Karen Lantz, Andrew Farkas and Lantz Full Circle Build, LLC v. Higgins, Inc.

Opinion issued March 31, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00208-CV
———————————
KAREN LANTZ, ANDREW FARKAS, AND
LANTZ FULL CIRCLE BUILD, LLC, Appellants
V.
HIGGINS, INC., Appellee

On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2013-49445

MEMORANDUM OPINION

Appellants Karen Lantz, Andrew Farkas, and Lantz Full Circle Build, LLC

sued appellee Higgins, Inc. for violation of the Deceptive Trade Practices Act,

breach of contract, and fraud based on the design of a house. The trial court
dismissed the appellants’ claims for failure to file a certificate of merit as required

by Chapter 150 of the Texas Civil Practice and Remedies Code. In two issues, the

appellants argue that the trial court erred. Specifically, although they concede that

Higgins is an architectural firm, they contend that no certificate of merit was

required because their claims arise from the provision of engineering (rather than

architectural) services.

We affirm the judgment of the trial court.

Background

Lantz Full Circle Build hired Higgins to perform design work for the

construction of a house to be owned by Lantz and Farkas. Higgins—an

architectural firm—performed calculations, designed the house, specified

materials, and prepared drawings of the designs. Prior to construction, Higgins sent

the drawings to DaRam Engineers, a professional engineering firm hired to review

and approve the drawings.

During construction, Lantz Full Circle Build noticed problems with the

specifications and design. For example, the steel beams did not fit together

properly, the main house support beams sagged, and specifications for metal

decking, concrete, and steel were incorrect. According to the appellants, these

alleged errors required corrective action which increased the construction cost by

more than $100,000.

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 The appellants sued DaRam Engineers and Higgins alleging DTPA

violations, breach of contract, and fraud in connection with the design of the house.

The trial court dismissed the claims against DaRam Engineers and Higgins because

the appellants failed to file a certificate of merit as required by Chapter 150 of the

Texas Civil Practice and Remedies Code. On appeal, the appellants challenge the

dismissal of their claims against Higgins.

Analysis

In two issues, the appellants argue that the trial court erred by concluding

that a certificate of merit was required and by granting the motion to dismiss. They

contend that Chapter 150 does not apply in this case because although Higgins is a

registered architectural firm, it was hired to do something else: structural

engineering work. They argue that because Higgins is not an engineering firm and

the appellants allege a failure to perform engineering services, no certificate of

merit was required.

We review a trial court’s order granting or denying a Chapter 150 motion to

dismiss for abuse of discretion. See CBM Eng’rs, Inc. v. Tellepsen Builders, L.P.,

403 S.W.3d 339, 342 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). A trial

court abuses its discretion when it acts arbitrarily or unreasonably, without

reference to any guiding rules and principles. Id. at 342–43; see Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). To the extent

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we are required to interpret a statute, that aspect of our review is performed de

novo. CBM Eng’rs, 403 S.W.3d at 343.

A plaintiff suing for damages “arising out of the provision of professional

services by a licensed or registered professional” must file a “certificate of merit”

with the complaint. TEX. CIV. PRAC. & REM. CODE § 150.002(a). In this context, a

“licensed or registered professional” includes “a licensed architect . . . or any firm

in which such licensed or registered professional practices.” Id. § 150.001(1-a). If a

plaintiff’s claim for damages implicates the special knowledge and training of a

licensed or registered professional as defined by Chapter 150, it is a claim for

damages arising out of the provision of professional services. See CBM Eng’rs,

403 S.W.3d at 343; Carter & Burgess v. Sardari, 355 S.W.3d 804, 809–12 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). In determining whether the causes of

action against an architectural firm are “for damages arising out of the provision of

professional services,” we compare the allegations to the definition of the practice

of architecture in Section 1051.001 of the Texas Occupations Code. See id.

§ 150.001(2); CBM Eng’rs, 403 S.W.3d at 343. The practice of architecture is

defined as:

a service or creative work applying the art and science of developing
design concepts, planning for functional relationships and intended
uses, and establishing the form, appearance, aesthetics, and
construction details for the construction, enlargement, or alteration of
a building or environs intended for human use or occupancy, the

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 proper application of which requires education, training, and
experience in those matters.

TEX. OCC. CODE § 1051.001(7). Among other things, the practice of architecture

includes “establishing and documenting the form . . . [and] materials . . . for a

building . . . intended to be constructed,” “preparing, or supervising and controlling

the preparation of, the architectural plans and specifications that include all . . .

construction details,” and “analyzing the . . . design . . . [and] materials . . . used for

the construction . . . of a building.” Id. § 1051.001(7)(A), (B), (F).

The appellants do not dispute that Higgins is a “licensed or registered

professional” because it is a firm in which a licensed architect practices. See TEX.

CIV. PRAC. & REM. CODE § 150.001(1-a) (defining “licensed or registered

professional” to include “a licensed architect . . . or any firm in which such

licensed or registered professional practices”). But they contend that Higgins

agreed to perform structural engineering services, not architectural services. As

such, they argue that their claims against Higgins do not arise from the provision of

architectural services; rather, they argue that their suit results from work that

Higgins did as a structural engineering firm.

We rejected a similar argument in V.R. & Sons, L.P. v. Cive Consulting, Inc.,

No. 01-11-00967-CV, 2012 WL 3133605 (Tex. App.—Houston [1st Dist.] Aug. 2,

2012, no pet.) (mem. op.). In that case, the trial court dismissed the plaintiffs’ suit

for failure to file a certificate of merit. V.R. & Sons, 2012 WL 3133605, at *1. On

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appeal, the plaintiffs argued that although Cive Consulting met the statutory

definition of a licensed professional engineer, no certificate of merit was required

because their claims arose from hiring Cive Consulting to act as an architect. Id. at

*3. Rather than simply relying on the labels used in the contract, we analyzed the

nature of the services at issue by comparing the allegations in the lawsuit to the

statutory definition of the practice of engineering. Id. The plaintiffs alleged that

Cive Consulting improperly performed services that we concluded were

encompassed within the definition of the practice of engineering. Id. at *4. We

held that the services provided implicated the special knowledge and training of a

licensed professional and a certificate of merit was required. Id. Because the

plaintiffs had not filed a certificate of merit, we affirmed the trial court’s dismissal.

Id.

Applying the same analysis, we examine the appellants’ specific allegations

and compare them with the statutory definition of the practice of architecture to

determine if the claims implicate the provision of professional services. The

petition alleged that Higgins entered into a contract with Lantz Full Circle Build

“to perform structural engineering work for the construction of a house.” More

specifically, the petition alleged that Higgins designed and produced drawings for

the construction of a house. It further alleged that the calculations and design for

the building were faulty in several respects: (1) the support beams sagged; (2) the

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design called for the wrong metal decking for the floors, the wrong slump value for

the concrete, and the wrong amount of steel for the back patio; and (3) the beam

pockets throughout the house and the beams for the front upstairs patio were

incorrectly sized. The preparation of architectural plans and specifications that

include construction details is part of the statutory definition of the practice of

architecture. See TEX. OCC. CODE § 1051.001(7)(B). Performing calculations and

specifying materials also fall within the practice of architecture because these tasks

involve the form and construction details for the house. See id. § 1051.001(7).

These are tasks that necessarily involve the use of “education, training, and

experience” in the practice of architecture. See id. As such, the claims at issue in

this case—that Higgins made several errors in the design of the house—implicate

the special knowledge and training of a licensed professional architect, and we

conclude that the claims are for damages arising out of the provision of

professional services. See CBM Eng’rs, 403 S.W.3d at 343; Carter & Burgess, 355

S.W.3d at 809–12.

Because the claims were for damages arising out of the provision of

professional services, the appellants were required to file a certificate of merit with

the complaint. See TEX. CIV. PRAC. & REM. CODE § 150.002(a). The appellants did

not do so, and we hold that the trial court properly dismissed the claims against

Higgins. Accordingly, we overrule both of the appellants’ issues.

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 Conclusion

We affirm the judgment of the trial court.

Michael Massengale
Justice

Panel consists of Justices Keyes, Bland, and Massengale.

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