                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-16-00479-CV
                              _________________

                  CH2M HILL ENGINEERS, INC., Appellant

                                         V.

  BRANDY SPRINGER, HANI TOHME, FRANK JACKSON, GEORGE
  RANDLE, LEONARD FAULK, AND TRENT THIBODEAUX, Appellees
________________________________________________________________________
                    On Appeal from the 172nd District Court
                           Jefferson County, Texas
                          Trial Cause No. B-198,469
________________________________________________________________________

                          MEMORANDUM OPINION

      In this interlocutory appeal, Appellant, CH2M Hill Engineers, Inc.

(“CH2M”), challenges the trial court’s denial of its motion to dismiss for failure to

file a certificate of merit in accordance with Texas Civil Practice and Remedies Code

§ 150.002. We affirm the trial court’s decision.




                                         1
                       Factual and Procedural Background

      In September of 2014, CH2M and the City of Beaumont (the “City”) entered

into an “agreement for professional services,” whereby CH2M was to evaluate the

City’s water distribution and sewer collection services. In accordance with the

agreement, CH2M produced a written report summarizing its findings and offering

recommendations for improving the City’s operations. The report was critical of

some of the City’s practices, including the amount of overtime incurred by the water

utility staff, referring to it as “excessively high.” After receiving CH2M’s report, the

City made personnel changes to the water utility staff, including the demotion,

termination, or forced resignation of the Appellees.

      In May of 2016,1 Appellees filed suit against CH2M seeking damages for

defamation and tortious interference with contract. Among a host of other assertions,

the Appellees argue that their claims “aris[e] out of false and intentionally

misleading statements published in [the report].” Appellees complain that the report

“was deceptive, spurious, false, forged, and bogus.” On June 3, 2016, CH2M filed

its motion to dismiss pursuant to Section 150.002 of the Texas Civil Practices and


      1
        Brandy Springer filed her original petition on May 10, 2016. Hani Tohme,
Frank Jackson, Trent Thibodeaux, and George Randle filed their petitions in
intervention on May 11, 2016. Leonard Faulk filed his petition in intervention on
May 13, 2016.
                                        2
Remedies Code, averring that Appellees failed to timely file the required “certificate

of merit” setting forth each theory for which damages are sought, as well as the

negligence or other action, error, or omission of the engineer. After a hearing, the

trial court denied CH2M’s motion, and CH2M consequently brought this

interlocutory appeal, arguing that the trial court abused its discretion in denying

CH2M’s motion to dismiss.

                                 Standard of Review

      An order denying a motion to dismiss for failure to file a certificate of merit

in accordance with section 150.002 is immediately appealable. Tex. Civ. Prac. &

Rem. Code Ann. § 150.002(f) (West 2011). We review a trial court’s order on a

motion to dismiss under section 150.002 for an abuse of discretion. Epco Holdings,

Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265, 269 (Tex. App.—Houston [14th

Dist.] 2011, pet. dism’d) (citing Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex.

App.—Houston [14th Dist.] 2010, no pet.)). The trial court abuses its discretion

when it “acts in an unreasonable and arbitrary manner or without reference to any

guiding rules or principles.” Benchmark Eng’g Corp. v. Sam Houston Race Park,

316 S.W.3d 41, 44 (Tex. App.—Houston [14th Dist.] 2010, pet. granted, judgm’t

vacated w.r.m.) (citations omitted). A trial court also abuses its discretion if it fails

to analyze or apply the law correctly. Epco Holdings, 352 S.W.3d at 269;

                                           3
Benchmark, 316 S.W.3d at 44 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

1992)).

      We review matters of statutory construction de novo. Epco Holdings, 352

S.W.3d at 269; Benchmark, 316 S.W.3d at 44. We construe statutory language to

ascertain and effectuate legislative intent, and we look to the statute’s plain meaning

because we presume that the Legislature intends the plain meaning of its words.

Epco Holdings, 352 S.W.3d at 269–70 (citing Sharp Eng’g, 321 S.W.3d at 750). We

view statutory terms in context, giving them full effect. Benchmark, 316 S.W.3d at

44 (citation omitted). We presume that every word of a statute was used for a purpose

and every omitted word was purposefully not chosen. Epco Holdings, 352 S.W.3d

at 270; Benchmark, 316 S.W.3d at 44. “Finally, in determining the plain meaning of

a statute, we read the words in context and construe the language according to the

rules of grammar and common usage.” Benchmark, 316 S.W.3d at 45 (citing Tex.

Gov’t Code Ann. § 311.011(a) (West 2005)). After deciding the proper construction,

we then determine whether the trial court abused its discretion in its application of

the statute. Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421, 425 (Tex.

App.—Dallas 2012, no pet.).




                                          4
          Licensed of Registered Professionals and Certificates of Merit

      Section 150.002 requires a plaintiff to file a certificate of merit “[i]n any action

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

registered professional[.]”2 Tex. Civ. Prac. & Rem. Code Ann. § 150.002. Therefore,

to determine if a certificate of merit was required, we must decide whether CH2M

qualifies as a “licensed or registered professional” under the statute, and if so,


      2
          Section 150.002 provides, in relevant part:

             (a) In any action . . . 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 professional engineer . . . 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 professional engineer . . . shall be licensed or
      registered in this state and actively engaged in the practice of . . .
      engineering . . . .
             ...
             (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 (West 2011).
                                      5
whether Appellees’ claimed damages arose from CH2M’s provision of professional

services. See id. §§ 150.001(1-a)(West Supp. 2017), 150.002(a); Dunham Eng’g,

Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 792 (Tex. App.—Houston [14th

Dist.] 2013, no pet.). As the party complaining of an abuse of discretion, CH2M has

the burden of bringing forth a record showing such abuse. See Simon v. York Crane

& Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).

      The statute defines a “licensed or registered professional” to mean “a licensed

architect, licensed professional engineer, registered professional land surveyor,

registered landscape architect, or any firm in which such licensed or registered

professional practices, including but not limited to a corporation, professional

corporation, limited liability corporation, partnership, limited liability partnership,

sole proprietorship, joint venture, or any other business entity.” Tex. Civ. Prac. &

Rem. Code Ann. § 150.001(1-a) (emphasis added).

      Although CH2M claims in its appellate brief that Appellees identified CH2M

as an engineering firm, Appellees have disputed CH2M’s status as a licensed or

registered professional in their response to CH2M’s motion to dismiss and in their

brief before this Court.

      While the record contains evidence that CH2M is registered with the Texas

Board of Professional Engineers, the record does not contain any evidence that a

                                          6
licensed or registered professional practices within CH2M. See Tex. Civ. Prac. &

Rem. Code Ann. § 150.001(1-a); TDIndustries, Inc. v. My Three Sons, Ltd., No. 05-

13-00861-CV, 2014 WL 1022453, at *4 (Tex. App.—Dallas Feb. 14, 2014, no pet.)

(mem. op.). Scott Neeley, Senior Designated Manager, signed the agreement

between CH2M Hill and the Appellees. Mr. Neeley has not been shown to be a

“licensed or registered professional,” nor did he sign the contract as such. Moreover,

the report is not signed by a licensed or registered engineer, but only issued by

“CH2M Hill.” CH2M has not proven, or even identified a single licensed

professional engineer who performed professional engineering services for the firm.

We conclude CH2M has failed to meet its burden of proof to show an abuse of

discretion by the trial court. Because this issue is dispositive, we need not address

whether Appellees’ claimed damages arose from CH2M’s provision of professional

services.

                                     Conclusion

      The trial court did not abuse its discretion when it denied CH2M’s motion to

dismiss. We affirm the trial court’s order.

      AFFIRMED.


                                              ______________________________
                                                     CHARLES KREGER
                                                           Justice
                                          7
Submitted on April 20, 2017
Opinion Delivered December 7, 2017

Before McKeithen, C.J., Kreger and Horton, JJ.




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