Opinion issued February 4, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00855-CV
ASHKAR ENGINEERING CORPORATION, Appellant
v.
GULF CHEMICAL & METALLURGICAL CORPORATION, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2008-66374
MEMORANDUM OPINION
This is an interlocutory appeal in an industrial construction design defect suit. Appellant, Ashkar Engineering Corporation, appeals from the trial court's order denying its motion to dismiss the suit brought against it by appellee Gulf Chemical & Metallurgical Corporation ("GCMC"). In its sole issue, Ashkar contends that GCMC's suit constitutes a claim against a licensed professional engineering firm and that GCMC failed to file a certificate of merit, as required by Texas Civil Practice and Remedies Code section 150.002. (1)
We reverse and remand.
Background
In May 2005, GCMC contracted with Miner-Dederick Constructors, Inc., (2) to construct an expansion to GCMC's hazardous materials recycling facility. The project was substantially completed on January 10, 2006, and GCMC began using the new facility. Six months later, GCMC employees noticed an oily sheen in a nearby stormwater ditch. GCMC subsequently determined that potentially hazardous substances were leaking from a failed expansion joint contained in the new construction. To comply with state and federal regulations, GCMC incurred costs to contain the leak and remediate the contaminated soil.
In November 2008, GCMC sued Miner-Dederick for damages.
On June 17, 2009, in its First Amended Petition, GCMC added Ashkar, who had engineered and designed the new facility, as a defendant. Texas Civil Practice and Remedies Code Section 150.002 requires that a plaintiff, in a suit for damages arising out of services by a design professional, to file with the complaint a "certificate of merit"--the affidavit of a third-party licensed professional engineer. (3) It is undisputed that GCMC did not file a certificate of merit. On June 23, 2009, GCMC filed a Second Amended Petition, but it did not file a certificate of merit.
On July 17, 2009, Ashkar moved to dismiss GCMC's suit on the basis that GCMS's allegations constituted claims arising out of services by a design professional and that GCMC had failed to file the requisite certificate of merit.
On July 23, 2009, GCMC filed a Third Amended Petition, to which it appended a certificate of merit. On September 8, 2009, the trial court denied Ashkar's motion to dismiss. This appeal ensued.
Certificate of Merit
Ashkar contends that the trial court erred by denying its motion to dismiss GCMC's suit for failure to timely file a certificate of merit.
A. Standard of Review
An order denying a motion to dismiss under Chapter 150 of the Civil Practice and Remedies Code is immediately appealable as an interlocutory order. (4)
We review a trial court's decision on a motion to dismiss a case for failure to comply with section 150.002 for an abuse of discretion. Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex. App.--Fort Worth 2005, no pet.); see also Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (applying in context of professional negligence suits). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles when it dismisses, or refuses to dismiss, a claim. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Palladian Bldg., 165 S.W.3d at 433. However, if resolution of the issue requires us to construe statutory language, we review under a de novo standard. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); Palladian Bldg., 165 S.W.3d at 436 (citing Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)). 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. See Palladian Bldg., 165 S.W.3d at 436.
B. Applicable Law
At the time GCMC filed its suit against Ashkar, Civil Practice and Remedies Code section 150.002, titled "Certificate of Merit," provided, in relevant part, as follows:
(a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a design professional, the plaintiff shall be required to file with the complaint an affidavit of a third party licensed architect or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for such claim. The third party professional engineer or licensed architect shall be licensed in this state and actively engaged in the practice of architecture or engineering. (5)
(b) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of a third-party architect or professional engineer could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires. (6)
(c) The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such affidavit. (7)
(d) The plaintiff's failure to file the affidavit in accordance with Subsection (a) or (b) shall result in dismissal of the complaint against the defendant. This dismissal may be made with prejudice. (8)
. . . .
C. Analysis
Statutes must be construed as written and the legislative intent determined, when possible, from the express terms. Tex. Gov't Code Ann. § 311.023 (Vernon 2005); Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 873 (Tex. App.--Houston [1st Dist.] 2007, pet. denied). "Where text is clear, text is determinative of that intent." Summers, 282 S.W.3d at 437. Words and phrases must be read in context and construed according to rules of grammar and common usage. Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005). Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly. Id. § 311.011(b). Unless a word is used with reference to a particular trade or subject matter or is a word of art, the word must be given its ordinary meaning. Tex. Gov't Code Ann. § 312.002 (Vernon 2005).
We presume that the entire statute is to be effective and that a just and reasonable result is intended. See Gutierrez, 237 S.W.3d at 873. "In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters" the: (1) objective to be obtained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction; and (7) the caption, preamble, and emergency provisions. Tex. Gov't Code Ann. § 311.023; but see Summers, 282 S.W.3d at 437. All words used and omitted are presumed used and omitted purposefully. See Gutierrez, 237 S.W.3d at 873.
The plain language of Section 150.002(a), stated generally, requires a plaintiff, "in any action for damages arising out of the provision of professional services by a design professional," to file a certificate of merit--the affidavit of a competent, licensed architect or professional engineer--contemporaneously with the filing of its petition. (9)
Subsection (b) provides an exception to the timing requirement in subsection (a). Pursuant to subsection (b), if the statute of limitations will expire 10 or fewer days from the filing of the petition and if, "because of such time constraints, the plaintiff has alleged that an affidavit . . . could not be prepared," the plaintiff "shall have" 30 days after the filing of the complaint to supplement its petition with an affidavit. Further, the trial court may, on a motion and after a hearing, for good cause, extend such time as it deems that justice requires. (10)
A plaintiff's failure to file the affidavit in accordance with Subsection (a) or (b) must result in dismissal of the complaint against the defendant. (11)
Ashkar contends that GCMC failed to comply with subsection (a) or (b) and that, pursuant to subsection (d), the trial court was required, on Ashkar's motion, to dismiss the suit. (12) GCMC contends that it complied with subsection (b) when it filed a certificate of merit with its third amended petition on July 23, 2009.
The record shows that GCMC first sued Ashkar on June 17, 2009. It is undisputed that GCMC did not file a certificate of merit contemporaneously with its petition, as required under subsection (a). In addition, our review of the record shows that GCMC did not at anytime raise the statute of limitations or "allege[] that an affidavit of a third-party architect or professional engineer could not be prepared" because of such time constraints. Hence, GCMC did not invoke the 30-day extension in subsection (b).
Even if we conclude that it invoked the extension, the record shows that GCMC did not file a certificate of merit within 30 days. Rather, GCMC appended a certificate of merit to its third amended petition 36 days later, on July 23, 2009. Nothing in Section 150.002 allows a plaintiff to cure a failure to timely comply. See Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500 (Tex. App.--Corpus Christi 2009, no pet.) (refusing to consider attempts to cure defective certificate of merit).
Further, although subsection (b) provides that "the trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires," the record does not reflect that GCMC moved the trial court to grant such an extension or that a hearing in the matter was conducted. (13)
We conclude that GCMC failed to timely file a certificate of merit, as required by Section 150.002(a) or (b). Section 150.002(d) mandates that, when, as here, a plaintiff has failed to timely comply, the trial court is required, on the motion of the defendant, to dismiss the suit. Here, Ashkar moved to dismiss GCMC's entire suit. However, the trial court denied the motion.
On appeal, Ashkar contends that the trial court erred by failing or refusing to dismiss all of GCMC's claims. GCMC sued Ashkar for negligence, breach of contract, and breach of implied warranty. GCMC contends that, at most, only its negligence claim is subject to dismissal based on Section 150.002. Ashkar responds that GCMC's breach of contract and breach of warranty claims constitute improper re-characterizations of its negligence claim to avoid the statute.
We now determine which claims are affected by GCMC's failure to timely comply with Section 150.002.
Section 150.002(a) states that it applies "in any action for damages arising out of the provision of professional services by a design professional." This language suggests that the intent of Section 150.002 is that it apply broadly and that it is not restricted to any specific cause of action. Other language in subsection (a) provides, however, that, in the affidavit, the expert is required to have "set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for such claim." (Emphasis added.) This language suggests that Section 150.002 is intended only to apply to negligence claims.
This court has not previously addressed the scope of Section 150.002(a). The limited number of cases construing the version of Section 150.002 applicable to this case have held that it only applies to negligence claims. Although we are not bound by the decisions of our sister courts, an examination of the reasoning in those opinions is instructive.
In Gomez v. STFG, Inc., the court concluded that "non-negligence causes of action [do] not require a certificate of merit." No. 04-07-00223-CV, 2007 WL 2846419, at *3 (Tex. App.--San Antonio Oct. 3, 2007, no pet.) (mem. op). There, the plaintiffs sued an architect for, inter alia, negligence and breach of contract. Id. at *1. As here, the architect moved to dismiss the entire suit because the plaintiff failed to file a certificate of merit. See id. The trial court dismissed the negligence claim, but allowed the remainder of the claims to proceed, and the architect appealed. Id.
On appeal, the court noted that Section 150.002 was amended in 2005 to "expand its application" from actions "alleging professional negligence" (14) to "any action or arbitration proceeding arising out of the provision of professional services." (15) Id. at *2. The court reasoned, however, that a certificate of merit was not required solely because a complaint had a causal connection or relation to the rendition of professional services. Id. Rather, the court looked to the definition of the practice of professional engineering in the Texas Occupations Code and considered it against the theories alleged in the petition. Id. at *2-3.
Without discussing the substance of the claim, however, the court decided that a breach of contract theory simply does not implicate a professional engineer's education, training, and experience in applying special knowledge or judgment. Id. at *3. In affirming the trial court's decision, the court concluded that the breach of contract claim, like the other non-negligence claims, did not require a certificate of merit. Id. at *3-4.
In Kniestedt v. Southwest Sound and Electronics, Inc., the court concluded that, "[w]hen the plaintiff does not claim a negligent act, error, or omission exists, and is not required to make such an allegation as an element of its cause of action, a certificate is not required. . . ." 281 S.W.3d 452, 455 (Tex. App.--San Antonio 2007, no pet.) (emphasis added).
In Consolidated Reinforcement, L.P. v. Carothers Executive Homes, Ltd., the court, applying Gomez, concluded that "non-negligence" causes of action do not require a certificate of merit. 271 S.W.3d 887, 892-93 (Tex. App.--Austin 2008, no pet.). There, the plaintiff homebuilder, Carothers, sued an engineering firm, Consolidated, alleging, inter alia, negligence, breach of contract, and breach of warranty "arising out of Consolidated's design and construction of certain duplex[] foundations." Id. at 889-90. Consolidated moved to dismiss the suit, contending that Carothers had failed to timely file a certificate of merit, as required by Section 150.002(a). Id. at 890. Carothers responded by filing an amended petition, in which it dropped its negligence claim and proceeded on its other claims. Id. Carothers continued to assert through its non-negligence claims, however, that it had engaged Consolidated to design and construct, and to supervise the construction of, the duplex foundations and that those foundations "experienced numerous problems, including significant cracking." Id. The trial court denied the motion to dismiss. Id.
On appeal, Consolidated contended that the trial court erred in that Carothers was required to file a certificate of merit, based on "the undisputed fact that it provided engineering and design services related to the duplexes and that the remaining [claims] implicate[d] those engineering and design services." Id. at 890-91. Consolidated directed the court to the 2005 amendment to Section 150.002(a), discussed in Gomez, and argued that it showed the legislature's intent to broaden the scope of the statute's application beyond negligence claims to those claims generally arising from services such as those provided by Consolidated. Id. at 892. The court disagreed on the basis that Consolidated's construction was inconsistent with other language in Section 150.002(a) stating that the "affidavit shall set forth specifically at least one negligent act, error, or omission." Id. The court, applying Gomez and without apparently looking into the substance of the claims, concluded that the "non-negligence" causes of action did not require a certificate of merit. Id. at 893-94.
Notably, however, the court looked to the petition and considered the substance of Carothers's claim of negligent misrepresentation. Id. at 894-95. Carothers alleged that Consolidated's employees had failed to exercise reasonable care or competence concerning the information they gave to Carothers concerning the design and construction of the duplex foundations. Id. at 894 n.7. The court concluded that it was "not clear, however, that [Carothers's] negligent misrepresentation claim [arose] out of the provision of professional services." Id. at 895.
In Landreth v. Las Brisas Council of Co-Owners, Inc., the court, also following Gomez, stated that "the plain wording of" Section 150.002(a) indicates that it applies to any claim for professional services, but that the plaintiff must also "claim[] a negligent act, error, or omission." 285 S.W.3d 492, 500 (Tex. App.--Corpus Christi 2009, no pet.). The court reasoned that, because it exempts suits involving fees, the statute is not intended to apply to all suits. Id. The court seemed to construe Gomez as having concluded that a claim labeled "breach of contract," on its face and without more, globally, "should not be included." Id. The court refused to consider whether the breach of contract claim before it came within the purview of the statute and overruled the issue on the basis that the trial court had not determined whether the plaintiff's breach of contract claim constituted a "claim for professional services." Id.
In the most recent case on the subject, Parker County Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., the Fort Worth court of appeals took a different approach. No. 2-08-380-CV, 2009 WL 3938051, at *1 (Tex. App.--Fort Worth Nov. 19, 2009, no pet.). There, the owner contracted with an architect to design a new building and an engineer's services were incorporated into the owner's contract with the architect. Id. The engineer's plan called for waste disposal at the clinic to be via a septic system, and the contract specifically provided that the architect's design services would include research and application of local and state codes and city ordinances. Id. The owner secured financing based on the engineer's plans. Id. Subsequently, however, the owner learned that a permit could not be issued for a septic system at the location because it would violate certain state regulations. Id. The property owner was forced to secure an additional $250,000 in financing to extend the city's wastewater line and complete the project. Id.
The owner sued the architect for breach of contract. Id. There, as here, the architect sought to dismiss the suit on the basis that the owner failed to file a certificate of merit. See id. The trial court granted dismissal, and the owner appealed. Id.
On appeal, the court examined the history of Section 150.002 and explained as follows:
Even though the bill analysis on the amendment provides that the statute was amended to clarify, among other things, that the section applies when "the suit is for damages arising out of the providing of any professional services, except a suit or cause of action for the payment of fees for professional services, rather than only suits alleging professional negligence, the statute after amendment, by its plain language, nevertheless continues to require the expert affiant to set forth "at least one negligent act, error, or omission claimed to exist and the factual basis for each claim." To require such an affidavit outside the context of a negligence cause of action would require an affidavit that had no relevance to the suit and would render the statute meaningless.
Id. at *3 (citing Senate Comm. on Bus. & Commerce, Bill Analysis, Tex. H. B.1573, 79th Leg., R.S. (2005), available at http://www.legis.state.tx.us/tlodocs/79R/analysis
/html/HB01573S.htm.). The court held that Section 150.002 "does not apply in a suit other than one for negligence arising out of the provision of professional services." Id.
There, as here, however, the parties disagreed over the characterization of the owner's cause of action as one for breach of contract. Id. In its analysis, the court recognized, "Because we are not bound by the labels used by the parties, we look to [the owner's] pleadings and determine for ourselves what claim" the owner asserted. Id. (citing Murphy v. Gruber, 241 S.W.3d 689, 697 (Tex. App.--Dallas 2007, pet. denied), and Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App.--Fort Worth 2002, pet. denied) (disregarding theory pled by plaintiff and looking at crux of complaint to determine whether plaintiff asserted claim for professional malpractice)).
To distinguish between tort and contract claims, the court considered the source of the duty owed and the nature of the remedy sought. Id. (citing Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 45 (Tex. 1998), and Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex. 1991)). When the plaintiff's cause of action arises only from a violation of a duty imposed by law, the cause of action sounds in tort. Id. When the plaintiff's cause of action arises from a duty imposed by a contract, the cause of action is for breach of contract. Id. The court pointed out, however, that a contractual relationship between the parties may create duties under both contract and tort law, and "[t]he acts of a party may breach duties in tort or contract alone or simultaneously in both." Id. (quoting DeLanney, 809 S.W.2d at 495).
Further, the nature of the remedy is instructive on the issue. Id. at *4. "When the only loss or damage is to the subject matter of the contract, the plaintiff's action is ordinarily on the contract." Id. (quoting DeLanney, 809 S.W.2d at 494-95, and citing Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986) ("When the injury is only the economic loss to the subject of a contract, itself the action sounds in contract alone.")).
In Parker County, the court examined the practice of architecture as defined by the Occupations Code and noted that it includes identifying the legal constraints of a project. Id. The court then examined the substance of the owner's complaint, which was that the architect had failed to research and incorporate applicable laws, and concluded that the "complaint implicate[d] the quality of the professional services provided by" the architect. Id.; compare Gomez, 2007 WL 2846419, at *3 (stating that breach of contract claim "does not implicate" design professional's education, training, and experience in applying special knowledge or judgment).
Next, the court examined the contract before it and determined that it "also gave rise to a duty on" the architect to research and incorporate applicable laws. Id. The substance of the owner's breach of contract claim was that the architect had breached its duty under a specific provision of the contract. Id. The court noted that the damages sought were for economic loss directly related to the subject matter of the contract--having to secure additional financing to remedy the architect's error and complete the project. Id. The court concluded that the owner's claim was one for breach of contract, which did not require a certificate of merit. Id. at *4-5.
Here, like Parker County, we are not bound by the breach of contract and breach of warranty labels used by GCMC. See id. at *3; see also Duerr v. Brown, 262 S.W.3d 63, 70 (Tex. App.--Houston [14th Dist.] 2008, no pet.) (stating that whether allegations labeled as other causes of action "are actually claims for professional negligence or something else is a question of law to be determined by the court"); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.--Houston [1st Dist.] 1998, pet. denied) (determining nature of claims alleged based on substance). Rather, we look to the pleadings to determine the nature of the claims asserted.
In its petition, as amended, GCMC sued Ashkar for negligence, breach of contract, and breach of implied warranty. Specifically, with regard to its negligence claim, GCMC alleged that Ashkar owed a duty "to design, supervise, and test the construction of the . . . expansion joint as a reasonable professional engineer engaged in the construction business." GCMC alleged,
Ashkar breached that duty by unreasonably providing a design of the expansion joint not capable of function for its intended purpose; unreasonably performing lax oversight of Miner-Dederick's construction; unreasonably conducting less than thorough testing of the expansion joint, which would have revealed improper installation of the expansion joint; and unreasonably failing to repair damage proximately caused by Ashkar's defective engineering, construction supervision and testing . . . ."
Regarding its breach of contract claim, GCMC alleged that
Ashkar breached the contract by failing to deliver the project in accordance with the terms and conditions its contract with GCMC--specifically that the expansion joint would not allow the release of potentially hazardous substances into the environment. Additionally, Ashkar breached the agreement by failing to adequately monitor the work of Miner-Dederick's installation of the expansion joint. Finally, Ashkar breached the agreement by failing to ensure that Miner-Dederick fulfilled its obligations under the warranty. . . . Failure of Ashkar to properly supervise Miner-Dederick or properly test the expansion joint . . . resulted in the release of potentially hazardous substances from the expansion joint."
Regarding its breach of implied warranty claim, GCMC alleged that
At all times material to this action, Ashkar held itself out as having knowledge and skill design [sic] and manufacture of industrial and chemical storage buildings, including the design, engineering, installation, and supervision of the construction of the expansion joint. . . . Ashkar knew or should have known that GCMC relied on Ashkar's skill and judgment to design, engineer, and oversee construction of the expansion joint. . . . Ashkar impliedly warranted the expansion joint and related products and all services supplied by Ashkar would be fit for the intended purpose. . . . The expansion joint was defective and unfit to comply with the implied warranty of fitness . . . . As a direct and proximate result, the expansion joint failed to function . . . .(Emphasis added.)
The emphasized language indicates that GCMC's breach of contract and breach of implied warranty claims mirror its negligence claim. Through each of its claims, GCMC contends that Ashkar failed to adequately design, engineer, test, and oversee the construction of the expansion joint.
Section 1001.003 of the Texas Occupations Code, titled "Practice of Engineering," provides as follows, in pertinent part:
(b) In this chapter, "practice of engineering" means the performance of or an offer or 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.
(c) The practice of engineering includes:
(1) consultation, investigation, evaluation, analysis, planning, engineering for program management, . . . engineering for testing or evaluating materials for construction or other engineering use . . . ;
(2) design . . . ;
. . . .
(7) engineering for construction, alteration, or repair of real property;
. . . .
(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;
. . . .
(12) any other professional service necessary for the planning, progress, or completion of an engineering service.
Tex. Occ. Code Ann. § 1001.003 (Vernon Supp. 2009). Hence, at the heart of the services that an engineer provides is consultation, investigation, evaluation, analysis, design, planning, testing, and any other professional service necessary for the planning, progress, or completion of an engineering service, the adequate performance of which requires engineering education, training, and experience in applying special knowledge or judgment. See id.; see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 849-51 (Tex. 2005) (considering essence of services at issue).
Here, like Parker County, because the practice of engineering is defined as including design, testing and evaluating materials for construction or other engineering use, and any other professional service necessary for the planning, progress, or completion of an engineering service, which GCMC contends that Ashkar failed to adequately do, GCMC's claims implicate the quality of the professional services provided by Ashkar. See Parker County, 2009 WL 3938051, at *4; see also Kimleco Petroleum, 91 S.W.3d at 924 ("Regardless of the theory a plaintiff pleads, as long as the crux of the complaint is that the plaintiff's attorney did not provide adequate legal representation, the claim is one for legal malpractice.").
Unlike Parker County, the parties before us do not have a written contract. GCMC does not direct us to any specific provision of a contract giving rise to any specific duties by Ashkar to adequately design, engineer, test, or oversee the construction of the expansion joint. Further, GCMC generally seeks damages for repairs and remediation, and not economic loss related directly to the subject of the contract, as in Parker County. This suggests that GCMC's claims do not sound in contract. The essence of GCMC's claims are that it was injured by Ashkar's lapses in professional judgment. A breach of that duty gives rise to a tort action.
We conclude that the substance of GCMC's claims constitute negligence claims because the acts or omissions complained of amount to a claimed departure from accepted standards of the practice of engineering. As such, all of GCMC's claims, without regard to their titles, are subject to the requirements of Chapter 150.
Because, as we concluded above, GCMC failed to timely comply with Section 150.002, the trial court was required, on Ashkar's motion, to dismiss the suit. We hold that the trial court erred by denying Ashkar's motion to dismiss GCMC's claims.
Conclusion
We reverse the order of the trial court and remand for entry of judgment dismissing GCMC's claims.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.
In any action for damages alleging professional negligence by a design professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party registered architect or licensed professional engineer competent to testify and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. . . .
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847,
896-97.
15.