                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00212-CV


NORTEX FOUNDATION DESIGNS,                                         APPELLANT
INC.

                                       V.

DOUGLAS H. REAM AND KAREN                                          APPELLEES
S. REAM


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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                    ----------

                       MEMORANDUM OPINION 1

                                    ----------

      Appellant Nortex Foundation Designs, Inc. appeals the trial court’s denial

of its motion to dismiss the claims brought against it by Appellees Douglas H.

Ream and Karen S. Ream. The Reams sued Nortex for negligence in the design

of their home’s foundation and provided a certificate of merit to comply with



      1
      See Tex. R. App. P. 47.4.
section 150.002 of the civil practice and remedies code. 2 In one issue, Nortex

argues that the certificate of merit provided by the Reams does not meet

statutory requirements because the engineer who provided the certificate of merit

was not practicing in the same area of engineering as the Nortex employee who

designed the foundation. Because we hold that the Reams’ certificate of merit

satisfied the statute’s requirements, we affirm the trial court’s order.

                                    Background

      The Reams sued Andrew Merrick Homes, LLC claiming that the design

and construction of their home’s foundation was faulty. Merrick Homes joined

Nortex as a responsible third party. Nortex specializes in residential foundation

designs and designed the Reams’ foundation.

      The Reams amended their petition to assert claims against Nortex. The

Reams alleged that Nortex (1) failed to exercise reasonable care or competence

in obtaining or communicating design information in preparing and designing the

foundation of the Reams’ home, (2) breached common law implied warranties

that the foundation was designed in a good and workmanlike manner and was fit

for its intended purpose, (3) negligently undertook to perform services that it

knew or should have known were necessary for the Reams’ protection, and (4)

breached the common law warranty that was implied when Nortex’s engineer

made an unqualified, statutorily-imposed express warranty under administrative


      2
       Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (West 2011).


                                          2
code section 137.33 3 that Nortex was professionally responsible for the design of

the foundation at issue.

      To their petition, the Reams attached an affidavit as required by civil

practice and remedies code section 150.002. 4 The affidavit was executed by

Ralph Mansour, a licensed professional engineer.           With respect to his

qualifications, Mansour stated,

            2. I am a Texas-Licensed Professional Registered Engineer.
      Attached as Exhibit 1 is a copy of my Curriculum Vitae. I have been
      a Licensed Professional Engineer in the State of Texas since 1994,
      specializing in geotechnical engineering and structural engineering
      and am familiar with the proper engineering and construction
      techniques as part of my education and experience. I am actively
      engaged in the practice of geotechnical engineering and structural
      engineering in the North Texas area and the Dallas-Fort Worth
      Metroplex in particular. I am familiar with standard industry practice
      in North Texas for professional engineers.          In terms of my
      employment, I have inspected a number of residences that have
      suffered from structural problems. I have reviewed structural
      designs of residential structures on many occasions and am familiar
      with analyzing the damages to determine the cause or causes.
      Further, I have engineered residential concrete foundations as a part
      of my structural design practice.

            3. As a licensed engineer with the foregoing educational and
      professional background and experience, I am familiar with minimum
      industry standards relating to the design and construction of
      residential structures, such as the Reams’ home, as well as the
      minimum standards relating to the design and construction of
      foundation systems for residential structures, such as the foundation
      used at the Reams’ residence, including design of foundations on
      expansive soils.

      3
       22 Tex. Admin. Code Ann. § 137.33 (2013) (Tex. Bd. of Prof’l Eng’rs,
Sealing Procedures).
      4
       See Tex. Civ. Prac. & Rem. Code Ann. § 150.002.


                                        3
      Mansour stated that he had inspected the Reams’ foundation using the

procedure of the Post-Tensioning Institute and International Building Code.

Mansour’s resume, which he attached to his affidavit, lists his experience in

geotechnical, structural, and forensic engineering.

      Mansour’s affidavit does not name specific types of foundation design with

which he was familiar. His resume states that “[i]n the last five years, [Mansour]

provided thousands of foundation evaluations for homeowners, foundation repair

contractors, insurance companies[,] and attorneys.”

      Nortex filed a motion to dismiss arguing that the affidavit did not show that

Mansour is practicing in the same area of practice as Jerry Coffee, its employee

and the engineer who designed the Reams’ foundation. Nortex asserted that

Mansour had not been practicing in the area of residential foundation design and

that it was unclear from the certificate of merit or Mansour’s deposition as to

whether he had ever designed a post-tension cable foundation, the type of

foundation used in the Reams’ home. It pointed out that as section 150.002

existed in 2009, an affiant had to be engaged in the same area of practice as the

defendant, and it argued that Mansour is a forensic geotechnical engineer who

does not actually design foundations. At a hearing on the motion, Nortex argued

that Mansour had designed less than ten residential foundations during his

career and that Coffee has designed thousands of residential foundations.

      The trial court denied Nortex’s motion, and it now appeals.




                                        4
                               Standard of Review

      We review a trial court’s ruling on a motion to dismiss for an abuse of

discretion. 5 To determine whether a trial court abused its discretion, we must

decide whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable. 6

      Statutory construction is a question of law, which we review de novo. 7

Once we determine the proper construction of a statute, we determine whether

the trial court abused its discretion in the manner in which it applied the statute to

the instant case. 8

                                      Analysis

      In Nortex’s sole issue, it argues that the trial court erred by denying its

motion to dismiss because Mansour does not practice in the same area as

Coffee. In suits arising out of the provision of certain professional services, the

civil practice and remedies code requires a plaintiff to provide a “certificate of

merit”—an affidavit made by a professional who holds the same professional


      5
        Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palladian Bldg. Co.,
Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex. App.—Fort Worth
2005, no pet.).
      6
       Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
      7
       Palladian Bldg., 165 S.W.3d at 436.
      8
       Id.


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license as the defendant that contains statements about the negligence or other

act of the defendant. 9 With respect to a suit alleging professional negligence

against an engineer, the plaintiff must file with its complaint the affidavit of a third-

party registered licensed professional engineer. 10 The statute in place at the

time that the Reams filed suit stated that the affidavit must be by an engineer

who is “practicing in the same area of practice as the defendant.” 11

      Nortex focuses much of its argument on whether Mansour was, at the time

of his affidavit, engaged in designing residential foundations.         Nortex depicts

Coffee’s area of practice narrowly, essentially arguing that an expert must be

employed in the same job or subspecialty as a defendant.              On its face, the

statute requires the expert to be practicing in the same area as the defendant,

but it does not require the expert to have the same job description. All that is

necessary is that, whatever the expert’s job, it falls within the same area of

practice as the defendant. Thus, it is not necessary that the Reams’ expert be

employed in designing post-tension cable foundations for residences. He must,


      9
       Tex. Civ. Prac. & Rem. Code Ann. § 150.002.
      10
        See Act of May 18, 2005, 79th Leg., R.S., ch. 208, §§ 2, 4–5, 2005 Tex.
Gen. Laws 369, 369–70 (amended 2009) (current version at Tex. Civ. Prac. &
Rem. Code Ann. §§ 150.001–.003 (West 2011)); Act of May 12, 2005, 79th Leg.,
R.S., ch. 189, §§ 1–2, 2005 Tex. Gen. Laws 348, 348 (amended 2009) (current
version at Tex. Civ. Prac. & Rem. Code Ann. §§ 150.001–.002).
      11
       See Act of May 18, 2005, 79th Leg., R.S., ch. 208, §§ 2, 4–5, 2005 Tex.
Gen. Laws 369, 369–70; Act of May 12, 2005, 79th Leg., R.S., ch. 189, §§ 1–2,
2005 Tex. Gen. Laws 348, 348.


                                           6
however, be practicing in the same area of engineering as Coffee—that is,

whatever area of practice that the design of residential foundations fits into,

Mansour must also be practicing in that area. 12

      Coffee and Nortex were employed to provide structural engineering

services—specifically, the design of the foundation. In Mansour’s affidavit, he

states that he specializes in and is actively engaged in the practice of

geotechnical engineering and structural engineering.        In the course of his

employment, he has reviewed structural designs of residential structures, and he

has inspected a number of residences suffering from structural problems. And

as part of his structural design practice, he has engineered residential concrete

foundations.

      Both Mansour and Coffee practice in the area of structural engineering, 13

and both are employed in jobs in which they must know the proper standards for


      12
         See Act of May 18, 2005, 79th Leg., R.S., ch. 208, §§ 2, 4–5, 2005 Tex.
Gen. Laws 369, 369–70; Act of May 12, 2005, 79th Leg., R.S., ch. 189, §§ 1–2,
2005 Tex. Gen. Laws 348, 348; see also Howe-Baker Eng’rs, Ltd. v. Enter.
Prods, Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, at *4 (Tex.
App.—Houston [1st Dist.] Apr. 29, 2011, no pet.) (mem. op.) (“In other words, the
affiant and the defendant must share a practice area, evaluated at a level of
generality appropriate to the nature of the negligent act, error, or omission being
identified.”).
      13
        See Int’l Assoc. for Bridge & Structural Eng’g, Structural
Engineering, http://www.iabse.org/IABSE/Structural_Engineering/IABSE/structur
al/about_structural.aspx?hkey=ee9b28cf-6a1a-4fdc-a1b5-aed61219be77
(defining “structural engineering” as “the science and art of planning, design,
construction, operation, monitoring and inspection, maintenance, rehabilitation
and preservation, demolishing and dismantling of structures, taking into
consideration technical, economic, environmental, aesthetic and social aspects).

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foundations.   One of them creates foundation designs and the other reviews

foundation designs, but both have the same general area of practice. 14 We hold

that Mansour’s affidavit meets the statute’s requirement that he be practicing in

the same area of engineering practice as Coffee.

      Nortex argues that we should look not only at Mansour’s affidavit, but also

at his resume and his deposition testimony, which it claims shows that Mansour

works in a different practice area than Coffee. Even if we consider Mansour’s

resume to be a part of the certificate of merit, his deposition is not, and nothing in

the plain language of the statute directs us to consider it.

      Some courts have, however, considered an expert’s resume when served

with the affidavit, 15 although nothing in the statute expressly allows consideration

of any evidence but the affidavit. 16         But we need not determine whether



See also, e.g., Irwin v. Nortex Found. Designs, Inc., No. 02-08-00436-CV, 2009
WL 2462566, at *2 n.6 (Tex. App.—Fort Worth Aug. 13, 2009, no pet.) (mem.
op.) (noting that Coffee is a structural engineer).
      14
        See CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., No. 01-11-01033-CV,
2013 WL 125713, at *6 (Tex. App.—Houston [1st Dist.] Jan. 10, 2013, pet.
denied) (op. on reh’g) (stating that a certificate of merit met the statute’s
requirements when the affiant practiced structural engineering and he was
reviewing the work of an engineering firm hired to prepare construction
documents and specifications).
      15
         See Belvedere Condos. at State Thomas, Inc. v. Meeks Design Grp.,
Inc., 329 S.W.3d 219, 221 (Tex. App.—Dallas 2010, no pet.); Benchmark Eng’g
Corp. v. Sam Houston Race Park, 316 S.W.3d 41, 49 (Tex. App.—Houston [14th
Dist.] 2010, pet. granted, judgm’t vacated w.r.m.).
      16
        See Tex. Civ. Prac. & Rem. Code Ann. § 150.002.


                                          8
consideration of the resume is required or allowed because even if we were to

consider the resume, or for that matter, the deposition testimony, our holding

would not change.

      Mansour’s resume states that his twenty years of experience includes

structural engineering, that he has provided recommendations for stabilizing

foundations for hundreds of distressed foundations in Texas, and that his

practice since 1996 has included providing foundation evaluations. This resume

shows that his area of practice includes reviewing foundation work. And in the

deposition that Nortex wants us to consider, although Mansour indicates that he

does not currently work in structural design, he states that foundation analysis is

one of the three main types of work in which his company engages. We have

already stated that it is sufficient that Mansour’s work includes reviewing and

analyzing structural designs.

      Because Mansour and Coffee both practice in the field of structural

engineering, we hold that the trial court did not err by denying Nortex’s motion to

dismiss. We overrule Nortex’s sole issue.




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                                     Conclusion

         Having overruled Nortex’s sole issue on appeal, we affirm the trial court’s

order.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: July 11, 2013




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