TDIndustries, Inc. v. Marco Rivera

Opinion issued March 31, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00812-CV

———————————

TDIndustries, Inc. , Appellant

V.

MARCO Rivera , Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Case No. 2009-08635

O P I N I O N

Appellant

TDIndustries, Inc. (“TDI”) appeals from the denial of its motion to dismiss

appellee Marco Rivera’s claims against TDI for failure to file a certificate of

merit pursuant to Section 150.002 of the Civil Practices and Remedies Code (the

“CPRC”). In four issues, TDI argues that

the trial court abused its discretion by denying the motion to dismiss because

the claims pled by Rivera are governed by Section 150.002 and Rivera was

required to satisfy the certificate of merit requirement with his original petition. We conclude that the trial court did not

abuse its discretion in determining that Rivera’s claims against TDI do not

implicate Section 150.002’s certificate of merit requirement, and we affirm.

Background

Rivera

sued TDI and the City of Houston to recover for injuries Rivera allegedly

incurred at the George R. Brown Convention Center when a freight elevator door

closed and struck him in the head while he was pushing a trash cart into the

elevator. [1] The City of Houston owns the George R. Brown

Convention Center, and TDI provides management services to the City of Houston

for the convention center. TDI is a

licensed professional engineering firm. Under

his original petition filed February 11, 2009, Rivera’s claims against TDI and

the City of Houston were negligence and premises liability claims.

Rivera did not file a certificate

of merit with his original petition nor with his second, third or fourth amended

petitions. On October 30, 2009, TDI

moved to dismiss Rivera’s complaint for failure to file a certificate of

merit. On the day TDI’s motion to

dismiss was set for hearing, Rivera nonsuited his claims against TDI. Seven months later, Rivera filed a certificate

of merit and fifth amended petition that reasserted his previously nonsuited

claims against TDI and added new claims for products liability, negligent

activity, and gross negligence against TDI and other defendants. TDI filed a second motion to dismiss, arguing

that Rivera’s certificate of merit was untimely because it was not filed with his

original petition and, alternatively, the certificate of merit filed with

Rivera’s fifth amended petition was deficient because the affiant was not

“practicing in the same area of practice” as TDI.

On the day before the hearing on

TDI’s motion to dismiss, Rivera filed its sixth amended petition, dropping TDI

from his products liability and negligent activity claims but retaining his

claims against TDI for negligence and premises liability. After the hearing, Rivera filed a seventh

amended petition that further honed the allegations against TDI in Rivera’s

negligence and premises liability claims.

Subsequently, the trial court denied TDI’s second motion to dismiss. TDI appeals from this order.

Standard of Review

Section

150.002(f) authorizes interlocutory appeal from a trial court’s grant or denial

of a motion to dismiss under that statute.

Tex. Civ. Prac. & Rem. Code

Ann. § 150.002 ( f) (West Supp. 2010) (formerly § 150.002(e)). We review such orders under an abuse of

discretion standard. Curtis & Windham Architects, Inc.

v. Williams ,

315 S.W.3d 102, 106 (Tex. App.—Houston [1st Dist.] 2010, no pet.); UOP, L.L.C. v. Kozak , No. 01-08-00896-CV,

2010 WL 2026037 , at *4 (Tex. App.—Houston [1st Dist.] May 20, 2010, no pet.)

(mem. op.); Ashkar Eng’g Corp. v. Gulf Chem. & Metallurgical Corp. , No.

01-09-00855-CV, 2010 WL 376076 , at *1 (Tex. App.—Houston [1st Dist.] Feb. 4,

2010) (mem. op.) supplemented, 2010 WL 1509287 (Tex. App.—Houston [1st

Dist.] Apr. 15, 2010, no pet.). A trial

court abuses its discretion when it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law. Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 161 (Tex. 2004). If

resolution of the issue requires us to construe statutory language, we review statutory

construction de novo . Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 437 (Tex. 2009); Ashkar ,

2010 WL 376076 , at *1. Once we determine

the proper construction of the statute, we determine whether the trial court

abused its discretion in the manner in which it applied the statute to the

instant case. Ashkar , 2010 WL

376076 , at *1; Palladian Bldg. Co. v. Nortex Found. Designs, Inc. , 165 S.W.3d 430, 436 (Tex. App.—Fort

Worth 2005, no pet.).

Standard for Statutory Construction

In construing Sect ion

150.002, our primary goal is to determine and give effect to legislative

intent. Williams , 315 S.W.3d at 106 (citing City of San Antonio v. City of Boerne , 111 S.W.3d 22, 25 (Tex. 2003)). The Legislature’s

intent must be derived from the express terms of the statute when

possible. Ashkar , 2010 WL 376076 , at *2 ; Tex. Gov’t Code Ann . § 311.023 (West

2005). We look to the plain and common

meaning of the words the Legislature used unless a contrary intention is

apparent from the context, or unless such a construction leads to absurd

results. City of Rockwall v. Hughes,

246 S.W.3d 621 , 625 – 26 (Tex. 2008); Tex.

Dep’t of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 642 (Tex. 2004). We may also consider the objective the

Legislature sought to achieve through the statute, as well as the consequences

of a particular construction. HCBeck, Ltd. v. Rice , 284 S.W.3d 349, 352 (Tex. 2009); Tex. Dep’t of

Transp. , 146 S.W.3d at 642 .

TDI’s

Motion to Dismiss

A. Applicable Law

As an

initial matter, we note that Section 150.002 was amended by the Legislature

during the time between Rivera’s original filing of suit and Rivera’s

re-assertion of claims against TDI in his fifth amended and subsequent petitions. Compare

Tex. Civ. Prac. & Rem. Code Ann.

§ 150.002 with Act of May 18,

2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369 , 370 (formerly

codified at Tex. Civ. Prac. & Rem.

Code § 150.002, amended 2009); Act of May 12, 2005, 79th Leg., R.S., ch.

189, §§ 1-2, 2005 Tex. Gen. Laws 348 , 348 (formerly codified at Tex. Civ. Prac. & Rem. Code §

150.002, amended 2009). Neither party

argues that the current version of the statute applies to Rivera’s post-nonsuit

assertion of claims against TDI in 2010; because both parties agree that the 2005

version of the statute governs all issues, we apply the 2005 version of the

statute. [2]

Former Chapter 150 applies to “any

action or arbitration

proceeding for damages arising out of the provision of professional services”

by a licensed engineering firm like TDI. 2005 Tex.

Gen. Laws at 348, 370 (formerly codified at Tex.

Civ. Prac. & Rem. Code § 150.002).

The plaintiff in such an action is required to file a particular kind of affidavit, often

referred to as a “certificate of merit,” contemporaneously with the complaint

or, under certain specified conditions, within 30 days after the complaint. Id. The certificate of merit required by the

statute is an affidavit from a third-party professional who holds the same

license as the defendant. Id. For example, a plaintiff bringing suit

against an engineer on the basis of professional engineering services must file

a supporting affidavit from a licensed engineer. Under the 2005 version of the statute, the

affidavit must “set forth specifically at least one negligent act, error, or

omission claimed to exist and the factual basis for each such claim.” Id. Under both versions of the statute, failure

to file a certificate of merit in accordance with the statute “shall result in

dismissal,” which dismissal “may be with prejudice.” Id.

B. Which Petition Governs?

In determining the nature of a

party’s claims with respect to Chapter 150, we look to the allegations in the

party’s pleadings. E.g., UOP , 2010 WL 2026037 , at *3; Ashkar , 2010 WL 376076 , at *7; Natex Corp. v. Paris Indep. Sch. Dist. ,

326 S.W.3d 728, 734 (Tex. App.—Texarkana 2010, pet. filed). Here, the parties dispute which petition we

should look to in determining this appeal.

TDI argues that the original petition pled claims within the scope of

Chapter 150 and that Rivera’s failure to timely file a certificate of merit

with respect to that petition entitles TDI to dismissal of all of Rivera’s

subsequently pled claims against TDI.

Rivera argues that the live pleadings govern, citing UOP , 2010 WL 2026037 , at *1 (reviewing the live pleading at the

time of the dismissal order) and Consol. Reinforcement, L.P. v. Carothers

Executive Homes, Ltd. , 271

S.W.3d 887, 894 (Tex. App.—Austin 2008, no pet.) (same).

We will look to Rivera’s live pleadings at the time of the

motion to dismiss to determine whether Rivera’s claims against TDI fall within

the scope of Chapter 150. Cf. UOP , 2010 WL 2026037 , at *3; Consol. Reinforcement , 271 S.W.3d at 891 . If

Rivera’s claims against TDI are governed by Chapter 150, we will address TDI’s

argument that Rivera was required to file a certificate of merit with his

original petition and, by failing to do so, is barred from filing claims

against TDI in subsequent petitions. If

Rivera’s claims against TDI do not fall within the scope of Chapter 150, they

are not barred by the statute. Texas courts of appeals have consistently declined

to require the dismissal of non-Chapter 150 claims based on the plaintiff’s

failure to comply with Section 150.002 with respect to covered claims. Landreth v. Las Brisas Council of

Co-Owners, Inc. , 285 S.W.3d 492, 500 (Tex. App.—Corpus

Christi 2009, no pet.) (plaintiff’s failure to comply with Section 150.002 with

regard to claims covered by Chapter 150 did not require dismissal of

plaintiff’s other, non-Chapter 150 claims); Consol.

Reinforcement, LP , 271 S.W.3d at 895 (same); Gomez v. STFG, Inc. , No. 04-07-00223-CV, 2007 WL 2846419 ,*3–4 (Tex.

App.—San Antonio Oct. 3, 2007, no pet.) (mem. op.) (same).

C. Do Rivera’s Claims Against TDI Implicate Section 150.002?

At

the time of the trial court’s order on TDI’s motion to dismiss, Rivera had two live

claims against TDI: negligence and premises liability. Rivera argues that it did not need to file a

certificate of merit for these claims because Section 150.002 applies only to

negligence claims arising out of professional services and its claims against

TDI do not fall in that category. TDI does

not address Rivera’s live pleadings expressly, focusing instead on Rivera’s

original petition and fifth amended petition, but argues by implication that

Chapter 150 does apply because TDI is a licensed professional engineering firm

and Rivera’s claims arise out of its “provision of professional services” at

the convention center. We conclude that

the trial court did not abuse its discretion in determining that Rivera’s

negligence and premises liability claims against TDI fall outside of the

category of claims governed by Section 150.002.

1. Negligence

Former

Section 15.002’s certificate of merit requirement applies to “any action or

arbitration proceeding for damages arising out of the provision of professional services”

by a “licensed or registered professional.” 2005 Tex. Gen. Laws at 348, 370. It is uncontested that TDI is a licensed,

professional engineering firm within the statutory definition of a “licensed or

registered professional.” Id. at 348. The question, then, is

whether Rivera’s negligence claims “aris[e] out of the provision of

professional services” by TDI within the meaning of the statute. Id. at

370.

To

determine whether claims “aris[e] out of the provision of professional

[engineering] services” within the meaning of Section 150.002(a), we look to

the definition of the practice of engineering in the Texas Occupations

Code. UOP , 2010

WL 2026037 , at *5 (citing Ashkar ,

2010 WL 376076 , at *9; Williams , 315

S.W. 3d at 107–09). The Occupations Code

defines the practice of engineering as the performance of “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.” Tex. Occ. Code Ann. § 1001.003(b) (West

Supp. 2009). The practice of engineering

includes, among other things, design of engineering works or systems;

engineering for construction of real property; engineering for preparation of

operating or maintenance manuals; and “any other professional service necessary

for the planning, progress, or completion of an engineering service.” Id. § 1001.003(c).

The Texas courts of appeals have held that a claim “arises

out of the provision of professional [engineering] services” if the claim

implicates the engineer’s education, training, and experience in applying

special knowledge or judgment. E.g., Williams , 315 S.W.3d at 108

(holding that claims based on alleged overbilling did not implicate a

professional engineer’s education, training, and experience in applying special

knowledge or judgment); Consol.

Reinforcement , 271 S.W.3d at 894–95 (holding that plaintiff’s claims for

breach of contract, deceptive trade practices and breach of warranty did not

implicate a professional engineer’s education, training, and experience in

applying special knowledge or judgment); Gomez ,

2007 WL 2846419 , at *3 (holding that claims for tortious interference,

conspiracy, breach of contract, wrongful termination, and breach of fiduciary

duty, loyalty, and good faith and fair dealing did not require certificate of

merit because they did not “implicate a professional engineer’s education,

training, and experience in applying special knowledge or judgment.”).

Rivera’s negligence claim against

TDI rests on the allegation that a TDI employee, who does not hold any

professional engineering license, was operating the freight elevator at the

time of Rivera’s injury and acted negligently by (1) failing to keep a proper

lookout for Rivera’s safety, (2) turning on the elevator when it was unsafe to

do so, (3) pressing a button inside the elevator that made the door strike

Rivera’s head, and (4) failing to contact the maintenance company to repair the

elevator. In light of Rivera’s pleadings,

we conclude that the trial court was within its discretion in determining that

the negligent conduct alleged by Rivera does not implicate a professional engineer’s education, training, and

experience in applying special knowledge or judgment. See Williams ,

315 S.W.3d at 108 ; Gomez , 2007 WL

2846419 , at *3. We do not take the

position that operation of a freight elevator could never implicate a

engineer’s specialized knowledge or judgment; there is simply a reasonable

basis for the trial court to determine that the circumstances pled by Rivera do

not implicate such knowledge or judgment, particularly in light of the

uncontested allegation that the employee in question did not hold an

engineering license.

We conclude that the trial court

did not abuse its discretion in determining that Rivera’s negligence claim

against TDI does not “aris[e] out of the provision of professional services by a licensed or

registered professional.” See 2005 Tex. Gen. Laws at 370; cf. Williams , 315 S.W.3d at 108 ; Gomez , 2007 WL 2846419 , at *3.

2. Premises Liability

Rivera

argues that premises liability claims are not governed by Section 150.002

because Chapter 150 governs professional negligence claims and premises

liability claims that are based on a simple negligence standard. We consider the narrower question of whether

Rivera’s premises liability claim pled against TDI “aris[e] out of the provision of professional services

by a licensed or registered professional” because this is the test for

application of the certificate of merit requirement stated in the statute. [3]

Tex. Civ. Prac. & Rem. Code §

150.002(a) ; Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws

369 , 370.

Rivera’s premises liability claim against TDI is based on

allegations that: (1) TDI had control over the convention center; (2) the

freight elevator “whose door would come down unexpectedly,” constituted an

unreasonably dangerous condition on the premises that proximately caused

Rivera’s injury; (3) TDI had actual or constructive knowledge of the dangerous

condition; and (4) TDI failed to warn of or make safe the dangerous condition. These pleadings do not

clearly establish that Rivera’s claims against TDI implicate an “engineer’s education, training, and

experience in applying special knowledge or judgment,” so as to arise out of

the provision of professional engineering services. Cf.

Williams , 315 S.W.3d at 108 ; Consol.

Reinforcement , 271 S.W.3d at 890 ; Gomez ,

2007 WL 2846419 , at *3. We conclude that

the trial court was within its discretion in deciding that Rivera’s claims are

not within the scope of Chapter 150.

Although both parties rely heavily on evidence filed in

support or opposition of the motion to dismiss, TDI has taken the position —

both at the hearing on the motion to dismiss and on appeal — that the trial

court may not consider discovery or other evidence outside of Rivera’s

pleadings in determining whether Chapter 150 applies to Rivera’s claims, citing

Landreth , 285 S.W.3d at 498. TDI’s

reliance on Landreth is

misplaced. The discussion TDI cites from

Landreth relates to the trial court’s

analysis of the sufficiency of a certificate of merit to comply with the

statute. Id. The Landreth court concluded that the certificate of merit must comply

with the statute in its own right — i.e., within the four corners of the

affidavit. Id. at 498-500 . The Landreth court did not hold that the

trial court is limited to the plaintiff’s pleadings in determining whether or

not Chapter 150 applies to the plaintiff’s claims. See id.

We conclude that the trial court acted

within its discretion in determining that Rivera’s premises liability claims

against TDI did not implicate Section 150.002’s certificate of merit

requirement.

Issues

Not Reached

Because we conclude

that the trial court did not abuse its discretion in determining that Rivera’s

claims against TDI are not governed by Chapter 150 of the CPRC, we do not reach

the issues of whether Rivera’s failure to file a certificate of merit with his

original petition precluded Rivera from bringing subsequent Chapter 150 claims against

TDI or whether Rivera’s certificate of merit satisfied the requirements of

Section 150.002 with respect to TDI.

Conclusion

We

affirm the trial court’s denial of TDI’s motion to dismiss and remand the case

for further proceedings.

Elsa

Alcala

Justice

Panel

consists of Chief Justice Radack and Justices Alcala and Bland.

[1] Rivera

added additional defendants in subsequent petitions, including the elevator

manufacturer and the elevator maintenance contractor.

[2]

The 2009 amendments to the statute became affective in September 2009

and apply to “any action or arbitration filed or commenced on or after the

effective date[.]” See Act of June 19, 2009, 81st Leg., R.S., ch.

789 § 3, 2009 Tex. Gen. Law 1989, 1989 – 1990 (effective Sept. 1, 2009).

[3] Rivera points out that this Court and other

courts of appeals have interpreted the 2005 version of Section 150.002 as

applying only to claims based on a “negligent act, error or omission.” E.g., Williams , 315 S.W. 3d at 107 – 08;

Landreth v. Las Brisas Council of

Co-Owners , 285 S.W. 3d 492, 500 (Tex. App.—Corpus Christi 2009, no pet.); Consol. Reinforcement , 271 S.W. 3d at

892 ; Kniestedt v. Sw. Sound and Elecs.,

Inc. , 281 S.W. 3d 452, 455 (Tex. App.—San Antonio 2007, no pet.). Because it is not determinative of the claims

here—each of which include an allegation of a negligent act or omission by

TDI—we do not address this issue. We

note, however, that language in the statute central to the analysis in these

cases was changed by the Legislature in the 2009 amendments. Compare

Act

of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369 , 370

(requiring that the certificate of merit “set forth specifically at least one negligent

act, error, or other omission claimed to exist and the factual basis for each

such claim”) with Tex. Civ. Prac. & Rem. Code Ann. §

150.002(b) (requiring an affidavit that the certificate of merit “set forth

specifically 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”).