Robert Navarro & Associates Engineering, Inc. and Bath Engineering Corporation v. Flowers Baking Co. of El Paso, LLC

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
'
ROBERT NAVARRO & ASSOCIATES
ENGINEERING, INC. and ' No. 08-10-00236-CV
BATH ENGINEERING
CORPORATION, ' Appeal from
Appellants, ' 448th District Court
'
v. of El Paso County, Texas
'
FLOWERS BAKING CO. OF EL PASO, (TC # 2009-5126)
LLC., '
Appellee. '
OPINION
This is an interlocutory appeal from an order denying motions to dismiss claims under
Chapter 150 of the Texas Civil Practice and Remedies Code. These statutes govern suits filed
against certain licensed professionals, including engineers and their firms. See
TEX.CIV.PRAC.& REM.CODE ANN. §§ 150.001-.002 (West 2011). All of Appellants’
arguments concern the adequacy of the sworn certificate of merit. For the reasons that follow,
we reverse and remand.
FACTUAL SUMMARY
On December 21 2009, Flowers Baking Co. of El Paso, L.L.C. filed a single petition
asserting claims against Robert Navarro & Associates Engineering, Inc. and Bath Engineering
Corporation (collectively Appellants). According to Flowers’ petition, the underlying suit arose
out of the construction of a new warehouse at their facility (the Project). Flowers hired Navarro
to provide “the architectural, civil engineering, structural, mechanical, and electrical design and
construction documents, including the drawings and specifications” (the “Project Documents”).
Flowers also alleged that certain Project Documents were to be prepared and provided by Bath.
In short, Appellants were to identify and provide for water and sewage connections to the
warehouse. Although the design and construction documents provided to Flowers reflected
existing and accessible water and sewage lines adjacent to the warehouse:
[A]t a point in time when the Project was virtually complete, it was discovered
that such design and construction documents were incorrect. There were in fact
no existing and accessible water and sewage lines [in the area adjacent to the
warehouse].
Flowers further alleged that as a result “of the foregoing defect and error in the Project design,” it
incurred serious and unexpected costs in identifying and implementing an alternative plan.
Based on these allegations, Flowers urged causes of action for professional negligence and
breach of contract against Navarro, as well as a cause of action for negligent misrepresentation
against Bath. Specifically, Flowers’ petition stated:
CAUSES OF ACTION
Professional Negligence
. . .
13. Navarro failed in the following respects to exercise the degree of care and
competence that an engineer of ordinary knowledge and skill would have
exercised under the same or similar facts and circumstances:
 in failing to determine, in both an accurate and timely manner before
work on the Project commenced, that there were in fact no existing
and accessible water and sewage lines in West Mills;
 in representing in its design and construction documents for the Project
that there were existing and accessible water and sewage lines in West
Mills, when in fact there was not.
. . .
Breach of Contract
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. . .
17. Navarro … has in the following respects materially and substantially
breached the agreement by and between Flowers and Navarro in connection with
the Project:
 in failing to determine, in both an accurate and timely manner before
work on the Project commenced, that there were in fact no existing
and accessible water and sewage lines in West Mills;
 in representing in its design and construction documents for the Project
that there were existing and accessible water and sewage lines in West
Mills, when in fact there was not.
. . .
Negligent Misrepresentation
. . .
20. In the course of Bath’s business and work on the Project, a transaction in
which Bath had a pecuniary interest, Bath supplied information to the effect, and
represented, that there were existing and accessible water and sewage lines in
West Mills, when in fact there was not. Bath intended or knew or should have
known that Flowers would receive and justifiably rely upon the foregoing
information and representation. Bath failed to exercise reasonable care or
competence in obtaining and communicating the foregoing information and
representation, and Flowers did in fact justifiably rely thereon to its damage and
detriment.
As required by Chapter 150 of the Texas Civil Practice and Remedies Code, Flowers attached a
sworn certificate of merit from Gerald Spencer, a licensed professional engineer.
Navarro and Bath filed motions to dismiss, complaining that Spencer’s certificate of
merit failed to satisfy the statutory requirements. The district court denied the motions.
Navarro’s first issue and Bath’s second issue are parallel complaints that Spencer’s certificate of
merit fails to clearly and unequivocally attribute the alleged act, error, omission to a particular
defendant. Because these issues are dispositive, we need not address the remainder.
STANDARD OF REVIEW
We review a trial court’s denial of a motion to dismiss under Section 150.002 for an
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abuse of discretion. JNY, L.P. v. Raba-Kistner Consultants, Inc., 311 S.W.3d 584, 585-86
(Tex.App.--El Paso 2010, no pet.); M-E Engineers, Inc. v. City of Temple, 365 S.W.3d 497, 500
(Tex.App.--Austin, pet. denied); Garza v. Carmona, No. 13-11-00077-CV, 2012 WL 1134014,
at *3 (Tex.App.--Corpus Christi April 5, 2012, no pet. h.); Sharp Eng’g v. Luis, 321 S.W.3d 748,
752 (Tex.App.--Houston [14th Dist.] 2010, no pet.); Benchmark Eng’g Corp. v. Sam Houston
Race Park, 316 S.W.3d 41, 44 (Tex.App.--Houston [14th Dist .] 2010, pet. dism’d by agr.);
Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496 (Tex.App.--Corpus
Christi 2009, no pet.). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or
without reference to any guiding rules and principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d
48, 52 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex.1985). Merely because a trial court may decide a matter within its discretion in a different
manner than an appellate court does not demonstrate an abuse of discretion. Palladian Bldg.
Co., Inc. v. Nortex Foundation Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.--Fort Worth 2005,
no pet.).
We review questions of statutory construction de novo. State v. Shumake, 199 S.W.3d
279, 284 (Tex. 2006); Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.--Houston [14th
Dist.] 2008, pet. denied), citing City of San Antonio v. Boerne, 111 S.W.3d 22, 25 (Tex. 2003).
Once we determine the statute’s proper construction, we must then decide whether the trial court
abused its discretion in applying the statute. Palladian, 165 S.W.3d at 436. A trial court has “no
‘discretion’ in determining what the law is or applying the law to the facts.” Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992). Accordingly, a trial court abuses its discretion if it
misinterprets or misapplies the law. Perry Homes v. Cull, 258 S.W.3d 580, 598 n. 102 (Tex.
2008); Walker 827 S.W.2d at 840.
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CHAPTER 150 AND STATUTORY CONSTRUCTION
Chapter 150 addresses suits brought against “licensed or registered professionals.” See
generally TEX.CIV.PRAC.&REM.CODE ANN. §§ 150.001-.002 (West 2011). Specifically,
Section 150.002, requires, in relevant part:1
(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, licensed professional engineer, registered landscape architect,
or registered professional land surveyor who:
(1) is competent to testify;
(2) holds the same professional license or registration as the defendant;
and
(3) 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 professional skill claimed to exist and the factual basis for each such
claim. The third-party licensed architect, licensed professional engineer,
registered landscape architect, or registered professional land surveyor shall be
licensed or registered in this state and actively engaged in the practice of
1
This suit was filed in December 2010. Accordingly, the version of Chapter 150, as amended in 2009, governs the
suit. See Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 TEX.GEN.LAWS 369, 370, amended by Act of
June 19, 2009, 81st Leg., R.S., ch. 789, §§ 2-4, 2009 TEX.GEN.LAWS 1991, 1992 (codified at
Tex.Civ.Prac.&Rem.Code Ann. § 150.002).
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architecture, engineering, or surveying.
. . .
(e) The plaintiff’s failure to file the affidavit in accordance with this section shall
result in dismissal of the complaint against the defendant. This dismissal may be
with prejudice. [Emphasis added].
The statute thus requires that the affidavit must address each theory of recovery and
identify the negligence or omission of the licensed professional.
In construing statutes, our primary objective is to give effect to the Legislature’s intent.
Shumake, 199 S.W.3d at 284; Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d
628, 635 (Tex. 2010); Nangia v. Taylor, 338 S.W.3d 768, 770 (Tex.App.--Beaumont 2011, no
pet), citing Galbraith Eng’g Consultants, Inc., v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).
“We seek that intent first and foremost in the statutory text.” See M-E Engineers, Inc., 365
S.W.3d at 500, citing Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006)(internal
quotations omitted). In doing so, we consider the words in context, not in isolation, and we rely
on the plain meaning of the text unless a different meaning is supplied by legislative definition or
is apparent from context, or unless such a construction leads to absurd results. See State v.
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26
(Tex. 2008); see also TEX.GOV’T CODE ANN. § 311.011 (West 2005)(“Words and phrases
shall be read in context and construed according to the rules of grammar and common usage,”
but “[w]ords and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly.”).
We presume that the Legislature was aware of the background law and acted with
reference to it. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990). We
further presume that every word of a statute is used for a purpose, and that every word excluded
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from a statute was excluded purposefully. See Texas Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d at 628, 635 (Tex. 2010); Shook v. Walden, 304 S.W.3d 910, 917
(Tex.App.--Austin 2010, no pet.).
FAILURE TO ATTRIBUTE CONDUCT TO EACH DEFENDANT
We begin our analysis by addressing Appellants’ assertions that Flowers failed to provide
a certificate of merit attributing actions, errors, or omissions to each engineering defendant.
Flowers filed a single certificate of merit, sworn to by Gerald Spencer, P.E. The affidavit
establishes the duty of a professional engineer. An engineer’s liability is tied to the sealing of
engineering documents both generally and under the alleged facts of the case. Tying liability to
the sealing of engineering documents is statutory. “Upon sealing, engineers take full
professional responsibility for that work.” TEX.ADMIN.CODE § 137.33(b). Spencer then
opined as to the standard of care and breach thereof:
5. Included among the construction drawings is one drawing identified as
Drawing Sheet No. MO. 1, which drawing is also labeled ‘Plumbing Site Plan’.
Drawing Sheet No. MO. 1 indicates a 4” water line and a 4” sewer line located in
the public street ROW identified as Mills Street on this Drawing Sheet MO. 1.
Drawing Sheet MO. 1 was certified and sealed, as the drawing was required by
Texas law to [be] prepared under the direction of and certified by a professional
engineer licensed to practice in the State of Texas.
6. It is my understanding from Plaintiff’s Original Petition filed in the Lawsuit
that there are in fact no water and sewer lines located at West Mills Street in
El Paso County, Texas.
7. In my opinion, the failure to confirm the actual location and existence of the
water and sewer lines that are indicated on Drawing Sheet No. MO. 1 constitutes
professional negligence or a failure to exercise the degree of care and competence
that an engineer of ordinary skill and knowledge would have been or expected to
be provided to the public. Therefore, it is my opinion that the failure to
confirm the actual location and existence of the water and sewer lines that
are indicated on Drawing Sheet No. MO. 1 constitutes professional
negligence by Robert Navarro and Associates Engineering, Inc. and/or Bath
Engineering Corporation. An engineer’s certification of construction drawings
represents a certification by the engineer that the information contained in the
drawings is correct, and that the drawings are proper for the underlying
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construction project. At a minimum, I would expect a reasonable engineer to
actually check with the City of El Paso or other appropriate governmental
authority in El Paso to confirm that the water and sewer lines that are shown on
Drawing Sheet No. MO. 1 actually exist. Additionally, I would expect a
reasonable engineer to confirm that the water and sewer lines shown on Drawing
Sheet No. MO. 1 are actually sufficient for the construction job. Third, 1 would
expect a reasonable engineer to perform a site inspection of the property in order
to determine whether there were any manholes, water valves, and fire hydrants or
other evidence that would reflect the location of underground water and sewer
lines. The failure to do these things prior to certifying (stamping) the
construction drawings as approved would, in my opinion, constitute a breach
or violation of the standard of care normally expected of engineers.
[Emphasis added].
The affidavit does not specify who certified and sealed Drawing Sheet MO. 1, but Flowers
affirmatively states in its brief that Bath sealed the drawing showing water and sewer lines.
Appellants focus heavily on Spencer’s use of the phrase “and/or” when discussing the
alleged “negligence . . . action, error, or omission” of the two defendants. They contend that the
statute requires a direct and unequivocal statement by the affiant that attributes a specific act,
error, or omission to each defendant. By contrast, Flowers argues that the certificate need not
specifically connect the alleged “negligence . . . actions, errors, or omissions to a particular
defendant or theory of recovery.” In support, Flowers relies upon two cases from the Beaumont
Court of Appeals: Nangia, 338 S.W.3d at 773 and Criterium-Farrell Eng’rs v. Owens, 248
S.W.3d 395, 399 (Tex.App.--Beaumont 2008, no pet.). Neither case addresses whether Section
150.002 requires a certificate of merit tying tortious conduct to a specific defendant. In fact,
neither case deals with the issue of multiple defendants. Instead, both deal with the specificity
requirements regarding each theory of recovery under an older version of the statute. See
Nangia, 338 S.W.3d at 773 (finding that “The focus of the certificate of merit is on the alleged
error or omission and the facts that support the claim,” and that, as long as the certificate sets
forth the alleged negligence, actions, errors, and omissions and the factual basis for each such
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claim, the purpose of Chapter 150 is met); Criterium-Farrell, 248 S.W.3d at 399 (noting that the
purpose of the certificate of merit requirement is to inform the defendant of the specific conduct
called into question and to provide a basis for the trial court to conclude that the plaintiffs claims
have merit and holding that a certificate of merit was not defective merely because it did not
expressly connect the stated actions, errors, and omissions to the negligence cause of action).
While Flowers concedes these cases do not discuss situations involving multiple defendants, he
persists in suggesting “it would seem logically to follow that it is not necessary [for] the
certificate of merit to expressly connect the alleged acts, errors, and omissions to a particular
defendant . . . .” We do not write so broadly.
Flowers also relies heavily on Howe-Baker Engineers, Ltd v. Enterprise Products
Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, *1 (Tex. App.--Houston [1st Dist.]
Apr. 29, 2011, no pet.)(mem. op.). There, the two named defendants, Howe-Baker and CB & I,
were alleged to be alter-egos. In that circumstance, the Houston Court of Appeals held that the
statute did not require the supporting affidavit to attribute a particular act or omission to a
defendant whose alleged liability was entirely vicarious of the alleged liability of another
defendant as to which the affidavit did satisfy the statute. Howe-Baker, 2011 WL 1660715, at *
6. Flowers alleged neither vicarious liability nor alter ego which it flatly concedes in its briefing.
Similar claims emerged in M-E Engineers, Inc. v. City of Temple, 365 S.W.3d 497
(Tex.App.--Austin 2012, pet. denied). There, the City hired a general contractor and an architect
to assist in the construction of a new police headquarters. Id. at 499. The architect then
contracted with M-E to provide mechanical, electrical, and plumbing engineering services for the
project. Id. M-E provided its services on the project through Allen Y. Tochihara, a licensed
professional engineer and “M-E principal.” Id. Subsequently, the City filed a negligence and
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breach of contract claim against the general contractor, the architect, M-E, and Tochihara
because the newly built police headquarters had problems with its HVAC system. Id. In
accordance with Section 150.002, the City attached a sworn certificate of merit from a licensed
professional engineer, Bill M. Long. Id. Long attested to the HVAC design and construction
deficiencies and opined that “these errors and omissions were caused by a lack of supervision
and enforcement of the contract documents by the Engineer, which constitutes negligence in the
practice of engineering.” [Emphasis added]. Id. Long defined and identified “the Engineer” as
Tochihara, but he did not explicitly mention M-E, Tochihara’s firm. Id. Tochihara and M-E
filed motions to dismiss. Id. Prior to the hearing, the City amended its pleadings to include: (1)
negligence by Tochihara and (2) vicarious liability of M-E for Tochihara’s negligence by virtue
of Tochihara’s status as the company’s employee, agent, and principal. Id. The trial court
denied the motion to dismiss. Id. On appeal, the parties argued in part that Long’s certificate
was inadequate to support claims against M-E because it only explicitly referred to Tochihara
“the Engineer” and not to M-E. Id. at 499-500, 505. Noting the claims for vicarious liability, the
Court of Appeals affirmed. However, in doing so, the Court provided the following analysis:
[T]he certificate-of-merit requirement is similar to the expert-report requirement
under chapter 74 of the civil practice and remedies code--regardless of the legal
theory or theories on which the plaintiff relies in seeking damages, he or she must
file an expert report if the claim is predicated on facts characteristic of a ‘health
care liability claim.’
Id. at 506. We turn now to the theories of recovery pled and the allegations of negligence against
each defendant. As might be expected, the parties view the record differently. Bath was sued for
negligent misrepresentation. Navarro contends that it was sued for professional negligence and
breach of contract “as though NAVARRO had made the determinations and representations
involved in BATH’S drawing.” Flowers’ pleadings specifically allege “Navarro was to provide
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Flowers with the architectural, civil engineering, structural, mechanical, and electrical design and
construction documents . . . with respect to a new warehouse . . . . Certain Project Documents
were to be prepared and provided by Bath.” This differs a bit from the brief in which Flowers
suggests that it was Navarro alone that had contracted to provide the Project Documents. In any
event, a single omission is the basis for all causes of action -- the Project Documents incorrectly
show the location of water and sewer lines.
If Bath sealed the Project Documents, it may bear liability for negligence. But Bath was
sued for negligent misrepresentation, a totally separate tort requiring different elements of proof.
See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.
1999); Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984). If Navarro did not seal the
drawing, it may or may not bear liability for breach of contract or negligence. One cannot
ascertain the nuanced distinctions based upon Spencer’s affidavit. We thus agree with
Appellants that the statutory language does not allow for collective assertions of negligence:
It cannot be presumed that anytime two defendants are accused of similar conduct that
valid claims exist against both of them -- if such claims indeed exist, the expert must
actually say so, and do so in the form of positive averments made under oath.
We sustain Navarro’s Issue One and Bath’s Issue Two. We reverse and remand to the
trial court for a determination of whether the dismissal of Flowers’ claims shall be with or
without prejudice. See TEX.CIV.PRAC.&REM.CODE ANN. § 150.002(e)(providing that a
dismissal based on a plaintiff’s failure to file a certificate of merit in accordance with the statute
“may be with prejudice.”)
September 26, 2012 _______________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
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