Pelco Construction, Inc. v. Dannenbaum Engineering Corp.
404 S.W.3d 48
| Tex. App. | 2013Background
- Peleo Construction sued Chambers County related to FEMA-funded fire-station reconstruction after Hurricane Ike.
- MSA between Chambers County and Dannenbaum Engineering overseen two-phase project; Phase II pending FEMA funding approval.
- Amundson Consulting provided emergency-management services to Dannenbaum and monitored construction.
- Peleo bid and began construction relying on representations that FEMA funding was approved; interior ADA ramp plans grew the project.
- Peleo filed fraud claims in 2011; motions to dismiss for lack of certificate of merit were granted against some defendants, leading to this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a certificate of merit was required for the fraud claims against McGarraugh, Hirshman, and Dannenbaum Eng. | Peleo argues no certificate needed for misrepresentation claims. | Appellees contend such claims arise from professional services requiring a certificate. | Yes; certificate required and dismissal upheld. |
| Whether a certificate of merit was required for the claims against Amundson and Amundson Consulting. | Peleo contends no certificate needed for Amundson defendants. | Defendants argue certificate applies to professional services; Amundson not a licensed professional. | No certificate required; claims against Amundson/Amundson Consulting preserved. |
Key Cases Cited
- Sardari v. Carter & Burgess, Inc., 355 S.W.3d 807 (Tex.App.-Houston [1st Dist.] 2011) (certificate of merit applies to professional-service claims beyond negligence)
- TDIndustries, Inc. v. Rivera, 339 S.W.3d 749 (Tex.App.-Houston [1st Dist.] 2011) (claims arise out of professional services when they implicate professional knowledge/judgment)
- Capital One, N.A. v. Carter & Burgess, Inc., 344 S.W.3d 477 (Tex.App.-Fort Worth 2011) (unlicensed employee does not avoid merit certificate for firm’s liability)