Robert Navarro & Associates Engineering, Inc. and Bath Engineering Corporation v. Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475

Flowers filed suit against Navarro & Associates Engineering, Inc. and Bath Engineering Corporation for professional negligence, breach of contract, and negligent misrepresentation arising from allegedly defective project documents for a warehouse construction project.
Flowers attached a sworn certificate of merit from a licensed engineer, Gerald Spencer, asserting negligence by the engineering defendants based on the drawings indicating water and sewer lines.
The certificate of merit used an “and/or” phrasing to describe the alleged negligent conduct and did not expressly connect each act or omission to a specific defendant.
Navarro and Bath moved to dismiss under Chapter 150.002, arguing the certificate failed to attribute conduct to each defendant; the district court denied the motions.
The trial court’s denial was appealed, and the court reversed and remanded for dismissal determinations due to the certificate’s lack of explicit attribution to each defendant.
Chapter 150 requires an affidavit addressing each theory of recovery and identifying the negligence or omission by the licensed professional.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Must the certificate of merit attribute conduct to each defendant?	Flowers argues the affidavit need not expressly tie each act to a particular defendant.	Navarro and Bath contend the statute requires explicit, defendant-specific attributions of conduct.	Yes; the certificate must specifically attribute alleged negligent acts to each defendant.
Is a general “and/or” statement sufficient to link conduct to multiple defendants?	Flowers relies on prior cases allowing general statements of negligence.	Navarro and Bath emphasize the need for explicit, positive averments tying conduct to each defendant.	No; a collective assertion cannot satisfy the statute for multiple defendants.
Does the presence of vicarious liability affect the certificate’s sufficiency?	Flowers argues an alter ego/vicarious liability theory may render a combined attribution acceptable.	Navarro/Bath argue the certificate must separately identify each defendant’s specific liability.	The certificate must state conduct attributable to each defendant, not rely on collective attributions.
What is the remedy if the certificate is deficient?	—	—	Dismissal may be with prejudice under §150.002(e) depending on the deficiency.
Did the court properly apply Chapter 150’s statutory construction?	—	—	Yes; the court interpreted the statute to require explicit attribution to each defendant.

Nangia v. Taylor, 338 S.W.3d 768 (Tex.App.--Beaumont 2011) (certificate of merit must set forth the alleged negligence and factual basis for each claim)
Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex. 2009) (statutory intent and construction guiding Chapter 150 certificates)
JNY, L.P. v. Raba-Kistner Consultants, Inc., 311 S.W.3d 584 (Tex.App.--El Paso 2010) (abuse of discretion standard in §150.002 determinations)
M-E Engineers, Inc. v. City of Temple, 365 S.W.3d 497 (Tex.App.--Austin 2012) (applies expert-report-like considerations to §150.002 in multi-defendant context)
Sharp Eng’g v. Luis, 321 S.W.3d 748 (Tex.App.--Houston [14th Dist.] 2010) (statutory merit requirements for engineers)
Benchmark Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41 (Tex.App.--Houston [14th Dist.] 2010) (statutory affidavit requirements under Chapter 150)
Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex.App.--Corpus Christi 2009) (statutory construction and application to professional-liability suits)