      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00805-CV



          Elness Swenson Graham Architects, Inc. and Mark Swenson, Appellants

                                                  v.

   RLJ II-C Austin Air, LP; RLJ II-C Austin Air Lessee, LP; and RLJ Lodging Fund II
                             Acquisitions, LLC, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
        NO. D-1-GN-10-002325, HONORABLE JEFF L. ROSE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Elness Swenson Graham Architects, Inc. and Mark Swenson (collectively “ESG”),

a defendant architecture firm and architect, bring this interlocutory appeal from the district court’s

denial of their motion to dismiss the suit brought against them by RLJ II-C Austin Air, LP,

RLJ II-C Austin Air Lessee, LP, and RLJ Lodging Fund II Acquisitions, LLC (collectively “RLJ”).

ESG contends that the “certificate of merit” filed by RLJ did not comply with section 150.002 of the

civil practice and remedies code and, as a result, that the district court abused its discretion by

denying its motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (West Supp. 2010).

We will affirm.
                                          BACKGROUND

               RLJ bought the Courtyard Austin Airport Hotel (the “Hotel”) from a developer. After

taking possession of the Hotel in December 2007, RLJ claims to have noticed property damage,

including foundation movement, a cracked swimming pool, cracks in the slab and grade, shifting

door frames, cracks in partition walls, and problems with drainage at the building’s perimeter. In

July 2010, RLJ brought causes of action for breach of contract, negligence, and negligent

misrepresentation against ESG arising out of ESG’s performance as the project architect during

construction of the Hotel.1 RLJ alleged that ESG was negligent in its provision of design plans and

administration of the Hotel’s construction and made false representations regarding the sufficiency

of the architectural design and drawings. RLJ attached a certificate of merit to its original petition

as required by civil practice and remedies code section 150.002. See Tex. Civ. Prac. & Rem. Code

Ann. § 150.002(a) (providing that in any action for damages arising out of provision of professional

services by licensed architect, plaintiff is required to file, with complaint, affidavit of third-party

licensed architect). RLJ’s certificate of merit consisted of the affidavit of John V. Nyfeler. ESG filed

a motion to dismiss pursuant to section 150.002(e) asserting that Nyfeler’s affidavit did not satisfy

the requirements of section 150.002(a) and (b). See id. § 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.”). The trial court denied the motion to dismiss, and ESG appeals the trial court’s order.

See id. § 150.002(f) (“An order granting or denying a motion for dismissal is immediately appealable


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           RLJ also brought claims against the general contractor, the geotechnical consultant, and
 the structural engineer. RLJ alleged that it had purchased any warranties and rights related to the
 construction of the Hotel.

                                                   2
as an interlocutory order.”). In three issues, ESG complains that the trial court abused its discretion

in denying the motion to dismiss.


                                    STANDARD OF REVIEW

               We review a trial court’s order denying a motion to dismiss pursuant to section

150.002 under an abuse-of-discretion standard. Natex v. Paris Indep. Sch. Dist., 326 S.W.3d 728, 732

(Tex. App.—Texarkana 2010, pet. filed); Benchmark Eng’g Corp. v. Sam Houston Race Park,

316 S.W.3d 41, 44 (Tex. App.—Houston [14th Dist.] 2010, pet. dism’d by agr.). A trial court abuses

its discretion when it acts without reference to any guiding rules and principles, Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), and reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law. BMC Software Belg.,

N.V. v. Marchand, 83 S.W.3d 780, 800 (Tex. 2002). The trial court has “no ‘discretion’ in

determining what the law is or applying the law to the facts,” Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992), and therefore abuses its discretion if it misinterprets or misapplies the law. Perry Homes

v. Cull, 258 S.W.3d 580, 598 (Tex. 2008); Walker, 827 S.W.2d at 840.

               We review matters of statutory construction de novo. City of San Antonio v. City of

Boerne, 111 S.W.3d 22, 25 (Tex. 2003). In construing statutes, our primary goal is to determine and

give effect to the legislature’s intent. Id. When the statutory text is unambiguous, we adopt a

construction supported by the statute’s plain language, unless that construction would lead to an

absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). Once we

determine the statute’s proper construction, we then decide whether the trial court abused its




                                                  3
discretion in applying the statute. Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 397 (Tex.

App.—Beaumont 2008, no pet.).


Was the Affiant Qualified?

                In its first issue, ESG contends that the district court abused its discretion in denying

ESG’s motion to dismiss because Nyfeler’s affidavit does not demonstrate that he has the statutorily

required qualifications to provide a certificate of merit in this case. See Tex. Civ. Prac. & Rem. Code

Ann. § 150.002(a). Specifically, ESG claims that Nyfeler’s affidavit fails to establish that (i) he is

knowledgeable in the area of practice of ESG, see id. § 150.002(a)(3); (ii) his testimony is based on

his knowledge, skill, experience, education, training, and practice, see id. § 150.002(a)(3)(A)-(F); or

(iii) he is actively engaged in the practice of architecture, see id. § 150.002(b). With regard to his

qualifications, Nyfeler’s affidavit states:


        I am President of The Nyfeler Organization, Inc. d/b/a John Nyfeler, FAIA and have
        worked in that capacity since February 1, 2010. For the previous ten years, I worked
        for Aguirre Roden, Inc., a Texas based architect, engineer firm, in the capacity of
        Senior Vice President. I have been a registered architect in the State of Texas
        since 1970.


In its pleadings, RLJ alleged that ESG “was the Project architect,” “signed and sealed the architectural

plans and drawings for the Project,” and provided “overall Architecture, Civil, and Structural

Engineering design, documentation and coordination for the Project.” Thus, ESG’s “area of practice”

is general and involves preparing and reviewing architectural drawings and coordinating various

aspects of the project. In his affidavit, Nyfeler states that he has been a registered architect in Texas

for forty years. He was the senior vice president of a Texas-based architecture and engineering firm

                                                   4
for ten years and currently manages his own architectural practice, John Nyfeler FAIA.2 This

information indicates that Nyfeler has met the educational and licensing requirements of a Texas

architect, that he has extensive practical experience gained through many years of working as an

architect, and that his own profession has recognized him as an accomplished architect. Although

Nyfeler does not specifically state that he is knowledgeable in the same area of practice of ESG, such

specific and precise language is not required when it is evident from the affidavit that the requirement

has been met. The statute does not require the affiant to state that he is knowledgeable in the same

area of practice of the defendant, but rather that he be knowledgeable in that area. See Natex Corp.,

326 S.W.3d at 735 n.5 (although statute requires affidavit to be made only by certain qualified

persons, it is not required that affidavit set out those qualifications). The trial court did not abuse its

discretion in concluding that Nyfeler’s affidavit establishes that he is “knowledgeable in the area of

practice” of ESG, i.e., providing architectural plans and drawings, design, documentation, and

coordination for the construction of a building.

                In his affidavit, Nyfeler states that he reviewed the construction documents for the

building in question and that those documents, along with his observations and inspections of the site,

form the factual bases of his opinion. The affidavit details the various ways in which Nyfeler believes

ESG failed to follow the recommendations in an engineering study and his opinion that these

omissions caused or contributed to physical damage to the building. This testimony is plainly based


         2
           The designation “FAIA” stands for “Fellow of the American Institute of Architects” and
 is an honor bestowed upon fewer than two percent of architects in the United States. See Dahl
 v. Akin, 645 S.W.2d 506, 520 (Tex. App.—Amarillo 1982), rev’d on other grounds, 661 S.W.2d 914
 (Tex. 1983). At the hearing on the motion to dismiss, counsel for ESG explained that FAIA is an
 “architectural designation.”

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on Nyfeler’s knowledge, skill, experience, education, training, and practice as an architect. In

forming his opinions, Nyfeler was required to read the architectural plans and specifications, assess

whether ESG complied with its duties to coordinate various professional consultants, and understand

issues related to elevation, drainage, and foundations. The statute does not expressly require the

affiant to recite that his testimony is based on his knowledge, skill, experience, education, training,

and practice when the substance of the affidavit demonstrates that it is. See id. (statute does not

require that affidavit slavishly track its words). The trial court did not abuse its discretion

in concluding that Nyfeler’s opinions were based on his professional experience, knowledge,

and training.

                Section 150.002(b) requires the affiant to be “licensed or registered in this state and

actively engaged in the practice of architecture.”       See Tex. Civ. Prac. & Rem. Code Ann.

§ 150.002(b). Nyfeler’s affidavit states that he is the “President of The Nyfeler Organization, Inc.

d/b/a John Nyfeler FAIA” and that he has “worked in that capacity since February 2010.” It is

reasonable to infer from this statement that, at the time he signed the affidavit in June 2010, Nyfeler

was still doing business as John Nyfeler FAIA and therefore actively engaged in the practice of

architecture. Moreover, civil practice and remedies code section 150.001 provides that the “practice

of architecture” has the meaning assigned by occupations code section 1051.001, which includes

“consulting, investigating, and analyzing the design, form, aesthetics, materials, and construction

technology used for the construction, enlargement, or alteration of a building or environs

and providing expert opinion and testimony as necessary.” Tex. Occ. Code Ann. § 1051.001(7)(A)

(West Supp. 2010). In his affidavit, Nyfeler states that he “reviewed the construction documents for



                                                   6
the referenced building project,” “examined the building,” and “made inspections of the

construction.” In preparing and signing the affidavit, Nyfeler provided expert opinion and testimony.

These activities sufficiently demonstrate that Nyfeler was actively engaged in the practice of

architecture under the definition set forth in section 1051.001. See id.

                The trial court did not abuse its discretion in concluding that Nyfeler’s affidavit

demonstrated that he was qualified to provide the certificate of merit. We overrule ESG’s first issue.


Is the Affidavit Sufficient?

                In its second issue, ESG asserts that the certificate of merit is deficient because

Nyfeler’s affidavit does not expressly state the applicable standard of care. Section 150.002 requires

that the certificate of merit:


        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 services, 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.


See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b) (emphasis added). ESG contends that this

provision impliedly requires the affiant to recite the standard of care that applies to each act of

professional negligence identified in the affidavit.

                Whether the statute requires the affiant to expressly state the applicable standard of

care is a question of law, which we review de novo. See State v. Shumake, 199 S.W.3d 279, 284

(Tex. 2006) (statutory construction presents question of law reviewed de novo). Our primary intent

in construing statutes is to give effect to the legislature’s intent. Galbraith Eng’g Consultants, Inc.

                                                   7
v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). We presume that every word of a statute was used

for a purpose and that every word excluded from a statute was excluded for a reason. Cameron

v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). Section 150.002 does not expressly

require that the affiant state the applicable standard of care; rather, it requires only that the affiant set

forth “the negligence, if any, or other action, error or omission” of the licensed or registered

professional. Cf. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (West Supp. 2010) (requiring that

health care liability claimant serve written report by expert that summarizes expert’s opinions

“regarding applicable standards of care, the manner in which the care . . . failed to meet the standards,

and the causal relationship between that failure and the injury, harm, or damages claimed”). The

legislature has amended section 150.002 three times since it was enacted in 2003 and has not

incorporated a specific “standard of care” requirement for certificates of merit in any of those

amendments. See Benchmark Eng’g, 316 S.W.3d at 45-46 (observing same). Moreover, negligence

is, by definition, conduct that falls below the applicable standard of care. By averring that the

licensed or registered professional’s conduct is “negligent,” the affiant is necessarily opining that the

complained-of conduct did not meet the applicable standard of care. Such an opinion suffices to

fulfill the certificate’s purpose of providing a basis for the trial court to conclude whether the

plaintiff’s claims have merit. See Criterium-Farrell Eng’rs, 248 S.W.3d at 399-400 (certificate of

merit that identifies negligent conduct necessarily addresses applicable standard of care and

defendant’s failure to meet that standard).

                Having determined the statute’s proper construction, we next consider whether the

district court abused its discretion in applying the statute. Id. at 397. In his affidavit, Nyfeler stated



                                                     8
that, in his professional opinion, ESG’s “acts, errors and omissions deviated from the appropriate

standard of care,” i.e., were negligent. Nyfeler’s affidavit further identifies a number of ways in

which ESG deviated from the standard of care by, for example, (1) failing to advise the geotechnical

consultant of the final finished floor elevations, (2) failing to provide effective drainage around the

building, (3) failing to design a recommended wall drain, and (4) failing to specify backfill of

cohesive (clay) soil around the building to control surface water percolation. Nyfeler states that these

and other failings on ESG’s part “caused or contributed to the physical damage to the building.”

Nyfeler’s affidavit sets forth ESG’s alleged negligence by specifically identifying the various actions,

errors, and omissions that, in his opinion, deviated from the applicable standard of care and caused

the harm for which RLJ seeks damages. We hold that the trial court did not abuse its discretion in

denying ESG’s motion to dismiss on this basis. We overrule ESG’s second issue.


Did the Trial Court Consider Information Not Included in the Certificate of Merit?

                In its third issue, ESG contends that, because Nyfeler’s affidavit does not establish that

he was actively engaged in the practice of architecture, the trial court’s denial of the motion to dismiss

was necessarily based on consideration of information not included in the four corners of the

affidavit; specifically, ESG points to a document attached to RLJ’s response to the motion to dismiss

that purported to show that Nyfeler was a current member of a state architectural association. ESG

asserts that the trial court abused its discretion by considering information outside the four corners

of the certificate of merit and relying on that information to conclude that the certificate of merit met

the statutory requirements of section 150.002. RLJ counters that the document is a state agency

record and therefore both this Court and the trial court are authorized to take judicial notice of it. We

                                                    9
have already concluded that the Nyfeler affidavit itself sufficiently demonstrated that he was actively

engaged in the practice of architecture. Therefore, we need not decide whether, assuming RLJ is

correct that the information is susceptible to judicial notice, the trial court could consider such

information when it is not included in the four corners of the affidavit. The trial court was provided

with sufficient information within the four corners of the certificate of merit itself to make the factual

determination that Nyfeler was actively engaged in the practice of architecture. We overrule ESG’s

third issue.


                                           CONCLUSION

                We conclude that the trial court’s denial of ESG’s motion to dismiss was not

unreasonable, arbitrary, or without reference to any guiding rules or principles. Therefore, the

trial court did not abuse its discretion in finding Nyfeler to be a qualified affiant under section

150.002(a) and in finding that the certificate of merit complied with the statutory requirements of

section 105.002(b). We affirm the trial court’s order denying ESG’s motion to dismiss.



                                        ___________________________________________________

                                        J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: April 20, 2011




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