Michael Gaertner D/B/A Michael Gaertner & Associates v. Robert Langhoff

Opinion issued March 18, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00555-CV
———————————
MICHAEL GAERTNER D/B/A MICHAEL GAERTNER & ASSOCIATES,
Appellant
V.
ROBERT LANGHOFF, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 12-DCV-195411
OPINION
Defendant/appellant Michael Gaertner d/b/a Michael Gaertner & Associates
appeals the trial court’s interlocutory order denying his motion to dismiss under
section 150.002(e) of the Texas Civil Practice and Remedies Code. We affirm.
BACKGROUND
In January 2010, plaintiff/appellee Robert Langhoff was injured after
slipping and falling down the stairs of a Fort Bend County historic property, the
Lamar-Calder House.1 Langhoff sued the building’s owners and managers, as well
as the construction company and the architect that were hired to convert the
building from residential to commercial in 2002, alleging they “failed to conform
with and implement safety guidelines, building code requirements and generally
accepted design and building practices when renovating the property, or otherwise
provide complete building code compliance or oversight.” Specifically, Langhoff
complained that his injuries were caused by the “proper safety measures or
devices” being “absent from the stairway.”
Langhoff pleaded a negligence claim against architect Gaertner. Pursuant to
section 150.002 of the Texas Civil Practice and Remedies Code—which requires
that a suit against a licensed architect be accompanied by a “Certificate of
Merit”—Langhoff’s petition attached the affidavit of Robert A. Bueker, Architect.
Specific to his qualifications, the affidavit states,
I am a professional Architect who is licensed to practice in the State
of Texas, registration Number 7550. I have been a registered architect
in Texas since March 1, 1980 and actively practice Architecture,
1
Langhoff was a business invitee on the premises to work on internet and telephone
systems at the request of a commercial tenant. The fall injured his back,
necessitating surgery and ongoing medical care.
2
Construction Management and general Contracting in the State of
Texas today.
A. Gaertner’s Motion to Dismiss
Gaertner filed a motion to dismiss, arguing that Bueker’s certificate of merit
failed to comply with Chapter 150. Specifically, Gaertner challenged whether
Bueker was “knowledgeable in the area of practice of the defendant.” TEX. CIV.
PRAC. & REM. CODE § 150.002(e) (West 2011). The crux of his argument is that
Bueker lacked sufficient experience “pertaining to Historic Preservation,” and he
asserts that the building code standards that Bueker cites are not required to be
followed by historical buildings.
Citing excerpts from Bueker’s deposition, Gaertner argues that “Bueker has
never i) designed a Historic Preservation project, ii) never been through the process
of having a building designated as a historical building, iii) has never investigated
the process of having a building designated as a historical building, and iv) is not
familiar with the building code provisions that are applicable to Historic
Preservation.” Gaertner also points out that Bueker admits that he is not familiar
with the Texas Historic Commission.
Langhoff filed a response, arguing that “Defendant’s Motion to Dismiss
should be denied, because Plaintiff has fully complied with all statutory
requirements set forth in Tex. Civ. Prac. & Rem. Code § 150.002.”
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Langhoff further contended that Bueker need not be an expert in the sub-
specialty of historic renovations. Citing Bueker’s certificate of merit, curriculum
vitae, and additional deposition excerpts, Langhoff argued that the following
established Bueker’s section 150.002 qualifications:
 Bueker has been licensed as a professional architect since 1980,
and “possesses extensive experience in both commercial and
residential building.”
 Bueker actively practices “Architecture, Construction
management, and general Contracting.”
 Bueker testified to his belief that he possessed sufficient
knowledge to opine whether Gaertner was negligent and failed to
comply with applicable standard of care for an architect because,
“my knowledge extends to any building that is accessible by the
general public.”
According to Langhoff, under Texas law, Bueker was “not required to
demonstrate expertise in Gaertner’s sub-specialty of historical renovation,” but
instead “must merely demonstrate that he is a licensed architect, knowledgeable in
the same general practice as Gaertner.” Because Gaertner was the architect and
owners’ representative in a project converting a house into a commercial building,
and because Bueker has worked in residential and commercial buildings practicing
as an architect and owners’ representative, Langhoff argued he is qualified under
section 150.002 to render a Certificate of Merit.
The trial court denied Gaertner’s Motion to Dismiss, and he filed this timely
interlocutory appeal.
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THIS APPEAL
In his sole issue, Gaertner contends that we should reverse the trial court’s
order and dismiss Langhoff’s claims against him because Bueker does not have the
requisite qualifications to author a complying report under section 150.002 of the
Texas Civil Practice and Remedies Code.
APPLICABLE LAW AND STANDARD OF REVIEW
Section 150.002 sets forth the required qualifications for the author of a
“Certificate of Merit” in a lawsuit against a licensed architect:
(a) In any action or arbitration proceeding for damages arising out of
the provision of professional services by a licensed or registered
professional, the plaintiff shall be required to file with the complaint
an affidavit of a third-party licensed architect . . . who:
(1) is competent to testify;
(2) holds the same professional license or registration as the
defendant; and
(3) is knowledgeable in the area of practice of the defendant
and offers testimony based on the person’s:
(A) knowledge;
(B) skill;
(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
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professional skill claimed to exist and the factual basis for each such
claim. The third-party licensed architect . . . shall be licensed or
registered in this state and actively engaged in the practice of
architecture, engineering, or surveying.
TEX. CIV. PRAC. & REM. CODE § 150.002(a)&(b) (West 2011).
An order granting or denying a motion to dismiss for failure to file a
Certificate of Merit under section 150.002 is immediately appealable. TEX. CIV.
PRAC. & REM. CODE ANN. § 150.002(f) (West 2011). We review a trial court’s
order denying a motion to dismiss for abuse of discretion. See e.g., Carter &
Burgess, Inc. v. Sardari, 355 S.W.3d 804, 808 (Tex. App.—Houston [1st Dist.]
2011, no pet.). A trial court abuses its discretion when it acts arbitrarily or
unreasonably, without reference to any guiding rules and principles. Id. at 808–09;
see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
To the extent we are required to interpret a statute, that aspect of our review is
performed de novo. Carter & Burgess, 355 S.W.3d at 809.
ANALYSIS
Gaertner argues that the trial court abused its discretion by denying his
motion to dismiss. He emphasizes that Bueker “has never provided professional
services for an historic property, . . . has not designed an historic preservation
project, has not been involved in the process of having a structure designated as an
historical building, and is unfamiliar with the building code provisions applicable
to historic preservation.” Gaertner also notes Bueker’s lack of familiarity with the
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Texas Historical Commission, including its scope of authority, how it addresses
safety in historic properties, or how it “values stairways as a part of the historic
features of a building.”
Next, Gaertner points to Bueker’s concession—in his deposition
testimony—that professional design services for historic properties is a specialty
area, and that architects that specialize in this area would be more knowledgeable
than him in this area. Similarly, Bueker admitted that the City of Rosenberg’s
building department was aware of the egress deficiencies in the Lamar-Calder
House’s renovation plans, but did not consider the condition to constitute a
“distinct life safety hazard” and that he does not know if the city building code has
exceptions for historical buildings.
Finally, Gaertner argues that Bueker must lack the requisite qualification
because he has never worked with the Texas Historical Commission, and Bueker
admits that his opinions do not take into account the limitations or obligations
inherent in historical preservation or the interaction of interests in historical
preservation and modernization of building codes.
In support, Gaertner cites Landreth v. Las Brisas Council of Co-Owners,
Inc., 285 S.W.3d 492, 497–98 (Tex. App.—Corpus Christi 2009, no pet.) (holding,
under earlier version of statute, that trial court abused its discretion in denying
motion to dismiss based on architect’s failure to establish in his certificate of merit
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that he “practice[ed] in the same area of practice as the defendant”) and Benchmark
Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41, 49–50 (Tex. App.—
Houston [14th Dist.] 2010, pet. granted, judgm’t vacated w.r.m.) (affirming, under
earlier version of statute, trial court’s denial of motion to dismiss and
distinguishing Landreth on the ground that engineer’s affidavit and resume taken
together “provided the trial court with ample information reflecting the fact that he
practices in the same area of construction or ‘project engineering’” as the
defendant engineer). Gaertner contends that, under Landreth and Benchmark, the
trial court abused its discretion by denying his motion to dismiss because Bueker is
not “knowledgeable in the relevant area of practice, historical preservation
architecture.”
In response, Langhoff argues that Gaertner is relying on outdated authority
applying an earlier version of section 150.002 that required the affiant to be
“practicing in the same area of practice of the defendant” (rather than
“knowledgeable” about that area) and that several cases—especially those
interpreting the current version of 150.002—have expressly rejected the argument
that a certificate’s author has to establish knowledge of the defendant’s particular
sub-specialty. See Benchmark, 316 S.W.3d at 49 (interpreting prior version of
section 150.002, and holding that engineer did not need to practice in the
“engineering sub-specialty” of “water resources”); Morrison Seifert Murphy, Inc. v
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Zion, 384 S.W.3d 421, 427 (Tex. App.—Dallas 2012, no pet.) (rejecting argument
that architect needed to demonstrate that he was qualified in the sub-specialty area
of defendant’s practice of “architectural interior design”); Nortex Found. Designs,
Inc. v. Ream, No. 02-12-00212-CV, 2013 WL 3488185, at *3 (Tex. App.—Fort
Worth July 11, 2013, no pet.) (mem. op.) (interpreting prior version of section
150.002, and holding that engineer need only be practicing in the same area as the
defendant (i.e., design of residential foundations), not employed in the same
subspecialty (i.e., design of post-tension cable residential foundations)); Dunham
Eng’g Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 794–95 (Tex. App—
Houston [14th Dist.] 2013, no pet.) (rejecting argument that civil engineer needed
to demonstrate that he was “knowledgeable in ‘professional engineering services
related to water storage tanks and corrosion control’” (the area of defendant’s
practice) and noting that section 150.002 does not “state that the affiant’s
knowledge must relate to the same, much less the same specialty, area of
practice”). Langhoff contends that these cases demonstrate that whether “the
affiant possesses knowledge in the requisite area of practice is not dictated by the
defendant’s characterization of the important issues in litigation,” and emphasizes
that the “motion to dismiss is not intended to serve as a substitute for later
substantive motions.”
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Langhoff argues that Gaertner’s “area of practice,” is “architectural design
and construction management,” and that his “expertise in the narrow area of
historical renovation is merely a sub-specialty of his general area of practice.” In
support, Langhoff details the evidence in the record about Gaertner’s contracted
obligations with regard to the Lamar-Calder House renovation. The parties’
contract reflects that Gaertner was hired to design the renovations to the property
(which was “intended to follow the historic guidelines to recall the originally
constructed residence”), prepare the construction documents, solicit bids for the
construction work, advise the property owners in selecting a general contractor,
and supervise the construction process as the owner’s representative. Fifteen
percent of his total pay was allocated for the “schematic design phase,” fifteen for
the “design development phase,” twenty-five percent for the “construction
documents phase,” fifteen percent for the “bidding or negotiation phase,” and thirty
percent for the “construction phase.” His contract listed as “Additional Services”
the preparation and submission of a Historic Certification Application for federal
tax credits (contingent upon the work under the contract being completed), and
assistance to the owner in presentations to historical boards, if necessary.
According to Langhoff, the trial court properly denied Gaertner’s motion to
dismiss because the record establishes that Bueker is knowledgeable in this same
area of “Architectural Design and Construction Management.” He points to the
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record evidence that Bueker has been a registered, practicing architect in Texas for
over thirty years. He has been the architect of record on at least twenty buildings
in the last fifteen years, and has provided architectural design services for at least
500 single-family homes and a multitude of commercial properties, including
office, medical, retail, and banking buildings. The record reflects that he has
extensive construction management and development experience as well.
Because the record reflects that he has experience and knowledge in the same area
as Gaertner practices, Langhoff argues that Bueker need not establish more. We
agree that the record supports the trial court’s conclusion that Bueker is
knowledgeable in the same area that Gaertner practices. Accordingly, the trial
court did not abuse its discretion by denying Gaertner’s motion to dismiss.
Gaertner relies primarily on Landreth, which we conclude is inapposite for
several reasons. The affiant architect in Landreth outlined his experience as a
licensed architect and engineer in Texas. 285 S.W.3d at 494. His affidavit did not,
however, “state that [he] was practicing in the same area of architecture in which
[defendant] practices.” Id. He later proffered two amended affidavits that
expanded upon his experience, but “even the last affidavit d[id] not state that he is
currently practicing in the same area of practice as [defendant] or that he was
practicing in the same area of practice at the time he filed his initial affidavit.” Id.
at 495. The court of appeals held—as a matter of first impression—that the
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affiant’s qualifications, including information affirmatively establishing that the
affiant practices in the same area as the defendant, must be contained within the
four corners of the original certificate of merit. Id. at 500. Because the original
certificate in that case did not establish that the affiant practiced in the same area as
the defendant, the court held that the trial court abused its discretion in not granting
the defendant’s motion to dismiss. Id.
Gaertner acknowledges in his brief Landreth’s holding that the trial court is
restricted to consideration of the four corners of the certificate of merit has since
been rejected. E.g., Hardy v. Matter, 350 S.W.3d 329, 334 (Tex. App.—San
Antonio 2011, pet. dism’d) (“The third-party architect who signed the affidavit
must hold the qualifications listed in the statute, but the statute does not require
these qualifications to appear on the face of the affidavit.”). We agree with the
San Antonio Court that we may look beyond Bueker’s affidavit in assessing his
experience and knowledge. See CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403
S.W.3d 339, 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
Moreover, the Landreth court was applying an earlier version of Chapter
150 that required the affiant to currently practice in the defendant’s area of
practice. 285 S.W.3d at 496. In contrast, the current statute—applicable in this
case—only requires that the affiant be “knowledgeable in the area of practice of
the defendant.” TEX. CIV. PRAC. & REM. CODE § 150.002(a)(3). Because this 2009
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change in section 150.002 “reduc[ed] the affiant’s qualification requirements,”
Benchmark, 316 S.W.3d at 45 n.2, Langhoff’s burden in this case is lower than that
addressed in Landreth. See Dunham Eng’g Inc., 404 S.W.3d at 792 (“[I]n light of
the broadened language included in the 2009 amendment, these [earlier] cases have
very limited applicability when construing the 2009 version of section 150.002.”).
Lastly, although Gaertner cites Landreth for the proposition that Bueker was
required to demonstrate he was knowledgeable in what he characterizes as the
relevant area of Gaertner practices, i.e., “historical preservation architecture,”
Landreth does not actually impose such a requirement. See Morrison Seifert
Murphy, Inc., 384 S.W.3d at 426 (recognizing that “Landreth contained no
conclusion as to whether the affiant is required to practice in the same sub-
specialty as the defendant under chapter 150.”). And numerous cases interpreting
the current version of section 150.002’s qualifications requirement have expressly
rejected that argument. E.g., Morrison Seifert Murphy, Inc., 384 S.W.3d at 426
(“We cannot agree with MSM’s contention we must evaluate certificates of merit
on the basis of sub-specialties.”); Dunham, 404 S.W.3d at 794 (rejecting argument
that affiant’s knowledge must relate to particular area of specialty).
“The purpose of the certificate of merit is to provide a basis for the trial
court to conclude that the plaintiff’s claims are not frivolous.” CBM Eng’rs, Inc.,
403 S.W.3d at 345. “The statute does not require a plaintiff to marshal his
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evidence,” nor does it “foreclose the defendant from later challenging the
sufficiency of the plaintiff’s evidence on the admissibility of an expert’s opinion.”
Id. at 346. Gaertner’s arguments about the impact of the historical nature of the
property on his duty and standard of care implicate issues to be resolved at a later
stage. Such arguments do not go to whether Bueker is knowledgeable in the area
Gaertner practices, i.e., architectural design and construction management, for
purposes of section 150.002. Because the record demonstrates that Bueker is
knowledgeable in the area Gaertner practices, the trial court did not abuse its
discretion in denying Gaertner’s motion to dismiss.
We overrule Gaertner’s sole issue.
CONCLUSION
We affirm the trial court’s order.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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