Juan Gomez and Rosin, Johnson, Gomez and Seca, Inc. d/b/a Titan Engineering & Surveying Co. v. STFG, Inc.; STFG Paving Company; STFG Construction Inc.; and Carlos Diaz--Appeal from 49th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-07-00223-CV

Juan GOMEZ and Rosin, Johnson, Gomez and Seca, Inc.

d/b/a Titan Engineering & Surveying Co.,

Appellants
v.
STFG, INC., et al,
Appellees
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2006-CVQ-001281-D1
Honorable Jose A. Lopez, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: October 3, 2007

 

AFFIRMED

This interlocutory appeal arises from the trial court's partial denial of appellants' motion to dismiss all of appellees' claims pursuant to section 150.002(d) of the Texas Civil Practice and Remedies Code. Because the statute does not require the dismissal of all of appellees' claims, we affirm the judgment of the trial court.

Factual Background

Appellant Gomez is a principal of Appellant Rosin, Johnson Gomez and Seca, Inc., which does business at Titan Engineering & Surveying Co. ("Titan"). STFG, Inc. ("STFG") and members of Titan were part owners in three partnerships: the Casa Verde Venture, Woodridge Venture, and North Plantation Venture. Each venture hired STFG to construct buildings and perform land improvement and development for each location. STFG hired Titan to assist with the engineering, construction and development plans of each venture. Ultimately, each venture terminated its contract with STFG while continuing to work with Titan.

On August 2, 2006, STFG filed three lawsuits against Titan, asserting Titan was responsible for the terminations. Each lawsuit alleged seven causes of action: tortious interference with STFG's contracts, conspiracy, breach of contract, wrongful termination, breach of fiduciary duty, breach of loyalty, and breach of good faith and fair dealing. In the Woodridge Venture suit only, STFG added an additional claim of negligence in Titan's rendering of development costs and estimates.

On December 5, 2006, the three lawsuits were consolidated into one, at Titan's request. On December 27, 2006, Titan moved to dismiss, with prejudice, all the claims against Titan based on STFG's failure to comply with Section 150.002(a) of the Texas Civil Practice and Remedies Code. Section 150.002(a) requires the filing of an expert affidavit, known as a certificate of merit, to support actions for damages arising from the provision of professional services. Tex. Civ. Prac & Rem. Code Ann. 150.002(a) (Vernon 2005). On February 6, 2007, STFG filed an expert affidavit addressing the negligence claim. Following a hearing on Titan's motion to dismiss, the trial court dismissed only the negligence claim and allowed the remainder of the claims to proceed. Titan brings this appeal, seeking dismissal of the remainder of the claims pursuant to section 150.002(d) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac & Rem. Code Ann. 150.002(d) (Vernon 2005). We have jurisdiction over this appeal under section 150.002(e). Tex. Civ. Prac. & Rem. Code Ann. 150.002(e) (Vernon 2005).

Analysis

The issue before us is whether a trial court must dismiss all claims against Titan because STFG failed to file an expert affidavit under section 150.002. Tex. Civ. Prac & Rem. Code Ann. 150.002(a), (d) (Vernon 2005).

A. Standard of review

We review a trial court's order denying a motion to dismiss for failing to file a certificate of merit under an abuse of discretion standard. Kniestedt v. Southwest Sound and Electronics, Inc., No. 04-07-00190-CV, 2007 WL 1892220, at *1 (Tex. App.--San Antonio Jul. 3, 2007, no pet. h.). A trial court abuses its discretion if it fails to analyze or apply the law correctly. Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005). We first review section 150.002.

B. Section 150.002

In relevant part, the statute reads:

(a) In any action or arbitration proceeding 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 . . . professional engineer. . . which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. . . .

 

. . . .

(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.

. . . .

 

(g) This statute does not apply to any suit or action for the payment of fees arising out of the provision of professional services.

 

Tex. Civ. Prac. & Rem. Code Ann. 150.002 (Vernon 2005).

C. Meaning of "arising out of the provision of professional services"

The statute was amended in 2005 to expand its application from actions "alleging professional negligence" by a design professional to any action or arbitration proceeding "arising out of the provision of professional services." Id. Thus a certificate of merit is now required under this statute when the action at issue arises out of the provision of certain professional services. Tex. Civ. Prac. & Rem. Code Ann. 150.002(a) (Vernon 2005). Neither party suggests any relevant or persuasive authority as to what type of actions may qualify as those "arising out of professional services" in this context. (1)

Titan suggests this court should interpret the phrase "arising out of" broadly, so that a certificate of merit is required if the complaint has a causal connection or relation to the rendition of professional services. Under this interpretation, all of STFG's other causes of action, including tortious interference, breach of good faith and fair dealing, and breach of fiduciary duty have some relation to the professional engineering services by virtue of Titan's role as a licensed professional.

STFG argues the non-negligence claims are outside the scope of the rendition of professional services and that no certificate of merit was necessary for the trial court to retain these claims. We agree. The Occupations Code defines the practice of professional engineers 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 2005). Included in the practice of engineering is any other professional service necessary for the planning, progress, or completion of an engineering service. Tex. Occ. Code Ann. 1001.003(c)(12) (Vernon 2005). Chapter 150 acknowledges that a certificate of meritrequirement will not apply to all suits involving professional engineers and architects because it limits the requirement to actions arising out of the provision of professional services and specifically excludes suits regarding the payment of fees. Tex. Civ. Prac. & Rem. Code Ann. 150.002(a), (g) (Vernon 2005).

Tortious interference with a contract, conspiracy, breach of contract, wrongful termination, breach of fiduciary duty, breach of loyalty, and breach of good faith and fair dealing do not implicate a professional engineer's education, training, and experience in applying special knowledge or judgment. An affidavit of a licensed or registered professional setting forth the negligent act, error, or omission and factual basis for each appears irrelevant to claims that did not arise from the provision of professional services. We believe the non-negligence causes of action did not require a certificate of merit. Southwest Sound, 2007 WL 1892220, at *2.

D. Section 150.002(d)

Titan next argues that even if the other claims do not arise from the provision of professional services, section 150.002(d) mandates dismissal of all claims. Titan asserts that subsection (d) does not give the trial court discretion to render a partial dismissal. Specifically, the statute provides the plaintiffs' failure to file the certificate of merit "shall result in dismissal of the complaint against the defendant." Tex. Civ. Prac. & Rem. Code Ann. 150.002(d) (Vernon 2005).

When interpreting a statute, a court must consider the statute as a whole and make all attempts to "harmonize its various provisions." Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002). In an attempt to harmonize the provisions, however, an appellate court must avoid constructions that would produce absurd results. Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991); Del Indus., Inc. v. Tex. Workers' Comp. Ins. Fund, 973 S.W.2d 743, 747-48 (Tex. App.--Austin 1998), aff'd, 35 S.W.3d 591 (Tex. 2000). Titan's interpretation of the statute calls for an unreasonable result.

The negligence cause of action asserted against Titan was initially filed in only one of the three cases that were ultimately consolidated. Titan reasons that STFG should have dismissed the negligence claim prior to consolidation, because after consolidation of the three separate suits, the negligence claim required dismissal of all claims absent a certificate of merit. At oral argument, Titan did concede that under Southwest Sound, STFG was not required to file a certificate of merit for the non-negligence related claims. Southwest Sound, 2007 WL 1892220, at *1. Because a plaintiff is not required to file a certificate of merit for all claims against a licensed professional, we believe that dismissal of all claims brought in a single lawsuit, including those which do not require such a certificate of merit, would lead to an absurd result.

Titan interprets the word complaint used in the statute to mean a plaintiff's lawsuit. In reviewing this statute, we do not believe the legislature intended such a broad construction of the word complaint. The certificate of merit requirement only applies to a complaint for damages arising out of the provision of certain professional services; thereafter, when the statute requires dismissal for failing to file said certificate, it can only mean dismissal of that particular complaint. Titan's reading of the dismissal language would allow a party to consolidate multiple cases and move for dismissal on all causes of action when the plaintiff failed to meet the filing requirements for one negligence cause of action. To allow dismissal with prejudice of unrelated meritorious claims due to the plaintiff's failure to file a certificate of merit regarding one particular claim is neither fair nor reasonable. We believe the more reasonable construction is that the term complaint means a cause of action or claim rather than a petition or lawsuit.Conclusion

After reviewing the entirety of the statute, we conclude the remaining claims alleged by STFG are outside the scope of the rendition of professional engineering services, and no certificate of merit was necessary. Consequently, the trial court did not abuse its discretion in failing to dismiss those non-negligence claims. Accordingly, we affirm the judgment of the trial court.

 

Rebecca Simmons, Justice

 

1. A licensed or registered professional is defined as a "licensed architect, registered professional land surveyor, licensed professional engineer, or any firm in which such licensed professional practices . . . ." Tex. Civ. Prac. & Rem. Code Ann. 150.001(1) (Vernon 2005).