TDIndustries, Inc. v. Rivera
2011 Tex. App. LEXIS 5427
| Tex. App. | 2011Background
- Rivera sued TDI and the City of Houston for injuries at the George R. Brown Convention Center after a freight elevator door closed on him.
- TDI is a licensed professional engineering firm providing management services to the City of Houston for the convention center.
- Rivera's original petition (Feb 11, 2009) asserted negligence and premises liability against TDI and the City, with no certificate of merit attached.
- TDI moved to dismiss for failure to file a certificate of merit; Rivera nonsuited his claims against TDI on the eve of the hearing.
- Rivera later reasserted claims against TDI in a fifth amended petition, adding new products liability, negligent activity, and gross negligence claims, and filed a certificate of merit.
- TDI filed a second motion to dismiss arguing the certificate of merit was untimely or deficient; Rivera later amended again, dropping some claims and refining others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rivera's claims against TDI implicate Section 150.002 | Rivera contends 150.002 does not apply to his live claims against TDI | TDI contends 150.002 governs the claims because it is a licensed engineer and the claims arise from professional services | Claims do not implicate 150.002 |
| Which petition governs for 150.002 analysis | Live pleadings control | Original petition controls; failure to file merit bars later claims | Live pleadings govern; dismissal not warranted |
| Do Rivera's negligence and premises liability claims arise out of professional services | Not all claims arise from professional services; some do not implicate engineer’s knowledge | As a licensed firm, many claims arise from professional services | Neither claim implicates 150.002 |
| Premises liability which defense | Premises claims are not governed by 150.002 merely because of who TDI is | Premises claims could implicate 150.002 if they arise from professional services | Premises claims did not implicate 150.002 |
Key Cases Cited
- Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex.App.-Corpus Christi 2009) (failure to comply with 150.002 may not bar non-150 claims)
- Consol. Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887 (Tex.App.-Austin 2008) (non-Chapter 150 claims may survive)