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

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