Capital One, National Ass'n v. Carter & Burgess, Inc.
2011 Tex. App. LEXIS 3865
| Tex. App. | 2011Background
- CONA sued C&B and New America Georgetown over easement representations related to CONA's bank-branch development in Georgetown, Texas.
- C&B had a professional engineering and surveying services agreement with CONA's architect defining the scope of services.
- CONA alleges that New America and C&B (via a C&B representative Weigand) misrepresented the procurement of five wastewater easements.
- CONA terminated the lease after discovering only four easements were obtained, and arbitration followed with the Trust owning the property.
- CONA asserted negligent misrepresentation, statutory fraud, and aiding-and-abetting-fraud; the trial court dismissed all claims for failure to file a certificate of merit under Civ. Prac. & Rem. Code § 150.002(a).
- The appellate court will affirm the dismissal order after analyzing the relation of the claims to professional services and the certificate-of-merit requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for lack of a §150.002(a) certificate was proper for negligent misrepresentation claim | CONA contends the failure to file a certificate does not apply unless the claim arises from professional services by a licensed engineer | C&B argues the misrepresentation is within the scope of professional services and thus subject to §150.002(a) | Yes; the claim arises from professional services by a licensed professional and requires a certificate of merit |
| Whether statutory fraud and aiding-and-abetting fraud claims require a certificate of merit | CONA argues these claims are non-negligence and do not require a certificate | C&B argues the fraud claims are essentially negligence-based as pleaded | No; those claims are recharacterized as negligence-based and require a certificate of merit, so dismissal affirmed |
Key Cases Cited
- Palladian Bldg. Co., Inc. v. Nortex Foundation Designs, Inc., 165 S.W.3d 430 (Tex.App.-Fort Worth 2005) (definition of professional services and related duties under §150.002; analysis guiding statutory construction)
- Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102 (Tex.App.-Houston [1st Dist.] 2010) (status of §150.002 applicability to professional-negligence claims)
- Kniestedt v. Sw. Sound and Elec., Inc., 281 S.W.3d 452 (Tex.App.-San Antonio 2007) (claims implicating professional negligencelike conduct governed by certificate of merit)