COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00030-CV
TDINDUSTRIES, INC. APPELLANT
V.
CITICORP NORTH AMERICA, INC. APPELLEE
------------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
------------
OPINION
------------
I. INTRODUCTION
This is an interlocutory appeal of the trial court’s order denying appellant
TDIndustries, Inc.’s motion to dismiss appellee Citicorp North America, Inc.’s
case involving negligence against TDI.1 In three issues, TDI argues that the trial
court abused its discretion by failing to dismiss it from this case. We will reverse
and remand.
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon 2008).
II. BACKGROUND
Citicorp filed suit against numerous parties, including TDI, on February 26,
2009. Citicorp’s suit sought damages against TDI and others related to the
installation and retrofit of complex machinery and equipment. Among other
things, recovery was sought for damages caused by a fire involving a generator
retrofitted with a selective catalytic reduction (―SCR‖) exhaust scrubber for
emissions reduction purposes, which TDI allegedly installed. Citicorp claims the
SCR produced more ―backpressure‖ than anticipated, causing the fire.
Specifically, Citicorp’s petition alleged that TDI ―owed a duty to [Citicorp] to
exercise reasonably prudent and ordinary care in the installation [of the SCR].‖
Citicorp also pleaded that TDI committed the following negligent acts:
a. Failing to adequately and properly inspect the
generators and their respective exhaust systems, which
inspection would have provided [TDI] with the actual
backpressure for the [SCR];
b. Failing to verify existing backpressure conditions and
field conditions of the exhaust system prior to the
installation of the [SCR];
c. Failing to take reasonable and necessary precautions
so as to prevent the risk of harm to [Citicorp’s] personal
property;
d. Failing to perform an exhaust system back pressure test
following the [SCR’s] exhaust scrubbers retrofit; and
e. Otherwise, failing to use due care under the
circumstances.
2
Citicorp filed its first amended petition on April 1, 2009. This petition
included a certificate of merit concerning the alleged professional engineering
negligence of another defendant regarding the installation and retrofit of the
SCR, but Citicorp did not file a certificate of merit regarding its claims against
TDI. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (Vernon 2005). Citicorp
again amended its petition on July 29, 2009, without including a certificate of
merit concerning its claims against TDI. Believing that Citicorp was required to
file a certificate of merit pertaining to Citicorp’s claims against it, TDI filed a
motion to dismiss. In its motion, TDI alleged that Citicorp was in fact complaining
of acts or omissions by TDI that implicate engineering services and the
applicable standard of care for rendering engineering services; thus, a certificate
of merit was required. Citicorp did not dispute in its response, nor now on
appeal, that TDI is a ―licensed or registered professional,‖ that it did not file a
certificate of merit regarding its claims against TDI with its original or live petition,
or that it failed to file a certificate of merit setting forth specifically a negligent act,
error, or omission of TDI. Instead, Citicorp responded that ―the testing and
verification of backpressure conditions does not necessarily involve the provision
of professional services by a licensed professional engineer.‖ [Emphasis added.]
Citicorp also noted that in TDI’s initial responses to disclosure, it denies having
engineering or design obligations or backpressure testing responsibilities. Both
parties filed affidavits in support of their positions. The affidavits were filed by
3
Citicorp’s expert, Timothy B. Hatch, and TDI’s senior vice president responsible
for engineering, Larry Stephen Canter. Canter averred that in his professional
opinion, the allegations against TDI would necessarily involve the use of
engineering skill and duties. Hatch averred that the allegations against TDI do
―not necessarily involve the provision of professional services by a licensed
professional engineer.‖ On January 29, 2010, after hearing TDI’s motion, the trial
court entered an order denying TDI’s motion to dismiss. This appeal followed.
III. DISCUSSION
In three issues, TDI complains that the trial court abused its discretion by
denying its motion to dismiss. TDI complains that Citicorp seeks damages
against TDI, other than for the payment of fees, for alleged errors or omissions
arising out of the provision of professional services by TDI; that the trial court
disregarded the pleaded facts and TDI’s affidavit in support of its position; and
that the trial court misconstrued or misapplied section 150.002 of the Texas Civil
and Practices Remedies Code and section 1001.003 of the Texas Occupations
Code when it determined that Citicorp’s claims against TDI did not require a
certificate of merit. Citicorp responds that it does not contend that TDI provided
any professional engineering services related to the retrofit and that TDI admitted
in its responses to request for disclosure that it did not have any engineering or
design obligations related to the retrofit. We agree with TDI.
4
A. Standard of Review
We review a trial court’s ruling on a motion to dismiss for an abuse of
discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palladian Bldg.
Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex. App.—Fort
Worth 2005, no pet.). To determine whether a trial court abused its discretion,
we must decide whether the trial court acted without reference to any guiding
rules or principles; in other words, we must decide whether the act was arbitrary
or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A
trial court has no discretion in determining what the law is or applying the law to
the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Statutory construction is a question of law which we review de novo.
Palladian Bldg., 165 S.W.3d at 436. In construing a statute, our primary
objective is to determine and give effect to the legislature’s intent. Tex. Dep’t of
Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). We look at the statute’s
plain and common meaning because we presume the legislature intended the
plain meaning of its words. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525,
527 (Tex. 2000). We presume that the legislature intended the entire statute to
be effective. See Tex. Gov’t Code Ann. § 311.021 (Vernon 2005). ―[I]t is settled
that every word in a statute is presumed to have been used for a purpose; and a
cardinal rule of statutory construction is that each sentence, clause and word is
to be given effect if reasonable and possible.‖ Tex. Workers’ Comp. Ins. Fund v.
5
Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000) (quoting Perkins v. State, 367
S.W.2d 140, 146 (Tex. 1963)). Courts should not adopt a construction that
renders statutory provisions meaningless. Fleming Foods of Tex. v. Rylander,
6 S.W.3d 278, 284 (Tex. 1999). Once we determine the proper construction of a
statute, we determine whether the trial court abused its discretion in the manner
in which it applied the statute to the instant case. Palladian Bldg., 165 S.W.3d at
436.
B. Former Section 150.002 Applies to this Case
The applicable version of former section 150.002 provides,2 in relevant
part:
§ 150.002. Certificate of Merit
(a) In any action . . . for damages arising out of the provision of
professional services by a licensed or registered professional, the
plaintiff shall be required to file with the complaint an affidavit of a
third-party . . . 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 will set forth
specifically at least one negligent act, error, or omission claimed to
exist and the factual basis for each such claim. . . .
(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
2
The Eighty-first Texas Legislature amended section 150.002, effective as
of September 1, 2009. See Act of June 19, 2009, 81st Leg., R.S., ch. 789, §§ 3–
4, 2009 Tex. Gen. Laws 1989–1990 (effective Sept. 1, 2009). Because this suit
was filed on February 26, 2009, these amendments do not apply to this case.
See id. All citations to the statute in this opinion are to the version in effect prior
to the 2009 amendments. Both parties agree that the version in effect prior to
the 2009 amendments applies in this case.
6
constraints, the plaintiff has alleged that an affidavit . . . 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.
....
(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 with prejudice.
Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348,
348; Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws
369, 370 (amended 2009).
Former section 150.002(a) requires a certificate of merit only in actions or
arbitration proceedings ―for damages arising out of the provision of professional
services by a licensed or registered professional.‖ Id. By its plain language, the
certificate-of-merit statute is compulsory, not discretionary. Although the statute
gives the trial court discretion to allow a plaintiff more time in which to obtain the
certificate in the one circumstance identified, it does not grant the trial court
discretion to waive the requirement altogether, and it mandates dismissal of any
claims for which a certificate is required and not produced. See id.; see also
UOP, L.L.C. v. Kozak, No. 01-08-00896-CV, 2010 WL 2026037, *4 (Tex. App.—
Houston [1st Dist.] May 20, 2010, no pet.) (mem. op.).
In determining what ―the provision of professional [engineering] services‖ in
former section 150.002(a) means, we are guided by the Texas Occupations
7
Code’s definition of the practice of engineering. See Ashkar Eng’g Corp. v. Gulf
Chem. & Metallurgical Corp., No. 01-09-00855-CV, 2010 WL 376076, at *9 (Tex.
App.—Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) (looking to Texas
Occupations Code to ascertain same issue, with respect to practice of
engineering); see also Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d
102, 108 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (same, with respect to
practice of architecture). The occupations code defines the practice of
engineering as ―the performance of . . . any public or private service or creative
work, the adequate performance of which requires engineering education,
training, and experience in applying special knowledge or judgment of the
mathematical, physical, or engineering sciences to that service or creative work.‖
Tex. Occ. Code Ann. § 1001.003(b) (Vernon Supp. 2010). The practice of
engineering includes, among other things, design of engineering works or
systems; engineering for construction of real property; engineering for
preparation of operating or maintenance manuals; and ―any other professional
service necessary for the planning, progress, or completion of an engineering
service.‖ Id. § 1001.003(c).
Thus, based on the definitions provided in the occupations code, and the
plain language of former section 150.002(a), a claim for damages asserted
against a professional engineer arises out of the provision of professional
services (and thus requires a certificate of merit) if the claim implicates the
8
engineer’s education, training, and experience in applying special knowledge or
judgment. See Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419,
at *3 (Tex. App.—San Antonio Oct. 3, 2007, no pet.) (mem. op.) (holding that
claims for tortious interference, conspiracy, breach of contract, wrongful
termination, and breach of fiduciary duty, loyalty, and good faith and fair dealing
did not require certificate of merit because they did not ―implicate a professional
engineer’s education, training, and experience in applying special knowledge or
judgment‖). Conversely, if a plaintiff’s claim for damages does not implicate the
special knowledge and training of the subject professional, it cannot be a claim
for damages arising out of the provision of professional services. See Williams,
315 S.W.3d at 108.
As pleaded here, Citicorp’s negligence claim implicated TDI’s engineering
education, training, and experience because it was premised on TDI’s knowledge
of the installation and testing of complex machinery and equipment; namely, the
retrofitted SCR exhaust scrubber installed and tested for emissions reduction
purposes. That is, it was TDI’s engineering expertise that underlay its alleged
liability for having failed to ―exercise reasonably prudent and ordinary care in the
installation‖ of the SCR, and for failing to ―adequately and properly inspect[,] . . .
verify[,] . . . take reasonable and necessary precautions so as to prevent harm
to[, and] perform‖ backpressure testing of the SCR. Additionally, the occupations
code defines the practice of engineering services to include ―engineering for
9
preparation of an operating or maintenance manual‖; ―a service, . . . analysis, or
other work performed . . . in connection with a utility, structure, building, machine,
equipment, process, system, work, project, or industrial . . . product or equipment
of a mechanical . . . [or] hydraulic . . . nature‖; and ―any other professional service
necessary for the . . . progress, or completion of an engineering service‖—all of
which describe many of Citicorp’s negligence allegations against TDI as pleaded.
See Tex. Occ. Code Ann. § 1001.003(c)(8), (10), (12). Therefore, we conclude
that Citicorp’s negligence claims, as pleaded, were claims for damages arising
out of the provision of professional services by a licensed or registered
professional engineer within the meaning of former section 150.002(a).
Citicorp argues that TDI cannot contend that it provided professional
engineering services, thus requiring Citicorp to file a certificate of merit, because
in its response to disclosure, TDI denied having any engineering obligations in its
installation and testing of the SCR. We conclude that discovery has no bearing
on whether a certificate of merit is required. First, the statute itself contemplates
that the determination of whether a certificate of merit is required is determined at
the time the claim is filed, before any discovery. See Tex. Civ. Prac. & Rem.
Code Ann. § 150.002(a), (e) (―[T]he plaintiff shall . . . file [the certificate of merit]
with the complaint[;] . . . failure to file . . . shall result in dismissal of the
complaint.‖). With this in mind, we conclude that the proper approach when
determining whether a certificate of merit is required is to look solely at the
10
pleadings to determine the nature of the claim and not at discovery between the
parties. Second, Texas law in the area of medical expert reports—an area
analogous to the case law applicable to this case—also leads us to conclude that
we are to look to the nature of the claim pleaded only in order to determine
whether a certificate of merit is required. See Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 848 (Tex. 2005) (reasoning that a court is to look to the
nature of the claim only to determine whether a claim is in fact a health care
liability claim requiring a medical expert report); see also Landreth v. Las Brisas
Council of Co-Owners, Inc., 285 S.W.3d 492, 499–501 (Tex. App.—Corpus
Christi 2009, no pet.) (analogizing 150.002’s certificate of merit with medical
expert report).
Because we conclude that the negligence claims alleged against TDI are
both claims for damages arising out of the provision of professional services by a
licensed or registered professional and claims for negligent acts, errors, or
omissions arising out of the provision of those services, Citicorp was required to
file a certificate of merit with its claims against TDI. Having failed to do so,
Citicorp’s claims against TDI should have been dismissed. We hold that the trial
court abused its discretion by denying TDI’s motion to dismiss Citicorp’s claims
against TDI. Thus, we sustain TDI’s three issues.
11
IV. CONCLUSION
Having sustained TDI’s three issues, we reverse the trial court’s order and
remand the case with instructions for the trial court to dismiss Citicorp’s claims
against TDI.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
DELIVERED: April 7, 2011
12
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00030-CV
TDINDUSTRIES, INC. APPELLANT
V.
CITICORP NORTH AMERICA, INC. APPELLEE
----------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
----------
DISSENTING OPINION
----------
Because the majority begins with the assumption that only an engineer
could adequately perform the acts alleged not to have been performed, I must
respectfully dissent. The majority relies on three subsections in the definition of
the practice of engineering, none of which I believe apply to Citicorp’s claims.
Subsection (c)(8) includes in the definition of the practice of engineering
―engineering for preparation of an operating or maintenance manual.‖1 In other
words, if an engineer practices engineering, even if the work is for purposes of
preparation of a manual rather than for a physical client project, the work is still
considered the practice of engineering.
Subsection (c)(12) includes ―any other professional service necessary for
the planning, progress, or completion of an engineering service.‖2 This definition
makes all stages of the provision of an engineering service part of the practice of
engineering, but it does not on its face relate to any task not necessary for the
provision of what is otherwise an engineering service.
Subsection (c)(10), as the majority states, includes as the practice of
engineering ―a service, . . . analysis, or other work performed . . . in connection
with a utility, structure, building, machine, equipment, process, system, work,
project, or industrial . . . product or equipment of a mechanical . . . [or] hydraulic
. . . nature.‖3 By relying on this section, the majority appears to conclude that
because the definition of the provision of engineering services can include work
performed in connection with a machine or equipment of mechanical or hydraulic
nature, any work performed in connection with any machine or equipment of a
1
Tex. Occ. Code Ann. § 1001.003(c)(8) (Vernon Supp. 2010) (emphasis
added).
2
Id. § 1001.003(c)(12) (emphasis added).
3
Id. § 1001.003(c)(10).
2
mechanical or hydraulic nature is necessarily engineering, and therefore
Citicorp’s claims must be based on the provision of engineering services. I
disagree. Not all work on all mechanical equipment can be engineering; if it
were, even a mechanic changing the oil in a customer’s car would be practicing
engineering, and a suit over a negligent oil change would require the expert
report of an engineer. Such work is not engineering if it does not require
―engineering education, training, and experience‖ to be adequately performed. 4
To hold otherwise would lead to an absurd result. The majority, however, does
not explain why the alleged improperly omitted acts in this case required the
education, training, and experience of an engineer to be adequately performed,
or why the trial court erred by concluding, after reviewing affidavits of Citicorp’s
expert and TDI’s senior vice president, that they did not. Because I believe that
Citicorp did not assert claims for damages arising out of the provision of
professional engineering services, I respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
DELIVERED: April 7, 2011
4
Id. § 1001.003(b).
3
TDIndustries, Inc. v. Citicorp North America, Inc.
Combined Opinion