                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-19-00121-CV
                               __________________

                   FLUOR ENTERPRISES, INC., Appellant

                                         V.

   JARED MARICELLI AND MARCI NICOLE MARICELLI, Appellees


__________________________________________________________________

               On Appeal from the 172nd District Court
                       Jefferson County, Texas
                      Trial Cause No. E-202,378
__________________________________________________________________

                          MEMORANDUM OPINION

      This is an interlocutory appeal of the trial court’s order denying Fluor

Enterprises, Inc.’s (Fluor Enterprises) motion to dismiss for the failure of Jared and

Marci Nicole Maricelli (Plaintiffs or Appellees) to file a certificate of merit with

their first-filed complaint in which Fluor Enterprises was named as a defendant. See




                                          1
Tex. Civ. Prac. & Rem. Code Ann. § 150.001-.002. 1 Fluor Enterprises argues on

appeal that (1) the trial court abused its discretion in denying Fluor Enterprises’s

motion to dismiss because no certificate of merit setting out Fluor Enterprises’s

alleged professional errors or omissions was filed with the initial complaint against

Fluor Enterprises, and (2) the trial court abused its discretion in denying Fluor

Enterprises’s motion to dismiss Appellees’ claims with prejudice as Appellees failed

to comply with the statute’s contemporaneous filing requirement and the claims are

barred by limitations. We affirm.

                                    Background

      Plaintiffs filed suit against four Defendants: Fluor Enterprises, AMEC Foster

Wheeler USA Corporation (Foster Wheeler) 2, Triple “S” Industrial Corporation

(Triple “S”) and Wyatt Field Service Company (Wyatt). According to Plaintiffs’

first amended petition (the petition), on or about November 22, 2016, Plaintiff Jared

Maricelli sustained injuries when a threaded pipe connection within a coker unit’s

fines removal filter system (the system) at Total’s refinery in Port Arthur, Texas,

unexpectedly rotated and struck his body. The petition alleged that the unit was



      1
         The legislature recently amended sections 150.001 and 150.002. These
amendments became effective on June 19, 2019 and are applicable to actions filed
on or after the effective date, but do not impact the outcome of this appeal.
       2
         Foster Wheeler has filed a separate interlocutory appeal.
                                            2
designed, manufactured, and maintained by Fluor Enterprises and Foster Wheeler,

and that the pipe that unexpectedly rotated and injured Maricelli was installed,

inspected or approved by Triple “S” or Wyatt. Plaintiffs sued Fluor Enterprises for

a design defect, manufacturing defect, marketing defect, negligence, and breach of

implied warranty of merchantability regarding the system. Plaintiffs attached to their

petition a certificate of merit pursuant to section 150.002 of the Texas Civil Practices

and Remedies Code. The certificate of merit by Professional Engineer Michael

Sawyer did not mention Fluor Enterprises by name, but did discuss the negligence

or fault of “Fluor Corporation[,]” and it provided the following, in relevant part:

      On or about 22 November 2016 an accident occurred in the Delayed
      Coker Unit at the Total Port Arthur Refinery that injured Mr. Jared
      Maricelli. This certificate of merit discusses the design deficiency that
      was the proximate cause of Mr. Maricelli’s injury.

      Total commissioned an expansion of its Port Arthur Refinery in 2008
      that included a 50,000 BPD Coker as well as a vacuum distillation unit
      and distillate hydrotreater. The expansion allowed the refinery to
      produce more ultra-low sulfur diesel and was known as the Deep
      Conversion Project.

      Fluor Corporation performed the feasibility study, front-end
      engineering and design, procurement, construction and commissioning
      support for the Deep Conversion Project. The technology licensee for
      the Deep Conversion Project was from AMEC Foster Wheeler USA
      Corporation. . . .

      ....


                                           3
Experienced engineering and construction firms know that it is
paramount to the safety of workers and the environment that piping
systems are properly designed and constructed to prevent failure and
the subsequent release of hazardous chemicals. These professional
engineering firms are also aware that the risk involved in process design
modifications must be adequately assessed and proper adherence to
protocols and good engineering practices incorporated before startup.

7.0 CONCLUSIONS

Fluor Corporation provided the front-end engineering and design and
construction for the AMEC Foster Wheeler USA Corporation licensed
Delayed Coker at the Total Port Arthur Refinery. The hazard associated
with Mr. Maricelli’s incident would have been present during the
design and construction of the Deep Conversion Project. A thorough
hazard and operability study should have identified the hazard
associated with maintenance of the 304 Strainers and a safer alternative
design implemented. The firms associated with the engineering and
design of the Coker at Total failed to identify the piping hazard and
such failure was a proximate cause of Mr. Maricelli’s incident.

Wyatt Field Service Company and Triple S Industrial Corporation
provided process maintenance services at the Total Refinery prior to
Mr. Maricelli’s incident. Likewise, both contractors were involved with
maintenance and modifications to the 30FL-304A/B Fines Removal
Strainers and associated piping before the incident. Based on
information available and understanding pertaining to the installation
of the piping modification that injured Mr. Maricelli it is more likely
than not that the installation was conducted by an engineering
contractor during Total’s 2016 Coker Unit Turnaround. The contractor
who conducted the piping modification failed in their responsibilities
and duties, as set forth above, constituting a breach of the standard of
care and negligence and negligent undertaking, and such failures were
a proximate cause of Mr. Maricelli’s 22 November 2016 incident.

In addition, Total bears some responsibility for failing to ensure the
piping modifications were adequately inspected through the refinery’s
mechanical integrity quality assurance process.
                                   4
      In its motion to dismiss pursuant to section 150.002, Fluor Enterprises argued

that, because the certificate of merit did not reference Fluor Enterprises by name,

Plaintiffs failed to file the affidavit of a third-party engineer (“certificate of merit”)

setting out the alleged professional error, acts, or omission of Fluor Enterprises with

their first-filed action against Fluor Enterprises filed September 5, 2018. Fluor

Enterprises also argued that the error could not be cured by amendment, Plaintiffs’

claims against Fluor Enterprises should be dismissed, and the dismissal should be

with prejudice because limitations had run.

      Plaintiffs filed a response to the motion to dismiss and argued that the purpose

of Chapter 150’s certificate of merit requirement is to demonstrate to the trial court

that the claims are not frivolous, and that the report is a “‘threshold’ showing made

before discovery has been completed which does not require a marshalling of

evidence.” In their response, Plaintiffs conceded that the certificate of merit did not

refer to Fluor Enterprises but instead to “Fluor Corporation” who is “a related

entity[]” and they argued that the certificate of merit was sufficient because Fluor

Enterprises had not been misled or prejudiced by the “misnomer” as Fluor

Enterprises knew that it was the only related Fluor entity sued. According to

Plaintiffs, an affidavit by Michael Sawyer attached to their response (“Sawyer’s



                                            5
subsequent affidavit”) “clarifies the misnomer by naming the proper entity[]” as

Fluor Enterprises. Sawyer’s subsequent affidavit provided, in relevant part:

      [] It is also commonly understood in the engineering industry that
      “front-end engineering and design” (FEED) is the work required to
      define detailed engineering specifications for fabrication and
      construction of the process facility. One of the most critical aspects
      during the front-end engineering and design is to conduct hazard and
      operability evaluations. Fl[uo]r Enterprises, Inc. performed the front-
      end engineering and design for the work at issue.

      ....

      [] Fl[uo]r Enterprises, Inc. as the FEED contractor also had an
      obligation for design safety that would include analyzing the design so
      that process and operability hazards were eliminated or controlled. In
      other words, the responsibilities of AMEC Foster Wheeler USA
      Corporation and Fluor Enterprises, Inc. overlapped with regard to the
      identification and control of process and operability hazards.

      [] Both AMEC Foster Wheeler USA Corporation and Fl[uo]r
      Enterprises, Inc. separately and independently failed to identify the
      piping hazard and operability issue and such failure was the proximate
      cause of Mr. Maricelli’s incident.

      In Fluor Enterprises’s reply to Plaintiffs’ response to the motion, Fluor

Enterprises argued (1) Fluor Enterprises was not challenging the factual basis of

Sawyer’s certificate of merit but instead asserted that no certificate of merit setting

out the alleged professional acts or omissions of Fluor Enterprises was filed

contemporaneously with Plaintiffs’ first pleading against Fluor Enterprises, (2) the

doctrine of misnomer was inapplicable, (3) Sawyer’s subsequent affidavit

                                          6
constituted an amendment to his certificate of merit which is prohibited, and (4) that

dismissal of Plaintiffs’ claims was mandatory.

      After a hearing on Fluor Enterprises’s motion to dismiss, the trial court denied

the motion. Fluor Enterprises filed this interlocutory appeal.

                      Standard of Review and Applicable Law

      A trial court’s denial or grant of a motion to dismiss pursuant to section

150.002 is immediately appealable. See id. § 150.002(f). We review a trial court’s

order denying a section 150.002 motion to dismiss for an abuse of discretion. See

Barron, Stark & Swift Consulting Eng’rs, LP v. First Baptist Church, 551 S.W.3d

320, 322 (Tex. App.—Beaumont 2018, no pet.) (citations omitted); CBM Eng’rs,

Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 342-43 (Tex. App.—Houston [1st

Dist.] 2013, pet. denied). “If a trial court acts arbitrarily or unreasonably, without

reference to any guiding rules and principles, it constitutes an abuse of discretion.”

Barron, Stark & Swift, 551 S.W.3d at 322 (citing Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A court abuses its discretion if it fails to

analyze or apply the law correctly. Dunham Eng’g, Inc. v. Sherwin-Williams Co.,

404 S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citations

omitted). If our review necessitates statutory interpretation, we conduct that review



                                          7
de novo. See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014)

(citation omitted); Barron, Stark & Swift, 551 S.W.3d at 322 (citations omitted).

      Section 150.002 of the Texas Civil Practices and Remedies Code generally

requires that a sworn “certificate of merit” accompany a plaintiff’s “complaint” in a

case that “aris[es] out of the provision of professional services by a licensed or

registered professional[]” named in the statute. See Tex. Civ. Prac. & Rem. Code

Ann. § 150.002(a). The sworn certificate or affidavit must be from a similarly

licensed professional who meets certain qualifications and attests to the lawsuit’s

merit. Id. § 150.002(a), (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.

Id. § 150.002(b). The “failure to file the affidavit in accordance with [section

150.002] shall result in dismissal of the complaint against the defendant[,]” and the

dismissal may be with prejudice. Id. § 150.002(e) (emphasis added). Section 150.002

“shall not be construed to extend any applicable period of limitation[.]” Id.

§ 150.002(g). The purpose behind the certificate of merit requirement is merely that

plaintiffs make a threshold showing that their claims have merit before proceeding

further. Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 520 S.W.3d
                                        8
887, 896 (Tex. 2017); M-E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 504 (Tex.

App.—Austin 2012, pet. denied).

                                      Analysis

      In issue one, Fluor Enterprises argues the trial court abused its discretion by

denying its motion to dismiss Plaintiffs’ claims for failing to comply with section

150.002’s contemporaneous filing requirement because no certificate of merit

setting out Fluor Enterprises’s alleged professional errors or omissions was filed

with the initial complaint against Fluor Enterprises. Specifically, Fluor Enterprises

argues that it did not move to dismiss based on a defective certificate but based on

“no certificate of merit” timely filed as to Fluor Enterprises. According to Fluor

Enterprises, because the sole exception to the contemporaneous filing requirement

does not apply 3 and Plaintiffs’ non-statutory arguments do not excuse their non-

compliance with the statute, dismissal of their claims is appropriate.

      Appellees argue on appeal that they filed the statutorily required certificate of

merit against Fluor Enterprises, but that Fluor Enterprises was mistakenly referred




      3
         It is undisputed that the only statutory exception to the contemporaneous
filing requirement, provided for in subsection 150.002(c), is not applicable here. See
Tex. Civ. Prac. & Rem. Code Ann. § 150.002(c) (providing exception when plaintiff
files original complaint within ten days of running of limitations and alleges that,
because of the time constraint, a certificate of merit could not be produced).
                                           9
to as Fluor Corporation instead of Fluor Enterprises, Inc. by the expert in his

certificate:

       Plaintiffs filed a lengthy and detailed certificate of merit criticizing
       Fluor Corporation, instead of [Fluor Enterprises], for failure to conduct
       a hazard analysis and discover an undersized pipe which created a
       tripping hazard. . . .
               . . . Fluor Corporation is a [Fluor Enterprises] affiliated company
       that is a holding company which does no work, employs no employees
       and did no work on the project at issue. [Fluor Enterprises], the sued
       and served defendant, was well aware, as was the Trial Court, it was
       the company that performed the work being criticized, not Fluor
       Corporation who performs no work at all.

Appellees argue on appeal that “[t]he certificate of merit properly set forth [Fluor

Enterprises]’s failures but referred to them by the wrong name[,]” and Sawyer’s

subsequent affidavit explained that he mistakenly referred to Fluor Enterprises as

Fluor Corporation. According to Appellees, the purpose of the certificate of merit

requirement is for a plaintiff to make a threshold showing to demonstrate that the

plaintiff’s claim is not frivolous, and that Fluor Enterprises’s “hyper-technical

approach” to section 150.002 ignores the statute’s purpose. Appellees also contend

that the cases cited by Fluor Enterprises in its motion to dismiss and on appeal are

distinguishable because the error in the certificate of merit in the present case was

“in name only.”

       “[Section 150.002(b)] has been interpreted to require the affidavit to set forth

the asserted negligence of each professional and does not permit collective assertions
                                         10
of negligence.” Macina, Bose, Copeland & Assocs. v. Yanez, No. 05-17-00180-CV,

2017 Tex. App. LEXIS 10128, at **14-15 (Tex. App.—Dallas Oct. 26, 2017, pet.

abated) (mem. op.) (citing Robert Navarro & Assocs. Eng’g, Inc. v. Flowers Baking

Co. of El Paso, LLC, 389 S.W.3d 475, 482 (Tex. App.—El Paso 2012, no pet.)). In

Yanez, the Dallas Court of Appeals concluded that the trial court erred in denying

certain defendants’ motions to dismiss because the certificate of merit “did not

distinguish between the acts, omissions, and errors of each defendant but collectively

assigned the negligence and errors to both of them.” Id. at *22. The Dallas Court of

Appeals explained:

      Section 150.002(b) requires the affidavit to “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.” Civ. Prac. § 150.002(b) (emphasis added). This is similar
      to the requirement for an expert report in section 74.351(r)(6) that the
      report provide “a fair summary . . . of the manner in which the care
      rendered by the physician . . . failed to meet the standards.” Id.
      § 74.351(r)(6) (emphasis added). The courts have interpreted section
      74.351(r)(6) as requiring the report to discuss each defendant’s actions
      individually. See Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d
      860, 864 (Tex. App.—Houston [1st Dist.] 2008, no pet.). (“When a
      plaintiff sues more than one defendant, the expert report must set forth
      the standard of care for each defendant and explain the causal
      relationship between each defendant’s individual acts and the injury,
      i.e., “[c]ollective assertions of negligence against various defendants
      are inadequate.” (quoting Taylor v. Christus Spohn Health Sys. Corp.,
      169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.))).

Id. at *20.

                                         11
      We agree that the plain language of section 150.002(b) requires the plaintiff

to file a certificate of merit specifically addressing the conduct of the professional

who provided the service at issue, and the certificate of merit must identify each

defendant and that defendant’s specific conduct. See DHM Design v. Morzak, No.

05-15-00103-CV, 2015 Tex. App. LEXIS 6255, at **7-8 (Tex. App.—Dallas June

19, 2005, pet. denied) (citing Navarro & Assocs., Eng’g, 389 S.W.3d at 482; Sylva

Eng’g Corp. v. Kaya, No. 03-12-00334-CV, 2013 Tex. App. LEXIS 4878, at **16-

17 (Tex. App.—Austin Apr. 18, 2013, no pet.) (mem. op.)).

      Here, as conceded by Appellees, the certificate of merit does not reference

Fluor Enterprises, but it does discuss “Flour Corporation.” According to Appellees,

“the equitable doctrine of misnomer should apply under these circumstances.”

Appellees also assert that Sawyer’s subsequent affidavit is not an amendment and,

because the affidavit establishes that he mistakenly referred to Fluor Enterprises as

Fluor Corporation, “the equitable doctrine of misnomer that has been applied to the

statute of limitations defense should also apply to Chapter 150’s certificate-of-merit

requirement[.]”

      Fluor Enterprises contends that Plaintiffs’ claim that Sawyer’s subsequent

affidavit is not an amended or second certificate of merit is “pure semantics[,]” and

that Fluor Enterprises’s name should not be substituted for Fluor Corporation’s name

                                         12
in the certificate of merit. Fluor Enterprises asserts that the equitable doctrine of

misnomer does not change Chapter 150’s statutory filing requirements or permit the

Plaintiffs to correct their expert’s error in opining about the wrong entity.

      Generally, the plain language of the statute does not permit amendments or

supplemental affidavits to correct a failure to comply with Section 150.002’s

contemporaneous filing requirement. See Landreth v. Las Brisas Council of Co-

Owners, Inc., 285 S.W.3d 492, 499-500 (Tex. App.—Corpus Christi-Edinburg

2009, no pet.), superseded by statute on other grounds, as recognized in Morrison

Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421 (Tex. App.—Dallas 2012, no pet.); see

also Crosstex Energy Servs, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 395 (Tex. 2014)

(“[F]ailure to file a certificate of merit with the original petition cannot be cured by

amendment.”).

      Misnomer occurs when a plaintiff serves the correct defendant but misnames

it. Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990). If misnomer occurs, then

the petition “is nonetheless effective, for limitations purposes, when filed, with any

subsequent amendment relating back to the date of the original filing.” In re Greater

Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 326 (Tex. 2009). According

to the record before us, the petition named Fluor Enterprises, Inc., as a defendant but

the certificate of merit mistakenly referenced Fluor Corporation. Appellees

                                          13
acknowledge that they are unable to cite to any authority in support of their argument

that misnomer is applicable in the present context, and we are unaware of any

caselaw that would support the application of the misnomer doctrine to the certificate

of merit statute.

      Fluor Enterprises argues that applying the misnomer doctrine to this statute

would allow Plaintiffs to amend the certificate of merit, which is prohibited. See

Landreth, 285 S.W.3d at 499-500; see also Crosstex Energy Servs, L.P., 430 S.W.3d

at 395. Appellants contend that Appellees failed to comply with the Chapter 150’s

contemporaneous filing requirement because no certificate of merit was filed with

the initial petition that set forth the alleged professional errors or omissions of Fluor

Enterprises, and therefore, dismissal was mandatory. See Tex. Civ. Prac. & Rem.

Code Ann. § 150.002(b), (e).

      We need not determine whether the doctrine of misnomer applies to this

certificate of merit, because under the specific facts of this case we conclude the trial

court could have reasonably concluded that Plaintiffs complied with the section

150.002’s contemporaneous filing requirement when it filed the original certificate

of merit with the petition. The record establishes that the only Fluor entity named as

a defendant was Fluor Enterprises, Fluor Enterprises was the Fluor entity that

conducted engineering services on the project, the certificate of merit expressly

                                           14
alleged complaints about the engineering work provided by “Fluor Corporation”

rather than Flour Enterprises, Flour Corporation is not a party to the suit, and Fluor

Enterprises has not alleged they were misled by the certificate of merit. The trial

court could have reasonably concluded, as to Fluor Enterprises, that under the

limited facts of this case and considering the statute’s purpose in requiring a plaintiff

to merely make a threshold showing, that the certificate of merit had identified the

particular defendant and the defendant’s conduct. See Melden & Hunt, 520 S.W.3d

at 896; DHM Design, 2015 Tex. App. LEXIS 6255, at **7-8 (emphasis added)

(citing Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b)). We cannot say the trial

court acted arbitrarily or unreasonably or failed to analyze or apply the law correctly

in denying Fluor Enterprises’s motion to dismiss. Barron, Stark & Swift, 551 S.W.3d

at 322 (citing Downer, 701 S.W.2d at 241-42); Dunham Eng’g, 404 S.W.3d at 789.

      We overrule issue one. Because we have overruled issue one, we do not

address issue two. See Tex. R. App. P. 47.1. We affirm the trial court’s order.

      AFFIRMED.

                                                      _________________________
                                                          LEANNE JOHNSON
                                                                Justice

Submitted on July 2, 2019
Opinion Delivered April 30, 2020

Before Kreger, Horton and Johnson, JJ.
                                           15
