CH2M Hill Trigon, Inc. v. J7 Contractors, Inc.

WITHDRAWN 9/15/10
REISSUED 9/15/10
IN THE
TENTH COURT OF APPEALS

No. 10-10-00058-CV

CH2M HILL TRIGON, INC.,
Appellant
v.

J7 CONTRACTORS, INC.,
Appellee

From the 77th District Court
Freestone County, Texas
Trial Court No. 09-172-A

MEMORANDUM OPINION

J7 Contractors, Inc, a Texas corporation with its principle place of business in

Fairfield, Texas, filed suit against CH2M HILL Trigon, Inc., for fraud and tortious

interference. Trigon, a Delaware corporation with its principle place of business in

Colorado, filed a special appearance. After the initial hearing was continued and J7 was

allowed to amend its petition, the trial court conducted another hearing and denied

Trigon’s special appearance. Trigon appealed that decision. Trigon then filed a motion

to dismiss J7’s claims with prejudice pursuant to section 150.002 of the Texas Civil
Practice and Remedies Code. The trial court denied the motion to dismiss. Trigon also

appealed that decision.

Because Trigon’s contacts with Texas were sufficient to support general

jurisdiction, the trial court’s order denying Trigon’s special appearance is affirmed.

Because J7’s claims against Trigon were claims of professional negligence, the trial court

erred in denying Trigon’s motion to dismiss when J7 did not contemporaneously file a

certificate of merit with its petition. The trial court’s order denying Trigon’s motion to

dismiss is reversed and remanded for further proceedings.

SPECIAL APPEARANCE

Under the Texas long-arm statute, the plaintiff has the initial burden to plead

sufficient allegations to confer jurisdiction. Retamco Operating, Inc. v. Republic Drilling

Co., 278 S.W.3d 333, 337 (Tex. 2009); American Type Culture Collection, Inc. v. Coleman, 83

S.W.3d 801, 807 (Tex. 2002). The defendant seeking to avoid being sued in Texas then

has the burden to negate all potential bases for jurisdiction pled by the plaintiff. Id.

When, as here, the trial court does not make findings of fact and conclusions of law in

support of its ruling, "all facts necessary to support the judgment and supported by the

evidence are implied." Retamco, 278 S.W.3d at 337 (quoting BMC Software Belgium, N.V.

v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002) (citations omitted)).

Personal jurisdiction is a question of law which we review de novo. BMC

Software, 83 S.W.3d at 794. "Texas courts may assert in personam jurisdiction over a

nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and

(2) the exercise of jurisdiction is consistent with federal and state constitutional due-

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 2
process guarantees." Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.

2007).

In its first amended petition, J7 generally pled that although Trigon is a Delaware

corporation with its principal place of business in Englewood, Colorado, it has a

registered agent for service of process in Texas, is registered to do business in Texas, has

signed contracts with Texas businesses with Texas forum selection clauses, has

advertised on its website that it has conducted work in Texas and for Texas business,

traveled to Texas to develop work from Texas businesses, and “has otherwise had

continuous and systematic contact with Texas, both in its current and former corporate

incarnations.”

In its response to Trigon’s special appearance, J7 also alleged that Trigon

recruited J7 for the project that is the subject of the proceeding below, the Colorado

project. J7 claimed that Trigon then negligently prepared a bid package and sent it to

Texas and made misrepresentations in the context of negotiations and discussions with

J7 and other suppliers in Texas that were picked to work on the project.

Trigon argues that, in its original petition, J7 failed to allege any basis for specific

or general jurisdiction over Trigon. Trigon makes much on appeal about the fact that J7

was allowed to amend their petition after a continuation of the special appearance

hearing. However, because Trigon assigns no error to this decision by the trial court,

we will not determine the propriety of that decision. Trigon also argues that the trial

court did not have specific jurisdiction because none of J7’s claims pled arose from or

were related to any contact Trigon had with Texas. Trigon contends that J7’s claims

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 3
arose solely from alleged acts that occurred in Colorado. Trigon further argues that the

trial court could not exercise its general jurisdiction because J7 did not prove a pattern

of continuing and systematic activity. Trigon contends that it maintains no office in

Texas, owns no real estate in Texas, and does not conduct regular business in Texas.

STEP ONE—THE LONG ARM STATUTE

The Texas long-arm statute provides:

In addition to other acts that may constitute doing business, a nonresident
does business in this state if the nonresident:

(1) contracts by mail or otherwise with a Texas resident and either party is
to perform the contract in whole or in part in this state;

(2) commits a tort in whole or in part in this state; or

(3) recruits Texas residents, directly or through an intermediary located in
this state, for employment inside or outside this state.

TEX. CIV. PRAC. & REM. CODE ANN. § 17.042 (Vernon 2008). The statute's broad doing-

business language "allows the statute to reach as far as the federal constitutional

requirements of due process will allow." Retamco, 278 S.W.3d at 337 (quoting Moki Mac,

221 S.W.3d at 575 (citations omitted)); accord Michiana Easy Livin' Country, Inc. v. Holten,

168 S.W.3d 777, 788 (Tex. 2005). Therefore, we only analyze whether Trigon's acts

would bring it within Texas' jurisdiction consistent with constitutional due process

requirements. See Moki Mac, 221 S.W.3d at 575 (citations omitted).

STEP TWO—CONSTITUTIONAL DUE PROCESS GUARANTEES

Under a constitutional due-process analysis, personal jurisdiction is achieved

when (1) the non-resident defendant has established minimum contacts with the forum

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 4
state, and (2) the assertion of jurisdiction complies with "traditional notions of fair play

and substantial justice." Moki Mac, 221 S.W.3d at 575 (quoting Int'l Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). We focus on the

defendant's activities and expectations when deciding whether it is proper to call the

defendant before a Texas court. Int'l Shoe Co., 326 U.S. at 316.

A. Minimum Contacts

A defendant establishes minimum contacts with a state when it "purposefully

avails itself of the privilege of conducting activities within the forum state, thus

invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253,

78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958) (citing Int'l Shoe Co., 326 U.S. at 319). "The

defendant's activities, whether they consist of direct acts within Texas or conduct

outside Texas, must justify a conclusion that the defendant could reasonably anticipate

being called into a Texas court." Am. Type Culture Collection, 83 S.W.3d at 806 (citing

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d

490 (1980)). A nonresident's contacts can give rise to either specific or general

jurisdiction. Am. Type Culture Collection, 83 S.W.3d at 806. General jurisdiction arises

when the defendant's contacts with the forum are continuous and systematic. Id. at 807.

Specific jurisdiction arises when (1) the defendant purposefully avails itself of

conducting activities in the forum state, and (2) the cause of action arises from or is

related to those contacts or activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472,

105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985); National Indus. Sand Ass'n v. Gibson, 897 S.W.2d

769, 774 (Tex. 1995). J7 alleged both general and specific jurisdiction.

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 5
 1. General Jurisdiction

A general jurisdiction inquiry is very different from a specific jurisdiction inquiry

and involves a "more demanding minimum contacts analysis" with a "substantially

higher" threshold. PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 168 (Tex.

2007) (citations omitted). General jurisdiction is described as “dispute-blind;” it

involves a court's ability to exercise jurisdiction over a nonresident defendant based on

any claim, including claims unrelated to the defendant's contacts with the state. Id.

Further, general jurisdiction is based solely on the defendant's "continuous and

systematic" contacts with the forum. Id. at 169. (citing Helicopteros Nacionales de Colombia,

S.A. v. Hall, 466 U.S. 408, 416, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)).

2. Trigon’s Contacts

At the second hearing on Trigon’s special appearance, J7 relied on many

documents attached to its response to Trigon’s special appearance and documents

attached to its motion to compel discovery. No objection was made to J7’s ability to rely

on any of these documents for the purpose of contesting the special appearance.

Those documents show that Trigon is registered to do business in Texas and has

a registered agent in Dallas. In 2008, Trigon entered into at least three contracts with

companies that were either incorporated in or headquartered in Texas. Two of Trigon’s

employees held professional surveyor licenses in Texas.

In response to interrogatories by J7, Trigon listed written communications and

advertising from Trigon to businesses headquartered or incorporated in Texas. At least

twelve businesses in Texas were contacted by Trigon during 2008 and 2009. Trigon sent

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 6
a proposal to Blue Source, LLC and for which a power point presentation was created

the month before. Nine emails were sent to Blue Source personnel to discuss the

possibility of working on a project in Kansas. Trigon sent four emails to Conoco

Phillips for business development. Also, Trigon sent two emails to Cross Tex Energy

for business development. Trigon sent five emails to Kinder Morgan for business

development. It also sent a power point presentation to Kinder Morgan and had a

booth at a Kinder Morgan supplier showcase. A power point presentation was sent to

Spectra Energy. Four emails were sent to Shell Oil for business development. Two

more emails were sent to Kinder Morgan, and Trigon gave a presentation to Kinder

Morgan about a proposal for an eastern shelf CO2 pipeline study. Ten emails were sent

to DCP Midstream, LLC for business development. Trigon also gave a presentation to

Midstream and negotiated a master services agreement with Midstream. Fifteen emails

were sent to Encore Acquisition Co. for business development. Thirty-one emails were

sent to Energy Transfer Transwestern PL for business development and a master

service agreement was negotiated between Trigon and Energy Transfer. Trigon gave a

presentation to ExxonMobil Development Corp. and issued a proposal for a CO 2

pipeline study. Trigon also participated in the El Paso EHS Summit for two days in

February of 2009.

Again in response to interrogatories, Trigon stated that .67% of its total gross

income in 2007 was earned from contractual services performed in Texas. Almost 70%

of its total gross income in 2007 was earned from contractual services for entities

incorporated or headquartered in Texas. In 2008, .55% of Trigon’s total gross income

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 7
was earned from contractual services performed in Texas while 39.2% of its total gross

income from the same year was earned from contractual services for entities

incorporated or headquartered in Texas. In 2009, .58% of Trigon’s total gross income

was earned from contractual services performed in Texas while 49.6% of its total gross

income from the same year was earned from contractual services for entities

incorporated or headquartered in Texas.

The only contract with a Texas company that Trigon produced through

discovery was the contract with Kinder Morgan, a company based in Houston. The

contract was a 5-year, $10,000,000 contract for services by Trigon to Kinder Morgan for

whatever services Kinder Morgan wanted Trigon to perform. The contract is set to

expire in 2011. But Trigon has also done business with two more companies in Texas

besides Kinder Morgan and J7; it requested bids from and were supplied parts by SPX

Flow Control and Kidd Pipeline. Both SPX and Kidd Pipeline are Houston companies.

J7 also produced, and included as an attachment to its response to Trigon’s

special appearance, a timeline of Trigon’s contacts in Texas. This summary is based on

documents provided to J7 by Trigon. Trigon did not object to the trial court’s

consideration of this timeline. In this timeline, J7 detailed when Stu Asselin, Trigon’s

president, was in Texas. In 2008, Asselin was in Texas for business for a total of 19 days

over three non-consecutive months. In 2009, Asselin was in Texas for business for a

total of 31 days over five non-consecutive months. Other Trigon personnel had also

been in Texas for business. From January 26, 2008 through February 8, 2008, Cody

Huffy was in Texas. From May 3, 2008 to May 6, 2008, Mark Hall and Jeff Virdi were in

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 8
Texas. Hall was in Stonewall County and Verdi was in the cities of Midland, Odessa,

and Snyder. From June to October of 2008 Jeremy and Johnny Prine were in the cities of

Sweetwater, Odessa, and Midland. In June of 2008, Doug Chinn spent time in the cities

of Midland, Snyder, and Austin. Chinn was in Sweetwater in August of 2008. Justin

Sykes was in Texas from September 21 through October 16, 2008. In 2009, John Blakney

attended meetings in Houston for four days in February. John Wanzeck was at a

pipeline conference in Fort Worth for three days in April. Mark Miller spent two days

in Houston for marketing in May, 2009, and Stu Asselin set up a “lunch and learn” for

30 people in Houston during the same timeframe.

In light of these contacts, we conclude that Trigon’s contacts with Texas were

“continuous and systematic” and were more than sufficient to support general

jurisdiction. Accordingly, we need not determine whether Trigon’s contacts with Texas

supported specific jurisdiction.

B. Traditional Notions of Fair Play and Substantial Justice

Having determined that Trigon has minimum contacts with Texas sufficient to

support general jurisdiction, we must determine whether an assertion of jurisdiction

over Trigon comports with "traditional notions of fair play and substantial justice."

Guardian Royal, 815 S.W.2d at 228. "Only in rare cases, however, will the exercise of

jurisdiction not comport with fair play and substantial justice when the nonresident

defendant has purposefully established minimum contacts with the forum state." Id. at

231 (citing Burger King, 471 U.S. at 477). Nonetheless, we still consider: (1) the burden

on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 9
plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial

system's interest in obtaining the most efficient resolution of controversies; and (5) the

shared interest of the several states in furthering fundamental substantive social

policies. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 341 (Tex. 2009);

Guardian Royal, 815 S.W.2d at 228, 231.

Trigon contends that it will be unduly burdened to try the case in Texas because

all of it employees who may have knowledge of the relevant facts reside in Colorado.

However, Trigon had no previous problem sending employees to Texas to participate

in training or to gather information. We do not perceive an undue burden, then, in

trying a lawsuit in Texas. Trigon also claims that Texas has no interest in adjudicating

the dispute between Trigon and J7. However, Texas has an interest in adjudicating

disputes involving Texas residents and Texas is a convenient forum to adjudicate this

dispute. See Lewis v. Indian Springs Land Corp., 175 S.W.3d 906, 919 (Tex. App.—Dallas

2005, no pet.). Further, Trigon contends that the most efficient and complete resolution

of the dispute could only happen in Colorado. Notwithstanding that the work was to

be performed in Colorado, the shared interest of other states in furthering fundamental

substantive social policies can be implemented by Texas courts as effectively as the

courts in Colorado. See id.

Weighing the various factors, we find that the exercise of general jurisdiction

over Trigon by a Texas court does not offend traditional notions of fair play and

substantial justice.

Trigon’s first issue is overruled.

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 10
 SECTION 150.002

In its second issue, Trigon argues that the trial court erred in denying its motion

to dismiss J7’s suit due to J7’s failure to file a certificate of merit required by section

150.002 of the Texas Civil Practice and Remedies Code. At the time J7 filed its suit

against Trigon, section 150.002 required a plaintiff, in a suit for damages arising out of

professional services by a licensed or registered professional, to file with the complaint

a "certificate of merit"—the affidavit of a third-party licensed professional engineer. See

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

2009) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a) (Vernon Supp.

2009)). The current version of Section 150.002 applies to a suit filed or commenced on or

after September 1, 2009, the effective date of the amendments. Here, J7 originally filed

its suit against Trigon on May 26, 2009. Accordingly, we apply the former version of

section 150.002 in this case. See Ustanik v. Nortex Found. Designs, Inc., 2010 Tex. App.

LEXIS 4539, *1-2, ___ S.W.3d ___ (Tex. App.—Waco June 16, 2010, pet. filed).

The parties do not dispute that J7 failed to file the certificate of merit with its suit.

The required result of that failure is a “dismissal of the complaint,” with or without

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

370 (amended 2009) (current version at § 150.002(e)). The trial court denied Trigon’s

motion to dismiss J7’s suit.

Standard of Review

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. Ustanik v. Nortex Found. Designs,

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 11
Inc., 2010 Tex. App. LEXIS 4539, *2, ___ S.W.3d ___ (Tex. App.—Waco June 16, 2010, pet.

filed); 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 similar statute in context of healthcare liability suits). 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.

Non-negligence Claims

In response to Trigon’s motion to dismiss and on appeal, J7 argues that the trial

court did not err in failing to dismiss its claims because the claims remaining after J7

amended its petition for the second time are non-negligence claims and are not subject

to the requirement for a certificate of merit. J7 alleged in its second amended petition

claims for tortious interference and fraud.

Some courts have held that, under the 2005 version of section 150.002, the filing

of a certificate of merit is not required for non-negligent claims. See Landreth v. Las

Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500 (Tex. App—Corpus Christi 2009,

no pet.); Consol. Reinforcement v. Carothers Exec. Homes, Ltd., 271 S.W.3d 887, 894 (Tex.

App.—Austin 2008, no pet.); Kniestedt v. Sw. Sound & Elecs., 281 S.W.3d 452, 455 (Tex.

App.—San Antonio 2007, no pet.). In 2009, the statute was amended to specifically

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 12
address this determination which had been initiated by the San Antonio Court in 2007.

See 2009 Legis. Bill Hist. TX S.B. 1201 (“This issue arose out of a couple of 2007 court

cases from the San Antonio 4th Court of Appeals, which said that although the statute

was broadened in 2005 from ‘negligence’ actions to ‘any action arising out of the

provision of professional services,’ the affidavit requirement still spoke only to

negligence. Therefore, the court did not agree that it applied to actions other than

negligence, despite clear language in the statute and the fact that it was specifically

amended to broaden it in 2005 (HB 1573)”).

As we discussed in Ustanik, under a proper analysis of the 2005 act, it may be

that if there is not a certificate of merit filed with the petition, the trial court is required

to dismiss not only any negligence claim but also “any action arising out of the

provision of professional services.” See Ustanik v. Nortex Found. Designs, Inc., 2010 Tex.

App. LEXIS 4539, *11, ___ S.W. 3d ___, (Tex. App.—Waco June 16, 2010, pet. filed). At

this time, we find it unnecessary in this proceeding to resolve that question.

In Ustanik, we determined that, like the First Court in Ashkar, we look to the

plaintiff’s pleadings to determine whether the additional claims asserted were non-

negligence claims and are not bound by the labels of the claims used by the plaintiff.

See id. at *12; Ashkar Eng'g Corp. v. Gulf Chem. & Metallurgical Corp., No. 01-09-00855-CV,

2010 Tex. App. LEXIS 769, *22 (Tex. App.—Houston [1st Dist] Feb. 4, 2010) (mem.)

(appeal dism'd, 2010 Tex. App. LEXIS 2807, April 15, 2010). Contra Consol. Reinforcement,

271 S.W.3d at 894; Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 Tex. App. LEXIS 7860,

*6-7 (Tex. App.—San Antonio Oct. 3, 2007, no pet.) (both cases holding that claims

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 13
merely labeled as non-negligence claims were not subject to the requirement of a

certificate of merit). Accordingly, we look to J7’s pleadings to determine if its claims

are, in fact, non-negligence claims.

Factual Allegations

According to the second amended petition, OneOK, a subsidiary of a company

involved in the natural gas business, hired Trigon to provide engineering services for

and supervise production of a natural gas pipeline in Colorado. The two companies

sent bid requests to Texas. J7 was one of the pipeline companies that responded.

J7 based its bid on the information provided by Trigon. After reviewing the bid,

Trigon asked J7 to lower its bid. The contract was awarded to J7 based on the lowered

bid. According to the provided bid information, the project was to begin around

August 4, 2008 and be completed by November 2008. J7 began moving personnel and

equipment in early August but because of delays in the procurement of materials, as

well as other issues with Trigon, work was delayed. Trigon did not tell J7 why the start

date was delayed or disclose that materials were not going to be timely provided.

Trigon insisted, however, that J7 increase its personnel and equipment.

Delays continued to occur on the project. There were delays in receiving

necessary materials, surveys and X-ray inspections were not timely completed by

Trigon, and Trigon required J7 to follow improper specifications and procedures. One

survey provided by Trigon placed a pipeline through old bridge pilings in a river that

could not be penetrated by drilling equipment. J7 had to drill significantly deeper to go

under the pilings. When it was time for hydrostatic testing, OneOK refused to provide

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 14
the water it had previously agreed to provide. After 21 days of delay and after refusing

alternative suggestions by J7, Trigon instructed J7 to use irrigation water pumped from

area canals. The water was unclean and needed filtration. Filters were replaced

“constantly.” After filtration, the water was still fouled which required J7 to perform

extensive “dewatering” to clean out the pipes.

Hydrotesting revealed that gaskets provided by Trigon were inadequate to hold

the pressure. The specifications that Trigon required J7 to use in tightening the gaskets

were incorrect and damaged the gaskets. J7 was forced to replace these and other parts.

J7 incurred “massive” additional expenses on the project due to delays by Trigon

and due to the changes and increases to the scope of J7’s work beyond what was

stipulated in the contract. Expenses caused by downtime, improper engineering and

surveying, faulty equipment and other changes greatly increased J7’s damages.

Claims Against Trigon

Before Trigon filed its motion to dismiss pursuant to section 150.002 of the Texas

Civil Practice and Remedies Code, J7 alleged claims of negligence, negligent

misrepresentation, and tortious interference. Each of these claims were based on

inaccurate or misrepresented information provided by Trigon about the project and the

plans for completing the project. Four days after Trigon filed its motion to dismiss and

three months after J7 filed its first amended petition, J7 dropped its negligence and

negligent misrepresentation claims, added more to the tortious interference claim, and

added a fraud claim.

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 15
 Tortious Interference

In its second amended petition, J7 alleges that Trigon was aware of the contract

between OneOK and J7 and that Trigon willfully and intentionally interfered with the

contract by misrepresenting facts, failing to disclose facts, providing false information,

and delaying J7’s performance under the contract.

Fraud

J7 also alleges that Trigon misrepresented or failed to disclose material

information to J7 regarding the project and the contract in both procuring the contract

and in altering goods and services provided under the contract. J7 alleges that Trigon

knew the information was false or was reckless in regard to the falsity of the

information and failed to disclose critical information or made representations with the

intention that J7 rely on those representations. J7 further alleges that Trigon knew that

pipe bends, valves, and necessary pieces of equipment would not be delivered to the

jobsite in a timely manner and did not disclose the delays to J7.

In reviewing the claims and factual allegations in J7’s second amended petition,

we conclude the underlying complaint of J7 against Trigon is that J7 was injured by

Trigon’s failure to disclose information and in providing inaccurate information, such

as incorrect surveys. Thus, we believe that J7’s claims of tortious interference and fraud

constitute claims of professional negligence within the meaning of the statute and as

such require a certificate of merit. Accordingly, the trial court abused its discretion in

failing to dismiss J7’s claims against Trigon due to J7’s failure to file the required

certificate of merit. Trigon’s second issue is sustained.

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 16
Good Cause

J7 argues that even if Chapter 150 applies, it should be given an extension of time

for good cause to comply with the certificate of merit requirement. J7 relies on the last

sentence of section 150.002(b) where the statute provides, “The trial court may, on

motion, after hearing and for good cause, extend such time as it shall determine justice

requires.” TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b) (Vernon Supp. 2009)

(emphasis added). However, the phrase “such time” refers to the 30 days given a

plaintiff who has not complied with the contemporaneous filing requirement of

subsection (a) because the limitation period for the filing of the suit expires within 10

days of the date of filing and because of that time constraint, a certificate of merit cannot

be prepared and timely filed. In those cases, the trial court may grant an extension for

good cause. J7 has not alleged that it could not provide a certificate of merit because the

limitation period for filing its suit would have expired within 10 days from the filing of

the suit. Therefore, this “good cause” exception is not available to J7.

CONCLUSION

Having overruled Trigon’s issue regarding its special appearance but sustained

its issue regarding the certificate of merit, the trial court’s order denying Trigon’s

special appearance is affirmed and the trial court’s order denying Trigon’s motion to

dismiss is reversed. This case is remanded for further proceedings.

TOM GRAY
Chief Justice

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 17
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Justice Davis concurring and dissenting with a note)*
Affirmed in part and reversed and remanded in part
Opinion delivered and filed September 1, 2010
[CV06]

*(“Justice Davis concurs with this Court’s judgment on the first issue. He
dissents to this Court’s judgment on the second issue.”)

CH2M HILL Trigon, Inc. v. J7 Contractors, Inc. Page 18