as the last time he
practiced as an architect because it is the most recent entry that Davis labeled as
“architect” (technically, “Sr. Project Manager, Master Planner and Architect”). As
Smallwood emphasizes, Davis listed his more recent positions on projects
variously as “Sr. Project/Program Manager,” “Area Program Manager,” “Sr.
Program/Construction Manager,” and “Sr. Project/Construction Manager.”
Smallwood concludes that “[t]here is no indication that he has been the architect of
record on a construction project, . . . responsible for signing and sealing a set of
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drawings to construct a building, . . . responsible for signing and sealing a set of
drawings related to a driveway, or any other practice of architecture.” Smallwood
does not offer a citation for its apparent restrictive definition of the practice of
architecture and does not discuss the detailed descriptions Davis provided on his
CV for each listed project and position.
For purposes of section 150.002, the “practice of architecture” has the
meaning assigned to it by section 1051.001 of the Occupations Code. Tex. Civ.
Prac. & Rem. § 150.001(2); Tex. Occ. Code § 1051.001(7). Section 1051.001
defines the practice of architecture broadly to include
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;
(D) programming for construction projects, including
identification of economic, legal, and natural constraints and
determination of the scope and spatial relationship of functional
elements;
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(E) recommending and overseeing appropriate construction
project delivery systems;
(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;
(G) research to expand the knowledge base of the profession of
architecture, including publishing or presenting findings in
professional forums; and
(H) teaching, administering, and developing pedagogical theory
in academic settings offering architectural education.
Tex. Occ. Code § 1051.001(7). To paraphrase our sister court, “the umbrella of
practicing architecture casts a wide shadow.” Whitaker v. R2M Eng’g, LLC, 603
S.W.3d 530, 538 (Tex. App.—Amarillo 2020, pet. denied) (discussing the
“practice of engineering” under section 150.002).
In discussing the various building and renovation projects on which he
served as a project, program, or construction manager, Davis states in his CV that,
among other duties, he provided “project planning, management, design and
construction expertise”; “manag[ed] construction project renovations and
upgrades”; and “managed all professional design and construction contracts,
architects, engineers, consultants, and contractors and in-house staff of project and
construction staff,” and his duties “included planning, design review, coordination,
procurement and construction management.” These supervisory or project
management duties fall within the statutory definition of the practice of
architecture. See Tex. Occ. Code § 1051.001(7); Thompson Hancock Witte &
Assocs. v. Brazos Presbyterian Homes, Inc., No. 14-20-00827-CV, 2022 WL
1010256, at *1 n.2, 3–4 (Tex. App.—Houston [14th Dist.] Apr. 5, 2022, no pet.)
(mem. op.) (holding affiant was actively engaged in the practice of architecture
13
where he stated he had worked as “an architect, design-build construction company
manager, developer, and project manager in the profession since 1968”); Studio E
Architecture & Interiors, Inc. v. Lehmberg, No. 04-19-00026-CV, 2019 WL
3229194, at *3–4 (Tex. App.—San Antonio Apr. 17, 2019, pet. denied) (mem. op.)
(holding project manager functions fell within ambit of section 1051.001(7));
Carter & Burgess, 355 S.W.3d at 809 (same).
Smallwood further challenges the sufficiency of Davis’s allegations in his
affidavit, arguing he fails to state with specificity what negligence, act, error, or
omission Smallwood purportedly did that caused the Arriagas’ damages or to
provide any factual basis to support his vague and conclusory statements. See Tex.
Civ. Prac. & Rem. §§ 150.002(b). Smallwood also criticizes Davis’s adoption of
Cruz’s statements and conclusions in his affidavit without, Smallwood insists,
explaining how those statements and conclusions apply to architects rather than
engineers. According to Smallwood, “Davis’ [sic] affidavit is effectively a
recitation of Cruz’ [sic] affidavit without providing any unique analysis into the
basis of the claims against an architect or landscape architect.”
We do not read Davis’s affidavit as being as limited as Smallwood suggests.
Although Davis did attach a copy of Cruz’s affidavit to his own affidavit and did
adopt many of Cruz’s statements and conclusions, Davis explained that he did so
because “[w]hile Mr. Cruz is an engineer, his opinions fully apply to these
Defendant Architects and I adopt all of those opinions specific to ‘Design
Professionals’—they apply equally to the Defendant Architects.” Davis further
asserted that “[d]esign of large structures like this high-rise residential building
require architects and engineers to work together to solve these exact issues of
public and pedestrian safety. And the criticisms outlined in the Cruz Certificate of
Merit apply equally to the Defendant Architects.” But Davis did not simply adopt
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Cruz’s assertions, Davis also explained that “[w]hen designing those areas, in
which pedestrians and vehicles will necessarily intersect, [i.e., ‘high-volume
parking garages, driveways, roadways, and entry/exit intersections,’] design
professionals like architects and architectural firms have a duty to prioritize the
safety of pedestrians[, which] necessarily means including the kinds of basic safety
features outlined in Mr. Cruz’s certificate of merit.” More specifically, Davis
emphasized and quoted Cruz’s statement that the “design lacked markings, lighting
and signage that controlled traffic speed, traffic flow, alerted driver and pedestrians
of hazards, [and] distinguished pedestrian egress and walkways.” Davis indicated
that a prudent architect “should have recognized the unfavorable traffic control
plan” and made the required safety improvements listed in Cruz’s affidavit. Davis
concluded that “[b]ecause no markers, warnings, signage, speed humps or bumps,
or lane dividers were present on the day of the accident, or at any time prior to the
accident, it is clear the Defendant Architects failed their duties in design” and
“because these failures concern pedestrian safety it is foreseeable that a pedestrian
like Mr. Arriaga may be injured as a result of those failures.”
Turning to Cruz’s affidavit as adopted and applied to architects by Davis, we
can see that Cruz made detailed observations regarding the accident that led to the
filing of this lawsuit and then opined that the “architects and engineers that
participated in the design plan for the subject driveway [were] negligent for failing
to implement a traffic control plan” that took into account traffic volume, speed,
direction, and flow; driveway width; turning radius for small, medium and large
vehicles; two-way traffic; line of sight and visual obstructions around corners; and
lighting conditions. Cruz further asserted that
[t]hese Design Professionals failed to use ordinary care and
reasonable judgement in the design of the driveway by not
implementing a design that protected the public by distinguishing
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travel lanes in a relatively narrow driveway with entry and exits to a
municipal street that served two entries to a multi-level garage with
ground parking along the rear of the building that also services
commercial loading and unloading within the same driveway.
Cruz highlighted that given “the unfavorable traffic and driving conditions
along the driveway”—i.e., expected traffic volume around a high-rise residential
building, the narrow two-way driveway connecting entry and exits from a multi-
story garage with outside parking, obstructed views for drivers going around the
building, and pedestrian access to the driveway—the design needed to “[c]ontrol
the turning of vehicles around the building which created a blind spot,” “[protect]
the public walkway and pedestrian crosswalk between the main building and the
garage,” and “[d]istinguish and separate the traffic flow to reduce the potential for
collisions.” He further asserted it was “necessary to have minimal traffic control
measures like barriers, signs and markings to guide visiting pedestrians, residents,
visiting drivers and resident drivers using the driveway and sidewalks.” Absent
these “minimum traffic controls,” Cruz alleged the design “failed to slow down
traffic that was entering the driveway, failed to separate the traffic into lanes, failed
to warn drivers of blind spots[, and] failed to warn drivers and pedestrians of
hazards.” Cruz concluded that the “Design Professionals[’] fail[ure] to perform
their services in a good and workmanlike manner . . . was a producing cause of
Plaintiff’s damages.”
In sum, Davis’s own assertions and incorporation of Cruz’s allegations in his
affidavit were sufficient to meet the requirements of section 150.002(b).
Accordingly, the trial court did not err in denying Smallwood’s motion to dismiss
and we overrule Smallwood’s sole appellate issue.
Conclusion
Because we hold that the Arriagas timely provided an adequate certificate of
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merit affidavit as to Smallwood but failed to do so in regard to Kudela and
Robinson, we affirm the trial court’s denial of Smallwood’s motion to dismiss,
reverse the trial court’s denial of Kudela and Robinson’s motions to dismiss, and
instruct the trial court to dismiss the Arriagas’ claims against Kudela and
Robinson.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.
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