

Opinion issued
February 9, 2012

In
The
Court of
Appeals
For
The
First District
of Texas
————————————
NO. 01-11-00025-CV
———————————
PRO PLUS, INC., Appellant
V.
CROSSTEX
ENERGY SERVICES, L.P., Appellee

 

 
On Appeal from the 55th
District Court
Harris County, Texas

Trial Court Case No. 2010-23663
 

 
 
O P I N I O N
          In
the trial court, Pro Plus, Inc. filed a motion to dismiss the claims of Crosstex Energy Services, L.P. on the ground that Crosstex had failed to file a certificate of merit with its
original petition, as required by Civil Practice and Remedies Code section
150.002.[1]  Identifying eleven issues, Pro Plus appeals
the trial court’s order denying its motion to dismiss.   
          We
reverse and remand.
Background
Crosstex
Energy Services provides natural gas gathering and transmission pipeline
services to energy producers and consumers. 
The Godley Compressor Station in Johnson County, Texas is part of Crosstex’s operations. 
Gas comes to the Godley Station through pipelines from wellheads in the
field via gathering stations.  The Godley
Station compresses the gas, increasing the pressure, and then discharges the
gas through a pipeline to the next downstream station.  
On November 15, 2008, a gasket
connection on a control valve on one of the compressors failed.  Natural gas escaped the line and then ignited.  A fire erupted at the station causing
significant property damage.
On April 14, 2010, Crosstex sued Pro Plus and another defendant for damages
arising from the fire.  Pro Plus, a
registered engineering firm, had been the principal contractor for the
construction of the Godley Station.  As stated in Crosstex’s Original
Petition, Pro Plus had “designed, specified, assembled, and constructed” the
station.  
In its Original Petition, Crosstex asserted causes of action against Pro Plus for
general and specific negligence, negligent misrepresentation, breach of implied
and express warranty, and breach of contract. 
With respect to its general negligence claim, Pro Plus alleged the
following: 
Pro Plus owed a duty to Crosstex,
and the general public, to exercise a high degree of care in designing,
constructing and assembling the Godley Station as any reasonable prudent
engineering and/or construction firm would do under the same or similar
circumstances.  Pro Plus knew a leak in a
high pressure gas pipeline could cause a cataclysmic event.  Pro Plus breached its duty of care by rushing
the design and/or hurriedly constructing the Godley Station in a careless and
reckless manner. 
 
Crosstex
alleged the following specific acts of negligence against Pro Plus:
a) Failing to provide appropriate and/or independent
conceptual design, specification and/or engineering services specifically for
the Godley Station;
 
b) Failing to follow industry standards in the design,
specification and/or engineering of the Godley Station;
 
c) Failing to provide appropriate conceptual design,
specification and/or engineering services by including the 8” flangeless Dyna-Flo model DF560 control valve on the upstream side of
compressor unit #2 when such valve was completely unnecessary;
 
d) Failing to use appropriate and/or compatible materials
in the component parts of the 8” flangeless Dyna-Flo
model DF560 control valve under the circumstances, including but not limited to
the decision to use a spiral wound gasket;
 
e) Failing to properly install the 8” flangeless Dyna-Flo model DF560 control valve, including but not
limited to faulty installation of the spiral wound gasket;
 
f) Failing to properly install the 8” flangeless Dyna-Flo model DF560 control valve, including but not
limited to failure to properly align and/or connect the 8” flangeless Dyna-Flo model DF560 control valve to the associated
piping;
 
g) Failing to warn Crosstex
about the appropriateness and/or incompatibility of materials that Pro Plus
utilized as component parts of the 8” flangeless Dyna-Flo
model DF560 control valve, including but not limited to the decision to use a
spiral wound gasket;
 
h) Failing to follow industry standards in the installation
of the 8” flangeless Dyna-Flo model DF560 control
valve and/or its component parts;
 
i) Failing to follow good and
workmanlike practices with respect to using appropriate and/or compatible
materials in installing and/or connecting the 8” flangeless Dyna-Flo
model DF560 control valve;
 
j) Failing to follow good and workmanlike practices with
respect to installing and/or connecting the 8” flangeless Dyna-Flo
model DF560 control valve; 
 
k) Failing to design and/or engineer the Godley Station
in the same or similar manner as a reasonably prudent company would or would
not have done, under the same or similar circumstances, commensurate with the
danger involved;
 
l) Failing to install and/or connect the 8” flangeless Dyna-Flo model DF560 control valve in the same or similar
manner as a reasonably prudent company would or would not have done, under the
same or similar circumstances, commensurate with the danger involved.
 
          In support of
its negligent misrepresentation claim, Crosstex
asserted as follows:
a) Pro Plus represented that as a full-service supplier
of design, engineering, construction and project management services,
installation of the 8” flangeless Dyna-Flo model
DF560 control valve was reasonable and necessary in order to properly and
safely operate the Godley Station;
 
b) Pro Plus represented the 8” flangeless Dyna-Flo model DF560 control valve, after installation at
Godley Station, was safe for its intended use in a high pressure natural gas
pipeline;
 
c) Pro Plus represented the 8”
flangeless Dyna-Flo model DF560 control valve, after
installation at Godley Station, was not defective nor unreasonably dangerous;
 
d) Pro Plus represented that as a full-service supplier of
design, engineering, construction and project management services, it had a
complement of qualified professionals with extensive experience to provide
complete, cost effective, and timely project services;
 
e) Pro Plus represented that as a full-service supplier
of design, engineering, construction and project management services,
it had knowledge of the appropriate and/or compatible materials which should be
utilized in a compressor station control valve and/or natural gas high pressure
pipeline;
 
f) Pro Plus represented it followed the manufacturer’s
specifications and recommendations when installing the 8” flangeless Dyna-Flo model DF560 control valve.
 
Crosstex made the following
allegations to support its breach of implied warranty claim:
Pro Plus impliedly warranted that it designed,
constructed and oversaw installation of the Godley Station in a good and
workmanlike manner.  Crosstex
further alleges Pro Plus impliedly warranted that installing the 8” flangeless Dyna-Flo model DF560 control valve made it fit for an
appropriate and particular purpose (i.e., for use in a high pressure natural gas
pipeline) if used in a reasonable manner when, in fact, the control valve was
in a manifestly detective condition at the time it left the Defendant’s possession,
and was completely unnecessary to the operation of the Godley Station. Pro Plus
had reason to know and in fact did know the particular purpose for which the
control valve was supposed to be used, and knew or should have known that Crosstex was relying on Pro Plus’ skill and judgment to
select and furnish goods suitable for high pressure gas line service, in accord
with a reasonable prudent design. 
 
Crosstex
asserted as follows with regard to its breach of express warranty claim:
Crosstex entered into a
contract with Pro Plus as the full-service supplier of design, engineering,
construction and project management services for the Godley Station.  Pro Plus expressly warranted its work at the
Godley Station would be free of defects.  Pro Plus breached its express warranty for
services contained in the contract between the parties in that Pro Plus
warranted that its work would conform to “good standard industry practices” and
be performed in a “workmanlike manner,” when in fact Pro Plus’ work on the Godley
Station was clearly rushed, hurried, incomplete, substandard and inadequate.
 
Part of Pro Plus’ work as the full-service supplier of
design, engineering, construction and project management services for the
Godley Station included the sale of services, including but not necessarily
limited to providing professional judgment as to the necessity for having
control valves at all, and if indicated, selection of the proper valve manufacturer,
size, and appropriate materials for any component parts, including gaskets. 
 
Lastly, Crosstex
alleged as follows with respect to its breach of contract claim: 
On or about February 28, 2005, Crosstex
entered into a valid and enforceable Master Service Agreement contract with Pro
Plus, governing all future work or services, including any supplied equipment
or materials, which contract was in place during all times relevant to this
lawsuit.  Pro Plus, as the full-service
supplier of design, engineering, construction and project management services for
the Godley Station, breached the contract in one or more of the following
respects:
 
a) Pro Plus failed to identify a hazardous condition(s)
at the worksite;
 
b) Pro Plus failed to warn of a hazardous condition(s) at
the worksite;
 
c) Pro Plus delivered goods that
were defective in design;
 
d) Pro Plus delivered goods that were defective in
workmanship;
 
e) Pro Plus delivered goods that were defective in
materials;
 
f) Pro Plus delivered goods for other than their ordinary
intended purposes.
 
Pro Plus filed its answer on
May 28, 2010.  Pro Plus generally denied Crosstex’s claims and asserted a number of affirmative
defenses and special exceptions.  
A number of months later, the
parties signed a Rule 11 agreement, which provided, inter alia, that the Crosstex’s deadline to designate its experts was April 8,
2011.  The Rule 11 Agreement was filed
with the trial court on November 29, 2010.
On December 2, 2010, Pro
Plus filed its “Motion to Dismiss Plaintiff’s Claims Under
Chapter 150 of the Texas Civil Practice and Remedies Code.”  Pro Plus averred that it is “a licensed or
registered professional engineering firm” and “engages in the practice of
engineering in accordance with Section 1001.003 of the Texas Occupations
Code.”  It stated, “Crosstex
engaged the services of Pro Plus to perform work on a natural gas compressor station
near Godley, Johnson County, Texas. . . .  The work performed included engineering and
design services during the construction of the Godley Station.”  Pro Plus continued, “All of Crosstex’s claims against Pro Plus are based upon its
allegations of damages arising out of the provision of professional services by
Pro Plus. . . . 
Crosstex failed to attach a statutorily
required certificate of merit to its Original Petition.”  
Pro Plus requested the trial
court to dismiss Crosstex’s claims against it with
prejudice.
Crosstex
responded to Pro Plus’s motion by arguing, in part, that Pro Plus had waived
its right to dismissal by joining in an earlier filed motion for continuance and
by signing the Rule 11 Agreement, which extended the deadline for Crosstex’s designation of experts.  Within its response, Crosstex
also moved for an extension of time to file its certificate of merit.  It asserted that the trial court was
permitted to grant an extension under Civil Practice and Remedies Code section
150.002(c) on a showing of good cause.  
Pro Plus replied, arguing
that section 150.002 requires a plaintiff to file a certificate of merit with
its first-filed petition.  It asserted
that if a plaintiff fails to do this “[d]ismissal is
mandatory under [section] 150.002.”  Pro
Plus responded to Crosstex’s waiver argument by stating,
“Expert designation deadlines have nothing to do with a certificate of
merit.”  Pro Plus further asserted, “The
real issue is that Plaintiff failed to file a certificate of merit with its
first-filed petition, and an expert designation deadline won’t save Plaintiff
on this issue.”  
          Following
a hearing, the trial court signed an order denying Pro Plus’s motion to dismiss
and giving Crosstex until April 8, 2011 to file its
certificate of merit.  The order provides
specifically as follows:
On the below entered date came on to be heard Defendant
Pro Plus’ Motion to Dismiss and Plaintiff Crosstex
Energy Services, L.P.’s Motion to Extend Time, and the Court, after reviewing
the Motions, taking judicial notice of the other pleadings on file, and
considering the argument of counsel, is of the opinion Defendant’s Motion to
Dismiss should be denied.  For good cause
shown, and in the interest of justice, the Court therefore:
 
ORDERS, AJUDGES and DECREES that Plaintiff Crosstex Energy Services, L.P. file an expert report in
compliance with the Certificate of Merit requirements contained in CPRC § 152.002
on or before the agreed deadline between the parties for Plaintiff to designate
experts, currently April 8, 2011, which agreement was signed by the parties and
thereafter filed with the court on November 29, 2010 pursuant to Rule 11 of the
Texas Rules of Civil Procedure.
 
On January 4, 2011, Pro Plus filed its notice of appeal of
the trial court’s order.  Crosstex filed its certificate of merit in trial court on
January 6, 2011.  
The Statute
Resolving this appeal depends on
the interpretation and application of section 150.002 of the Civil Practice and
Remedies Code.  That statute, titled
“Certificate of Merit,” 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. 
 
(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.
 
(e)      The
plaintiff’s failure to file the affidavit in accordance with this section shall
result in dismissal of the complaint against the defendant. This dismissal may
be with prejudice.
 
(f)      An order
granting or denying a motion for dismissal is immediately appealable as an
interlocutory order.
 
(g)     This statute
shall not be construed to extend any applicable period of limitation or repose.
 
(h)     This statute
does not apply to any suit or action for the payment of fees arising out of the
provision of professional services.
 
Tex.
Civ. Prac. & Rem. Code Ann. § 150.002 (Vernon
2011).
 
Jurisdiction over Interlocutory Appeal
          As a
threshold matter, we address Crosstex’s assertion in
its response brief that this interlocutory appeal should be dismissed for lack
of subject-matter jurisdiction.  Whether
a court has subject matter jurisdiction is a question of law, which we review
de novo.  Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Appellate courts have jurisdiction
to consider immediate appeals of interlocutory orders only when a statute
explicitly confers such jurisdiction.  Tex. A & M Univ. Sys.
v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).  Subsection 150.002(f) of the Certificate of
Merit statute permits an appeal from an interlocutory order granting or denying
a motion to dismiss based on a failure to file a certificate of merit.  See Tex. Civ. Prac.
& Rem. Code Ann. § 150.002(f).
 Pro Plus asserts that this provision
allows it to appeal the trial court’s order denying its motion to dismiss.  Crosstex
disagrees.  It contends that this
provision does not permit Pro Plus’s appeal because the order denying the
motion to dismiss is coupled with, and inseparable from, an order granting Crosstex’s motion for extension of time to file its
certificate of merit.  Pro Plus points
out that subsection 150.002(f)
does not expressly permit an appeal from an order granting an extension of
time.  
Crosstex
bases its jurisdictional challenge on Ogletree v. v. Matthews,
262 S.W.3d 316, 321 (Tex. 2007).  Ogletree involved a claim governed by the Texas Medical
Liability Act.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001–.507 (Vernon 2011 & Supp. 2011).  In Ogletree, the Supreme Court of
Texas determined that an appellate court lacks jurisdiction to review an
interlocutory order that (1) simultaneously denies a defendant’s motion to
dismiss a plaintiff’s health care liability claim and (2) grants the plaintiff’s motion for extension of time to
cure its timely filed, but substantively deficient, expert report.  See Ogletree, 262 S.W.3d at 321.  In reaching its holding, the court considered
that section 74.351 of the Medical Liability Act expressly authorizes the trial
court to grant a 30-day extension to allow the plaintiff to cure substantive deficiencies
in an expert report that is otherwise timely filed within the 120-day statutory
period for serving the report.  See id. at 319;
see also Tex. Civ. Prac. &
Rem. Ann. Code § 74.351(c) (Vernon 2011).  The Ogletree court also considered that, although it expressly authorizes an
interlocutory appeal from an order dismissing a claim under the Medical
Liability Act for failure to serve an expert report timely, the legislature
expressly prohibits—in
Civil Practice and Remedies Code section 51.014(a)(9)—an interlocutory appeal
from an order granting—under
section 74.351—a
30-day extension to cure deficiencies in a report.  See Ogletree, 262 S.W.3d at 319.
With these statutory provisions in
mind, the court stated that “the actions denying the motion to dismiss and
granting an extension are inseparable” because “if a defendant could separate
an order granting an extension from an order denying the motion to dismiss when
a report has been served, section 51.014(a)(9)’s ban on
interlocutory appeals for extensions would be meaningless.”  Id. at 321.  In a
later decision discussing Ogletree, the supreme court stated,

The purpose of the ban on interlocutory appeals for
extensions is to allow plaintiffs the opportunity to cure defects in existing
reports.  If a defendant could
immediately appeal the denial of his motion to dismiss, the court of appeals
would be reviewing the report’s sufficiency while its deficiencies were
presumably being cured in the trial court.
 
Badiga v. Lopez, 274 S.W.3d 681, 684 (Tex. 2009).  
The considerations supporting the Ogletree decision do not apply here.  Notably, the Certificate of Merit Statute
authorizes an interlocutory appeal of an order granting a motion to dismiss but
does not expressly ban the appeal of an order granting an extension of time to
file a certificate of merit.  More
significantly, the policy considerations at issue in Ogletree are not relevant in this case. 

Ogletree involved a defendant seeking dismissal because the plaintiff’s timely
filed expert medical report was deficient. 
See Ogletree,
262 S.W.3d at 318. 
Because the legislature has decided that a trial court can allow a
plaintiff 30 days to cure a deficiency, the Ogletree court determined that allowing an interlocutory appeal before the
plaintiff had a chance to cure would be “illogical and wasteful.”  See id.
at 321.  The
court also stated, “[B]ecause the Legislature
authorized a single, thirty day extension for deficient reports, health care
providers face only a minimal delay before a report’s sufficiency may again be
challenged and the case dismissed, if warranted.”  
In contrast, Pro Plus sought
dismissal because Crosstex failed to timely file its
certificate of merit.  Pro Plus asserts,
as it did in the trial court, that Crosstex was
statutorily required to file its certificate of merit with its Original Petition.  See Tex. Civ. Prac.
& Rem. Ann. Code § 150.002(a);
see also Pakal
Enters., Inc. v. Lesak Enterprises LLC, No.
01–09–01038–CV, 2011 WL 1598778, at *3 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, pet. denied) (stating
that section 150.002 requires a plaintiff to file a certificate of merit with
the first-filed complaint asserting a claim against a professional).  Pro
Plus contends that because the
certificate was not filed with the Original Petition, Crosstex’s
claims must be dismissed.  Pro Plus asserts
that failure to file a certificate of merit with an original petition, when
required by statute to do so, cannot be cured, unlike a deficient report.  See,
e.g., Ashkar Eng’g Corp. v.
Gulf Chem. & Metallurgical Corp., No. 01–09–00855–CV, 2010 WL 376076, at
*3 (Tex. App.—Houston
[1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) (“Nothing in Section
150.002 allows a plaintiff to cure a failure to timely comply.”).  Concomitantly, Pro Plus challenges the
legality of the trial court’s order granting Crosstex
an extension of time, pursuant to subsection 150.002(c),
to file its certificate of merit.  
In short, the primary issue is
whether Crosstex was required to file its certificate
of merit with its Original Petition.  If
it was, Pro Plus’s motion to dismiss should have been granted.  See
Tex. Civ. Prac.
& Rem. Code Ann. § 150.002(e).
Permitting an appeal of the trial court’s order in this case, unlike in Ogletree, would
not be “illogical and wasteful.”  Rather,
at this point, it is the dispositive issue concerning the issue in Crosstex’s original petition.  
We hold that subsection 150.002(f)
permits Pro Plus’s interlocutory appeal of the trial court’s order.  See Tex. Civ. Prac.
& Rem. Code Ann. § 150.002(f);
cf. Badiga,
274 S.W.3d at 685 (“A provider may pursue an interlocutory appeal of the denial
of a motion to dismiss when no expert report has been timely served, whether or
not the trial court grants an extension of time.”).  We overrule Crosstex’s
contention, raised in its response brief, that we lack jurisdiction.[2]
 
 
Denial of Motion to Dismiss
for Failure to File Certificate of Merit 
The trial court’s order does
not state the basis on which it denied Pro Plus’s motion to dismiss.  On appeal, Pro Plus identifies 11 issues
relating to assertions made by Crosstex in the trial
court to support denial of Pro Plus’s motion to dismiss.  
As in the trial court, Pro
Plus principally contends that Crosstex’s claims
against it should be dismissed pursuant to Civil Practice and Remedies Code
section 150.002—the
Certificate of Merit Statute—because Crosstex failed to
file a certificate of merit with its Original Petition.  Pro Plus points out that subsection (a)
requires a certificate of merit in actions or arbitration proceedings “for
damages arising out of the provision of professional services by a licensed or
registered professional.”  Tex. Civ. Prac. & Rem. Ann. Code § 150.002(a).  A “licensed or registered professional” includes
a licensed professional engineer, such as Pro Plus.  See Tex. Civ. Prac. & Rem. Ann. Code §
150.001(1) (Vernon 2011). 
Pro Plus asserts that because Crosstex’s
claims arise from Pro Plus’s provision of engineering services, Crosstex was required to file a certificate of merit with
its Original Petition.  
“By its plain language, the Certificate
of Merit Statute is compulsory, not discretionary.”  TDIndustries, Inc. v.
Citicorp N. Am., Inc., No. 02–10–00030–CV, 2011 WL 1331501, at *3 (Tex. App.—Fort Worth Apr. 7, 2011,
no pet.); see Tex. Civ. Prac. & Rem. Code Ann. §
150.002(e) (providing that plaintiff’s failure to file affidavit
in accordance with this section shall
result in dismissal of complaint against defendant).  Subsection (c) gives the trial court
discretion to allow a plaintiff more time in which to obtain the certificate in
certain limited circumstances.  See Tex.
Civ. Prac. & Rem. Ann. Code §
150.002(c).  But the Certificate of Merit Statute does not
grant the trial court discretion to completely waive the requirement; rather,
it mandates dismissal, on the defendant’s motion, of any claims for which a
certificate is required and not produced.  See Citicorp
N. Am., 2011 WL 1331501, at *3; see
also UOP, L.L.C. v. Kozak, No. 01–08–00896–CV,
2010 WL 2026037, *4 (Tex. App.—Houston
[1st Dist.] May 20, 2010, no pet.) (mem. op.).  Pro Plus further asserts that, under the
circumstances of this case, subsection (c) did not provide a basis for the trial
court to give Crosstex additional time to file its
certificate and to deny its dismissal motion. 

In contrast, Crosstex
contends that the trial court properly denied Pro Plus’s motion to dismiss
because, pursuant to subsection (c), Crosstex was
entitled, “for good cause,” to an extension of time to file its certificate of
merit.  Crosstex
also contends that denial of the dismissal motion was proper because Pro Plus’s
conduct during litigation waived its right to pursue a motion to dismiss under
the Certificate of Merit Statute.  Crosstex further asserts that its breach of contract claim
was not subject to dismissal because the Certificate of Merit Statute does not
apply to that claim.  
A.      Standard of Review
We review a trial court’s
order denying a motion to dismiss case for failure to comply with section
150.002 for abuse of discretion.  TDIndustries, Inc. v. Rivera, 339
S.W.3d 749, 752 (Tex. App.—Houston
[1st Dist.] 2011, no pet.); Curtis &
Windham Architects, Inc. v. Williams, 315 S.W.3d 102, 106 (Tex. App.—Houston [1st Dist.]
2010, no pet.).  A trial court abuses
its discretion when its ruling is arbitrary, unreasonable, or without reference
to any guiding rules or legal principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985.
 A trial court does not abuse its
discretion merely because it decides a discretionary matter differently than
this Court would in a similar circumstance, and we may not substitute our own
judgment for that of the trial court.  Id.  Nonetheless, a trial court has no discretion
in determining what the law is or in applying the law to the facts.  Id.
(citing Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992)).
If resolution of the issue
requires us to construe statutory language, we review statutory construction de
novo.  Entergy Gulf States, Inc. v. Summers, 282
S.W.3d 433, 437 (Tex. 2009); Rivera,
339 S.W.3d at 752.  Once we determine the
proper construction of the statute, we determine whether the trial court abused
its discretion in the manner in which it applied the statute to the instant
case. Rivera, 339
S.W.3d at 752; Capital One v. Carter
& Burgess, Inc., 344 S.W.3d
477, 479–80 (Tex. App.—Fort Worth 2011, no
pet.).  
B.      “Good Cause” Exception of Subsection
150.002(c)
          In
its sixth issue, Pro Plus asserts that the trial court abused its discretion by
granting an extension of time to file a certificate of merit, and thus subsection
150.002(c) cannot serve as a basis to support the trial court’s denial of its
motion to dismiss.  To reiterate,
subsection (c) provides:
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.
 
Tex. Civ. Prac. & Rem. Ann. Code § 150.002(c).
          Crosstex acknowledges that the statute of limitations did
not expire on its claims within 10 days of its filing of its Original Petition and
that the 30–day extension provision of section 150.002(c) did not apply.  Instead, Crosstex argues
that the language in section 150.002(c) providing that “[t]he trial court may,
on motion, after hearing and for good cause, extend such time as it shall
determine justice requires” creates an additional exception to the contemporaneous
filing requirement.  Crosstex
asserts that a trial court has discretion to grant an extension to file a
certificate of merit on a showing of good cause regardless of whether the
plaintiff was previously entitled to the 30-day extension mentioned in
subsection (c).  In other words, Crosstex contends that the last sentence of subsection (c)
is a stand-alone provision, independent of the preceding sentences in that
subsection.  Crosstex
cites WCM Group, Inc. v. Brown, 305
S.W.3d 222 (Tex. App.—Corpus
Christi 2009, pet. dism’d) to support its position.  
In Brown, the court refused to limit the application of “the good
cause exception” to circumstances in which the plaintiff files suit within 10
days of the expiration of the statute of limitations.  Id. at 230.  The court
stated, 
We will not rewrite the statute in the manner suggested
by WCM to 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. 
 
Id. 
          We
need not determine whether the Corpus Christi Court of Appeals’s
interpretation of the language found in subsection (c) is correct.  Even applying that interpretation, Crosstex did not establish that “good cause” to grant it an
extension of time and to concomitantly deny Pro Plus’s dismissal motion.  
          In
support of its motion for extension of time, Crosstex
relied heavily on the post-suit acts and omissions of Pro Plus to demonstrate
good cause for receiving an extension.  Crosstex alleged that Pro Plus had actively engaged in the
litigation process and agreed to extend the deadline for expert witness
designations.  Crosstex
asserts that it detrimentally relied on these acts with regard to how it
conducted itself in the litigation.  Specifically,
Crosstex points to the following acts and omissions
of Pro Plus:
·       Pro Plus answered the
suit, asserting various affirmative defenses and special exceptions but not
mentioning that Crosstex failed to file a certificate
of merit with its Original Petition. 
 
·       Pro Plus conducted “extensive”
written discovery, with the parties exchanging more than 11,000 pages of
documents.
 
·       Pro Plus did not
object to the trial court’s docket control order requiring the parties to
designate expert witness, as provided in Rule of Civil Procedure 194.2, by
November 8, 2010.  Nor did Pro Plus complain,
at that time, that Crosstex had not filed its
certificate of merit as required by section 150.002.  
 
·       Pro Plus joined in
a motion for continuance of the trial setting and docket control order, which
was granted on November 9, 2010.
 
·       Pro Plus signed a
Rule 11 Agreement modifying the docket control order. The Rule 11 Agreement
provided, inter alia, that Crosstex had to designate
its experts by April 8, 2011.  
 
At this point, we revisit the basic
requirement of the Certificate of Merit Statute.  The statute provides that, in a suit for
damages arising from the provision of professional engineering services, a
plaintiff must file, with its complaint, an affidavit (that is, a certificate
of merit) of a third-party licensed professional engineer to support those
claims.  Tex. Civ. Prac. &
Rem. Ann. Code § 150.002.  This
Court has interpreted this provision to require a plaintiff to file a
certificate of merit with its first-filed petition.  Pakal, 2011 WL 1598778, at *3 (citing Sharp Eng’g v. Luis, 321 S.W.3d 748, 752
(Tex. App.—Houston
[14th Dist.] 2010, no pet.)); see also Ashkar, 2010 WL 376076, at *1, *3 (holding that
plaintiff failed to timely file certificate of merit when it did not file
certificate with its original petition). 

          Starting
with this principle, Crosstex was statutorily
required to file its certificate of merit with its Original Petition.  Crosstex had
already violated the contemporaneous filing requirement when Pro Plus engaged
in the conduct cited by Crosstex as a basis for applying
the good cause exception.  As we stated
in Ashkar,
“Nothing in Section 150.002 allows a plaintiff to cure a failure to timely
comply.”  2010
WL 376076, at *3.  This holds true
in this case.  Crosstex
cannot cure its failure to file a certificate of merit with its Original
Petition or show “good cause” by relying on Pro Plus’s post-filing
conduct.  Thus, Pro Plus’s post-filing
conduct cannot serve as a basis for a good-cause extension of time to file a
certificate of merit.  Cf. WCM Group, Inc. v. Camponovo,
305 S.W.3d 214, 221 (Tex. App.—Corpus Christi 2009, pet. dism’d)
(holding good cause for an extension was shown because plaintiffs demonstrated
that they did not know that defendant was professional engineering firm at the time original petition was filed).

          In
support of its motion for extension of time, Crosstex
also relies on its own pre-suit conduct to show “good cause.”  Crosstex offered
evidence showing that, after the fire, it conducted an internal investigation
and hired an independent engineering firm to determine the cause of the
fire.  It also hired an independent
laboratory to test the control valve involved in the fire.  Crosstex offered
documentation showing that Pro Plus had been privy to the pre-suit testing and
investigations.  On appeal, Crosstex points out that the pre-suit investigations
revealed a number of possible causes of the fire, including causes unrelated to
the provision of professional engineering services.  
Crosstex
contends that Pro Plus’s knowledge of the pre-suit investigations allowed Crosstex “to rely on the fact that Pro Plus was satisfied
that Crosstex had more than fulfilled its pre-filing
obligation to ensure that its claims were meritorious even if Pro Plus did not
agree that Crosstex should prevail on its
claims.”  Crosstex
asserts that, as a result, it “could reasonably have believed that Pro Plus
would not attempt to dismiss Crosstex’s claims or
that Pro Plus would not be able to exercise its option to dismiss in good
faith.”  
          A
review of Crosstex’s Original Petition shows that it
asserts numerous causes of action against Pro Plus arising out of Pro Plus’s
provision of engineering services.  For
each theory of recovery asserted by Crosstex, the
statute required that a third-party licensed professional engineer explain the
factual basis for each claim.  See
Nangia v. Taylor,
338 S.W.3d 768, 772–73
(Tex. App.—Beaumont
2011, no pet.) (“The focus of the certificate of merit is on the alleged error
or omission and the facts that support the claim.”).  Specifically, subsection 150.002(b)
requires as follows:
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 . . . professional
engineer . . . shall be licensed or registered in this state and actively
engaged in the practice of . . . . engineering.
 
Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(b).  
 
The record does not show
that Crosstex shared pre-suit expert reports or
information with Pro Plus that included the information required by subsection (b).  Nor does the record reflect, as Crosstex claims, that “Pro Plus was satisfied” that Crosstex had adequately or objectively investigated the
cause of the fire.  We disagree with Crosstex that the evidence it offered with regard to its
pre-suit activities provided good cause for the trial court to grant it an extension
of time and concomitantly deny Pro Plus’s motion to dismiss.  
          We
conclude that the record does not show “good cause” existed for the trial court
to grant an extension of time for Crosstex to file its
certificate of merit.  We hold that, to
the extent that it denied Pro Plus’s motion to dismiss based on subsection (c), the trial court abused its discretion.  
          We
sustain Pro Plus’s sixth issue.
C.      Rule of Civil Procedure 5
          In
its motion for extension of time, Crosstex asserted
that the trial court could grant an extension pursuant to Rule of Civil
Procedure 5.  Pro Plus asserts in its
ninth issue that Rule 5 does not authorize an extension of time to file a
certificate of merit.  Rule 5 provides, in
relevant part, as follows:
When by these rules or by a notice given thereunder or by
order of the court an act is required or allowed to be done at or within a
specified time, the court for cause shown may, at any time in its discretion .
. . upon motion permit the act to be done
after the expiration of the specified period where good cause is shown for the
failure to act.
 
Tex. R. Civ. P.
5 (emphasis added).  Pro Plus contends
that Rule 5 does not apply because an extension of time to file a certificate
of merit is governed specifically by subsection 150.002(c).  However, we need not resolve this issue.  Assuming that it applies, Rule 5 can only be
used to grant an extension of time on a showing of “good cause.”  See id.;
see also In re M.N., 262 S.W.3d 799,
804 (Tex. 2008).  As discussed supra, the record in this case does not show “good cause” for
granting an extension of time to file the certificate of merit in this
case.  
          We
sustain Pro Plus’s ninth issue.  
D.      Waiver of Right to Seek Dismissal
          In
its response to the motion to dismiss, Crosstex
asserted that Pro Plus had waived its right to seek dismissal.  Crosstex relied on
many of the same acts and omissions by Pro Plus that it had cited to support
its assertion that good cause existed for an extension of time to file its
certificate of merit.  Pro Plus addresses
the issue of waiver in its fourth and fifth issues.
          Waiver
is an intentional relinquishment of a known right or intentional conduct
inconsistent with claiming that right.  Jernigan v. Langley, 111
S.W.3d 153, 156 (Tex. 2003); Palladian
Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434 (Tex. App.—Fort Worth 2005, no pet.).  Waiver becomes a question of law when the
facts and circumstances are admitted or clearly established.  Jernigan,
111 S.W.3d at 156–57;
Palladian Bldg., 165 S.W.3d at 434.
Waiver is largely a matter of intent.  Ustanik v. Nortex Found.
Designs, Inc., 320 S.W.3d 409, 413 (Tex. App.—Waco 2010, pet. denied).  Intent must be clearly demonstrated by the
surrounding facts and circumstances for implied waiver to be found through a
party’s actions.  Id. (citing Jernigan, 111 S.W.3d at 156).  Waiver of a right cannot be found if the party
against whom waiver is sought says or does nothing inconsistent with its intent
to rely on such right.  Id. (citing Jernigan, 111 S.W.3d at 156; Palladian Bldg., 165 S.W.3d at 434).  Thus, the question becomes did Pro Plus take actions that were inconsistent with exercising
their right to file a motion to dismiss. 
See id. at
414.
          Crosstex argues that Pro Plus waived its right to dismissal
because it participated in the litigation process and delayed filing its motion
to dismiss until after the two-year statute of limitations had run on its
negligence based claims.  We begin by
recognizing that courts have held that participating in the litigation process
or delaying pursuit of dismissal, without more, does not show intent to waive a
right to dismissal under section 150.002. 
See, e.g., Ustanik,
320 S.W.3d at 413–14;
DLB Architects, P.C. v. Weaver, 305
S.W.3d 407, 411 (Tex. App.—Dallas 2010, pet. denied); Landreth v. Las Brisas Council of Co–Owners, Inc.,
285 S.W.3d 492, 500–01 (Tex. App.—Corpus Christi 2009, no pet.).  Crosstex
acknowledges that the Certificate of Merit Statute does not include a deadline
to file a motion to dismiss.  See Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002; see also Ustanik, 320
S.W.3d at 413; cf. Tex. Civ. Prac. & Rem. Code Ann. § 74.351
(establishing a 21 day deadline to object to an expert report in a health care
liability claim).  The
mere fact that a defendant waits to file a motion to dismiss pursuant to
section 150.002 is not sufficient to establish waiver.  See Ustanik, 320 S.W.3d at 414 (holding that delay of two
years, five months to file motion to dismiss did not constitute waiver); DLB Architects, 305 S.W.3d at 411 (waiting
more than one year to file dismissal motion
did not manifest intent to waive); see also
Jernigan, 111 S.W.3d at 157 (holding that physician who waited 600 days
after receiving expert report to move for dismissal did not waive his right to
pursue a motion to dismiss under former version of the health care liability
statute).  
Courts have determined that
participating in the litigation process by, for example, conducting discovery or
filing a motion for summary judgment did not manifest intent to waive a right
to seek dismissal.  See Ustanik, 320 S.W.3d
at 414; Landreth,
285 S.W.3d at 500–01.  Crosstex contends that Pro Plus’s participation in
discovery and its agreement to a continuance of the docket control order’s
discovery deadlines were acts inconsistent with its right to seek
dismissal.  However, as other courts have
indicated, learning more about the case in which one is a party by way of the
discovery process does not demonstrate intent to waive the right to move for a
dismissal.  See Ustanik, 320 S.W.3d at 414 (citing Jernigan, 111 S.W.3d at 157); see also Perry Homes v. Cull, 258 S.W.3d
580, 590 (Tex. 2008) (citing examples of participation in discovery in which supreme court found no waiver of right to arbitrate).  Thus, Pro Plus’s participation in the
discovery process, including engaging in written discovery and agreeing to
extend discovery deadlines, and its delay in filing its dismissal motion, are
not acts inconsistent with its right to seek dismissal.  Ustanik, 320 S.W.3d at 414; DLB Architects, 305 S.W.3d at 411; Landreth, 285
S.W.3d 492, 500–01.  
Crosstex
also relies heavily on the fact that Pro Plus answered the suit.  Crosstex points out
that section 150.002 does not require a defendant to answer until 30 days after
the certificate of merit is filed.  See Tex. Civ. Prac. & Rem. Code Ann. §
150.002(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.”). 

We do not perceive a defendant’s
decision to answer a suit, even if not required to do so, as being inconsistent
with its right to pursue a motion to dismiss. 
Although it permits a defendant to wait to file its answer, the statute
does not require a certain due order of pleadings.  See
id.  Moreover, a defendant must determine
early in the litigation process whether to file an answer or risk a possible
default judgment.  See Tex. R. Civ. P.
99(b),(c) (directing defendant to file written answer
“on or before 10:00 a.m. on the Monday next after the expiration of twenty days
after the date of service thereof” or face possible default judgment).  A defendant’s answer may be due before it has
adequately determined whether it has a right to pursue dismissal.  We agree with other courts that have held no
waiver occurred following a defendant’s filing of an answer.  See
Ustanik, 320
S.W.3d at 414 (holding no waiver when defendant filed answer that raised a
certificate of merit defense but still waited almost two-and-one-half years to
file dismissal motion); Palladian Bldg.,
165 S.W.3d at 435 (holding that it was “not unreasonable or inconsistent for [defendant]
to elect to file an original or amended answer prior to filing its motion to
dismiss for [the plaintiff’s] failure to file the required expert’s affidavit”).
Crosstex also
argues that Rule of Civil Procedure 90 required Pro Plus to specially except to
the absent certificate.  Rule 90 requires,
“Every defect, omission or fault in a pleading either of form or of substance,
which is not specifically pointed out by exception . . . shall be deemed to
have been waived by the party seeking reversal on such account . . . .”  Tex. R.
Civ. P. 90.  Crosstex
asserts that Pro Plus has waived its right to complain about the lack of a
certificate of merit because it did not specially except before seeking
dismissal.  
Pro Plus responds that it was not
required to specially except to the lack of Crosstex’s
certificate of merit.  It points out that
a failure to file a certificate of merit is not a defect, omission or fault in a pleading; rather, section 150.002
requires that a certificate of merit be filed with the first-filed complaint; the certificate is not incorporated
into the pleading.  See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a).  
The purpose of a special exception
is to compel clarification of pleadings when the pleadings are not clear or
sufficiently specific or fail to plead a cause of action.  Friesenhahn v. Ryan, 960 S.W.2d 656,
658 (Tex. 1998).  Special
exceptions may also be used to determine whether the plaintiff has stated a
cause of action permitted by law.  Id.  Special
exceptions serve to permit amendment of the complained-of pleading to cure the
defect before dismissal.  See Warwick Towers Council of
Co–Owners v. Park Warwick, L.P., 298 S.W.3d 436, 444 (Tex. App.—Houston
[14th Dist.] 2009, no pet.).  However, when, as here, the defect cannot be
cured by amendment, a special exception is unnecessary.  See Friesenhahn, 960 S.W.2d at 658 (holding that, when
pleading deficiency is type that cannot be cured by amendment, special
exception is unnecessary and summary judgment based on the pleading’s failure
to state a legal claim is permitted); see
also Ashkar, 2010 WL 376076, at *3 (“Nothing in
Section 150.002 allows a plaintiff to cure a failure to timely comply.”).  
          Lastly, Crosstex contends that Pro Plus waived its right to seek
dismissal because it agreed to extend the time by which Crosstex
had to designate its expert witnesses and to furnish expert reports.  Crosstex points out
that Pro Plus joined a motion for continuance of the trial setting and docket
control order, which was granted on November 9, 2010.  Pro Plus also signed a Rule 11 Agreement
further extending the deadline for Crosstex to
designate its experts and to furnish expert reports until April 8, 2011.  The Rule 11 Agreement was filed in the trial
court three days before Pro Plus filed its motion to dismiss.  Crosstex asserts
that Pro Plus’s agreement to extend the expert deadlines was inconsistent with
Pro Plus’s right to seek dismissal and constitutes waiver of that right.   
          Pro
Plus responds that its agreement to extend expert deadlines that were
previously set in the trial court’s original docket control order is not
inconsistent with its right to seek dismissal pursuant to section 150.002.  Pro Plus points out that the docket control
order stated that the parties’ expert witness designations were required to
include the information listed in Rule of Civil Procedure 194.2(f) and that the
failure to timely respond was governed by Rule of Civil Procedure 193.6.  Pro Plus asserts that the requirement to file
a certificate merit is neither subsumed within the requirements of Rule
194.2(f) nor synonymous with them.  Rather,
the certificate of merit requirement is a separate statutory requirement with a
discrete purpose with distinct consequences if a plaintiff fails to comply.  
As explained by one court, the
purpose of Rule 194.2(f) is “to give the opposing party sufficient information
about the expert’s opinions to prepare to cross-examine the expert and to
prepare expert rebuttal evidence.”[3]  Miller
v. Kennedy & Minshew, P.C., 142 S.W.3d 325, 348 (Tex. App.—Fort Worth 2003, pet. denied).  Expert reports serve a similar purpose; such
disclosures and expert reports not only prevent trial by ambush, but affect the
opposing party’s preparation for trial.  Baker v. Energy Transfer Co.,
No. 10–09–00214–CV, 2011 WL 4978287, at *1 (Tex. App.—Waco Oct. 19, 2011, no
pet. h.) (mem. op.) (citing Baize v. Scott
& White Clinic, No. 03–05–00780–CV, 2007 WL 135956, at *7 (Tex. App.—Austin Jan. 22, 2007, pet. denied)
(mem. op.)).  A
failure to properly designate expert witnesses results in the automatic
exclusion of the expert testimony unless the offering party demonstrates good
cause for the failure or a lack of unfair surprise.  See Tex. R. App. P. 193.6(a); Perez v. Embree
Constr. Grp., Inc., 228 S.W.3d 875, 884 (Tex. App.—Austin 2007, pet. denied).  
          In
contrast, “[T]he purpose of the certificate of merit is to provide a basis for
the trial court to conclude that the plaintiff’s claims have merit.”  Criterium–Farrell Eng’rs
v. Owens, 248 S.W.3d 395, 399 (Tex. App.—Beaumont 2008, no pet.).  The consequence for failing to file timely a
certificate of merit is dismissal of the plaintiff’s complaint.  See
Tex. Civ. Prac.
& Rem. Ann. Code § 150.002(e);
see Ashkar,
2010 WL 376076, at *3 (stating that section 150.002 requires trial court to
dismiss suit on defendant’s motion when plaintiff has failed to timely file
certificate of merit). 
          Given the
divergence in the purpose and in the consequences of noncompliance between Rule
194.2(f) and the Certificate of Merit Statute, we agree with Pro Plus that consenting
to an extension of time with regard to expert witness discovery deadlines is
not inconsistent with Pro Plus’s right to pursue dismissal under section
150.002.  We cannot perceive how agreeing
to extend expert designation and disclosure requirements governed by Rule
194.2(f) manifests intent to abandon a right to seek dismissal of claims for
failure to comply with the Certificate of Merit Statute.[4]  
Based on the record presented, we
hold that Pro Plus did not waive its right to seek dismissal of Crosstex’s claims under section 150.002.      We sustain Pro Plus’s fourth
and fifth issues.
D.      Breach of Contract Claim
          In
its response to Pro Plus’s motion to dismiss, Crosstex
asserted that section 150.002 did not apply to its breach of contract
claims.  Pro Plus contends, in its third
issue, that Crosstex was required to file a
certificate of merit in support of its breach of contract claim because the
2009 amendment to section 150.002, which applies here, requires a certificate to
be filed in support of all claims for damages, including breach of contract, arising
from the provision professional services. 

          In
the trial court, Crosstex argued that it was not
required to file a certificate of merit with regard to its breach of contract
claim because section 150.002 did not apply to that claim.  Citing Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728, 733 (Tex. App.—Texarkana 2010, pet. dism’d w.o.j.), Crosstex asserted in the trial court that it was not
required to file a certificate of merit with regard to its breach of contract
claim because section 150.002 does not apply to a claim for a breach of a
written contract.  Natex, however, is of limited
value to determining in this case whether Crosstex
was required to file a certificate of merit to support its breach of contract
claim.  In Natex, the 2005 version of the
Certificate of Merit Statute applied to the plaintiff’s claims.  See id.
at 731 n.2. 
It is undisputed that the 2009 version of the statute, which is its most
current, applies to Crosstex’s claims.[5] 
          The Natex court stated, “We conclude, as did our
sister courts, that the applicable [2005] version of Section 150.002 applies
only to negligence claims and not to claims based on contract.”  Id. at 733.  The court
then analyzed the plaintiff’s claims and determined that they were based in
contract, not in negligence.  See id. at
735.  The court held that, under the 2005
version of the statute, the plaintiff was not required to contemporaneously
file a certificate of merit to support its breach of contract claims.  Id.
          In 2009, the Texas
Legislature amended the Certificate of Merit Statute in direct response to the holdings
of intermediate appellate courts, which limited the application of the statute
to negligence claims.  See S & P Consulting Eng’rs
v. Baker, 334 S.W.3d 390, 399–400 (Tex. App.—Austin 2011, no pet.) (discussing
bill analysis of section 150.002 showing legislature’s frustration with
appellate court’s continued limitation of statute to negligence actions).  As amended in 2009, the current version of
the Certificate of Merit Statute requires a certificate of merit to be filed “[i]n any action . . . for damages arising out of the
provision of professional [engineering] services by a licensed or registered
professional.”[6]   Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(a); see
id. § 150.001(1) (defining “licensed or registered professional” to include
a licensed professional engineer).  The
certificate of merit 
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)
(emphasis added).  We conclude that the
Certificate of Merit Statute applies to Crosstex’s
breach of contract claim.  See id. § 150.002(a),
(b).  Accordingly, Crosstex was required to contemporaneously file with its
Original Petition a certificate of merit addressing each of its claims,
including its breach of contract claim.  See id. 

          We
sustain Pro Plus’s ninth issue.[7]
 
Conclusion
          For
the reasons discussed, we hold that Crosstex was
required to file a certificate of merit contemporaneously with its Original
Petition.  See id. § 150.002(a).  Because
it failed to do so, section 150.002 requires that Crosstex’s
claims be dismissed.  See id. § 150.002(e).  We hold that the trial court abused
its discretion when it denied Pro Plus’s motion to dismiss.  
          
          
          
          We
reverse the trial court’s December 17, 2010 order and remand to the trial court
for further proceedings consistent with this opinion.[8]  
 
 
                                                                      Laura
Carter Higley
                                                                      Justice

 
Panel consists of Justices
Keyes, Higley, and Massengale.
Justice
Keyes, dissenting.
 




[1]           See Tex. Civ. Prac. & Rem.
Code Ann. § 150.002 (Vernon 2011).


[2]           After briefing was complete
in this appeal, Crosstex filed a motion to dismiss in
which it contends that this Court lacks subject-matter jurisdiction because,
since its filing, the appeal has become moot. 
By separate order, we deny the motion to dismiss.  


[3]         Rule
194.2(f) provides for the disclosure of the following for testifying experts:
 
(1) the expert’s name,
address, and telephone number;
 
(2) the subject matter on
which the expert will testify;
 
(3) the general substance
of the expert’s mental impressions and opinions and a brief summary of the
basis for them, or if the expert is not retained by, employed by, or otherwise
subject to the control of the responding party, documents reflecting such
information;
 
(4) if the expert is
retained by, employed by, or otherwise subject to the control of the responding
party:
 
(A)     all documents, tangible things, reports,
models, or data compilations that have been provided to, reviewed by, or
prepared by or for the expert in anticipation of the expert’s testimony; and
 
(B)     the expert’s
current resume and bibliography.
 
Tex.
R. Civ. P. 194.2(f).


[4]           Pro Plus also points out
that, had it not signed the Rule 11 Agreement and the trial court denied its
motion to dismiss, it would have missed its deadline for designating its own
experts.


[5]         The 2009
amendment applies to actions commenced after the amendments effective date of
September 1, 2009.  See Act of May 29, 2009, 81st Leg., R.S., ch.
789, § 3–4, sec. 150.002, 2009 Tex. Gen. Laws 1991, 1992 (now
codified at Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (Vernon
2011)).  Because Crosstex
filed its Original Petition on April 14, 2010, section 150.002, as amended in
2009, governs this case.  See id. 
To date, section 150.002 has not been amended since 2009.  
 


[6]
          Although
not argued in the trial court, Crosstex now appears
to challenge in its response brief, whether its contract claim arises from Pro
Plus’s provision of professional engineering services.  We recognize that a party may not argue a
theory on appeal that is different from that presented in the trial court.  Berry v.
Segall, 315 S.W.3d 141, 144 (Tex. App.—El Paso
2010, no pet.).  And we may not affirm a
judgment on a ground not presented to the trial court to which the other side
had no opportunity to respond.  Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 289–90 (Tex. App.—Dallas 2008, pet. denied).  In any event, it is beyond dispute that Crosstex’s Original Petition is replete with claims that it
suffered damages as a result of the alleged substandard engineering and design
services provided by Pro Plus during the construction of the Godley Station.  Crosstex expressly
sued Pro Plus for breach of contract claim, in part, based its role as supplier
of design and engineering services.  Crosstex appears to allege that its claims, tort and
contract, also arise from Pro Plus’s performance of its management and
construction services at the Godley Station. 
Crosstex asserts that these claims do not
arise from the provision of professional engineering services.  In determining what “the provision of
professional [engineering] services” in subsection 150.002(a) means, we are look
to the Occupations Code’s definition of the practice of engineering.  See Tex. Civ. Prac.
& Rem. Code Ann. § 150.001(3) (Vernon 2011).  The Occupations Code defines the practice of
engineering as “the performance of . . . any public or private service or
creative work, the adequate performance of which requires engineering
education, training, and experience in applying special knowledge or judgment
of the mathematical, physical, or engineering sciences to that service or
creative work.”  Tex. Occ. Code Ann. § 1001.003(b) (Vernon Supp. 2011).  The practice of engineering includes, among
other things, design of engineering works or systems; engineering for
construction of real property; engineering for preparation of operating or
maintenance manuals; and “any other professional service necessary for the
planning, progress, or completion of an engineering service.”  Id. § 1001.003(c).  Based
on the definitions provided in the Occupations Code, and the plain language of
section 150.002(a), a claim for damages asserted against a professional
engineer arises out of the provision of professional services (and thus
requires a certificate of merit) if the claim implicates the engineer’s
education, training, and experience in applying special knowledge or judgment.  UOP, L.L.C. v. Kozak, No. 01–08–00896–CV,
2010 WL 2026037, at *5 (Tex. App.—Houston
[1st Dist.] May 20, 2010, no pet.) (mem. op.).  A review of Crosstex’s
Original Petition, as set out in detail supra,
shows that Crosstex’s claims arising out of Pro
Plus’s provision of engineering, design, management, and contracting services
are so intertwined that the basis for each is indistinguishable.  Thus, as pled, in whatever role it was sued
by Crosstex, Pro Plus’s engineering education,
training, and experience was implicated. 
See id. at
*7.  


[7]           We need not reach Pro Plus’s
remaining issues, which offer alternative grounds for reversal.  Pro Plus’s first issue generally avers that
the trial court abused its discretion in denying the motion to dismiss; thus,
we sustain that issue.
 


[8]           Crosstex has informed this Court that, while this
interlocutory appeal was pending, it filed an amended petition with a
certificate of merit in the trial court. 
The scope of our review in this interlocutory appeal is limited to
determining whether the trial court abused its discretion in denying Pro Plus’s
motion to dismiss, as discussed supra.  See Tex. Civ. Prac.
& rem. Code Ann. § 150.002(f).  We make no express determination with
respect to arguments that Crosstex may assert on
remand in the trial court with regard to the effect or significance of Crosstex’s recent filing of its first amended petition.


