Carlson, Brigance & Doering, Inc., and LJA Engineering, Inc. v. Tim Murphy and Maria Murphy, Individually, and D/B/A Bastrop Signs and Banners

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00954-CV

Carlson, Brigance & Doering, Inc., and LJA Engineering, Inc., Appellants

v.

Michael S. Compton, Jenifer Hammock, and Kyle Hammock, Appellees

FROM THE 335TH DISTRICT COURT OF BASTROP COUNTY

NO. 540-335, THE HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING

NO. 03-19-00955-CV

Carlson, Brigance & Doering, Inc., and LJA Engineering, Inc., Appellants

v.

Lynette Lee, Appellee

FROM THE 335TH DISTRICT COURT OF BASTROP COUNTY,

NO. 423-5024, THE HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING

NO. 03-19-00956-CV

Carlson, Brigance & Doering, Inc., and LJA Engineering, Inc., Appellants

v.

Tim Murphy and Maria Murphy, Individually, and d/b/a Bastrop Signs and Banners,

Appellees

FROM THE 335TH DISTRICT COURT OF BASTROP COUNTY

NO. 540-21, THE HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING

NO. 03-19-00957-CV

Carlson, Brigance & Doering, Inc., and LJA Engineering, Inc., Appellants

v.

Jo Ann Sullivent, Appellee

FROM THE 335TH DISTRICT COURT OF BASTROP COUNTY

NO. 542-335, THE HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING

MEMORANDUM OPINION

Chapter 150 of the Civil Practice and Remedies Code requires that a sworn

“certificate of merit” accompany the plaintiff’s complaint in any case “arising out of the

provision of professional services” by engineers and certain other “licensed or registered

professional[s].” Tex. Civ. Prac. & Rem. Code § 150.002(a). In these four interlocutory

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appeals, engineering firms Carlson, Brigance & Doering, Inc. (CBD), and LJA Engineering, Inc.

(LJA), contend that the district court abused its discretion by denying their respective motions to

dismiss for failing to file a certificate of merit pursuant to Chapter 150. Concluding the district

court did not abuse its discretion, we will affirm.

BACKGROUND

These appeals arise out of litigation over the development and construction of

Hunter’s Crossing, a 250-acre mixed-use real estate development in Bastrop. The lead

developer, Forestar (USA) Real Estate Group, hired CBD to design and supervise the

construction of the development’s storm water drainage system. CBD provided these services

through Timothy Holland, a licensed engineer. After construction was complete, Holland

affixed his seal to sections 5B and 3E of the final plat of Hunter’s Crossing. See Tex. Occ. Code

§ 1001.401(b) (providing that “[a] plan, specification, plat, or report issued by a license holder

for a project to be constructed or used in this state must include the license holder’s seal placed

on the document”). Those sections state that the drainage system was constructed according to

the project design drawings and complied with municipal and Federal Emergency Management

Agency (FEMA) regulations for the 100-year flood plain.1 Additionally, the plat states that the

drainage system would contain a 100-year flood.

In 2015, heavy rainfall flooded several properties in or near the development,

including those of appellees Michael S. Compton, Jenifer Hammock, Kyle Hammock,

Lynette Lee, Tim Murphy, Maria Murphy, and Jo Ann Sullivent (collectively, the Owners). In

1 The “100-year flood plain” refers to what FEMA calls a Special Flood Hazard Area,

“defined as an area of land that would be inundated by a flood having a one-percent chance of

occurring in any given year.” Nast v. State Farm Fire & Cas., 82 S.W.3d 114, 119 n.2 (Tex.

App.—San Antonio 2002, no pet.).

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four lawsuits, the Owners sued CBD and multiple other entities involved in the development and

construction of Hunter’s Crossing. The Owners alleged in substantively identical pleadings that,

contrary to the statements on the plat, the drainage-system designs for Hunter’s Crossing did not

comply with applicable flood-plain regulations. The designs allegedly failed to account for

runoff from land to the north of the development, especially from Burleson Crossing, a 500-acre

development located north of Hunter’s Crossing across a highway. Burleson Crossing’s

drainage system allegedly funnels runoff under the highway separating the developments and

into Hunter’s Crossing’s drainage system. Further compounding the alleged problem, and again

contrary to the plat, the Hunter’s Crossing system allegedly was not constructed according to the

project designs. Instead, most of the drainage system’s components are allegedly “incomplete,

missing[,] or undersized[.]” The Owners also sued LJA, the designer of Burleson Crossing’s

drainage system. They alleged that LJA failed to verify the “existing conditions and

inadequacies of the downstream drainage system.”

To comply with Chapter 150’s certificate-of-merit requirement, the Owners attached

to each of their petitions affidavits from Adrian Rosas, a professional engineer. Rosas averred that

he is competent to testify and described his background and qualifications, including his

current Texas licensure and that he is “actively engaged in the same practice of engineering as

Timothy Holland.” He averred the following in support of the Owners’ claims against CBD:

On January 26, 2017 and April 10, 2017, I personally visited the Hunter’s

Crossing and Burleson Crossing projects in Bastrop, Texas. Before, during, and

after the site visits I performed the following actions:

• Reviewed record information for the project areas

• Interviewed property owners

• Reviewed FEMA information for the project areas

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Timothy Holland, P.E., was responsible for (including but not limited to):

• Residential storm water design for Hunter’s Crossing sections

• Review and inspection for the adequacy of construction work

performed by the contractor to be represented on the record drawings.

Based on my observations and evaluations, I have concluded that Tim Holland,

P.E. was negligent and did not follow the standard of care for this engineering

work by failing to:

• Properly evaluate the existing conditions downstream prior to design

and subsequent construction

• Properly present the detail required to define the improvements

necessary to manage storm water runoff directed toward the

subdivision from offsite land areas and the adequacy of onsite

collection for discharge without impact to existing homes.

• Confirm the accuracy of the record drawing representations

The factual basis for my opinion includes, but is not limited to, the following record

information:

• Project area drainage studies

• FEMA documentation for the project area.

Rosas filed a similar but not identical affidavit concerning the Owners’ claims against LJA.

After the four lawsuits were consolidated before the district court, CBD filed

identical motions to dismiss for noncompliance with chapter 150. See Tex. Civ. Prac. & Rem.

Code § 150.002(e) (“A claimant’s failure to file the affidavit in accordance with this section shall

result in dismissal of the complaint against the defendant.”). CBD argued that Rosas’s affidavit

does not comply with Chapter 150 because it does not mention CBD, because Rosas is not

knowledgeable in Holland’s practice area, and because he failed to lay out the factual basis for

his conclusions. After CBD moved to dismiss but before the scheduled hearing on the motions,

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the Owners amended their pleadings to allege that CBD is vicariously liable for Holland’s

negligence. LJA joined each of CBD’s motions. The district court denied their motions by

separate orders, and these appeals ensued. See id. § 150.002(f) (“An order granting or denying a

motion for dismissal is immediately appealable as an interlocutory order.”). We have

consolidated these appeals for briefing and submission.

LEGAL STANDARDS

Chapter 150 provides that a sworn certificate of merit must be “file[d] with the

complaint” in any action “arising out of the provision of professional services” by a licensed

engineer and certain other “licensed or registered professional[s].” Id. § 150.002(a). The affiant

must have certain qualifications, id., and the certificate:

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.

Id. § 150.002(b). The trial court examines the certificate on motion of the defendant to

determine whether the certificate “sufficiently demonstrates that the plaintiff’s complaint is not

frivolous.” Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 520 S.W.3d 887, 896

(Tex. 2017).

We review an order granting or denying a motion to dismiss pursuant to chapter

150 for an abuse of discretion. Jaster-Quintanilla & Assocs. v. Prouty, 549 S.W.3d 183, 187

(Tex. App.—Austin 2018, no pet.). A trial court abuses its discretion when it fails to analyze or

apply the law correctly or, “with regard to factual issues or matters committed to its discretion,

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the trial court could reasonably have reached only one decision and failed to do so.” Id. at 188

(citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)).

ANALYSIS

CBD argues that the district court abused its discretion because Rosas’s affidavit

does not apply to CBD, Rosas is not qualified to execute an affidavit in this case, and his

affidavit fails to adequately set out the factual basis for his conclusions. LJA has filed a brief

joining in CBD’s second and third issues. See Tex. R. App. P. 9.7 (“Any party may join in or

adopt by reference all or any part of a brief, petition, response, motion, or other document filed

in an appellate court by another party in the same case.”).

Rosas’s Affidavit Applies to CBD

CBD initially argues that Rosas’s affidavit is insufficient because it only mentions

Holland. Under CBD’s interpretation of Chapter 150, the certificate must address each “licensed

or registered professional” whose conduct is implicated in the suit. The Owners2 respond that

this Court previously rejected this interpretation of Section 150.002. See M-E Eng’rs v. City of

Temple, 365 S.W.3d 497 (Tex. App.—Austin 2012, pet. denied).

We agree with the Owners. In M-E Engineers, the City of Temple had contracted

with M-E to provide certain engineering services in designing and constructing the City’s new

police headquarters. Id. at 499. The City subsequently sued M-E and its employee who worked

on the project—also an engineer—for damages based on flaws in the design and construction of

the building’s heating, ventilation, and air conditioning system. Id. The City attached to its

2 All appellees except for Kyle Hammock, an appellee in Cause No. 03-19-954-CV, have

jointly filed a brief. Hammock, who is pro se, has not filed a brief with this Court to date.

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petition a sworn certificate of merit attesting to the alleged design and construction deficiencies

and opining they resulted from the engineer’s negligence. Id. However, the certificate did not

expressly mention the engineer’s firm, M-E. M-E moved to dismiss on the ground that chapter

150 required that the certificate “address[], by name, each of the ‘licensed or registered

professionals’ whose conduct is implicated in its suit.” Id. at 505. Before the trial court held a

hearing on the motions, the City amended its pleading to allege that M. E. was vicariously liable

for the errors and omissions of its employee. Id. at 499. The trial court denied the motion, and

M-E appealed.

M-E made the same argument before this Court, relying particularly on chapter

150’s definition of a “licensed or registered professional” as either a professional or “any firm in

which such licensed . . . professional practices.” Id. at 505 (quoting Tex. Civ. Prac. & Rem.

Code § 150.001(1-c)). Thus, M-E reasoned, the certificate must address the professional errors

or omissions of M-E and its employee separately. We disagreed because chapter 150, when read

as a whole, “reveals a core focus on ascertaining and verifying the existence of errors or

omissions in the professional services provided by a ‘licensed or registered professional.’” Id.

To that end, chapter 150 provides that the “certificate must identify and verify the existence of

any professional errors or omissions that are elements or operative facts under any legal theory

on which the plaintiff intends to rely to recover damages.” Id. at 506. But nothing in Chapter

150 “require[s] that a certificate address operative facts other than th[ose] professional errors or

omissions.” Id. Thus, Chapter 150 required only that the City file a certificate attesting to the

engineer’s professional errors and omissions because the City claimed damages from M-E based

on those same errors and omissions. Id. And there being no dispute that the certificate satisfied

that requirement, we affirmed the district court’s ruling. Id.

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CBD does not directly dispute this analysis but suggests that the Court erred in

M-E Engineers by considering the City’s live pleadings. See id. at 507 n.3 (“In deciding a

motion to dismiss under chapter 150, we consider the live pleadings at the time of the hearing on

the motion to dismiss.”). Specifically, CBD faults us for rejecting M-E’s argument that the City

“is bound by its original petition.” See id. CBD argues that this conflicts with the statutory

command that the certificate must be “file[d] with the complaint.” Tex. Civ. Prac. & Rem. Code

§ 150.002(a). CBD interprets this to means that whether a complaint satisfied Section 150.002

“must be decided based on the first filed petition that implicates chapter 150.” In support, CBD

cites cases holding that amended petitions were irrelevant to determining whether chapter 150

required the plaintiff to file a certificate. See, e.g., AMEC Foster Wheeler USA Corp. v. Goats,

No. 09-18-00477-CV, 2019 WL 3949466, at *5 (Tex. App.—Beaumont Aug. 22, 2019, no pet.)

(mem. op.) (holding amended pleading alleging defendant had “non-engineering” role was

irrelevant to determining whether certificate was required with original petition). Although we

agree that a plaintiff must file a certificate with the first petition asserting claims subject to

Chapter 150, see TIC N. Cent. Dall. 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 79 (Tex.

App.—Dallas 2014, pet. denied), that is not what CBD argues here. CBD explicitly urges us to

interpret Section 150.002 to require a plaintiff to “contemporaneously file an affidavit that

identifies the licensed professional the plaintiff sued.” In this case, that would mean that the

certificate must address, by name, each licensed or registered professional whose conduct is

implicated in the suit, including CBD and Holland. This is essentially the same interpretation of

Section 150.002 that we rejected in M-E Engineers. See 365 S.W.3d at 505 (rejecting argument

that certificate must “address[] by name, each of the ‘licensed or registered professionals’ whose

conduct is implicated in its suit”). In effectively asking us to revisit that decision, CBD relies

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heavily on an unpublished case that allegedly reached the opposite conclusion. See DHM Design

v. Morzak, No. 05-15-00103-CV, 2015 WL 3823942, at *3 (Tex. App.—Dallas June 19, 2015,

pet. denied) (mem. op.) (“The certificate must identify the particular defendant and that

defendant’s specific conduct.”). But the Supreme Court subsequently adopted M-E Engineers’s

reasoning and confirmed that chapter 150 merely “obligates the plaintiff to get an affidavit from

a third-party expert attesting to the defendant’s professional errors or omissions and their factual

basis.” Melden & Hunt, 520 S.W.3d at 895–96 (citing M-E Eng’rs, 365 S.W.3d at 505–06).

Although CBD contests Rosas’s qualifications and his certificate’s factual basis, it does not

dispute that that Rosas attested to the alleged errors and omissions underlying the Owners’ claim

for damages from CBD. We therefore overrule CBD’s first issue.

Rosas’s Qualifications

Next, CBD contends that Rosas lacks the necessary qualifications to opine on

Holland’s design of the Hunter’s Crossing drainage system. A sworn certificate of merit must

come from a third-party expert who holds the same professional license as the defendant, is

actively engaged in the practice, and “is knowledgeable in the area of practice of the defendant.”

See Act of June 19, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992

(amended 2019) (current version at Tex. Civ. Prac. & Rem. Code § 150.002(a)(2)–(3)).3

Rosas averred in his affidavit that he is “actively engaged in the same practice of engineering as

3 The Legislature amended Chapter 150 in the 2019 session to provide that the certificate

must be executed by a professional who “practices in the area of practice of the defendant.”

Act of May 15, 2019, 86th, Leg., R.S., ch. 661, § 2, 2019 Tex. Sess. Law Serv. ch. 661 (codified

at Tex. Civ. Prac. & Rem. Code § 150.002(a)). That amendment does not apply to these appeals

because the Owners filed suit before the amendment’s effective date. See id. § 3 (providing that

amendments to Chapter 150 apply “only to an action or arbitration proceeding commenced on or

after” June 10, 2019).

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Timothy Holland.” CBD dismisses this statement as irrelevant because Rosas failed to specifically

address Holland’s practice area of “residential storm water design.”

CBD contends this case is controlled by the Supreme Court of Texas’s Levinson

decision. See Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487 (Tex. 2017).

In that lawsuit against registered architects, the plaintiff’s expert filed an affidavit averring that he is

a registered architect with an “an active architecture practice in the State of Texas today.” Id. at 492.

The affidavit did not include any information about his knowledge of the defendants’ area of

practice. Id. The court of appeals held that the trial court could infer that the expert possessed the

requisite knowledge from his statements that he is a registered architect and actively engaged in the

practice. Id. at 493. The Supreme Court disagreed because the statute’s knowledge requirement “is

not synonymous with the expert’s licensure or active engagement in the practice; it requires some

additional explication or evidence reflecting the expert’s familiarity or experience with the practice

area at issue in the litigation.” Id. at 494.

CBD’s argument that Rosas’s statement is equivalent to the one in Levinson ignores

the affidavit’s two preceding sentences, in which Rosas stated that he is a licensed engineer and

president of a licensed engineering firm. Read in that context, the district court could reasonably

understand Rosas to mean that his practice of engineering also involves designing drainage systems

for residential areas. The district court could also have considered other parts of the certificate that

tend to confirm Rosas’s knowledge concerning residential storm drain design. See id. (agreeing that

“expert’s knowledge may be inferred” but requiring more than evidence of licensure and active

practice); Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-10-00805-

CV, 2011 WL 1562891, at *2 (Tex. App.—Austin Apr. 20, 2011, pet. denied) (mem. op.)

(determining that certificate’s content demonstrated affiant’s knowledge of requisite practice area).

The certificate reflects that in forming his opinions, Rosas reviewed records from construction of

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the Hunter’s Crossing and Burleson Crossing projects, reviewed FEMA information for both

areas, and visited the sites to evaluate the function of the drainage system. Based on those

observations and evaluations, Rosas identified specific errors or omissions by Holland that, in

Rosas’s opinion, resulted in the flooding. Based on these facts, the district court did not abuse its

discretion in determining that Rosas was knowledgeable in Holland’s practice area. See M-E

Eng’rs, 365 S.W.3d at 503 (holding expert’s analysis and description of eleven specific problem

in building’s HVAC system confirmed his statement that he practices in design of same type of

systems). We overrule CBD’s second issue.

Factual Basis

In its final issue, CBD contends that Rosas failed to set out the factual basis for

his conclusions. Chapter 150 requires that the certificate identify any professional error or

omission underlying the plaintiff’s claims for damages “and the factual basis for each such

claim.” Tex. Civ. Prac. & Rem. Code § 150.002(b).

CBD contends that the “factual basis” language requires the affiant to set out “the

events or circumstances giving rise to the professional errors or omissions.” See Melden & Hunt,

520 S.W.3d at 893. In CBD’s estimation, Rosas’s affidavit is impermissibly “conclusory” in that

it lacks “meaningful detail” concerning the Owners’ theories of recovery, their damages, and

how Holland’s alleged acts or omissions caused those damages. See Levinson, 513 S.W.3d 487,

495 (Brown, J., concurring) (agreeing to Chapter 150 dismissal but on basis that affidavit was

“conclusory” and its “text could be copied and pasted into any certificate of merit without regard

to the particular facts of the case”). Although CBD is correct that chapter 150 requires that the

certificate set out the basis for the affiant’s conclusions, it does not impose as high a burden as

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CBD contends. The “factual basis” “required is merely that which underlies the asserted

professional error or omission to which the affiant attests; the affiant need not ‘address the

elements of the plaintiff’s various theories or causes of action.’” Jaster-Quintanilla, 549 S.W.3d

at 191 (quoting Melden & Hunt, 520 S.W.3d at 896). Nor must the certificate address “operative

facts other than the professional errors or omissions that are the focus of the statute.” Id.

(quoting M-E Eng’rs, 365 S.W.3d at 507).

In the certificate, Rosas identified, based on his review of the relevant documents,

Holland’s negligence and other errors, including the failure to: (1) “properly evaluate the

existing land conditions before designing the system,” (2) obtain “the detail required to define

the improvements necessary to [the drainage system to] manage storm water runoff directed

toward [Hunter’s Crossing] from offsite,” and verify the “adequacy of onsite collection for

discharge” without impacting existing residences, and (3) confirm the accuracy of the project’s

“record drawing representations.” These are not mere conclusions, let alone ones that could be

“copied and pasted into any certificate of merit without regard to the particular facts of the case.”

Cf. Levinson, 513 S.W.3d at 495 (Brown, J., concurring). Rather, Rosas made assertions of fact,

capable of being controverted with contrary evidence, regarding the causes of specific failures in

the design of the Hunter’s Crossing drainage system. Thus, we cannot conclude that the district

court abused its discretion in concluding these statements satisfy section 150.002’s “factual

basis” requirement. See Jaster-Quintanilla, 549 S.W.3d at 192 (holding expert’s statements

attributing collapse to design defect in “canopy structure” that “fails to achieve the necessary

design” were not conclusory but instead sufficed as “factual basis” for expert’s opinion that

engineer committed professional negligence); CBM Eng’rs v. Tellepsen Builders, 403 S.W.3d 339,

346 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding expert’s citation of “structural

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flitch beam design error” and “omitted ‘lateral bracing’” sufficed as factual basis for expert’s

opinion that engineer had committed professional negligence). We overrule CBD’s third issue.4

CONCLUSION

Having found no abuse of discretion, we affirm the district court’s orders denying

the motions to dismiss.

__________________________________________

Edward Smith, Justice

Before Justices Goodwin, Kelly, and Smith

Affirmed

Filed: December 8, 2020

4 Because LJA asserts that the facts underlying CBD’s second and third issues are

“identical” to those in LJA’s appeal, we overrule LJA’s two issues for the reasons discussed.

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