07-18-00068-CV                                                                              ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
5/29/2018 2:18 PM
Vivian Long, Clerk




                                       CASE NO. 07-18-00068-CV

                                               IN THE                       FILED IN
                                                                     7th COURT OF APPEALS
                                      SEVENTH COURT OF APPEALS         AMARILLO, TEXAS
                                          AMARILLO, TEXAS            5/29/2018 2:18:19 PM
                                                                          VIVIAN LONG
                                                                             CLERK

                                    RONALD R. WAGNER & CO., LP,
                                           APPELLANT

                                                 v.

                                 APEX GEOSCIENCE, INC. AND BRAUN
                                     INTERTEC CORPORATION,
                                           APPELLEES


                           INTERLOCUTORY APPEAL FROM THE 181ST JUDICIAL
                              DISTRICT COURT OF POTTER COUNTY, TEXAS,
                              THE HONORABLE JOHN B. BOARD, PRESIDING


                              APPELLEES APEX GEOSCIENCE, INC. AND
                              BRAUN INTERTEC CORPORATION’S BRIEF


               D. Wilkes Alexander                 FISK ALEXANDER, PC
               State Bar No. 00783527              2711 N. Haskell Ave.
               walexander@fiskalexander.com        Suite 1550 – LB 10
                                                   Dallas, Texas 75204
               James B. Pruden                     214/638-3744 - Telephone
               State Bar No. 24090822              214/638-5105 – Facsimile
               jpruden@fiskalexander.com
                                                   ATTORNEYS FOR APPELLEE
                                                   APEX GEOSCIENCE, INC. AND
                                                   BRAUN INTERTEC CORP.

                                       Oral Argument Requested
                         Identity of Parties and Counsel

      Appellees Apex Geoscience, Inc. (hereinafter “Apex”) and Braun Intertec

Corporation (hereinafter “Braun”) do not take issue with the identification of parties

and counsel except to note two corrections.

      First, prior to 2015, Apex was an independently owned and operated Texas

Corporation, properly registered as Firm No. 3179 with the Texas Board of

Professional Engineers and actively engaged in the practice of engineering within

the State of Texas. In September 2015, Braun acquired Apex, which is now a

division of Braun Intertec Corporation and not a wholly owned subsidiary. Braun is

a licensed Engineering Firm, properly registered as Firm No. 12228 with the Texas

Board of Professional Engineers and actively engaged in the practice of engineering

within the State of Texas.

      Second, Apex and Braun are also represented in this matter by Attorney James

Pruden, State Bar No. 24090822.




                                          2
                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ 2

TABLE OF CONTENTS ...........................................................................................3

INDEX OF AUTHORITIES......................................................................................5

SUPPLEMENTAL STATEMENT OF JURISDICTION ......................................... 6

SUPPLEMENTAL STATEMENT OF THE CASE ................................................. 6

REQUEST FOR ORAL ARGUMENT ..................................................................... 6

RESPONSIVE ISSUE PRESENTED ....................................................................... 7

        The Trial Court did not err or abuse its discretion in dismissing all of the
        Plaintiff’s alleged causes of action against the Defendants Apex and Braun
        due to plaintiff’s failure to file a certificate of merit, as Appellee Apex and
        Braun were licensed engineering firms engaged in the practice of engineering
        for the public.

SUPPLEMENTAL STATEMENT OF FACTS ........................................................ 7

SUMMARY OF THE ARGUMENT ........................................................................ 8

ARGUMENT AND AUTHORITIES ........................................................................ 9

        1.      Appellee Apex and Appellee Braun are both licensed engineering firms
                performing engineering services within the State of Texas. ................. 9
        2.      The Certificate of Merit Requirement .................................................11
        3.      Triggering the Certificate of Merit Requirement ................................12
        4.      Even if Texas Courts incorporate the § 150.001 “the practice of
                engineering” definition into the § 150.002(a) “arising out of the
                provision of professional services” requirement; Appellee was engaged
                in the practice of engineering ..............................................................13
                a.     The exemptions to the “practice of engineering” listed in Tex.
                       Occ. Code. §§ 1001.053-063 do not apply to an Appellees
                       pursuant to Tex. Occ. Code. § 1001.051 ..................................14

                                                      3
                b.   Even if the Court finds that Tex. Occ. Code. § 1001.051 does not
                     apply to Appellees, Tex. Occ. Code. § 1001.062 does not apply
                     in this case .................................................................................14
        5.      Dismissal for Failure to Comply was the Proper Remedy .................. 16

CONCLUSION AND PRAYER .............................................................................17

CERTIFICATE OF SERVICE ................................................................................19

CERTIFICATE OF COMPLIANCE .......................................................................20




                                                        4
                                        INDEX OF AUTHORITIES

                                                        Statutes

Tex. Civ. Prac. & Rem. Code

§ 150.001 ............................................................................................................11, 13

§ 150.002(a) .......................................................................................................10, 12

§ 150.002(e) .........................................................................................................9, 16

Tex. Occ. Code

§ 1001.003(b) ...........................................................................................................13

§ 1001.003(c)(10).....................................................................................................10

§ 1001.051 ............................................................................................................9, 14

§ 1001.053 ................................................................................................................13

§ 1001.062 ................................................................................................................14

Tex. R. App. P.

Rule 39.1 ....................................................................................................................6

Rule 39.7 ....................................................................................................................6




                                                              5
            SUPPLEMENTAL STATEMENT OF JURISDICTION

      Appellee’s Apex and Braun Intertec Corporation do not take issue with the

Appellant Ronald R. Wagner & Co., LP’s (hereinafter “Wagner”) Supplemental

Statement of Jurisdiction.

                  SUPPLEMENTAL STATEMENT OF THE CASE

      Apex and Braun do not take issue with the Appellant’s Supplemental

Statement of The Case, to the extent that it reflects the procedural history of the case.

However, Apex and Braun object to sentences 1 – 4 on Page 11 of Appellant’s Brief

as argumentative and incorrect conclusions of law.

      On or about November 19, 2017, Plaintiff filed its First Amended Original

Petition naming (1) Advantage Asphalt of Lubbock, LLC; (2) Advanced Pavement

Maintenance, Ltd.; (3) Apex Geoscience, Inc.; (3) Braun Intertec Corporation; (4)

Glenn E. Braudt, Individually; and (5) Brad Scott Knutson, Individually as

defendants to the lawsuit. In that petition, Appellant alleged no contractual

relationship with either Apex or Braun.

                      REQUEST FOR ORAL ARGUMENT

      Pursuant to Rules 39.1 and 39.7 of the TEXAS RULES                OF   APPELLATE

PROCEDURE, Appellees Apex and Braun request that the Court hear oral argument

of this appeal.



                                           6
                      RESPONSIVE ISSUE PRESENTED

      The Trial Court did not err or abuse its discretion in dismissing all of

Wagner’s alleged causes of action against Appellees Apex and Braun due to

Wagner’s failure to file a Certificate of Merit, as Appellees Apex and Braun were

licensed engineering firms engaged in the practice of engineering for the public.

                   SUPPLEMENTAL STATEMENT OF FACTS

      Appellees Apex and Braun do not take issue with paragraphs I – III of

Appellant’s Supplemental Statement of Facts.

      Appellees object to the inclusion of the “facts” set out in paragraphs IV – VII

as entirely misleading and meant to confuse the Court in this matter. The Appellant’s

use of the word “defendant” and not “Appellee” is seemingly meant to imply that

Apex and Braun performed actions made by other defendants in this case. For

example, Appellant appears to claim that Apex and Braun provided Wagner with an

unsolicited bid to provide materials for the project made basis of this case, which is

simply not true.

      Apex and Braun’s only involvement with this project was that defendant

Advanced Pavement Maintenance, LTD hired Appellees Apex and Braun to perform

engineering analysis and geotechnical testing for the “Wilson Pit.” [RR, Vol.1

Exhibit 1]. See also [CR 25]. This engineering report is signed by Shane E. Nance,

P.E., a senior engineer for Appellee Apex Geoscience.

                                          7
      By improperly characterizing the role of the parties in this case, Appellant’s

are attempting to make it appear as if Appellees Apex and Braun provided Appellant

Wagner with pricing and raw materials for the construction of the roadway.

                        SUMMARY OF THE ARGUMENT

      Appellees Apex and Appellee Braun are both licensed engineering firms

performing professional engineering services within the State of Texas. [CR 48]

Appellant’s claims against Appellees arise out of the performance of their

professional geotechnical engineering services [CR 39 - 41], and as such Appellant

failed to follow the requirements of TEX. CIV. PRAC. & REM. CODE, § 150.

      To circumvent the Certificate of Merit requirement, Appellant attempts to

argue that Appellees were not engaged in the “practice of engineering.” However,

this is irrelevant to the application of § 150, as the statute does not include the phrase

“the practice of engineering” but requires a certificate of merit be filed “In any action

… for damages arising out of the provision of professional services by a licensed

[Engineer].”

      Additionally, Appellant attempts to argue that Appellees are exempt from the

definition of the practice of engineering by citing an exemption meant to exclude

individuals who are constructing some type of improvement upon real property and

who are working from engineer’s plans that have another engineer’s seal. [CR 14,

15]


                                            8
      That exception is totally inapplicable to the situation we have here in which a

geotechnical engineer has signed a geotechnical engineering analysis as a part of his

employment at a geotechnical engineering firm. Furthermore, the cited exemption

only applies to a “a person who does not offer to the public to perform engineering

services.” TEX. OCC. CODE. § 1001.051

      Appellant failed to follow the requirements of TEX. CIV. PRAC. & REM. CODE,

§ 150 and pursuant to the provisions of § 150.002(e), the Trial Court properly

dismissed the action against Appellees for Appellant's failure to file the affidavit in

accordance with Texas Law.

                       ARGUMENT AND AUTHORITES

1.    Appellees Apex and Appellee Braun are both licensed engineering firms
      performing engineering services within the State of Texas.

      Prior to 2015, Apex was an independently owned and operated Texas

Corporation, properly registered as Firm No. 3179 with the Texas Board of

Professional Engineers and actively engaged in the practice of engineering within

the State of Texas. Founded around 1995, Apex provided geotechnical engineering,

construction materials testing, and environmental consulting services; including a

myriad of specialty engineering services, such as, deep foundation design and

testing, building sciences, nondestructive examination, structures evaluations and

forensic investigations, drilling and cone penetration testing (CPT), and geospatial

and unmanned aerial vehicle services

                                          9
      Then in September 2015, Braun, a geotechnical engineering, testing and

environmental consulting firm, acquired Apex, which is now a division of Braun

Intertec Corporation and not a wholly owned subsidiary. Braun is a licensed

Engineering Firm, properly registered as Firm No. 12228 with the Texas Board of

Professional Engineers and actively engaged in the practice of engineering within

the State of Texas. [CR 48 – 50]

      Prior to this acquisition, Advanced Pavement Maintenance, LTD contracted

with Apex to perform engineering analysis and geotechnical testing for the “Wilson

Pit.” [RR, Vol.1 Exhibit 1]. This engineering report is signed by Shane E. Nance,

P.E., a senior engineer for Apex Geoscience. [CR 39, 40] Shane Nance is a

Professional Engineer, properly licensed as PE No. 81519 with the Texas Board of

Professional Engineers and actively engaged in the practice of engineering within

the State of Texas. [CR 39, 40]

      This engineering testing analysis, which was signed by a licensed engineer in

the State of Texas, and who was working for a firm that was registered as an

engineering firm in the State of Texas is clearly and unequivocally “the practice of

engineering” as outlined in TEX. OCC. CODE § 1001.003(c)(10-12), which defines

the practice of engineering as follows:

      (10) A service, design, analysis or other work performed for a public or
      private entity in connection with the utility, structure, building,
      machine, equipment, process, system, work, project, or industrial or
      consumer product or equipment of a mechanical, electrical, electronic,
                                          10
      chemical, hydraulic, pneumatic, geotechnical, or thermal nature.
      (Emphasis added)

      (12) Any other professional service necessary for the planning,
      progress or completion of an engineering service.

2.    The Certificate of Merit Requirement

      Appellant’s claims against Appellees Braun and Apex arise out of the

performance of their professional geotechnical engineering services. [CR 10] TEX.

CIV. PRAC. & REM. CODE § 150.002(a) clearly states that “in any action or arbitration

proceeding for damages arising out of the provision of professional services by a

licensed or registered [Engineer], the plaintiff shall be required to file with the

complaint” a certificate of merit.

      In this case, Appellant failed to comply with this provision by failing to file

with its complaint an affidavit of a licensed engineer who:

      (a)    Is competent to testify;
      (b)    Holds the same professional license or registration in the state of
             Texas as the involved agents, servants and representatives of the
             Defendant;
      (c)    Is knowledgeable in the area of practice of the Defendant;
      (d)    Offers testimony based on the person’s knowledge, skill,
             experience, education, training and practice;
      (e)    Is actively engaged in the practice of architecture. [CR 10]

      Furthermore, the statute requires that 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 professional in providing the


                                         11
professional services including identifying the error or omission which may have

occurred in providing advice, judgment, opinions, or similar professional skills

claimed to exist and the factual basis for each such claim. [CR 10]

3.    Triggering the Certificate of Merit Requirement
      In this case, Appellant’s argue that TEX. CIV. PRAC. & REM. CODE § “150.001

defines what ‘licensed professional engineer’ means, [but] what constitutes the

‘practice of engineering’ by such a licensed professional engineer is not defined.”

[CR 14]

      Appellee’s argument is wholly irrelevant. TEX. CIV. PRAC. & REM. CODE §

150.002(a), commonly referred to as the Certificate of Merit requirement, does not

include the phrase “the practice of engineering.” Rather, TEX. CIV. PRAC. & REM.

CODE § 150.002(a) requires that a certificate of merit be contemporaneously filed

“In any action or arbitration proceeding for damages arising out of the provision of

professional services by a licensed or registered professional.”

      The question then presented by the statute is not “what constitutes the

‘practice of engineering’”, but rather does the dispute “[arise] out of the provision

of professional services” by a licensed engineer.

      In this case, a licensed engineer (Shane E. Nance, PE No. 81519) performed

engineering services as a part of his employment for a licensed engineering firm

(Apex, Engineering Firm No. 3179), which had contracted with defendant Advanced
                                         12
Pavement Maintenance, LTD to perform geotechnical engineering analysis and

testing. [CR 39, 40] Therefore, this dispute “[arises] out of the provision of

professional services” and triggers the Certificate of Merit Requirement.

4.    Even if Texas Courts incorporate the § 150.001 “the practice of
      engineering” definition into the § 150.002(a) “arising out of the provision
      of professional services” requirement; Appellee was engaged in the
      practice of engineering
      Even if Texas Courts incorporated the definition of “the practice of

engineering” from TEX. CIV. PRAC. & REM. CODE § 150.001 into the “arising out of

the provision of professional services” requirement from TEX. CIV. PRAC. & REM.

CODE § 150.002(a); Appellee was clearly engaged in the practice of engineering.

      TEX. CIV. PRAC. & REM. CODE § 150.001(3) states that “’Practice of

engineering’ has the meaning assigned by Section 1001.003, Occupations Code.”

      “Practice of engineering” means the performance of or an offer or
      attempt to perform 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. § 1001.003(b).
A.    The exemptions to the “practice of engineering” listed in Tex. Occ. Code.
      §§ 1001.053-063 do not apply to an Appellees pursuant to Tex. Occ. Code.
      § 1001.051
      The Occupations Code lists out several exemptions to the definition of the

“practice of engineering.” TEX. OCC. CODE. §§ 1001.053-063. These exemptions


                                        13
are meant to allow non-engineers to perform certain and specific tasks, which would

otherwise be considered the unlawful practice of engineering. See, “An exemption

under this subchapter applies only to a person who does not offer to the public to

perform engineering services.” TEX. OCC. CODE. § 1001.051.

      As active and properly registered engineering firms, Appellees offered

engineering services to the public for hire. In this very dispute, Appellee Apex was

hired by Advanced Pavement Maintenance, LTD, an unrelated member of the

public, to perform Engineering Services.

B.    Even if the Court finds that Tex. Occ. Code. § 1001.051 does not apply to
      Appellees, Tex. Occ. Code. § 1001.062 does not apply in this case

      Appellant attempts to argue that TEX. OCC. CODE. § 1001.062 is an exemption

that applies in this case. That exemption, titled CERTAIN EMPLOYEES WORKING FROM

ENGINEER’S PLANS exempts “a regular full-time employee of a private business

entity who is engaged in erecting, constructing, enlarging, altering, repairing,

rehabilitating, or maintaining an improvement to real property in accordance with

plans or specifications that have an engineer’s seal.”

      Appellant’s attempt to use this as an exemption in this case is preposterous at

best. Obviously, by reading the cited sections of the TEX. OCC. CODE outlined above,

the exception outlined in 1001.062 is meant to exclude individuals who are

constructing some type of improvement upon real property and who are working

                                         14
from engineer’s plans that have an engineer’s seal. That exception is totally

inapplicable to the situation we have here in which a geotechnical engineer has

signed a geotechnical engineering analysis as a part of his employment at a

geotechnical engineering firm.

      On this project, Appellee did not erect, construct, enlarge, alter, repair,

rehabilitate, or maintain any improvements to real property. Rather, Apex performed

geotechnical and engineering analysis of a borrow pit, with an engineering report as

the only deliverable. Furthermore, Appellant has offered no evidence showing that

Appellees Apex and/or Braun erected, constructed, enlarged, altered, repaired,

rehabilitated, or maintained any improvements to real property

      Furthermore, Appellees were not working from or “in accordance with plans

or specifications that have an engineer’s seal.” Appellee Apex independently tested

materials located within a borrow pit, and provided a report detailing the engineering

analysis to Advanced Pavement Maintenance, LTD. [CR 39, 40]

      The actions or omissions of defendant Advanced Pavement Maintenance,

LTD, a separate company, are entirely irrelevant to the issue in this appeal. Just

because Advanced Pavement Maintenance, LTD attached the Apex Engineering

Report to its bid proposal, does not mean that somehow Appellees Apex and Braun




                                         15
were working under the seal of a project, for which it had neither contractual privity

or even so much as a copy of the sealed plans.

      If we take Appellant’s cited exception as valid, any engineer that has anything

to do with a project is actually not practicing engineering. This is completely

contrary to the strict regulations that the TBPE places upon the engineers licensed

and the firms registered to practice within the State.

5.    Dismissal for Failure to Comply was the Proper Remedy

      Pursuant to the provisions of TEX. CIV. PRAC. & REM. CODE § 150.002(e),

Appellant’s failure to file the affidavit in accordance with this statute shall result in

the dismissal of the complaint. The statute as written states that although the Court

must dismiss the case, the dismissal may be with prejudice, and it is up to the Court’s

sound discretion as to whether the dismissal should be with prejudice. In this

situation, the Trial Court chose to dismiss the causes of action against Appellees

without prejudice.




                                           16
                         CONCLUSION AND PRAYER

      Appellant failed to follow the requirements of TEX. CIV. PRAC. & REM. CODE,

§ 150 and pursuant to the provisions of § 150.002(e), the Trial Court properly

dismissed the causes of action against Appellees for the failure to file the affidavit

in accordance with Texas Law.

      WHEREFORE, PREMISES CONSIDERED, Appellees Apex Geoscience, Inc. and

Braun Intertec Corporation requests that this Honorable Court affirm the Trial

Court’s order of dismissal and that Appellees Apex Geoscience, Inc. and Braun

Intertec Corporation have such other and further relief to which they may show

themselves justly entitled.




                                         17
Respectfully submitted,

FISK ALEXANDER, P.C.


By:   /s/ D. Wilkes Alexander
      D. WILKES ALEXANDER
      State Bar No. 00783527
      walexander@fiskalexander.com
      JAMES B. PRUDEN
      State Bar No. 24090822
      jpruden@fiskalexander.com
      2711 N. Haskell Avenue
      Suite 1550 – LB 10
      Dallas, Texas 75204
      214/638-3744 - Telephone
      214/638-5105 - Facsimile

      ATTORNEYS FOR APPELLEES
      APEX GEOSCIENCE, INC. AND
      BRAUN INTERTEC CORPORATION




 18
                        CERTIFICATE OF SERVICE

      I hereby certify that on May 29, 2018, a copy of the foregoing document was
served upon all attorneys of record as indicated below.

                              JERRY N. DENNARD
                            3250 Mid Hollow Drive
                          San Antonio, Texas 78230
                             dennardlaw@aol.com
                  Attorney for Ronald R. Wagner & Co., L.P.

                               Brian R. Smith
                              ATTORNEY AT LAW
                            Chase Tower, Suite 600
                                P.O. Box 9134
                            Amarillo, Texas 79105
                           brs@suddenlinkmail.com
              Attorney for Advantage Asphalt of Lubbock, LLC,
           Advanced Pavement Maintenance, Ltd., Glenn E. Braudt
                           and Brad Scott Knutson



                                            /s/ D. Wilkes Alexander
                                            D. Wilkes Alexander




                                       19
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that the above computer-generated document

contains a total of 2,220 words, not counting the caption, identity of parties and

counsel, statement regarding oral argument, table of contents, index of authorities,

supplemental statement of the case, statement of issues presented, signature, proof

of service, certification, certificate of compliance, and appendix, as shown by the

computer program creating said document



                                             /s/ D. Wilkes Alexander
                                             D. Wilkes Alexander




                                        20
