MELDEN & HUNT, INC., Appellant, v. EAST RIO HONDO WATER SUPPLY CORPORATION, Appellee.
NUMBER 13-15-00227-CV
Court of Appeals of Texas, Corpus Christi-Edinburg.
Delivered and filed December 17, 2015
473 S.W.3d 743
CONCLUSION
Issue One is overruled. Because APC cannot meet its threshold burden of showing the agreement encompasses this dispute, we decline to address Issue Two regarding Pando‘s unconscionability defense as unnecessary to the resolution of this appeal. The trial court‘s order is affirmed.
Before Chief Justice Valdez and Justices Rodriguez and Perkes
OPINION
Opinion by Justice Perkes
Appellee East Rio Hondo Water Supply Corporation (East Rio Hondo) filed suit against appellant Melden & Hunt, Inc. (Melden) and other defendants alleging breach of contract, breach of express and implied warranty, negligence, negligence per se, and negligent misrepresentation in connection with the design and construction of a water treatment plant1. Melden moved to dismiss East Rio Hondo‘s lawsuit, claiming that the requisite certificate of merit failed to satisfy the requirements of
Melden brings this interlocutory appeal under civil practice and remedies code section 150.002. See
I. BACKGROUND
Along with its original petition, East Rio Hondo contemporaneously filed a certificate of merit in the form of an affidavit of Dan Leyendecker, P.E. The affidavit consists of fifteen paragraphs in five single-spaced pages and is divided into two parts. The first part addresses Melden‘s alleged acts and omissions and those of Melden‘s engineer Alan Booe. The second part addresses the other defendants—referred to in the affidavit as the “manufacturers“—and their alleged acts and omissions.
Leyendecker sets out in his affidavit that he is the president and principal of LNV Engineering. He has a bachelor of science degree in civil engineering and twenty-three years’ experience in “master planning, detailed design and construction management.” Leyendecker further states that his education and experience includes the “design and analysis of water treatment plants, including clarifiers, pumps, filters, piping, controls, and chemical feed systems[.]”
Leyendecker avers that he reviewed the engineering plans and construction documents prepared by Melden, together with the equipment cutsheets, specifications, operations and maintenance manuals. With respect to Melden‘s negligence, he states:
Melden & Hunt and Booe (1) failed to provide and design a water treatment plan without cross connections, (2) failed to select and design a properly functioning solids contact clarifier, (3) failed to design a filtration system that can be properly backwashed and safely brought into operation without dangerous turbidity spikes, (4) failed to provide adequate assistance and support, and (5) failed to design a proper air filter scour system.
In the paragraphs that follow, Leyendecker elaborates on each of the identified
Leyendecker also addressed East Rio Hondo‘s other causes of action against Melden. Specifically, Leyendecker asserts the “negligent acts and omissions ... also constitutes a breach of Melden & Hunt‘s and Booe‘s contractual obligations to properly and adequately design the Plant.” Leyendecker addresses the negligent misrepresentation cause of action by stating “Melden & Hunt ... provided false information in the construction plans and documents relied on by East Rio Hondo.” The affidavit concludes with Leyendecker‘s signature and a “professional engineer” stamp with his Texas engineering license number.
II. MOTION TO DISMISS
By its sole issue on appeal, Melden argues the trial court erred in denying its motion to dismiss.
A. Standard of Review
“We review a trial court‘s decision to grant or deny a defendant‘s motion to dismiss under
To the extent we analyze statutory construction, however, our review is de novo. See id. (citing Landreth, 285 S.W.3d at 496). “Once we determine the statute‘s proper construction, we must then decide whether the trial court abused its discretion in applying the statute.” Id. “In construing statutes, we ascertain and give effect to the Legislature‘s intent as expressed by the language of the statute.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2006). “We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired.” Id. “Otherwise, we construe the statute‘s words according to their plain and common meaning.” Id. “Every word of a statute must be presumed to have been used for a purpose, and every word excluded from a statute must also be presumed to have been excluded for a purpose.” Landreth, 285 S.W.3d at 497.
B. Applicable Law
III. DISCUSSION
A. Leyendecker‘s Qualifications
Melden first argues that Leyendecker‘s affidavit fails to demonstrate that he is knowledgeable and competent to testify. Specifically, Melden claims that Leyendecker‘s statements regarding his qualifications are “conclusory assertions” and establish nothing more than that he is an engineer. In essence, Melden urges us to review the
What
Consequently, the trial court was able to determine that Leyendecker was licensed as a Texas engineer with education and experience including the “design and analysis of water treatment plants, including clarifiers, pumps, filters, piping, controls, and chemical feed systems[.]” Leyendecker‘s recital of his qualifications and experience are factual statements supporting his conclusion that he is knowledgeable in Melden‘s area of practice and competent to testify. See
B. Actively Engaged in the Practice of Engineering
Melden also argues that Leyendecker‘s affidavit fails to show that he is actively engaged in the practice of engineering and thus fails to meet the requirements of subsection (b) of
The practice of engineering includes, among other things: design of engineering works or systems; development of specifications for engineering works or systems; engineering for construction of real property; and “any other professional service necessary for the planning, progress, or completion of an engineering service.” CBM Eng‘rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 343 (Tex.App.—Houston [1st Dist.] 2013, pet. denied) (citing
Leyendecker‘s affidavit provides information indicative of active engineering practice. Leyendecker states that he is the president and principal of LNV Engineering. Although he does not describe the type of business in which LNV Engineering engages, the trial court could reasonably infer from the company‘s name and Leyendecker‘s past experience that LNV Engineering engages in engineering services. The trial court could have further reasoned that, as president and principal of LNV Engineering, Leyendecker‘s job duties include “any other professional service necessary for the planning, progress, or completion of an engineering service.” See
We conclude that the trial court did not abuse its discretion in determining that Leyendecker was knowledgeable and qualified to testify. Likewise, based on reasonable inferences, the trial court could have concluded that Leyendecker is actively engaged in engineering.
C. Theories of Recovery
Melden claims that Leyendecker‘s affidavit failed to address “each theory of recovery for which damages are sought” as required by section 150.002(b). See
In support of its argument, Melden cites Garza v. Carmona, 390 S.W.3d 391, 396-97 (Tex.App.—Corpus Christi 2012, no pet.). In Garza we rejected a certificate of merit for not tying specific actions of the defendants to specific causes of actions. Id.; see also Durivage, 2011 WL 6747384, at *4 (dismissing certain claims that were not supported by the certificate of merit); but see Couchman v. Cardona, 471 S.W.3d 20, 25-26 (Tex.App.—Houston [1st Dist.] 2015, no pet.) (holding that a certificate of merit
Melden‘s argument misinterprets our holding in Garza. There, we explained that the crux of the plaintiffs negligence claims was a failure to supervise. See Garza, 390 S.W.3d at 396. We noted that the affidavit was “wholly silent on the question of whether [defendant] negligently supervised and failed to correct [the construction contractor‘s] work.” See id. at 397. We also examined the plaintiffs four additional causes of action and compared the statements in the affidavit to the different elements of each cause. See id. Though our analysis contrasted the cause of action elements with the affidavit to identify omissions in the affidavit, Garza does not stand for the requirement that the affidavit must address each element of each cause of action. Section 150 does not require that level of specificity. Instead, the function of the certificate of merit is to provide a basis for the trial court to determine merely that the plaintiff‘s claims are not frivolous and to thereby conclude that the plaintiff is entitled to proceed in the ordinary course to the next stages of litigation. CBM Eng‘rs, 403 S.W.3d at 346.
Leyendecker‘s affidavit meets this function. Unlike the affidavit in Garza, Leyendecker addresses each of East Rio Hondo‘s causes of action attributable to errors in professional service. Concerning the negligence claim, Leyendecker states Melden & Hunt and Booe improperly incorporated multiple cross connections in its design of the Plant. Cross connections can lead to inadvertent contamination of already treated water and pose a severe risk to the health of East Rio Hondo‘s customers and violate Texas Commission on Environmental Quality (TCEQ) regulations.
Likewise, Leyendecker addresses the breach of warranty claims, explaining that “[t]hese clarifiers were chosen because of Manufacturer‘s, Melden & Hunt‘s, and Booe‘s claim that the typically implemented sludge blanket clarifier operation would create excellent produced water and further increase the efficiency of the treatment process.” With respect to East Rio Hondo‘s breach of contract claim, it is unnecessary for Leyendecker to reference the specific terms of the contract between Melden and East Rio Hondo. Instead, his affidavit examines how the plant was not operating correctly, safely, or efficiently resulting from the numerous problems with the plant‘s design and filtration system. He concludes that “Melden & Hunt and Booe failed to live up to their obligations that required them to design the Plant in accordance with their contract.” Similarly, Leyendecker addressed East Rio Hondo‘s negligent misrepresentation claim by stating that “Melden & Hunt failed to provide relevant and material information to East Rio Hondo ... and, in fact, provided false information in the construction plans and documents relied on by East Rio Hondo.” We note that a certificate of merit is “filed early in the litigation, before discovery and before other dispositive motions may be available.” Couchman, 471 S.W.3d at 26 (citing CBM Eng‘rs, 403 S.W.3d at 345). Accordingly, the plaintiff is not required to marshal its
D. Negligence
With respect to East Rio Hondo‘s negligence claims, Melden asserts that the affidavit offers no factual basis, no standard of care, no specific instances of wrongdoing, and no discussion of causation. While it is true that the certificate of merit must provide a factual basis for the allegations of professional errors or omissions, it need not recite the applicable standard of care and how it was allegedly violated in order to provide an adequate factual basis for the identification of professional errors. CBM Eng‘rs, 403 S.W.3d at 345; see M-E Eng‘rs, Inc., 365 S.W.3d at 506; Gartrell v. Wren, No. 01-11-00586-CV, 2011 WL 6147786, at *5 (Tex.App.—Houston [1st Dist.] Dec. 8, 2011, pet. denied) (mem.op.); Elness Swenson, 2011 WL 1562891, at *4.
Though Leyendecker asserts that “Melden & Hunt and Booe failed to use ordinary care that a reasonable and prudent professional would have used in performing duties related to the design of the Plant and the filtration system used in it,” this statement does not identify the factual basis for the errors. The following portions of the affidavit, however, do set forth the factual basis of the errors. Leyendecker‘s affidavit then explains the filtration system design, why the design is incorrect, and how those design errors have contributed to problems in the plant. That is what matters in the certificate of merit—the factual basis.
E. Summary
We hold the trial court did not abuse its discretion by denying the motion to dismiss based on the sufficiency of the certificate of merit. See Couchman, 471 S.W.3d at 27; CBM Eng‘rs, 403 S.W.3d at 346 (upholding certificate of merit identifying errors in structural drawings and concluding errors contributed to instability of building); Dunham Eng‘g, 404 S.W.3d at 796-97 (upholding certificate of merit identifying errors in bid process and concluding errors violated professional engineering duties). We overrule Melden‘s sole issue.
IV. CONCLUSION
We affirm the trial court‘s order denying Melden‘s motion to dismiss.