                           NUMBER 13-11-00077-CV

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI—EDINBURG
 ____________________________________________________

NOE GARZA AND NOE GARZA ENGINEERING, INC.,                                 Appellants,

                                            v.

JOE CARMONA AND CELINA CARMONA,                                            Appellees.


                     On appeal from the 444th District Court
                          of Cameron County, Texas.
 ____________________________________________________

                                       OPINION
                 Before Justices Rodriguez, Vela, and Perkes
                         Opinion by Justice Perkes
      Appellants, Noe Garza and Noe Garza Engineering, Inc. (collectively “Garza

Engineering”), appeal from the denial of their motion to dismiss the lawsuit that appellees,

Joe and Celina Carmona (collectively “Carmonas”), filed against them. See TEX. CIV.

PRAC. & REM. CODE ANN. § 150.002(f) (West 2011) (authorizing immediate interlocutory
appeal from an order denying a motion to dismiss under section 150.002). By three issues

on appeal, Garza Engineering argues the certificate of merit the Carmonas filed with their

lawsuit did not satisfy the requirements of Texas Civil Practice and Remedies Code

section 150.002 because the affidavit did not: (1) address each theory of recovery for

which damages were sought; (2) provide the factual basis for each theory of recovery; or

(3) identify any applicable standard of care which Garza Engineering allegedly breached.

See id. § 150.002(b). We reverse and remand.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       The pleadings show the following background facts. The Carmonas owned real

property in San Benito, Texas, which they sought to develop into a residential subdivision.

The Carmonas hired Garza Engineering to design and supervise the development. They

hired Modesto Hernandez as the construction contractor to perform construction work

under Garza Engineering’s supervision.1             The Carmonas filed this lawsuit, alleging

deficiencies in Garza Engineering and Hernandez’s performance on the project.

       In their original petition, the Carmonas alleged five theories of recovery against

Garza Engineering: (1) negligence; (2) violations of the Texas Deceptive Trade Practices

Act2 (“DTPA”); (3) common-law fraud; (4) negligent misrepresentation; and (5) breach of

contract. Regarding their negligence theory of recovery, the Carmonas pleaded Garza

Engineering did not properly design the subdivision, failed to make proper design plans,

and failed to adequately supervise construction and correct construction defects as they

arose. The Carmonas stressed in their petition that “the most serious failure of Noe Garza

       1
            Modesto Hernandez d/b/a Hi-Low Sales d/b/a Hi-Low Homes d/b/a Hernandez Construction is not
a party to this appeal.
       2
        See TEX. BUS. & COM. CODE ANN. §§ 17.41–.63 (West 2011) (the Deceptive Trade Practices-
Consumer Protection Act).
                                                  2
Engineering, Inc. was in its neglect and failure to oversee and supervise construction.”

The Carmonas pleaded that Garza Engineering negligently failed in their “watchdog role,”

and as a result, Hernandez installed a water line to the subdivision that failed the city water

district’s pressure test and failed to elevate the lots so that they would drain into the street

as per the design plans and city requirements. The Carmonas pleaded that the latter

presented a “major flooding hazard.”

       Under the DTPA, the Carmonas generally pleaded, without application of facts, that

Garza Engineering engaged in “an unconscionable action or course of action,” “caused

confusion or misunderstanding as to the source, sponsorship, approval or certification of

goods or services,” and breached implied warranties of merchantability, fitness for a

particular purpose, and good and workmanlike performance. In a similarly broad fashion,

the Carmonas generally pleaded their common-law fraud, negligent misrepresentation,

and breach-of-contract claims against Garza Engineering.

       With their original petition, the Carmonas filed the affidavit of Michael Myers, a

licensed professional engineer. The Carmonas state in their petition that “Myers identifies

the areas where [Garza Engineering] were negligent in their duty to oversee the

development of Carmona Subdivision.” They make no other reference to any other claim

with respect to Myers’s affidavit. After setting forth his qualifications, Myers stated:

            On February 4, 2010 I examined the subdivision plat construction
       documents conducted by Noe Garza Engineering, Inc. for Joe and Celina
       Carmona, for the property described as:

              Carmona Subdivision, located off Shafer Road, between Oscar
       Williams and FM 509 in San Benito, Texas.

             After reviewing the construction drawings and the other documents
       concerning the project provided by the Subdivision owner Joe Carmona, I
       discovered the following deficiencies from the reviewed documents.
                                               3
      1.    The engineer provided no Contractual documents for the
      contractor and owner to sign to clarify the requirements for the
      contractor for the project.

      Specifically:

           a. No agreement for Contractor and owner to sign

           b. No formal proposal of scope of work

           c. No specified duration for time of completion

           d. No liquidated damages from failure to perform

           e. No payment bond

           f. No performance bond

           g. No insurance requirements

           h. No General or Special conditions to specify terms and
              conditions for executing the project

           i. No Technical specifications to specify the specific details
              for the execution of the work by the contractor

      2.     The construction drawings for the subdivision omitted the
      following items:

           a. No standard details for water line construction

           b. No standard details for storm drainage construction

           c. No detailed drainage plan for total subdivision drainage

           d. No standard details for street construction

           e. No details for the proposed street profile and compaction
              requirements

           f. No Elevation Bench Mark information for contractor reference.

As engineers it is our professional responsibility and duty to protect the
interests of our clients and the public in the development of civil works such
as the above mentioned Subdivision Works. In failing to provide these
crucial elements to the documentation of this project, Mr. Garza did not
                                       4
       provide an acceptable design project plan for the owner, the City of San
       Benito and the Public. These deficiencies caused many extra delays and
       additional costs to the owner to bring additional resources to complete this
       project.

       Garza Engineering moved to dismiss the Carmonas’ lawsuit against them, alleging

Myers’s affidavit was insufficient to satisfy the certificate-of-merit requirements found in

Texas Civil Practice and Remedies Code section 150.002. See id. § 150.002. After a

hearing, the trial court denied Garza Engineering’s motion to dismiss. This accelerated

appeal followed.

                                II. STANDARD OF REVIEW

       We review a trial court’s denial of a motion to dismiss filed pursuant to Texas Civil

Practice and Remedies Code section 150.002 for an abuse of discretion. WCM Group,

Inc. v. Brown, 305 S.W.3d 222, 229 (Tex. App.—Corpus Christi 2009, pet. dism’d);

Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496 (Tex. App.—

Corpus Christi 2009, no pet.).     A trial court abuses its discretion if it acts arbitrarily,

unreasonably, or without reference to guiding rules or principles. See Bowie Mem'l Hosp.

v. Wright, 79 S.W.3d 48, 52 (Tex.2002). Although a reviewing court may not substitute its

judgment for that of the trial court, the trial court has no discretion in determining what the

law is or applying the law to the facts. See id.; Sanjar v. Turner, 252 S.W.3d 460, 463

(Tex. App.—Houston [14th Dist.] 2008, no pet.).

         We review questions of statutory construction de novo. Singleton v. Casteel, 267

S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing City of San

Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). In construing statutes, our

primary objective is to give effect to the Legislature's intent. Tex. Lottery Comm’n v. First

State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We rely on the plain meaning
                                              5
of the text as expressing legislative intent, unless a different meaning is supplied by

legislative definition or is apparent from the context or the plain meaning leads to absurd

results. Id. We presume the Legislature selected the language in a statute with care and

that every word or phrase was used with a purpose in mind. Id. When the language of a

statute is clear and unambiguous, Texas courts do not resort to rules of construction or

extrinsic aids to construe the language. Id. at 640 (citing City of Rockwall v. Hughes, 246

S.W.3d 621, 626 (Tex. 2008)).

                                       III. ANALYSIS

       The parties agree that the “certificate of merit” requirement applies in this case

because the Carmonas’ lawsuit arises from professional engineering services provided by

Garza Engineering. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a) (West 2011).

The purpose of the certificate of merit is to provide a basis for the trial court to conclude

that the plaintiff’s claims have merit. See Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d

395, 400 (Tex. App.—Beaumont 2008, no pet.); see also Durivage v. La Alhambra Condo.

Ass’n, No. 13–11–00324–CV, 2011 WL 6747384, at *3 (Tex. App.—Corpus Christi Dec.

21, 2011, pet. filed) (mem. op.).

       By their first issue, Garza Engineering argues the trial court abused its discretion by

denying their motion to dismiss because Myers’s affidavit did not address each theory of

recovery that the Carmonas alleged against Garza Engineering. See TEX. CIV. PRAC. &

REM. CODE ANN. § 150.002(a). Relying on case law that applied an earlier version of

section 150.002, enacted in 2005, the Carmonas respond that neither the plain language

of the statute nor “recent case law” requires that the certificate of merit address non-




                                              6
negligence claims.3 We disagree and conclude that Myers’s affidavit failed to adequately

address any of the Carmonas’ theories of recovery.

       Because this lawsuit was filed in March 2010, the amended version of section

150.002, enacted in 2009, applies to this case. See Act of May 29, 2009, 81st Leg., R.S.,

ch. 789, § 3, 2009 Tex. Gen. Laws 1991, 1992 (enabling legislation for the 2009 version of

section 150.002 which sets forth that the 2009 version applies to an action filed or

commenced after September 1, 2009).4 In relevant part, the statute provides that the

Carmonas were required to file an affidavit from a licensed professional engineer

addressing each theory of recovery or have their complaint dismissed:

       (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 . . . .
       ....

       (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.

TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b), (e). The plain language of the statute

requires that the affidavit set forth for each theory of recovery the negligence “or other

action, error, or omission” of the professional in providing the professional service at issue.

See id. § 150.002(b); Nangia v. Taylor, 338 S.W.3d 768, 772 (Tex. App.—Beaumont 2011,

       3
          In support of their position, the Carmonas rely primarily on Gomez v. STFG, Inc., a case from the
Fourth Court of Appeals. No. 04-07-00223-CV, 2007 WL 2846419, at *2–3 (Tex. App.—San Antonio Oct. 3,
2007, no pet.) (mem. op.). In Gomez, however, the appellate court was not considering the statutory
language applicable to this case. Id. at *2. Rather, Gomez concerns Texas Civil Practice and Remedies
Code section 150.002, as amended in 2005. See id.
       4
           Unless otherwise noted, all citations to Texas Civil Practice and Remedies Code section 150.002
are to the version of the statute as enacted in 2009. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)
(West 2011).
                                                    7
no pet.); see also Pro Plus, Inc. v. Crosstex Energy Services, L.P., No. 01-11-00025-CV,

2012 WL 404500, at *16–17 (Tex. App.—Houston [1st Dist.] Feb. 9, 2012, no pet.)

(explaining that the version of the statute enacted in 2009 requires the certificate of merit

to provide a factual basis for each theory of recovery for which damages are sought, not

just negligence); see also Durivage, 2011 WL 6747384, at *4 (same).

       In Nangia v. Taylor, the Ninth Court of Appeals addressed a licensed professional

engineer’s claim that a certificate of merit failed to specifically address a DTPA claim filed

against him. Nangia, 338 S.W.3d at 772–73. The court of appeals concluded that the

language of section 150.002 requires that the affidavit specifically address a DTPA claim,

separately from a negligence claim. Id. at 772. The court analyzed the language of the

affidavit filed in that case, and the affidavit distinctly identified conduct that formed the

basis of an alleged DTPA claim and conduct that formed the basis of an alleged

negligence claim. Id. at 773. Accordingly, the court concluded the certificate satisfied the

section 150.002 requirement that the affidavit specifically address each theory of recovery.

Id.

       More recently, in Durivage, this Court addressed whether a certificate of merit set

forth the factual basis “for each theory of recovery” a plaintiff alleged against a professional

engineer. See Durivage, 2011 WL 6747384, at *4 (applying TEX. CIV. PRAC. & REM. CODE

ANN. § 150.002(b)).     The plaintiff, La Alhambra Condominium Association, sued the

engineer, Durivage, alleging negligence, gross negligence and breach of contract in

connection with a roof that he inspected and certified. Id. at *1. This Court concluded that

La Alhambra’s certificate of merit adequately set forth the factual basis of its negligence

claim because the affiant explained he was familiar with the applicable standard of care

                                               8
and set forth how Durivage allegedly breached it. Id. at *3. However, this Court further

concluded La Alhambra failed to set forth any factual basis for its gross negligence and

breach-of-contract claims. Id. at *4.

       Rather than dismissing the entire complaint and remanding the whole case to the

trial court for a prejudice determination, this Court reversed the portion of the trial court’s

judgment denying Durivage’s motion to dismiss La Alhambra’s gross negligence and

breach-of-contract claims.     This Court remanded the case to the trial court for a

determination of whether the dismissal of those two claims would be with or without

prejudice. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(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.”)).         Unlike La Alhambra,

however, which adequately set forth the factual basis of its negligence claim, the

Carmonas failed to set forth specifically the negligence, if any, or any other action, error or

omission that supports their alleged claims for relief. See TEX. CIV. PRAC. & REM. CODE

ANN. § 150.002(b).

       A certificate-of-merit affidavit specifically sets forth alleged negligence when it

specifically identifies the actions, errors, and/or omissions that in the affiant’s opinion

deviated from the applicable standard of care and caused the harm for which the plaintiff

seeks damages.       See Criterium-Farrell Eng’rs, 248 S.W.3d at 400; see also Elness

Swenson Graham Architects, Inc. v. RLJ II–C Austin Air, LP, No. 03–10–00805–CV, 2011

WL 1562891, at *5 (Tex. App.—Austin Apr. 20, 2011, pet. denied) (mem. op.) (applying

section 150.002(b)). Here, the crux of the Carmonas’ negligence claim was that Garza

Engineering failed to adequately supervise Hernandez’s work and to correct his errors as

                                               9
they arose and that Garza Engineering’s acts and omissions proximately caused financial

harm and delay. However, Myers’s affidavit does not address, and is wholly silent on, the

question of whether Garza Engineering negligently supervised and failed to correct

Hernandez’s work.

       Myers’s affidavit consists of three sections: (Part 1) explaining there were no written

contractual documents between the Carmonas and Garza Engineering to “clarify the

requirements for” the contractor for the subdivision project; (Part 2) listing items allegedly

omitted from the construction drawings; and (Part 3) stating Garza Engineering failed to

“provide an acceptable design project plan for the owner,” thereby causing delays and

increased cost. Nowhere in Myers’s affidavit does he specifically identify any actions,

errors, and/or omissions that in Myers’s opinion deviated from an applicable negligence

standard of care in this case and that caused the harm for which the Carmonas seek

damages. See Criterium-Farrell Eng’rs, 248 S.W.3d at 400 (holding that, with respect to a

negligence claim, “the certificate of merit must necessarily address the applicable standard

of care and the defendant’s failure to meet the standard” even if it does not expressly set

forth in detail the applicable standard of care); see also Elness Swenson Graham

Architects, Inc., 2011 WL 1562891, at *5. We conclude the Carmonas’ certificate of merit

failed to address their negligence claim in accordance with the requirements of section

150.002(b). See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b).

       With respect to the Carmonas’ other theories of recovery, Myers’s affidavit does not

identify or otherwise specifically set forth any actions, errors, or omissions by Garza

Engineering in providing their professional services.      See id.    Under the DTPA, the

Carmonas pleaded Garza Engineering engaged in “an unconscionable action or course of

                                             10
action,” “caused confusion or misunderstanding as to the source, sponsorship, approval or

certification of goods or services,” and breached implied warranties of merchantability,

fitness for a particular purpose, and good and workmanlike performance.          However,

Myers’s affidavit does not mention or in any way discuss the Carmonas’ DTPA theory of

recovery. See Nangia, 338 S.W.3d at 772–73 (addressing the adequacy of certificate-of-

merit affidavit to address a DTPA claim brought against an engineer); see also, e.g., TEX.

BUS. & COM. CODE ANN. § 17.46(b)(2) (West 2011) (providing it is a deceptive trade

practice to cause “confusion or misunderstanding as to the source, sponsorship, approval,

or certification of goods or services”); § 17.50(a)(3) (setting forth a DTPA action for any

unconscionable course of action by any person that is a producing cause of certain

damages); Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 677 (Tex. 1998) (“To prove an

unconscionable course of action, a plaintiff must show that the defendant’s acts took

advantage of her lack of knowledge” and ‘that the resulting unfairness was glaringly

noticeable, flagrant, complete and unmitigated.’”).    Specifically, while the Carmonas

pleaded breach of implied warranties under the DTPA, no such conduct is set forth in

Myers’s affidavit. See TEX. BUS. & COM. CODE ANN. § 17.50(a)(2) (providing a DTPA cause

of action for breach of an implied warranty); Johnston v. McKinney Am., Inc., 953 S.W. 3d

271, 282 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“Generally, to recover under

the DTPA on a breach of a warranty, the plaintiff must show (1) he is a consumer, (2)

existence of the warranty, (3) breach of the warranty, and (4) the breach was a producing

cause of damages”); see also, e.g., Evans v. J. Stiles, Inc., 689 S.W.2d 399, 399–400

(Tex. 1985) (explaining the implied warranty of good and workmanlike performance applies

when a defendant builds residential property which the plaintiff purchased, and the

                                            11
construction was not completed in a good and workmanlike manner, injuring the plaintiff);

Johnston, 953 S.W.3d at 283 (recognizing common law implied a warranty of

merchantability to a lease of goods that warranted goods would be free from defect and

suitable for their ordinary intended purpose).

       Likewise, Myers’s affidavit does not identify or otherwise discuss the Carmonas’

claims for common-law fraud, negligent misrepresentation, or breach of contract. See e.g.,

Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 337 (Tex. 2011) (“The

elements of fraud are: (1) that a material representation was made; (2) the representation

was false; (3) when the representation was made, the speaker knew it was false or made it

recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker

made the representation with the intent that the other party should act upon it; (5) the party

acted in reliance on the representation; and (6) the party thereby suffered injury.”); Fed.

Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991) (identifying the elements of

negligent misrepresentation as follows: (1) a defendant provided information in the course

of his business, or in a transaction in which he had a pecuniary interest; (2) the information

supplied was false; (3) the defendant did not exercise reasonable care or competence in

obtaining or communicating the information; (4) the plaintiff justifiably relied on the

information; and (5) the plaintiff suffered damages proximately caused by the reliance);

Sauceda v. GMAC Mortgage Corp., 268 S.W.3d 135, 140 (Tex. App.—Corpus Christi

2008, no pet.) (“The elements of a breach of contract action are: (1) the existence of a

valid contract; (2) performance or tendered performance by the plaintiff; (3) breach by the

defendant; and (4) damages sustained by the plaintiff as a result of the breach.”).




                                             12
      In summary, the trial court abused its discretion by denying Garza Engineering’s

motion to dismiss because the Carmonas failed to file an affidavit in accordance with

section 150.002(b). See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b). Subsection (e)

therefore requires “dismissal of the complaint against the defendant[s].”          See id. §

150.002(e).    We sustain Garza Engineering’s first issue on appeal.        In light of our

disposition of this issue, it is not necessary for us to reach issues two and three. See

TEX. R. APP. P. 47.1.

                                   IV. CONCLUSION

      We reverse the trial court’s order denying Garza Engineering’s motion to dismiss

and remand this case to the trial court to determine whether the dismissal should be with

or without prejudice to refiling. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e); TEX.

R. APP. P. 43.2(d); see also Sharp Eng’g v. Luis, 321 S.W.3d 748, 752–53 (Tex. App.—

Houston [14th Dist.] 2010, no pet) (remanding case for a prejudice determination).



                                                 _______________________________
                                                 GREGORY T. PERKES
                                                 Justice

Delivered and filed the
5th day of April, 2012.




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