Costello, Inc. and Alex Khoshakhlagh, P.E. v. Briggs Brothers Enterprises

Opinion issued January 18, 2024

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00307-CV
————————————
COSTELLO, INC. AND ALEX KHOSHAKHLAGH, P.E., Appellants
V.
BRIGGS BROTHERS ENTERPRISES CORPORATION, Appellee

On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 23-DCV-30067

MEMORANDUM OPINION

Appellants—Alex Khoshakhlagh, P.E., and his employer Costello, Inc.—

challenge the trial court’s order denying their motion to dismiss appellee Briggs

Brothers Enterprises Corporation’s (BBEC) tortious interference claim. The motion

to dismiss was based on Civil Practice and Remedies Code section 150.002(a),
which requires a plaintiff suing for damages arising out of the provision of

professional services by a licensed or registered professional, such as an engineer,

to file with its complaint an affidavit, commonly referred to as a certificate of merit.

It is undisputed that BBEC did not file a certificate of merit.

Costello and Khoshakhlagh contend that the trial court erred because BBEC’s

tortious interference claim arose out of the provision of professional engineering

services, thus section 15.002(a) required BBEC to file a certificate of merit prepared

by a qualified third-party engineer. Because we conclude that the record supports

the trial court’s implied conclusion that section 150.002(a) does not apply to BBEC’s

tortious interference claim, we affirm the trial court’s order denying Costello and

Khoshakhlagh’s motion to dismiss.

Background

In January 2023, BBEC sued Costello and Khoshakhlagh along with Fulshear

Municipal Utility District MUD No. 1 (Fulshear MUD).1 In its original petition,

BBEC described itself as “a successful and trusted contractor with experience in the

construction industry, including experience performing earthwork and paving

work.” BBEC alleged that it “performed labor and furnished materials necessary for

the construction of five [Fulshear MUD] projects.” BBEC listed the five projects and

their titles, which indicated that the projects entailed paving and grading work.

1
Fulshear MUD is not a party to this appeal.
2
BBEC stated that it performed the work “pursuant to separate contracts [with

Fulshear MUD] for each of the projects.”

BBEC claimed that, although it had substantially performed under the five

construction contracts, Fulshear MUD failed to pay it what it was contractually

owed. Based on these allegations, BBEC asserted causes of action against Fulshear

MUD for breach of contract and violation of the Texas Prompt Payment Act and

sought declaratory relief.

Regarding Costello and Khoshakhlagh, BBEC alleged,

Costello and its employee Khoshakhlagh acted as the engineer and
owner’s representative on the projects. Throughout the projects,
Khoshakhlagh and Costello interfered with BBEC’s contracts with both
subcontractors and Fulshear MUD. For example, Costello, through
Khoshakhlagh, solicited baseless and fraudulent claims for nonpayment
from BBEC’s subcontractors. Further, knowing that various
subcontractors’ nonpayment claims were without merit, Costello,
through Khoshakhlagh, nonetheless used the baseless claims it had
solicited to encourage Fulshear MUD to cease paying BBEC, an
endeavor in which Costello ultimately succeeded.

BBEC sued Costello and Khoshakhlagh for tortious interference with the

existing contracts. Specifically, BBEC asserted,

BBEC had valid contracts with Fulshear MUD and various
subcontractors, suppliers, and other vendors. Costello and
Khoshakhlagh tortiously interfered with these contracts by soliciting
fraudulent nonpayment claims from vendors, disparaging BBEC, and
encouraging Fulshear MUD to stop paying and/or terminate BBEC
based upon the fraudulent claims. Costello and Khoshakhlagh’s
interference proximately caused BBEC actual damages. BBEC also
seeks recovery of exemplary damages.

3
 Costello and Khoshakhlagh filed a motion to dismiss BBEC’s tortious

interference claim. They asserted that BBEC did not comply with Civil Practice and

Remedies Code section 150.002, requiring that a certificate of merit, signed by a

qualified professional, accompany a plaintiff’s “complaint” in an action “aris[ing]

out of the provision of professional services by [certain] licensed or registered

professional[s],” such as engineers. See TEX. CIV. PRAC. & REM. CODE

§ 150.002(a).2

In their dismissal motion, Costello and Khoshakhlagh stated that Fulshear

MUD hired Costello, “an engineering firm,” and Khoshakhlagh, “a licensed

engineer under the State of Texas,” to serve as “the professional engineer” for

Fulshear MUD’s “projects at issue.” They asserted that they were retained by BBEC

“to provide the engineering, consulting, construction management, inspection

services, and other professional services as authorized by Fulshear MUD.” They

claimed that, “as part of their professional engineer services,” they were required to

2
The legislature amended section 150.002 in 2023, but the amendments apply only
to actions filed on or after September 1, 2023. See Act of May 17, 2023, 88th Leg.,
R.S., ch. 438, §§ 1–3, 2023 Sess. Law Serv. 1037, 1037–38. This suit is governed
by the pre-amendment version of section 150.002 because it was filed before
September 1, 2023. Thus, all our citations refer to the pre-amendment version of
section 150.002. See Act of May 23, 2019, 86th Leg., R.S., ch. 661, § 2, 2019 Sess.
Law Serv. 1916, 1916–17.

4
review “applications for payment” submitted by Fulshear MUD’s contractors and

“[to] make recommendations to the Fulshear MUD regarding such applications.”3

In its response to the motion, BBEC asserted that it was not required to file a

certificate of merit. BBEC pointed to its previous allegation that Costello and

Khoshakhlagh had “acted as both the engineer and the owner’s representative on

[Fulshear MUD’s] projects.” BBEC repeated its allegations that, “[d]uring the

course of construction [of Fulshear MUD’s projects], Khoshakhlagh solicited

fraudulent non-payment claims from BBEC’s subcontractors, advised Fulshear

MUD to withhold payment to BBEC for labor and materials BBEC provided to the

projects, and encouraged Fulshear MUD to terminate its contracts with BBEC.”

BBEC explained that “[t]he acts creating [its tortious interference] claim were the

misrepresentations regarding project financing and alleged unpaid subcontractors.”

It asserted, “Khoshakhlagh made these misrepresentations while serving as the

project manager/owner representati[ve] and not as a licensed engineer. The

misrepresentations were not made in reference to any professional engineering

activities.”

3
After Costello and Khoshakhlagh filed the motion to dismiss, Fulshear MUD filed
a counter-claim against BBEC for breach of contract. Fulshear MUD alleged that it
had received notices from BBEC’s subcontractors and suppliers stating that BBEC
had not paid them. As permitted by the parties’ contract, Fulshear MUD withheld
part of its payments to BBEC based on the non-payment notices. Fulshear MUD
alleged that BBEC then refused to finish its work on the projects in breach of the
contract.
5
 Costello and Khoshakhlagh replied. They claimed, “Providing contract

administration services is a professional service that Costello Defendants were

contractually required to provide to Fulshear MUD. Owners typically request these

construction phase and contract administration services to ensure that a project is

built in accordance with the design professional’s plans and specifications.”

The trial court denied the motion to dismiss, and Costello and Khoshakhlagh

now appeal the denial. See id. § 150.002(f) (“An order granting or denying a motion

for dismissal [under section 150.002] is immediately appealable as an interlocutory

order.”).

Certificate of Merit

In their sole issue, Costello and Khoshakhlagh (together, Appellants) assert

that the trial court erred in denying their motion to dismiss BBEC’s tortious

interference claim because BBEC did not file a certificate of merit with its original

petition as required by section 150.002.

A. Standard of Review

We review a trial court’s order on a motion to dismiss under Civil Practice

and Remedies Code section 150.002 for an abuse of discretion. TRW Eng’rs, Inc. v.

Hussion St. Bldgs., LLC, 608 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.]

2020, no pet). “A court abuses its discretion if it fails to analyze or apply the law

correctly,” id., and when it makes decisions in an arbitrary or unreasonable manner,

6
without reference to guiding rules or principles, Pedernal Energy, LLC. v. Bruington

Eng’g, Ltd., 536 S.W.3d 487, 492 (Tex. 2017). “As the party complaining of an

abuse of discretion, [Appellants have] the burden of bringing forth a record showing

such abuse.” See Jacobs Field Servs. N. Am., Inc. v. Willeford, No. 01-17-00551-

CV, 2018 WL 3029060, at *3 (Tex. App.—Houston [1st Dist.] June 19, 2018, no

pet.) (mem. op.).

If the resolution of a motion to dismiss requires us to construe statutory

language, we review such questions de novo. Pedernal Energy, 536 S.W.3d at 491.

In construing a statute, our goal is to determine and give effect to the legislature’s

intent. Id. “We look to and rely on the plain meaning of a statute’s words as

expressing legislative intent unless a different meaning is supplied, is apparent from

the context, or the plain meaning of the words leads to absurd or nonsensical results.”

Id. We construe the words and phrases chosen by the legislature in context, rather

than in isolation. Aleman v. Tex. Med. Bd., 573 S.W.3d 796, 802 (Tex. 2019).

B. Applicable Legal Principles

Section 150.002(a) requires a plaintiff to file a certificate of merit in “any

action . . . for damages arising out of the provision of professional services by a

licensed or registered professional.” TEX. CIV. PRAC. & REM. CODE § 150.002(a). By

its plain language, the statute applies to “any action arising out of the provision of

professional services, regardless of the legal theory.” Melden & Hunt, Inc. v. E. Rio

7
Hondo Water Supply Corp., 520 S.W.3d 887, 894 (Tex. 2017). Chapter 150 defines

a “licensed or registered professional” to include “a licensed professional

engineer . . . or any firm in which such . . . professional practices.” TEX. CIV. PRAC.

& REM. CODE § 150.001(1–c). “The term ‘arising out of’ is not defined in the statute.

The ordinary meaning of ‘arise’ is ‘[t]o originate; to stem (from) . . . to result

(from).’” Terracon Consultants, Inc. v. N. Pride Commc’ns, Inc., No. 01-22-00755-

CV, 2023 WL 2316351, at *4 (Tex. App.—Houston [1st Dist.] Mar. 2, 2023, no pet.)

(mem. op.) (quoting Arise, BLACK’S LAW DICTIONARY (11th ed. 2019)).

A claim “arises out of the provision of professional [engineering] services if

the claim implicates the engineer’s education, training, and experience in applying

special knowledge or judgment.” CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403

S.W.3d 339, 343 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). To determine

whether a plaintiff’s claim “arises out of” the provision of professional engineering

services, we look to the definition of the “practice of engineering” in the Texas

Occupations Code and to the allegations in the plaintiff’s petition. Terracon

Consultants, 2023 WL 2316351, at *4 (citing CBM Eng’rs, 403 S.W.3d at 343); see

TEX. CIV. PRAC. & REM. CODE § 150.001(3) (“‘Practice of engineering’ has the

meaning assigned by Section 1001.003, Occupations Code.”); Jennings, Hackler &

Partners v. N. Tex. Mun. Water Dist., 471 S.W.3d 577, 581 (Tex. App.—Dallas

8
2015, pet. denied) (“To determine whether and how § 150.002 applies, we consider

the live pleadings when the trial court ruled on the motion to dismiss.”).

When it applies, section 150.002 “obligates the plaintiff to get an affidavit

from a third-party expert attesting to the defendant’s professional errors or omissions

and their factual basis.” Melden & Hunt, 520 S.W.3d at 896. The certificate of merit

must be filed with the first-filed complaint that asserts the relevant claim against the

professional. See TEX. CIV. PRAC. & REM. CODE §§ 150.001(1-b), 150.002(a); TRW

Eng’rs, 608 S.W.3d at 321. “The trial court then determines whether the expert’s

affidavit sufficiently demonstrates that the complaint is not frivolous.” Melden &

Hunt, 520 S.W.3d at 896; see LaLonde v. Gosnell, 593 S.W.3d 212, 216 (Tex. 2019)

(“The certificate-of-merit requirement is a substantive hurdle that helps ensure

frivolous claims are expeditiously discharged.”). Failure to file a certificate of merit

in such instances requires dismissal of the complaint against the defendant. TEX.

CIV. PRAC. & REM. CODE § 150.002(e).

C. Analysis

To determine whether section 150.002 applies here, the threshold questions

are (1) whether Appellants are licensed or registered professionals and (2) whether

BBEC’s tortious interference claim constitutes an action for damages “arising out of

the provision of professional services.” See Terracon Consultants, 2023 WL

2316351, at *4 (citing TEX. CIV. PRAC. & REM. CODE § 150.002(a)). The parties do

9
not dispute that Khoshakhlagh is a licensed engineer or that Costello is a licensed

professional engineering firm. See TEX. CIV. PRAC. & REM. CODE § 150.001(1–c).

Instead, the dispute centers on whether BBEC’s claim for tortious interference

damages arises out of Appellants’ provision of professional engineering services.

See TEX. CIV. PRAC. & REM. CODE § 150.002(a). To make that determination, we

look to the definition of the ‘practice of engineering’ in the Occupations Code and

to the allegations in BBEC’s original petition. See Terracon Consultants, 2023 WL

2316351, at *4.

In its original petition, BBEC alleged that Appellants “acted as the engineer

and [as Fulshear MUD’s] representative on the projects.” Beyond that, BBEC did

not elaborate or offer a more detailed description of the engineering services

provided by Appellants to Fulshear MUD. Nor did BBEC elaborate on Appellants’

role as Fulshear MUD’s “representative on the projects.”

BBEC alleged that Appellants had “solicited baseless and fraudulent claims”

from BBEC’s subcontractors. Specifically, BBEC claimed that Appellants had

encouraged the subcontractors to falsely state to Fulshear MUD that BBEC had

failed to pay them. BBEC further alleged that, knowing that the subcontractors’

claims of non-payment had no merit, “Costello, through Khoshakhlagh, nonetheless

used the baseless claims [of nonpayment that] it had solicited [from the

subcontractors] to encourage Fulshear MUD to cease paying BBEC, an endeavor in

10
which Costello ultimately succeeded.” BBEC asserted that, based on the

subcontractors’ claims of non-payment solicited by Appellants, Fulshear MUD did

not pay BBEC what it was contractually owed.

Later in the petition—in conjunction with asserting its tortious interference

cause of action—BBEC reiterated these allegations. BBEC alleged that it had “valid

contracts with Fulshear MUD and various subcontractors, suppliers, and other

vendors,” but “Costello and Khoshakhlagh tortiously interfered with these contracts

by soliciting fraudulent nonpayment claims from vendors, disparaging BBEC, and

encouraging Fulshear MUD to stop paying and/or terminate BBEC based upon the

fraudulent claims.” BBEC asserted that Appellants’ interference with the contracts

proximately caused it actual damages.

Under the Occupations Code, the “practice of engineering” means “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

§ 1001.003(b). The Occupations Code further provides:

(c) The practice of engineering includes:

....

11
 (9) engineering for review of the construction or installation of
engineered works to monitor compliance with drawings or
specifications; [or]

....

(12) any other professional service necessary for the planning,
progress, or completion of an engineering service.

Id. § 1001.003(c)(9), (12).

Appellants asserted that their actions, from which the claimed tortious

interference damages arise, qualify as the practice of engineering under subsections

(c)(9) and (12). Appellants acknowledge that their alleged tortious conduct of

soliciting BBEC’s subcontractors to falsely state that they had not been paid and

encouraging Fulshear MUD not to pay BBEC based on those false statements do not

qualify as professional engineering services. Appellants correctly point out that

“section 150.002 does not require the specific acts creating the claim for the tort [to]

also constitute the provision of professional services. Instead, the acts creating the

claim must ‘aris[e] out of the provision of professional services.’” Pelco Const., Inc.

v. Dannenbaum Eng’g Corp., 404 S.W.3d 48, 55 (Tex. App.—Houston [1st Dist.]

2013, no pet.) (quoting TEX. CIV. PRAC. & REM. CODE § 150.002(a)); see Jennings,

471 S.W.3d at 581 (recognizing that issue is not “whether the alleged mal-acts

themselves constituted the provision of professional services, but whether the claims

arise out of the provision of professional services”).

12
 Appellants asserted they were retained by BBEC “to provide the engineering,

consulting, construction management, inspection services, and other professional

services as authorized by Fulshear MUD.” Appellants claimed that, as part of these

professional engineering services, they were required to review “applications for

payment” submitted to Fulshear MUD by its contractors, like BBEC, and “[to] make

recommendations to the Fulshear MUD regarding such applications.” According to

Appellants, professional engineers are “typically” hired to review contractor

payment applications because the review involves “ensur[ing] that a project is built

in accordance with the design professional’s plans and specifications.”

Appellants asserted that the acts creating the tortious interference claim—that

is, Appellants alleged false statements regarding the non-payment of BBEC’s

subcontractors—arose out of Appellants’ review and recommendations regarding

BBEC’s payment applications—conduct that Appellants claimed constituted a

professional engineering service. BBEC acknowledged that Appellants reviewed

their payment applications for Fulshear MUD but denied that Appellants provided

that service in their role as licensed engineers.

In support of their argument, Appellants cite V.R. & Sons, L.P. v. CIVE

Consulting, Inc., a case in which the pleadings supported a conclusion that the

review of a contractor’s payment application constituted the practice of engineering

under Occupations Code subsections 1001.003(c)(9) and (12). See No. 01-11-

13
00967-CV, 2012 WL 3133605, at *4 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012,

no pet.) (mem. op.). We agree that V.R. & Sons is helpful to the analysis here but

disagree that it supports Appellants’ position. Instead, V.R. & Sons serves to

highlight why the pleadings here, unlike there, do not establish that Appellants’

review of BBEC’s payment applications constituted the practice of engineering.

In V.R. & Sons, the owner of a hotel project hired a contractor to construct the

hotel. Id. at *1. The agreement between the owner and the contractor “required the

owner to make progress payments to the contractor, and it stated that an architect—

identified in the contract as appellee CIVE Consulting—would review the

contractor’s work as described in the applications for payment and certify to the

owner the amount of money owed.” Id. Steve Williams acted as CIVE’s “principal

representative on the project.” Id.

The owners later sued the CIVE and Williams along with the contractor. The

owners attached their agreement with the contractor to their petition and

incorporated it by reference. Id. at *3. The agreement contained the building

specifications for the project and provided that CIVE would “review” the

contractor’s work, including comparing the contractor’s work to the building

specifications. Id. at *3–4. The owners claimed, inter alia, “that [CIVE and

Williams] committed negligence by breaching a duty to properly inspect the work

14
performed by the contractor and by failing to properly certify applications for

payment.” Id. at *3.

CIVE and Williams “filed a motion to dismiss the owners’ claims, arguing

that the owners were required to file a certificate of merit and failed to do so.” Id. at

*2. They claimed that section 150.002 applied because “the owners’ claimed

damages arose from their provision of professional services.” Id. (citing TEX. CIV.

PRAC. & REM. CODE § 150.002(a)). The trial court agreed, dismissing the owners’

claims. Id.

On appeal, this Court affirmed the trial court’s dismissal order. Id. at *4. In

our analysis, “we examine[d] the specific allegations [in the owners’ petition] and

compare[d] them with the statutory definition of the practice of engineering to

determine if the [owners’] claims implicate[d] the provision of professional

services.” Id. at *3. The allegations in the owners’ pleadings had shown that, “to

review and substantiate the contractor’s applications for payment, CIVE Consulting

and Williams were required to provide inspection, certification, and oversight

services in connection with a construction project.” Id. at *4. We determined that

“[t]hese duties are included within the ‘practice of engineering,’ which

include[d] . . . ‘any other professional services necessary to complete an engineering

service.’” Id. (quoting TEX. OCC. CODE § 1001.003(12)). We also determined that

“the review of the contractor’s applications for payment required comparison of the

15
contractor’s work to the specifications incorporated into the contract documents,

which also qualifie[d] as the ‘practice of engineering.’” Id. (citing TEX. OCC. CODE

§ 1001.003(9) (providing that practice of engineering included “engineering for

review of the construction or installation of engineered works to monitor compliance

with drawings or specifications”). For these reasons, we concluded that “the services

that Williams provided implicated the special knowledge and training that he had as

a licensed professional.” Id. In affirming the trial court’s dismissal of the owners’

claims, we “agree[d] with the trial court that the underlying claims in [that] case

constitute[d] an action for damages arising from the provision of professional

services by a licensed professional.” Id.

In contrast, BBEC’s petition does not show that, “to review and substantiate

the contractor’s applications for payment, [Appellants] were required to provide

inspection, certification, and oversight services in connection with a construction

project.” See id. Appellants assert that the contract between Costello and Fulshear

MUD required Appellants to make payment recommendations in their capacity “as

the principal engineer of the Projects.” But, unlike in V & R Sons, the petition does

not reveal the contract requirements relating to pay recommendations, nor was any

contract attached to the petition. See id. at *3. BBEC’s petition also does not indicate,

as did the petition in V & R Sons, that Appellants were required to inspect BBEC’s

work to determine whether it complied with the required building specifications as

16
part of the payment-review and substantiation process. See id. at *3, *4. Without

similar allegations, subsection 1001.003(c)(9) does not support a determination that

Appellants’ review of BBEC’s payment applications constituted the practice of

engineering. See TEX. OCC. CODE § 1001.003(c)(9) (practice of engineering includes

“engineering for review of the construction or installation of engineered works to

monitor compliance with drawings or specifications”).

The petition also contains no allegations that can be construed to support a

determination that Appellants’ review of BBEC’s payment applications and

payment recommendations was “necessary for the planning, progress, or completion

of any engineering service,” as provided in subsection (c)(12). Id. § 1001.003(c)(12).

We note that subsection (c)(12)’s application is not limited to activities that require

an engineer to perform them, but to be included, an activity must be necessary for

the planning, progress, or completion of a service that involves the practice of

engineering. See id. Whether Appellants’ application review and payment

recommendations were “necessary” to plan, progress, or complete their engineering

services cannot be ascertained without knowing what the payment-review process

entailed, and the record is silent on that point. Cf. V & R Sons, 2012 WL 3133605,

at *4 (showing that review and substantiation of contractor’s payment applications

was necessary to completion of engineering services where process entailed, inter

alia, inspecting and certifying contractor’s work).

17
 Despite BBEC’s allegation that Appellants were hired to perform two roles

on the projects—Fulshear MUD’s project representative and its project engineer—

Appellants maintain that their “role on the Projects was solely that of a professional

engineer.” We understand Appellants’ argument to assert that, because Appellants

engaged in the practice of engineering on the projects, BBEC’s tortious interference

claim necessarily arises out of the provision of professional services. Appellants

appear to suggest that, if an engineer provides engineering services to a project, then

all the services that he provides on the project constitute the practice of engineering.

That view is not supported by section 150.002.

Courts have recognized that “section 150.002 does not apply to every claim

against a professional engineer or engineering firm.” Jacobs Eng’g Grp., Inc. v.

Elsey, 502 S.W.3d 460, 467 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The

fact that the defendant [is] an engineering firm and was providing services of some

kind [is] not dispositive.” See RCS Enters., LP v. Hilton, No. 02-12-00233-CV, 2013

WL 6795390, at *6 (Tex. App.—Fort Worth Dec. 19, 2013, no pet.) (mem. op.)

(holding that plaintiff was not required to file certificate of merit to support claim

against engineering firm hired to provide both engineering services and non-

engineering third-party inspection services because plaintiff’s claim arose from

third-party inspection services, not from engineering services); see also Jacobs

Eng’g Grp., 502 S.W.3d at 468 (holding that, as pleaded, certificate of merit was not

18
required in work-place safety suit against professional engineering firm because

claim arose out of firm’s alleged breach of duties that it owed to employees rather

than out of its provision of professional engineering services); TDIndustries, Inc. v.

Rivera, 339 S.W.3d 749, 755 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(holding that certificate-of-merit requirement did not apply to personal-injury claim

against engineering firm hired to provide management services to convention center

because claim arose out of firm’s negligent operation of elevator and not out of

provision of professional engineering services).

Rather than applying to all services provided by a professional engineer,

section 150.002 applies only to a claim arising out of the provision of professional

engineering services—that is, a claim implicating “the engineer’s education,

training, and experience in applying special knowledge or judgment.” CBM Eng’rs,

403 S.W.3d at 343; see TEX. OCC. CODE § 1001.003(b). As discussed, Appellants

contend that BBEC’s tortious interference claim—alleging that Appellants made

false statements about BBEC’s non-payment of its subcontractors—arose out of

Appellants’ review of BBEC’s payment applications. Reviewing and making

recommendations on a contractor’s payment application may, as seen in V & R Sons,

implicate a professional engineer’s education, training, and experience in applying

special knowledge or judgment. See 2012 WL 3133605, at *4. But reviewing

payment applications may also not require the special knowledge and judgment of

19
an engineer. For instance, BBEC indicates that Appellants’ review of its payment

applications did not require engineering skills because the purpose of the review was

to ensure that BBEC had paid its subcontractors so that liens would not be filed on

the projects. Without allegations in BBEC’s petition addressing what the application

review process entailed, Appellants have not shown that their review of the payment

applications implicated their education, training, or experience as engineers. See

RCS Enters, 2013 WL 6795390, at *6; Rivera., 339 S.W.3d at 755; V & R Sons,

2012 WL 3133605, at *4; see also FAI Eng’rs, Inc. v. Logan, No. 02-20-00255-CV,

2020 WL 7252315, at *4 (Tex. App.—Fort Worth Dec. 10, 2020, no pet.) (mem.

op.) (“[T]he burden of proof remained with [the movant] to demonstrate that [the

claimant’s] suit met the requisites of Section 150.002(a) such that [the claimant] was

required to file a certificate of merit with his original petition.”); Jacobs Field Servs.

N. Am., 2018 WL 3029060, at *3 (stating that appellant had burden to present record

showing that trial court abused its discretion by denying appellant’s section 150.002

motion to dismiss).

Given the record, we conclude that BBEC’s tortious interference claim did

not arise from Appellants’ provision of professional engineering services and that

BBEC was not required to comply with section 150.002 by filing a certificate of

merit with its original petition. See TEX. CIV. PRAC. & REM. CODE §§ 150.001(1–b),

150.002(a). We hold that the trial court did not abuse its discretion in denying

20
Appellants’ motion to dismiss BBEC’s tortious interference claim.4 See id.

§ 150.002(e).

We overrule Appellants’ sole issue.

Conclusion

We affirm the order of the trial court denying Appellants’ motion to dismiss.

Richard Hightower
Justice

Panel consists of Justices Kelly, Hightower, and Guerra.

4
We need not reach Appellants’ additional appellate argument that BBEC’s tortious
interference claim should be dismissed with prejudice. See TEX. R. APP. P. 47.1.
21