Opinion
03-23-00370-CV
11-06-2024
Janis Smith Consulting, LLC and Janis Smith, Appellants v. Eric B. Rosenberg, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. C-1-CV-21-002325, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Theofanis
MEMORANDUM OPINION
ROSA LOPEZ THEOFANIS, JUSTICE
This is an interlocutory appeal from an order denying a motion to dismiss under Chapter 150 of the Texas Civil Practice and Remedies Code, which requires a sworn certificate of merit to accompany a plaintiff's claim "arising out of the provision of professional services by a licensed or registered professional" named in the statute. Levinson Alcoser Assocs. v. El Pistolon II, Ltd., 513 S.W.3d 487, 489 (Tex. 2017) (citing Tex. Civ. Prac. & Rem. Code §§ 150.001(1-a), .002(a)).
Eric B. Rosenberg attached a certificate of merit from a professional engineer to his suit alleging professional negligence and malpractice claims against Janis Smith Consulting, LLC and Janis Smith (collectively, Smith). However, Smith contends Rosenberg's certificate of merit is deficient because the affiant does not practice in the same subspecialty practice area as Smith does. Smith sought dismissal on those grounds, but the trial court denied the motion. Because Chapter 150 does not compel the narrow construction of "practice area" that Smith advances, we affirm.
BACKGROUND
In January 2020, Rosenberg sought professional engineering advice from Smith regarding the feasibility of relocating his residential boat dock on Lake Austin consistent with the applicable permitting requirements. The parties later disputed the amount and scope of work Smith had been preapproved to complete, and Smith sued Rosenberg for breach of contract and quantum meruit after he refused to pay the full invoiced balance of $2,125 for her services. Rosenberg asserted affirmative defenses and countersued Smith for, among other claims, professional negligence and malpractice. In support of his allegations against Smith, Rosenberg attached a certificate of merit by Jay Campbell, P.E., explaining why Rosenberg's claims are not frivolous. See Tex. Civ. Prac. & Rem. Code § 150.002; Levinson Alcoser, 513 S.W.3d at 491.
Smith filed a motion to dismiss, arguing that Campbell lacks the required knowledge, skill, experience, education, training, and practice in the relevant area of specialization, and thus his affidavit cannot support Rosenberg's professional negligence or malpractice claims. Specifically, Smith maintained Campbell lacks experience with "the construction and maintenance of boat docks and bulkheads in Lake Austin, or attached to the banks of Lake Austin," which she characterizes as a "narrow and very specialized area of practice," as well as her "sole area of practice." She argued an engineer practicing in this area must understand the City of Austin's and Army Corps of Engineers' regulations for Lake Austin shoreline projects, the "constructability of proposed designs to ensure that the design will actually function," and the "regulatory reviewers' pattern of enforcement of regulations," in addition to having "a working knowledge of past precedents as they pertain to boat docks and bulkheads on Lake Austin."
The trial court held a hearing on Smith's motion to dismiss, which it denied. Smith brings this accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 150.002(f); Te x . R. App. P. 28.1(a).
STANDARD OF REVIEW
We review a trial court's ruling on a section 150.002 motion to dismiss for abuse of discretion. Jaster-Quintanilla & Assocs. v. Prouty, 549 S.W.3d 183, 187 (Tex. App.-Austin 2018, no pet.) (citing Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 520 S.W.3d 887, 889, 891 (Tex. 2017)). A trial court abuses its discretion when it acts without regard to any guiding rules or principles or fails to correctly analyze or apply the law. Id. at 187-88.
To the extent that our resolution requires statutory construction, we employ a de novo standard of review. Id. at 188. Our objective is "to determine and give effect to the Legislature's intent." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). Thus, "we construe the Legislature's chosen words and phrases within the context and framework of the statute as a whole, not in isolation." In re Texas Educ. Agency, 619 S.W.3d 679, 687 (Tex. 2021). To that end, "[w]e apply the plain meaning of statutory language unless (1) the Legislature has prescribed definitions, (2) the words have acquired a technical or particular meaning, (3) a contrary intention is apparent from the context, or (4) a plain-meaning construction leads to nonsensical or absurd results." Id.
DISCUSSION
In one issue on appeal, Smith argues the trial court erred in denying her motion to dismiss because Campbell's affidavit fails to demonstrate his knowledge, skill, experience, and education are like her own. She maintains that while Campbell's practice is generally related to areas of civil engineering, it is not "related to the unique practice[] area of regulatory approval for site plan permitting required for the construction and maintenance of boat docks and bulkheads on Lake Austin, or attached to the banks of Lake Austin." Rosenberg counters that like Campbell, Smith is a civil engineer; he maintains he engaged Smith to perform civil engineering services, and thus Smith and Campbell share the same practice area. Rosenberg also urges that the relevant practice area here cannot be dictated by Smith's attempted narrow characterization of his claims and maintains that the engineering subspecialty Smith argues applies is not supported by case law interpreting Chapter 150.
Chapter 150 of the Texas Civil Practice and Remedies Code applies to any action for damages arising out of the provision of professional engineering services and requires that a certificate of merit accompany the complaint to demonstrate the plaintiff's claims are not frivolous. Melden & Hunt, 520 S.W.3d at 889-90, 896 (citing Tex. Civ. Prac. & Rem. Code §§ 150.001(1- a), .002(a)). A certificate of merit is an affidavit from a competent third-party expert who, among other qualifications, "holds the same professional license or registration as the defendant" and "practices in the area of practice of the defendant." Tex. Civ. Prac. & Rem. Code § 150.002(a)(3). Chapter 150 incorporates the definition of the "practice of engineering" from Texas Occupations Code Chapter 1001. Id. § 150.001(3); see Tex. Occ. Code § 1001.003(b)-(c). Though Chapter 150 does not define "area of practice," that phrase has been interpreted to mean the practice area at issue in the litigation. T & T Eng'g Servs., Inc. v. Danks, No. 01-21-00139-CV, 2022 WL 3588718, at *4-5 (Tex. App.-Houston [1st Dist.] Aug. 23, 2022, pet. denied) (mem. op.) (citing Certain Underwriters at Lloyd's of London v. Mayse & Assocs., 635 S.W.3d 276, 289 (Tex. App.-Corpus Christi-Edinburg 2021, pet. denied)). We determine the practice area at issue in the litigation by reviewing the petition and other relevant documents in the record. Id.
In Rosenberg's countersuit, he alleges that he retained Smith to "assist him in relocating a boat dock on his property in a way that would satisfy the rules and requirements of the laws, codes, and neighborhood association rules and procedures governing such alterations." The petition includes representations from Smith's website, including: "The firm produces sealed construction plans; completes, submits and processes Site Plan applications; prepares and presents City of Austin variance applications; and facilitates all related services necessary to secure a Site Plan Permit."
Campbell's certificate of merit states that he "practice[s] in the same area of practice, that being civil engineering, as [Smith]." He attests that he made the observations and conclusions in his affidavit based on his "professional experience, skill, knowledge, education, training, and practice in the engineering field." And Campbell's resume, which he attached to his affidavit, reflects his civil-engineering degree, professional engineering license, and over 20 years of experience in municipal and city engineering services, including planning, design, and permit review, and involving water and wastewater services. The record also contains Campbell's deposition, including excerpts in which he affirms he has experience working on boat docks, as well as "at least 20 years" of experience in hydrology, and discusses his experience reviewing residential permits for the City of Rollingwood. See M-E Eng'rs, Inc. v. City of Temple, 365 S.W.3d 497, 503 (Tex. App.-Austin 2012, pet. denied) (noting that trial court could consider facts confirming affiant's knowledgeability in deposition excerpt).
In sum, this litigation involves a feasibility determination regarding the relocation of a residential boat dock and whether Rosenberg's preferred design and location were consistent with permitting requirements. That is, notwithstanding Smith's advanced subspecialty-i.e., "engineering in the specialty area of regulatory approval for site plan permitting required for the construction and maintenance of boat docks and bulkheads on Lake Austin, or attached to the banks of Lake Austin"-the practice area at issue here involves civil-engineering design and permitting services.
On this record, we conclude the trial court could have reasonably found Campbell practices in the same area as Smith for purposes of the certificate of merit requirement in Chapter 150. See Eric L. Davis Eng'g, Inc. v. Hegemeyer, No. 14-22-00657-CV, 2023 WL 8270984, at *4 (Tex. App.-Houston [14th Dist.] Nov. 30, 2023, no pet.) (mem. op.) (concluding affiant practiced in same structural-engineering practice area as appellants despite appellants' argument that affiant did not specifically state he designs residential post-tension foundations); T & T Eng'g Servs., 2022 WL 3588718, at *4-6 (holding that petroleum-engineer affiant sufficiently demonstrated he practiced in structural and mechanical engineering for Section 150.002(a)(3) purposes); Howe-Baker Eng'rs, Ltd. v. Enterprise Prods. Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, at *5 (Tex. App.-Houston [1st Dist.] Apr. 29, 2011, no pet.) (mem. op.) (concluding affiant and appellants shared same practice area when record established that affiant's practice "overlaps with" appellants'); see also Carlson, Brigance & Doering, Inc. v. Compton, No. 03-19-00954-C V, 2020 WL 7233612, at *4-5 (Tex. App.-Austin Dec. 8, 2020, pet. denied) (mem. op.) (concluding, under different version of statute, that trial court could have reasonably inferred affiant's knowledge of practice area based on his observations and evaluations). Neither the statute nor case law support the narrowly drawn practice-area parameters Smith urges. See Tex. Occ. Code § 1001.003(c) (defining "the practice of engineering"); Nortex Found. Designs, Inc. v. Ream, No. 02-12-00212-CV, 2013 WL 3488185, at *3 (Tex. App.-Fort Worth July 11, 2013, no pet.) (mem. op.) ("[T]he statute requires the expert to be practicing in the same area as the defendant, but it does not require the expert to have the same job description. All that is necessary is that, whatever the expert's job, it falls within the same area of practice as the defendant."); Benchmark Eng'g Corp. v. Sam Houston Race Park, 316 S.W.3d 41, 49-50 (Tex. App.-Houston [14th Dist.] 2010, pet. granted, judgm't vacated w.r.m.) (rejecting appellant's argument that affiant was required to practice in engineering subspecialty of "drainage and drainage design" when record established he practiced in same area of construction engineering as appellant). Thus, the trial court did not abuse its discretion in denying Smith's motion to dismiss under section 150.002. We overrule Smith's sole issue on appeal.
CONCLUSION
We affirm the trial court's order denying Smith's motion to dismiss.
Affirmed