                            NUMBER 13-13-00206-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

BHP ENGINEERING AND
CONSTRUCTION, L.P.,                                                       Appellant,

                                          v.

HEIL CONSTRUCTION
MANAGEMENT, INC.,                                                          Appellee.


                    On appeal from the 28th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides
      This case involves chapter 150 of the Texas Civil Practice and Remedies Code.

By two issues, appellant, BHP Engineering & Construction, L.P. (BHP), contends the trial
court abused its discretion when it:          (1) granted appellee, Heil Construction

Management and Construction, L.P.’s (Heil’s) request for extension of time to file a

certificate of merit and (2) denied BHP’s motion to dismiss. We affirm.

                                       I. BACKGROUND

           U.S. Ecology owns and operates a hazardous waste facility in Robstown, Texas.

U.S. Ecology contracted with Heil to serve as the general contractor for an expansion of

their facility.   The expansion sought to include a new stabilization building (the “Stab

Building”) which would house equipment that would convert hazardous waste into

environmentally acceptable waste for disposal.

        Heil issued a request for proposals for the mechanical and design engineering

services required to construct the Stab Building.       BHP submitted a proposal and

ultimately received the contract. The project included designs for, among other things,

a mechanical transfer system, a toxic dust collection system, a baghouse, a shredder

drum-lift system, and a four-sided dust containment curtain system. The latter, the

four-sided dust containment curtain system, became the subject of the underlying

lawsuit.

        Heil alleged that it discovered BHP incorrectly designed the dust containment

curtain system on January 18, 2011.         Heil claimed it was forced to re-design and

replace the faulty containment system at its own cost in order to meet U.S. Ecology’s

strict construction deadline.   As a result of this, Heil sued BHP on December 27, 2012

for negligence, breach of contract, and breach of express warranty for services.    Even

though Heil was suing BHP, an engineering firm, it did not file a certificate of merit as




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required by chapter 150 of the Texas Civil Practices and Remedies Code.             Chapter 150

requires a plaintiff to file an affidavit of a third-party licensed engineer practicing in the

same area as defendant, setting forth specifically at least one negligent act, error, or

omission which caused the alleged injury.           See TEX. CIV. PRAC. & REM. CODE ANN.

§ 150.002(a) (West 2011). The certificate should be served on the same day as the

lawsuit.   Id.   However, some exceptions exist to this rule:       (1) if the lawsuit is filed ten

days before the statute of limitation, a party has an automatic extra 30 days to provide a

certificate of merit and (2) when a trial court can grants an extension for good cause.         Id.

§ 150.002(c).     Heil filed its lawsuit 22 days before the statute of limitations on its claims

expired.

       On February 28, 2013, BHP filed a Motion to Dismiss against Heil for failing to file

a certificate of merit.   In response, Heil filed its Certificate of Merit with the trial court on

March 15, 2013.      Heil filed a Motion for Extension of Time to file its certificate of merit on

the same day.      In its motion, Heil asserted various reasons why it could not file the

certificate of merit on the same day as its petition:      (1) it did not engage an attorney

until late 2012, and the statute of limitations on its claim was about to run in January

2013; (2) the initial engineer it wanted to engage was not qualified to render the

certificate of merit, so it had to search for another one in short order; and (3) after filing

suit in this case, its attorney of record had eye surgery and then immediately proceeded

to trial in a different Texas county.    Heil argued that BHP had asserted no prejudice in

its motion to dismiss, and that “the case ha[d] been on file less than 90 days and that




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[BHP had] been in the suit less than 45 days.” It also stressed that the trial court had

discretion in determining whether good cause existed.

       In response, BHP reasserted that the certificate of merit was untimely—Heil’s

claim was not filed within 10 days of the statute of limitation, and its certificate was not

filed within thirty days of the deadline.   Instead, Heil’s petition was filed 22 days before

the statute’s expiration and its certificate was served 78 days after the lawsuit was filed.

BHP further argued that Heil failed to set forth valid reasons for a good cause extension.

BHP also asserted that Heil’s engineer, Jean-Paul Budinger, was unqualified to write the

certificate of merit because he was a structural engineer and not a chemical engineer.

Finally, BHP proclaimed that Budinger’s certificate was insufficient because it was

conclusory and lacked a factual basis.

       The trial court granted Heil’s motion for extension of time to file a certificate of

merit and denied BHP’s motion to dismiss. BHP appealed.           See id. § 150.002(f) (West

2011) (providing that an order “denying a motion for dismissal is immediately appealable

as an interlocutory order”).

                       II. STANDARD OF REVIEW AND APPLICABLE LAW

A.     Standard of Review

       We review a trial court's decision to grant or deny a defendant's motion to dismiss

under section 150.002 of the Texas Civil Practice and Remedies Code for abuse of

discretion.   See WCM Group, Inc. v. Brown, 305 S.W.3d 222, 229 (Tex. App.—Corpus

Christi 2009, pet. dism’d); Landreth v. Las Brisas Council of Co–Owners, Inc., 285 S.W.

3d 492, 496 (Tex. App.—Corpus Christi 2009, no pet.).              A trial court abuses its




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discretion by acting arbitrarily, unreasonably, or without considering guiding principles.

Downer v. Aquamarine Operators Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).            “A trial

court has no discretion in determining what the law is or applying the law to the facts.”

Landreth, 285 S.W.3d at 496.    A trial court does not abuse its discretion when it bases a

decision on conflicting evidence—rather, a factual decision is an abuse of discretion only

if there is no evidence to support the decision.         Whirlpool, 251 S.W.3d at 102.

“Merely because a trial court may decide a matter within its discretion in a different

manner than an appellate court does not demonstrate an abuse of discretion.”

Landreth, 285 S.W. 3d at 496.

B.    Applicable Law

      The applicable version of section 150.002 provides as follows:

      (a) In any action or arbitration proceeding for damages arising out of the
          provision of professional services by a licensed or registered
          professional, the plaintiff shall be required to file with the complaint an
          affidavit of a third-party licensed architect, licensed professional
          engineer, registered landscape architect, or registered professional
          land surveyor who:

             (1) is competent to testify;

             (2) holds the same professional license or registration as the
                 defendant; and

             (3) is knowledgeable in the area of practice of the defendant and
                 offers testimony based on the person's:

                    (A)   knowledge;
                    (B)   skill;
                    (C)   experience;
                    (D)   education;
                    (E)   training; and
                    (F)   practice.




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       (b) The affidavit shall set forth specifically for each theory of recovery for
           which damages are sought, the negligence, if any, or other action,
           error, or omission of the licensed or registered professional in
           providing the professional service, including any error or omission in
           providing advice, judgment, opinion, or a similar professional skill
           claimed to exist and the factual basis for each such claim. The
           third-party licensed architect, licensed professional engineer,
           registered landscape architect, or registered professional land
           surveyor shall be licensed or registered in this state and actively
           engaged in the practice of architecture, engineering, or surveying.

       (c) The contemporaneous filing requirement of Subsection (a) shall not
           apply to any case in which the period of limitation will expire within 10
           days of the date of filing and, because of such time constraints, the
           plaintiff has alleged that an affidavit of a third-party licensed architect,
           licensed professional engineer, registered landscape architect, or
           registered professional land surveyor could not be prepared. In such
           cases, the plaintiff shall have 30 days after the filing of the complaint to
           supplement the pleadings with the affidavit. The trial court may, on
           motion, after hearing and for good cause, extend such time as it shall
           determine justice requires.

       (d) The defendant shall not be required to file an answer to the complaint
            and affidavit until 30 days after the filing of such affidavit.

TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)-(d).

                                        III. DISCUSSION

A.     The Extension of Time

       Heil set forth three reasons why it did not file the certificate of merit on the same

day as its petition.   First, Heil claimed that it did not engage an attorney until late 2012,

and the statute of limitations on its claim against BHP would expire in January 2013.

Second, the initial engineer Heil wanted to engage was not qualified to render the

certificate of merit, so it had to search for another one quickly.     Third, Heil’s attorney

had eye surgery in December 2012 and then immediately had another trial in a different

Texas county shortly after filing suit in this case.



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1.     The Statute of Limitations Exception

       It is undisputed that Heil did not file a certificate of merit when it filed its original

petition on December 27, 2012. It is further undisputed that Heil filed its original petition

more than ten days before the expiration of the limitations period; its lawsuit, in fact, was

filed 22 days before the limitations period expired.    Section 150.002(b)’s plain language

provides for an automatic extension of 30 days to file the certificate of merit if the suit is

filed within ten days of the expiration of the limitations period.     Id. § 150.002(b). We

agree with BHP that Heil was not entitled to this automatic exception.       Id.

2.     The Good Cause Exception

       In the alternative, section 150.002 provides that “the trial court may, on motion,

after hearing and for good cause, extend such time as it shall determine justice requires.”

Id.   In WCM Group, Inc. v. Brown, we held that we would not

       limit the good cause extension to situations where the party files suit within
       ten days of the expiration of limitations, particularly given that the purpose
       of the statute is to provide a basis for the trial court to conclude that the
       plaintiff’s claims have merit, not to dismiss meritorious claims on a
       procedural technicality. . . . Thus, the trial court was within its power, as
       provided by the statute, to consider and grant the [plaintiffs’] request for an
       extension of time upon a showing that good cause existed and justice
       requested an extension.

305 S.W.3d at 230 (internal citation omitted).          BHP invites us to reconsider this

analysis, and hold instead that the “good cause” extension only applies when a movant

has filed their lawsuit within ten days of the statute of limitations.              See Apex

Geoscience, Inc. v. Arden Texarkana, 370 S.W.3d 14, 18–20 (Tex. App.—Texarkana

2012, pet. filed) (concluding that a movant is only entitled to a “good cause” extension

when it meets the limitations requirement); Pakal Enters., Inc. v. Leska Enters., LLC, 369



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S.W.3d 224 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (same). We decline this

invitation and choose instead to follow our precedent that allows trial courts to determine,

in their own discretion, if an extension is warranted.              Brown, 305 S.W.3d at 230; see

also Apex, 370 S.W.3d at 24 (Carter, J., dissenting) (holding that “the Legislature

entrusted the trial courts with making prudent decisions on the issue of ‘good

cause’. . . .”).

        In its order granting the motion for extension of time, the trial court did not specify

the ground upon which it based its motion to extend time.                    Instead, it just generally

proclaimed that “Plaintiff Heil Construction Management, Inc.’s time to file its Certificate

of Merit is extended to March 15, 2013.” Heil offered two grounds to support that it had

good cause to file a late certificate of merit: that its initial choice of an engineer was not

qualified to render the certificate of merit;1 and that its attorney had surgery and then

immediately proceeded to trial, not giving him adequate time to engage an expert to

provide the certificate.

        BHP argued in the alternative that this case could be easily distinguished from our

Brown case. They assert that, in Brown, the plaintiffs were unaware of the defendant’s

status as an engineering firm, whereas here, Heil specifically engaged BHP for its

engineering services.       They also argue that the plaintiffs in Brown were more prompt in



        1
           In its Motion for Extension of Time, Heil indicated that it wanted to engage a former engineer
from U.S. Ecology to provide its certificate of merit. However, once this engineer was located, Heil
determined that he was not qualified to render the certificate. BHP, in its Reply, argued that attempting to
engage a former U.S. Ecology engineer was inappropriate because the engineer was involved with the
project and, thus, would not be a “third-party licensed engineer” as required by section 150.002(a). See
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a) (West 2011). We need not address this argument,
however, as it was never presented to the trial court. See TEX. R. APP. P. 33.1.



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providing a certificate of merit.   However, because our standard of review is an abuse of

discretion, we defer to the trial court’s decision that either or both of Heil’s proposed

grounds constituted “good cause” for the certificate of merit to be filed late.      Landreth,

285 S.W. 3d at 496; see also WCM Group v. Camponovo, 305 S.W.3d 214, 220–21

(Tex. App.—Corpus Christi 2009, pet. dism’d) (discussing “good cause” in the context of

chapter 150 certificate of merit extensions). We will not conclude that a trial court has

abused its discretion merely because it decided a matter in a different manner than we

would have.     Landreth, 285 S.W.3d at 496. As we held in Brown, “[t]he purpose of the

[chapter 150] statute is to provide a basis for the trial court to conclude that the plaintiff’s

claims have merit, not to dismiss meritorious claims on a procedural technicality.” 305

S.W.3d at 230.     Here, we defer to the trial court’s decision that Heil’s claims have merit.

       We overrule BHP’s first issue.

B.     Denial of the Motion to Dismiss

       By its second issue, BHP argues that the trial court abused its discretion in

denying its motion to dismiss because:       (1) the engineer that wrote Heil’s certificate of

merit, Jean-Paul Budinger, was not qualified to provide the certificate, and (2) the

affidavit was conclusory.

1.     The Licensed Engineer’s Qualifications

       Section 150.002(a)(3) directs us to look at the affiant’s knowledge, skill,

experience, education, training, and practice to determine if they are qualified to provide

the certificate of merit.   TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)(3)(A)–(F). The

affiant must hold the same professional license or registration as the defendant and be




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knowledgeable in the same area of practice of the defendant.                    See id. §

150.002(a)(2)–(3).

       Budinger’s curriculum vitae establishes that he has a Bachelor of Architecture

(Engineering Option) from the University of Illinois-Champaign in Urbana, Illinois. He is

a “licensed professional engineer” in three states, including Texas, and a “registered

architect” in nine states, including Texas.   In his thirty years of work experience, he has

designed multiple structures, including “complex hazardous material storage facilities.”

Budinger claims he has expertise in “engineering design, failure analysis, construction

and facilities management and cause and origin of building component failures.”

       BHP contends that Budinger is not qualified to provide a certificate of merit in this

case because he is a structural engineer and not a chemical engineer. We disagree.

Chapter 150 “does not state that the affiant's knowledge must relate to the same, much

less the same specialty, area of practice,” as BHP contends.          Dunham Eng’g, Inc. v.

Sherwin-Williams Co., 404 S.W.3d 785, 794 (Tex. App.—Houston [14th Dist.] no pet.).

“Indeed, section 150.002 ‘imposes no particular requirements or limitations as to how the

trial court ascertains whether the affiant possesses the requisite knowledge.’”          Id.

(citing M–E Engineers, Inc. v. City of Temple, 365 S.W.3d 497, 503 (Tex. App.—Austin

2012, pet. denied)).   Heil’s claims against BHP involve the alleged defective design of

the Stab Building, which was intended to store and convert hazardous waste products.

Budinger, a licensed engineer and registered architect in Texas, has experience

designing hazardous material storage structures.       His expertise also includes failure

analysis and determining the cause and origin of structure failure.




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       Budinger’s “knowledge, skill, experience, education, training, and practice”

demonstrate that he has knowledge “in the same area of practice of the defendant” in

this case.   Id. We hold that the trial court did not abuse its discretion in holding that

Budinger was qualified to render a certificate of merit.

2.     The Sufficiency of the Certificate of Merit

       We also disagree with BHP’s assertion that Budinger’s affidavit was conclusory or

lacked a sufficient basis. BHP complains that Budinger’s assertions generally recited

the allegations in Heil’s original petition and failed to “state the manner or method in

which [BHP’s] designs were deficient.”

       Chapter 150 “does not define ‘factual basis,’ but the purpose of the certificate of

merit ‘is to provide a basis for the trial court to conclude that the plaintiff's claims are not

frivolous.’” Dunham Eng’g, 404 S.W.3d at 795–96.           “The statute does not require the

plaintiff to marshal all his evidence and does not foreclose the defendant from later

challenging the sufficiency or admissibility of the plaintiff's evidence.”         Id. at 796.

“Because the core focus of section 150.002(b) is ascertaining and verifying the existence

of errors or omissions in the professional services provided, it does not ‘require that a

certificate address operative facts other than the professional errors and omissions that

are the focus of the statute.’”   Id.

       In his affidavit, Budinger stated that BHP was negligent when it failed to provide

proper engineering and designing of the mix pan dust collection system, overhead

hoods, and curtains for the Stab Building.     In particular, Budinger claimed that BHP had

a duty to meet U.S. Ecology and Heil’s design specifications, and that the failure to do so




                                              11
proximately damaged Heil. Because we conclude that these statements constitute a

sufficient “factual basis” for Heil to assert negligence, breach of contract, and breach of

express warranty claims against BHP, we hold that the trial court did not abuse its

discretion when it determined that Budinger’s affidavit was sufficient.      The affidavit

generally set forth the errors or omissions BHP committed “in providing advice,

judgment, opinion, or a similar professional skill” for each of BHP’s claims.    TEX. CIV.

PRAC. & REM. CODE ANN. § 150.002(b). We overrule BHP’s second issue.

                                    IV. CONCLUSION

       Because we overruled both of BHP’s issues, we affirm the trial court’s judgment.




                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


Delivered and filed the
5th day of December, 2013.




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