SAM-Construction Services, LLC v. Maricela Salazar-Linares ( 2023 )


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  •                                  In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    __________________
    NO. 09-23-00040-CV
    __________________
    SAM-CONSTRUCTION SERVICES, LLC, Appellant
    V.
    MARICELA SALAZAR-LINARES, Appellee
    __________________________________________________________________
    On Appeal from the 163rd District Court
    Orange County, Texas
    Trial Cause No. B190455-C
    __________________________________________________________________
    MEMORANDUM OPINION
    When an “action” is filed arising “out of the provision of professional
    services” by a licensed or registered engineer, Texas law requires the
    plaintiff to file an affidavit from a third-party-licensed professional
    engineer describing (1) the theory of recovery, (2) the negligence or other
    action, error, or omission of the engineer in providing the professional
    1
    service, and (3) “the factual basis for each such claim.” 1 Unless the
    statute of limitations expires in ten days, the affidavit, when required,
    must be filed “with the complaint[.]” 2 If the action arises out of the
    provision of professional services by a licensed engineer and the plaintiff
    fails to file the affidavit required by the statute, the statute provides: “A
    claimant’s failure to file the affidavit in accordance with this section shall
    result in dismissal of the complaint against the defendant.” 3
    The parties to this appeal disagree about whether the action the
    plaintiff filed against the defendant is one that arose from the defendant’s
    provision of professional services through its licensed engineer. In March
    2019, Martin Salazar-Linares suffered fatal injuries while working as a
    manual laborer on a construction site in Orange County, Texas. Martin’s
    wife, Maricela Salazar-Linares, brought a wrongful death and survival
    action on behalf of herself and her husband’s estate against several
    defendants, including SAM-Construction Services, LLC (SAM), a firm
    that, as is relevant here, employed a licensed engineer. SAM moved to
    1Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a), (b).
    2Id. § 150.002(a), (c).
    3Id. § 150.002(e).
    2
    dismiss the complaint Maricela filed against it because she failed to
    include an affidavit from a third-party licensed professional engineer
    with the complaint. When the trial court ruled on SAM’s motion, it didn’t
    dismiss Maricela’s complaint; instead, the court dismissed some but not
    all of Maricela’s claims. Subsequently, SAM filed this interlocutory
    appeal. 4
    On appeal, the parties disagree about whether Maricela’s “action”
    arises from SAM’s “provision of professional services by a licensed or
    registered professional” on the construction site where Martin was
    killed. 5 Because the allegations in Maricela’s Second Amended Petition
    show that her claim constitutes an action for damages arising from
    SAM’s provision of professional services by SAM’s licensed engineer, we
    conclude the Certificate of Merit Statute required Maricela to file an
    affidavit from a licensed third-party engineer with her Second Amended
    Petition. Because she didn’t do so, we hold the trial court erred in failing
    to dismiss all of Maricela’s claims against SAM, as that’s the relief
    4Id. § 150.002(f).
    5See id. § 150.002(a).
    3
    required by the statutory scheme adopted by the legislature when a claim
    is based on alleged errors or omissions by the defendant in the provision
    of professional services by the defendant, a licensed or professional
    engineer, or the defendant engineering firm. 6
    For the reasons explained below, we reverse the trial court’s
    February 2, 2023 order granting SAM’s motion in part and denying
    SAM’s motion in part. We remand the cause to the trial court, and we
    instruct the trial court to sign an order dismissing Maricela’s action—her
    petition—against SAM. And when ordering Maricela’s petition against
    SAM dismissed, the trial court may order the dismissal to be with or
    without prejudice, the options given to the trial court by the Certificate
    of Merit Statute. 7
    Background
    In February 2019 through a written work authorization, the Texas
    Department of Transportation (TxDoT) gave SAM the responsibility to
    “perform engineering services” on the project at issue in this suit. The
    6Id. § 150.002(e).
    7Id.
    4
    TxDot agreement with SAM on this project was subject to the terms of a
    master contract, signed in 2016, and titled “Contract for Engineering
    Services.” The master contract includes a general description of the
    “engineering services” the State wanted SAM to provide. The master
    contract describes the services “as Construction Engineering Inspection
    (CEI) services to assist the State in managing its construction operations
    before, during, and after the construction of improvements[.]” Under the
    terms of the master contract: “All engineering services provided by the
    Engineer will conform to standard engineering practices and applicable
    rules and regulations of the Texas Engineering Practices Act and the
    rules of the Texas Board of Professional Engineers.” 8
    In March 2019, Martin was electrocuted while working as a manual
    laborer on a TxDot construction project, which involved work that various
    contractors were performing on Interstate 10 (I-10). The company Martin
    was working for was working on installing light poles along a sidewalk,
    which ran next to the access road to I-10. On appeal, it’s undisputed that
    Martin was electrocuted when a fellow employee, operating a side-boom
    8The master contract expressly defines the term Engineer as SAM.
    5
    tractor and using the tractor, lifted a light pole into the air and caused
    the pole to contact an overhead power line. When the pole was energized
    by the line, electricity flowed through the tractor to the ground,
    electrocuting Martin while he was leaning against the tractor and
    standing on the ground.
    Third Coast Services, LLC (Third Coast) is the contractor that
    TxDot hired to complete the construction work on the sidewalks beside
    the access road. Third Coast contracted with two other companies, South
    Texas Illumination, LLC (South Texas Illumination) and Flex Supply,
    LLC (Flex Supply) to perform part of that work.
    At first, Maricela brought a wrongful death and survival action on
    behalf of herself and her husband’s estate against Third Coast, South
    Texas Illumination, and Flex Supply. 9 According to Maricela’s original
    petition, Martin was a construction employee “of both” South Texas and
    Flex Supply.
    9Third Coast, South Texas, and Flex Supply are parties to the case
    in the trial court but are not parties to SAM’s interlocutory appeal.
    6
    In March 2021, Maricela amended her petition, adding SAM and
    some other defendants, which are not relevant to this appeal, to her
    suit. 10 The parties dispute whether the allegations in Maricela’s First
    Amended or Second Amended Petition are the allegations relevant to
    analyzing whether her claims arise out SAM’s provision of professional
    services by its licensed engineer. For that reason, we will discuss the
    relevant allegations in both petitions. As to Sam, the Plaintiff’s First
    Amended Petition alleges:
    At all relevant times, Defendant Sam . . . was hired to inspect
    the illumination project being performed by all Defendants.
    According to its website, SAM ‘provide[s] construction
    services solutions, including contract administration,
    construction engineering and inspection, observation, quality
    assurance and quality management, and the development of
    quality manuals and specifications’—which, upon information
    and belief, it was hired to do and/or purported to do in this
    accident. SAM, according to its website, ‘supports clients and
    contractors by putting clear processes in place to keep
    communication open and maintain project schedules and
    budgets’ and ensures clients receive the foundational data
    and management support they need to successfully complete
    construction work’—which, upon information and belief, it
    10The   First Amended Petition also named SAM-Construction
    Services, LLC, SAM, LLC, and Sam Construction and Investment, Inc.
    as defendants. These entities answered, but Maricela nonsuited them on
    November 3, 2021. When Maricela filed her Second Amended Petition,
    she did not add them back to her suit.
    7
    was hired to do and/or purported to do in this accident.
    Moreover, SAM claims it ‘provides construction teams around
    the nation the construction engineering and inspection
    oversight they need to keep projects compliant, on time, and
    on budget….[o]ur program managers are already familiar
    with your state and local requirements…[and] work with
    contractors, consultants, trades, and vendors to keep
    communication open, maintain project controls, and set clear
    expectations for quality and performance’—which, based
    upon information and belief, it was hired to do and/or
    purported to do in this accident.
    As to SAM, the First Amended Petition alleges more than fourteen
    theories of negligence. 11 As alleged in the First Amended Petition, SAM’s
    agents, servants, and employees were negligent in:
    (1) “fail[ing] and neglect[ing] to properly park the side-boom
    tractor or crane, fail[ing] and neglect[ing] to have the side-boom
    tractor or crane under proper control, and fail[ing] to obtain or
    maintain the necessary licensure, permits or certifications to
    operate said side-boom tractor or crane[;]”
    (2) “[p]roviding construction services solutions, including contract
    administration, construction engineering and inspection,
    observation, quality assurance and quality management, and
    the development of quality manuals and specifications;”
    (3) “[s]upporting [South Texas Illumination, Flex Supply, and
    Third Coast], clients and contractors by putting clear
    processes in place to keep communication open and maintain
    project schedules and budgets and ensuring [they] and clients
    11To simplify the opinion, the paragraph numbers we have used in
    the opinion for the allegations in the petition are not identical to the
    paragraph numbers used in the plaintiff’s petition.
    8
    receive[d] the foundational data and management support they
    need[ed] to successfully complete construction work;”
    (4) “[p]roviding construction teams around the nation the
    construction engineering and inspection oversight they need
    to keep projects compliant, on time, and on budget and
    ensuring SAM’s program managers are already f amiliar
    with contractor, municipal, state, and local requirements and
    are followed;”
    (5) “[w]orking with [South Texas Illumination, Flex Supply, and
    Third Coast], to keep communication open, maintain project
    controls, and set clear expectations for quality and
    performance;”
    (6) “[p]roviding    adequate training        for    its  employees,
    subcontractors and agents in the use of side-boom tractors or
    cranes;”
    (7) “[p]roviding    adequate training        for    its  employees,
    subcontractors and agents in working near extremely
    dangerous high-voltage electric powerlines;”
    (8) [a]dequately supervising employees, subcontractors and agents
    when working with extremely dangerous equipment;”
    (9) [w]arning its employees, subcontractors and agents of the
    dangers of working near extremely dangerous equipment;”
    (10) “[w]arning its employees, subcontractors and agents of the
    danger of working in and around high voltage electric
    powerlines;”
    (11) “[i]instructing its employees, subcontractors and agents in
    the proper safety procedures when working near extremely
    dangerous equipment;”
    (12) “[e]nsuring its employees, subcontractors and agents [were]
    properly licensed to operate side-boom tractors or cranes;”
    (13) “[p]reparing and providing safety policies or procedures;”
    (14) “[o]ther acts of omission and/or commission to be specified
    after an adequate time for discovery or at the time of trial;” and
    (15) the gross negligence of Sam in negligently hiring, retaining,
    supervising, and inspecting “the work of South Texas
    Illumination and its employees and/or servants.”
    9
    After it was served with Maricela’s First Amended Petition, SAM,
    relying on the Certificate of Merit Statute, moved to dismiss. 12 In its
    motion, Sam alleged that it was “a professional engineering firm that
    provides professional engineering services.” It also alleged that the
    plaintiff’s claims for damages were based on SAM’s “provision of
    professional services.” Noting that Maricela didn’t file an affidavit from
    a third-party licensed engineer with her First Amended Petition, SAM
    argued that the Certificate of Merit Statute gave it the right to have
    Maricela’s claims dismissed.
    When Maricela responded to SAM’s motion, she argued that SAM’s
    liability for Martin’s death arose from SAM’s conduct “in the capacity of
    construction management services—not in the practice of engineering.”
    According to Maricela’s response, SAM’s liability was not based on any
    “errors or omissions in providing professional engineering services.”
    Instead, Maricela argued SAM’s liability arose from its “failure to provide
    a safe work environment and fail[ure] to warn employees, including but
    12Id. § 150.002.
    10
    not limited to Martin[], of the associated dangers with overhead
    powerlines and the construction zone in question.”
    Following a hearing on SAM’s motion in October 2021, the trial
    court signed an order that granted in part and denied in part SAM’s
    motion to dismiss. The trial court’s order didn’t specify what claim or
    claims were dismissed; instead, the order the trial court signed recites:
    “This Court GRANTS the motion as to Plaintiff’s claims arising out of the
    [SAM’s] provision of professional engineering services or the practice of
    engineering[.]” The order was also vague as to the claims the trial court
    allowed to remain in the case, as the order recites: “This Court DENIES
    the motion as to all remaining Plaintiff’s claims that do not fall within
    [SAM’s] provision of professional engineering services.”
    In November 2021, Maricela non-suited her claims against SAM. A
    day later and based on the notice of nonsuit against SAM, the trial court
    signed an order dismissing the plaintiff’s “case and all claims” against
    SAM “without prejudice to the refiling of same.” When Third Coast saw
    that the trial court had dismissed SAM from the suit, it moved to
    11
    designate SAM as a responsible third party. 13 In its motion, Third Coast
    alleged that SAM had an employee with the authority on the job site
    where Martin was killed who knew or should have known that Martin’s
    employer was performing the work in a manner that presented a
    potential hazard. Accordingly, Third Coast alleged, SAM’s representative
    could have stopped the work or redirected it before Martin’s fatality
    occurred.
    Even though Maricela opposed Third Coast’s motion to designate
    SAM as a responsible third party, the trial court granted Third Coast’s
    motion to designate SAM as a responsible third party in April 2022.14 In
    September 2022, just five months later, Maricela amended her petition
    again by filing a Second Amended Petition, and she brought SAM back
    into the lawsuit. In Maricela’s Second Amended Petition, she reasserted
    all the allegations in her First Amended Petition. In addition, Maricela’s
    Second Amended Petition includes two new paragraphs that are not in
    13See id. § 33.004 (Designation of Responsible Third Party).
    14Maricela’s pleadings opposing the      designation are not in the
    Clerk’s Record, but the trial court’s order granting Third Coast’s motion
    reflects that the motion was opposed.
    12
    her First Amended Petition. The first of the new paragraphs, paragraph
    18, states:
    At no point in time relevant to the instant matter did SAM
    provide ‘professional services.’ For clarity, this suit does not
    involve ‘damages arising out of the provision of professional
    services by a licensed or registered professional,’ e.g., an
    engineer, as such is defined in TEX.CIV. PRAC. & REM.
    CODE Chapter 150. No engineering services were ever
    provided by SAM.
    The other new paragraph in the Second Amended Petition—paragraph
    19—quotes testimony provided at a deposition taken by the attorney from
    the plaintiff’s firm, which the attorney elicited from a corporate
    representative presented by Third Coast. According to Third Coast’s
    corporate representative, Josh Jakubik, the job where Martin’s fatality
    occurred “was engineered[;]” however, SAM was not there that day in its
    capacity as an engineer but was there inspecting safety on the scene.
    On September 21, 2022, SAM filed supplemental objections to the
    motion to dismiss the plaintiff’s petition, arguing that, based on what the
    trial court said in the October 2021 hearing, the trial court’s order
    denying its motion should reflect that the trial court denied its motion
    “in toto.” SAM also claimed in the supplemental motion that the trial
    13
    court’s refusal to sign a clear order that dismissed the plaintiff’s action
    against it was “an artificial attempt to interfere with SAM[’s] statutorily
    guaranteed right to seek appellate review” from the trial court’s ruling
    on SAM’s motion, a ruling that SAM “believes to be incorrect.” The
    supplemental motion concludes:
    Either the claims by the Plaintiff against [SAM] arise
    out of [SAM’s] engineering services, or they do not. The
    parties deserve and are entitled to an order either granting or
    denying the motion.
    In October 2022, the trial court conducted another hearing on
    SAM’s supplemental motion to dismiss. In this hearing, the trial court
    orally denied SAM’s motion but following the hearing, didn’t sign a
    written order. Consequently, the only “ruling” of record on SAM’s motion
    to dismiss was the ruling SAM obtained on the Amended Motion to
    Dismiss, that is the motion it filed in August 2021 addressing the
    allegations in Maricela’s First Amended Petition. Consequently, SAM
    filed a petition for mandamus seeking to require the trial court to rule on
    its motion.
    In its petition, filed in November 2022, SAM argued the trial court
    abused its discretion in refusing to provide the parties with a clear
    14
    written ruling on SAM’s motion. According to SAM’s petition, SAM
    claimed that by signing an order partially granting and partially denying
    SAM’s motion and by subsequently refusing SAM’s request to dismiss
    Maricela’s petition, the trial court had refused to rule on the merits of
    SAM’s motion, depriving SAM of an adequate remedy even if it were to
    later exercise its right appeal after the case was tried. 15
    In December 2022, we conditionally granted SAM’s petition for
    mandamus relief. 16 We concluded that, by failing to specify what claims
    were dismissed, the trial court’s October 2021 order granting SAM’s
    motion failed to allow a court to determine whether the action that
    remained was still one for damages arising from SAM’s provision of
    professional services by its licensed engineer. 17 We suggested that the
    trial court “vacate its order of October 14, 2021. 18
    After we granted SAM’s petition for mandamus relief, the parties
    returned to the trial court. There, SAM filed a motion in which it
    15See In re SAM-Constr. Servs., LLC, No. 09-22-00363-CV, 
    2022 WL 17844022
    , at *1 (Tex. App.—Beaumont Dec. 22, 2022, orig. proceeding).
    16Id. at *8.
    17Id.
    18Id.
    15
    requested the trial court to “enter an order granting [SAM’s] Amended
    Motion to Dismiss, or [to] alternatively, [ ] issue a new order definitively
    ruling on the merits of the Amended Motion to Dismiss[.]” On February
    2, 2023, the trial court vacated its order and signed a new order. The trial
    court signed a new order, and the new order—for the first time—
    addressed the allegations in Plaintiff’s Second Amended Petition. 19 Yet
    the trial court’s order doesn’t simply grant or deny SAM’s motion.
    Instead, the trial court signed the proposed order that was prepared by
    the plaintiff’s firm, an order granting SAM’s motion in part and denying
    it in part. This time, however, the order strikes some words and one
    paragraph from the Plaintiff’s Second Amended Petition, so to that
    degree the order is somewhat more specific. As amended by the trial
    court’s order, the Second Amended Petition (with the strikethroughs for
    reference but not for content) now states: 20
    19Tex.   R. Civ. P. 65 (Substituted Instrument Takes Place of
    Original); FM P’ship. v. Bd. of Regents, 
    255 S.W.3d 619
    , 633 (Tex. 2008)
    (“[A]mended pleadings and their contents take the place of prior
    pleadings.”).
    20The numbers used for the paragraphs in the opinion track the
    numbers used earlier for these same paragraphs in the First Amended
    16
    (2) Providing construction services solutions, including
    contract administration, construction engineering and
    inspection, observation, quality assurance and quality
    management, and the development of quality manuals and
    specifications;
    (4) Providing construction teams around the nation the
    construction engineering and inspection oversight they need
    to keep projects compliant, on time, and on budget and
    ensuring SAM’s program managers are already familiar with
    contractor, municipal, state, and local requirements and are
    followed;
    (14) Other acts of omission and/or commission to be specified
    after an adequate time for discovery or at the time of trial.
    Apart from these strikethroughs, SAM’s Amended Motion to Dismiss, as
    supplemented by the objections that SAM filed after Maricela filed her
    Second Amended Petition, was denied. The day the trial court signed the
    order with the strikethroughs, SAM filed its notice of interlocutory
    appeal. 21
    Standard of Review
    At issue is whether Maricela’s petition triggered the requirements
    of Chapter 150 of the Texas Civil Practice and Remedies Code, which we
    Petition, as the allegations (except for the strikethroughs, since those
    words are not crossed out in the First Amended Petition) are identical.
    21See 
    Tex. Civ. Prac. & Rem. Code Ann. § 150.002
    (f).
    17
    will refer to as the Certificate of Merit Statute. 22 We review a trial court’s
    order denying a motion to dismiss for abuse of discretion. 23 A trial court
    abuses its discretion when it acts arbitrarily or unreasonably or acts
    without reference to any guiding rules and principles. 24 “The mere fact
    that a trial judge may decide a matter within his discretionary authority
    in a different manner than an appellate judge in a similar circumstance
    does not demonstrate that an abuse of discretion has occurred.” 25
    When the issue requires a court to interpret a statute, we conduct
    that review de novo. 26 When construing the Certificate of Merit statute,
    we start by applying the “plain and common meaning of the statute’s
    22Id. §§ 150.001—150.004.
    23Pipkins v. Labiche Architectural Grp., Inc., 
    661 S.W.3d 842
    , 848
    (Tex. App.—Beaumont 2022, pet. denied).
    24See Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241-
    42 (Tex. 1985).
    25Id. at 242.
    26See Tex. W. Oaks Hosp. LP v. Williams, 
    371 S.W.3d 171
    , 177 (Tex.
    2012) (explaining that the nature of claims the Legislature intended to
    include under the umbrella of an act that requests an expert report is “a
    legal question,” reviewed “de novo”).
    18
    words.” 27 In construing the statute, our goal is to “determine and give
    effect to the Legislature’s intent[.]” 28
    Analysis
    In SAM’s first issue, it argues the trial court erred in failing to
    dismiss the plaintiff’s claims against it because Maricela never filed an
    affidavit of a licensed engineer as required by Chapter 150. SAM
    contends that in our review, we should look to the allegations in
    Maricela’s First Amended Petition because those are the allegations
    Maricela filed when SAM initially filed its motion to dismiss.
    No one disputes that if the Certificate of Merit Statute applies, the
    statute requires the affidavit of a licensed third-party engineer to be
    “file[d] with the complaint.”29 To be sure, in the ordinary case not
    involving a dismissal of the engineering defendant from the suit, we have
    27Id. (cleaned up).
    28Id.
    29See 
    Tex. Civ. Prac. & Rem. Code Ann. § 150.002
    (a) (requiring the
    affidavit to be filed “with the complaint”); AMEC Foster Wheeler USA
    Corp. v. Goats, No. 09-18-00477-CV, 
    2019 WL 3949466
    , at *3 (Tex. App.—
    Beaumont Aug. 22, 2019, no pet.) (mem. op.). (“A certificate of merit must
    be filed with the first-filed complaint if the claims arise out of the
    provision of professional services by a licensed or registered engineer.”).
    19
    said that we look to the plaintiff’s initial complaint against the defendant
    engineer or engineering firm when determining whether the claim for
    damages that the plaintiff filed is one that arises from the provision of
    professional services by the licensed engineer. 30
    This case, however, has an unusual procedural history, as Maricela
    nonsuited her claims against SAM eight months after she filed her First
    Amended Petition. Those claims were nonsuited by written order, an
    order the trial court signed in November 2021. Consequently, Maricela’s
    Second Amended Petition contains Maricela’s live claims, making them
    the first claims against SAM after her initial claims were voluntarily
    dismissed. Moreover, the Certificate of Merit statute contemplates that
    a case against an engineer or engineering firm may be dismissed without
    prejudice, so we presume the legislature intended to allow plaintiffs the
    opportunity to refile a suit by alleging claims narrowly to raise theories
    of liability that would avoid making the plaintiff’s action one that arises
    30See Goats, 
    2019 WL 3949466
    , at *3.
    20
    from the engineer or engineering firm’s provision of professional
    services. 31
    For example, take an engineering firm that designed an
    engineering plan for a scaffold for a construction company building a
    skyscraper. One of the engineering firm’s engineers drives up to the
    skyscraper, hits the scaffold, causing the scaffold to collapse. Several
    workers on the scaffold are seriously injured as a result. The workers
    could sue the engineer and the engineer’s firm on a theory of negligence
    based on the manner the engineer drove the car—in other words, avoid
    filing an action that alleged an engineering claim. Or the plaintiffs could
    sue the engineer and engineering firm claiming the scaffold was
    defectively designed and the design contributed to the scaffold’s collapse.
    In that case, those allegations would trigger the Certificate of Merit
    Statute and require the plaintiffs to file an affidavit from a third-party
    licensed engineer. Last, the plaintiffs could sue the engineer and the
    engineering firm on both theories, that the engineer was negligent in the
    manner the engineer drove the car and on a theory that the scaffold was
    31See 
    Tex. Civ. Prac. & Rem. Code Ann. § 150.002
    (e).
    21
    defectively designed. In that case, the fact the petition included an action
    for damages on an engineering theory would trigger the Certificate of
    Merit Statute and require the plaintiffs to file an affidavit from a licensed
    third-party engineer. If they did not, the petition would be required to be
    dismissed.
    Given that Maricela’s case includes a dismissal of her suit, we will
    focus on the allegations in her live pleadings, her Second Amended
    Petition to decide whether her allegations triggered the Certificate of
    Merit Statute and required her to file an affidavit with her petition of a
    third-party licensed engineer.
    Except for the two new paragraphs in Maricela’s Second Amended
    Petition, the allegations in her Second Amended Petition largely overlap
    those she made against SAM in her First Amended Petition. One of the
    two new paragraphs in the Second Amended Petition alleges that
    Maricela’s claim for damages doesn’t arise out of SAM’s provision of
    professional services by a licensed or registered professional. In the
    second new paragraph, Maricela cited testimony from Josh Jakubik to
    the effect that the job where Martin was working when he was killed was
    22
    “engineered,” but that SAM was on the job site to inspect the safety of
    the scene and wasn’t there as an engineer.
    On appeal, Maricela explains that she isn’t conceding that her
    claims for damages against SAM are claims that arose from SAM’s
    providing engineering services to TxDoT. Instead, she argues that as to
    SAM, her claims are based on the duties SAM owed to Martin to provide
    him with a safe workplace, duties Maricela argues are not duties that are
    based on SAM’s status as a firm that employs a licensed engineer. In her
    brief, Maricela construes the claims in her petition narrowly, asserting
    her theories are limited to claims like “negligent supervision, negligent
    instruction, and failure to warn about working with or near extremely
    danger[ous] equipment and high voltage electric powerlines[.]”
    Even though Maricela argues her actions are not based on a theory
    that her damages arise from SAM’s providing professional services to
    TxDoT, paragraph seventeen of her petition—a paragraph the trial court
    never struck or altered in any way—alleges:
    17. At all relevant times, Defendant Sam-Construction Services
    LLC (hereinafter, “SAM”) was hired to inspect the illumination
    project being performed by all Defendants. According to its
    website, SAM ‘ provide[s] construction services solutions,
    23
    including contract administration, construction engineering and
    inspection, observation, quality assurance and quality
    management, and the development of quality manuals and
    specifications’—which, upon information and belief, it was hired
    to do and/or purported to do in this accident. SAM, according to
    its website, ‘supports clients and contractors by putting clear
    processes in place to keep communication open and maintain
    project schedules and budgets’ and “ensures clients receive the
    foundational data and management support they need to
    successfully complete construction work”—which, upon
    information and belief, it was hired to do and/or purported to do
    in this accident. Moreover, SAM claims it ‘ provides
    construction teams around the nation the construction
    engineering and inspection oversight they need to keep projects
    compliant, on time, and on budget….[o]ur program managers are
    already familiar with your state and local requirements…[and]
    work with contractors, consultants, trades, and vendors to keep
    communication open, maintain project controls, and set clear
    expectations for quality and performance’—which, based on
    information and belief, it was hired to do and/or purported to do
    in this accident.
    As to SAM, Maricela adopted paragraph 17 by reference in her Second
    Amended Petition four times, once each time Maricela pled her actions
    against SAM for vicarious liability, negligence, negligence per se, and
    gross negligence. 32
    32See Tex. R. Civ. P. 58 (Allowing statements in pleadings to be
    adopted by reference).
    24
    Normally, resolving whether the allegations in a pleading trigger
    the Certificate of Merit Statute requires that a court decide two things.
    First, the court must decide whether the petition alleges a claim that
    involves damages against a licensed engineer or a firm that employed a
    licensed engineer who practiced with the firm at a time relevant to the
    dispute with the entity named as the defendant in the suit. 33 Second, the
    court must determine whether, under the allegations in the plaintiff’s
    petition, the plaintiff’s action seeks to recover damages that arise out of
    the provision of professional services by the licensed professional. 34 Here,
    the first step of that test is undisputed—no one claims SAM at the time
    relevant to the dispute wasn’t a licensed engineering firm under the
    definition of licensed professional as defined by the Certificate of Merit
    Statute. 35
    Under the Certificate of Merit Statute, the term practice of
    engineering carries the meaning “assigned by Section 1001.003,
    33Tex. Civ. Prac. & Rem. Code Ann. § 150.001(-c).
    34Id. § 150.002(a).
    35Id.
    25
    Occupations Code.” 36 Under the Occupations Code, the term practice of
    engineering:
    means the performance of or an offer or an attempt to perform
    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. 37
    The Statute then defines the practice of engineering by providing a non-
    exhaustive list of examples that includes:
    (1) consultation, investigation, evaluation, analysis, planning,
    engineering for program management, providing an expert
    engineering opinion or testimony, engineering for testing or
    evaluating materials for construction or other engineering
    use, and mapping;
    (2) design, conceptual design, or conceptual design
    coordination of engineering works or systems;
    (3) development or optimization of plans and specifications for
    engineering works or systems;
    (4) planning the use or alteration of land or water or the
    design or analysis of works or systems for the use or alteration
    of land or water;
    (5) responsible charge of engineering teaching or the teaching
    of engineering;
    36Id. § 150.001(3).
    37Tex. Occ. Code Ann. § 1001.003(b).
    26
    (6) performing an engineering survey or study;
    (7) engineering for construction, alteration, or repair of real
    property;
    (8) engineering for preparation of an             operating or
    maintenance manual;
    (9) engineering for review of the construction or installation
    of engineered works to monitor compliance with drawings or
    specifications;
    (10) a service, design, analysis, or other work performed for a
    public or private entity in connection with a utility, structure,
    building, machine, equipment, process, system, work, project,
    or industrial or consumer product or equipment of a
    mechanical, electrical, electronic, chemical, hydraulic,
    pneumatic, geotechnical, or thermal nature;
    (11) providing an engineering opinion or analysis related to a
    certificate of merit under Chapter 150, Civil Practice and
    Remedies Code; or
    (12) any other professional service necessary for the planning,
    progress, or completion of an engineering service. 38
    As we see it, Maricela argues that her liability theory is narrow, not
    broad. Essentially, she claims her pleadings allege that SAM’s employees
    negligently exercised or failed to exercise control over Martin’s work,
    38Id. § 1001.003(c).
    27
    which created a dangerous condition or constituted the negligent activity
    that she claims caused Martin’s death. 39 But given the broad allegations
    in Maricela’s Second Amended Petition, viewing her pleadings as having
    pleaded only a retained right of control theory is a revisionist view of
    what she pleaded, a view requiring this Court to ignore what the words
    in her pleadings say.
    For instance, Maricela’s Second Amended Petition alleges SAM was
    negligent in “providing construction services” and that its negligence
    included “preparing and providing safety policies and procedures.” Those
    services weren’t limited to services that occurred onsite. Second, Maricela
    complained that SAM was negligent in “the development of quality
    manuals and specifications.” That service also didn’t occur solely on the
    site where Martin’s electrocution occurred. We flatly reject the appellee’s
    argument that her claims were narrowly pleaded and limited to a claim
    that SAM negligently exercised a retained right of control over Martin’s
    work.
    39See generally Clayton W. Williams, Inc. v. Olivo, 
    952 S.W.2d 523
    ,
    528 (Tex. 1997).
    28
    Third, even if it’s possible to allege a negligent exercise of a retained
    right of control theory without triggering the Certificate of Merit Statute
    when suing an engineering firm, an issue we need not decide, the
    pleadings Maricela filed are far too broad to have accomplished that here.
    The Occupations Code’s definition of the practice of engineering includes
    “consultation,”    “planning,”     and     “engineering      for    program
    management.” 40 And for engineered jobs—which the Plaintiff’s Second
    Amended Petition alleges this was—the practice of engineering includes
    “monitor[ing] for compliance with drawing or specifications.” 41 Last, and
    as relevant to the plaintiff’s allegations, the practice of engineering
    includes “engineering for preparation of an operating or maintenance
    manual.” 42
    Given the broad definition the legislature gave to the practice of
    engineering, a plaintiff who wishes to avoid triggering the Certificate of
    40Tex. Occ. Code Ann. § 1001.003(c)(1).
    41Id. § 1001.003(c)(9).
    42We have focused on these allegations for convenience and do not
    intend to imply that there aren’t other allegations in the petition that
    would also trigger the third-party affidavit requirement in Chapter
    150.002.
    29
    Merit Statute should plead their claims carefully to avoid pleading an
    action for damages that arises from the provision by the engineer or the
    engineer’s firm of professional services by the firm’s licensed engineer.
    We don’t doubt that’s possible in some cases depending on the facts of
    how the accident occurred. But in this case, the plaintiff had more than
    one opportunity to narrow her pleadings and avoid pleading a claim
    against SAM based on an engineering theory when she did not.
    We conclude the allegations in the plaintiff’s Second Amended
    Petition required the claimant to file an affidavit of a licensed third-party
    engineer. 43 It’s undisputed that no affidavit was filed.
    43Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a).
    30
    The Remedy
    Subsection 150.00(2)(e) provides the consequences for failing to file
    the required licensed engineer’s affidavit with the petition. 44 “A
    claimant’s failure to file the affidavit in accordance with this section shall
    result in dismissal of the complaint against the defendant.”45 The
    “complaint” is defined in the statute as “any petition or other pleading,
    which, for the first time, raises a claim against a licensed or registered
    professional for damages arising out of the provision of professional
    services by the licensed or registered professional.” 46 As we’ve explained,
    we have construed “for the first time” to mean the first time following the
    dismissal of the claim based on the procedural history in this appeal.
    The remedy prescribed by the Certificate of Merit Statute doesn’t
    reflect that the legislature expected trial courts to engage in battlefield
    triage when deciding whether to dismiss. That is, the legislature didn’t
    intend to allow trial courts to selectively dismiss some claims while
    44Id. § 150.002(e).
    45Id.
    46Id. § 150.001(1-b).
    31
    allowing others to proceed. 47 We have reached that conclusion because
    the statute applicable to healthcare liability claims, Chapter 74.351 of
    the Texas Civil Practice and Remedies Code, requires that a trial court
    dismiss the claim when the required report isn’t filed, but the Certificate
    of Merit Statute requires that a trial court dismiss the complaint.48
    Chapter 150 defines complaint as “any petition or other pleading which,
    for the first time, raises a claim against a licensed or registered
    professional for damages arising out of the provision of professional
    services by the licensed or registered professional.” 49
    While dismissing the complaint seems harsh, particularly in cases
    where the petition may include just one claim that triggers Chapter 150,
    our role isn’t to add language to a statute by redefining complaint to
    mean a claim. Rather, we must “take statutes as we find them,
    47Id. § 150.002(e).
    48Compare id. §     74.351(b)(2) (authorizing a court to dismiss “the
    claim with respect to the physician or health care provider, with prejudice
    to the refiling of the claim”), with id. § 150.002(e) (authorizing a court to
    dismiss “the complaint against the defendant”).
    49Id. § 150.001(1-b).
    32
    presuming the Legislature included words that it intended to include and
    omitted words it intended to omit.” 50
    When Maricela filed a Second Amended Petition with allegations
    that triggered the Certificate Merit Statute without filing the affidavit
    the Statute requires, SAM had a statutory right to have the trial court
    dismiss Maricela’s complaint. 51 We hold the trial court abused its
    discretion by denying SAM’s motion to dismiss. 52
    Conclusion
    When reversing a trial court’s decision, we are required to render
    the judgment the trial court should have rendered.53 SAM asks this Court
    to “render a judgment of dismissal on all claims against SAM[.]” Yet as
    SAM recognizes, it remains in the trial court’s discretion to decide
    whether the plaintiff’s claims against SAM should be dismissed with
    prejudice. 54 For that reason, we reverse the trial court’s order of February
    50Tex. Tech Univ. Health Scis. Ctr. - El Paso v. Niehay, 
    671 S.W.3d 929
    , 951 (Tex. 2023) (cleaned up).
    51Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e).
    52Id. §§ 150.001(1-b), 150.002(a), (e).
    53Tex. R. App. P. 43.3.
    54Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e).
    33
    2, 2023. We remand the case to the trial court, and we instruct the trial
    court to sign an order dismissing every claim Maricela asserted in her
    Second Amended Petition against SAM. The court may dismiss the
    claims against SAM with or without prejudice.
    REVERSED AND REMANDED.
    HOLLIS HORTON
    Justice
    Submitted on August 21, 2023
    Opinion Delivered December 14, 2023
    Before Golemon, C.J., Horton and Johnson, JJ.
    34
    

Document Info

Docket Number: 09-23-00040-CV

Filed Date: 12/14/2023

Precedential Status: Precedential

Modified Date: 12/22/2023