Affirmed in part; and Reverse and Remanded in part; and Opinion Filed July 30, 2015




                                            S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                         No. 05-14-01043-CV

                   JENNINGS, HACKLER & PARTNERS, INC., Appellant
                                       V.
                  NORTH TEXAS MUNICIPAL WATER DISTRICT, Appellee

                         On Appeal from the 296th Judicial District Court
                                      Collin County, Texas
                             Trial Court Cause No. 296-01197-2013


                                            OPINION
                           Before Justices Fillmore, Stoddart, and Whitehill
                                    Opinion by Justice Whitehill

          The primary area of dispute in this architect liability case is whether the plaintiff had to

provide an expert affidavit from a licensed architect to support its direct and vicarious liability

claims against an architectural firm. The plaintiff asserted claims against a licensed professional

engineering firm and direct and vicarious liability claims against the architectural firm that hired

those engineers for the project at issue. Although the plaintiff filed with its petition an affidavit

from a licensed professional engineer as civil practice and remedies code § 150.002 requires for

the claims against the engineer, it did not file an affidavit from a licensed architect, as the

architect contends was required. The trial court denied the architect’s civil practice and remedies

code § 150.002(e) motion to dismiss, and the architect filed this § 150.002(f) interlocutory

appeal.
        In one issue, the architecture firm argues that the trial court erroneously denied its motion

to dismiss because the statute’s plain language mandates the dismissal of every claim arising

from the provision of professional services by a licensed architect if the plaintiff does not serve

with its petition an affidavit of a third party licensed architect who (i) is competent to testify, (ii)

holds the same professional licensure or registration as the defendant, and (iii) is knowledgeable

in the area based on the remaining § 150.002(a)(3) predicates. For the reasons discussed below,

we affirm the trial court’s order denying the architect’s motion regarding the plaintiff’s purely

vicarious liability claims but reverse the trial court’s denial of that motion regarding the

plaintiff’s direct liability claims.

                                            I. BACKGROUND

A.      The Parties’ Factual Allegations

        Appellee North Texas Municipal Water District’s (the District) live pleading alleges the

following facts. The District wanted an environmental services building to be built in Wylie,

Texas. In 2005, it hired appellant Jennings, Hackler & Partners, Inc. (Jennings), an architecture

firm, “to provide architectural, civil engineering, MEP engineering, structural engineering and

geotechnical engineering services, as well as additional services, to the [District] for the purpose

of designing” the building.            Jennings hired co-defendant TurkWorks Engineering, LLC

(TurkWorks) to provide mechanical engineering services under the design contract. TurkWorks

was Jennings’s agent or independent contractor for the building’s mechanical engineering

design. In 2006, the District hired defendant Imperial Construction, Ltd. to build the building.

        After the District started using the building in or about January 2008, District personnel

reported problems with the building, such as “uncomfortable room temperatures, high humidity

levels, excessive condensation, water dripping from some of the original windowsills and

causing damages to the drywall, equipment, and similar issues.”             The District hired other


                                                  –2–
mechanical engineering firms to assess the problems, and those firms reported many design and

construction defects. The primary defects included inadequacies in the design and installation of

the air conditioning and heating system. Jennings, TurkWorks, and Imperial refused to make

most of the recommended repairs. The building’s defects caused the District thousands of

dollars of damages, and the District expects future repairs and remediations to cost over

$500,000.

B.     Procedural History

       In March 2013, the District sued Jennings, TurkWorks, and Imperial. It attached an

affidavit by Gregory G. Schober, M.S., P.E. to its original petition. Schober’s affidavit stated

that TurkWorks failed to exercise reasonable care when it designed the building’s HVAC

system, and he provided a factual explanation for his opinion.

       Jennings eventually filed a motion to dismiss under Texas Civil Practice and Remedies

Code § 150.002, arguing that Schober’s affidavit did not satisfy chapter 150 as to Jennings

because Jennings is an architect and Schober is not.       Jennings also argued that Schober’s

affidavit was inadequate because Schober did not identify any negligence or other breach of a

legal duty by Jennings.

       The District then filed its second amended petition in which it asserted claims against

Jennings for breach of contract, negligence, and negligent hiring and retention of TurkWorks.

The District alleged that Jennings breached the contract by failing to deliver a “fully

conditioned” building as promised. The District alleged that Jennings and TurkWorks were

liable for “their negligent provision of mechanical engineering services under the circumstances

in their defective design of the Building’s HVAC system.” The District’s negligence count also

alleged that Jennings was vicariously liable for TurkWorks’ negligence.




                                               –3–
       The trial judge denied Jennings’s motion after a hearing. Jennings timely appealed. See

TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(f) (West 2011) (authorizing interlocutory

appeal).

                                          II. ANALYSIS

A.     Standard of Review and Rules of Statutory Construction

       This case concerns the proper application of § 150.002 of the Texas Civil Practice and

Remedies Code. We employ a de novo standard of review when deciding questions of statutory

interpretation. Belvedere Condos. at State Thomas, Inc. v. Meeks Design Grp., Inc., 329 S.W.3d

219, 220 (Tex. App.—Dallas 2010, no pet.). Once we construe the statute, we determine

whether the trial court abused its discretion in applying the statute to the facts. Morrison Seifert

Murphy, Inc. v. Zion, 384 S.W.3d 421, 425 (Tex. App.—Dallas 2012, no pet.).

       When we interpret a statute, we strive to ascertain and effectuate the legislature’s intent.

TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13-01021-CV, 2014 WL 4724706,

at *3 (Tex. App.—Dallas Sept. 24, 2014, pet. denied). We take the text’s plain meaning as the

best expression of legislative intent unless a different meaning is apparent from the context or the

plain meaning yields absurd or nonsensical results. Id. We read a statute as a whole and do not

construe its provisions in isolation. Id. We thus endeavor to read the statute contextually and to

give effect to every word, clause, and sentence. Id.

       In interpreting the statute, we may consider, among other things, the object the legislature

sought to accomplish and the consequences of a particular interpretation. TEX. GOV’T CODE

ANN. § 311.023(1), (5) (West 2013); see also Challenger Gaming Sols., Inc. v. Earp, 402 S.W.3d

290, 296 (Tex. App.—Dallas 2013, no pet.) (“In construing a statute, the court’s primary

objective is to give effect to the legislature’s intent, considering the purpose of the statute, its




                                                –4–
legislative history, and the consequences of a proposed construction.” (citing GOV’T

§ 311.023(1), (3), (5))).

B.     Section 150.002

       A plaintiff must file a certificate of merit in any action for “damages arising out of the

provision of professional services by a licensed or registered professional.”           CIV. PRAC.

§ 150.002(a).    The term “licensed or registered professional” includes licensed architects,

licensed professional engineers, and firms in which licensed architects or licensed professional

engineers practice. CIV. PRAC. § 150.001(1–a) (West Supp. 2014).

       If a certificate of merit is required, the general rule is that the plaintiff must file the

certificate with its original petition. See id. § 150.002(a). There is an exception to this rule, see

id. § 150.002(c), but no one contends the exception applies here.

       A certificate of merit must be an affidavit by a person who is competent to testify, holds

the same professional license or registration as the subject defendant, and is knowledgeable

about the defendant’s area of practice based on the affiant’s knowledge, skill, experience,

education, training, and practice. Id. § 150.002(a)(1)–(3). The affiant must also be licensed or

registered in Texas and actively engaged in the practice of architecture, engineering, or

surveying. Id. § 150.002(b).

       For “each theory of recovery for which damages are sought,” the affidavit must

specifically state “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.




                                                –5–
       “The plaintiff’s failure to file the affidavit in accordance with [§ 150.002] shall result in

dismissal of the complaint against the defendant. This dismissal may be with prejudice.” Id.

§ 150.002(e).

       The certificate of merit requirement’s purpose is to provide a basis for the trial court to

conclude that the plaintiff’s claims are not frivolous. CBM Eng’rs, Inc. v. Tellepsen Builders,

L.P., 403 S.W.3d 339, 345 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

C.     Application of § 150.002 to the Facts

       To determine whether and how § 150.002 applies, we consider the live pleadings when

the trial court ruled on the motion to dismiss. JJW Dev., L.L.C. v. Strand Sys. Eng’g, Inc., 378

S.W.3d 571, 576 (Tex. App.—Dallas 2012, pet. denied). The threshold questions are (i) whether

Jennings is a “licensed or registered professional” and (ii) whether the District’s damages arise

out of the provision of professional services by such a professional.             See CIV. PRAC.

§ 150.002(a). The District’s response to the dismissal motion conceded that Jennings is a

“licensed or registered professional” under chapter 150. We therefore proceed to consider

(i) whether the District’s claims against Jennings arise out of the provision of professional

services and, if so, (ii) whether the Schober affidavit satisfies § 150.002’s requirements as to

those claims.

       1.       Does § 150.002 apply to the District’s direct liability claims against Jennings?

                a.     What does “arose out of the provision of professional services” mean?

       A pivotal question is whether the District’s direct liability claims against Jennings

“ar[ose] out of the provision of professional services.” CIV. PRAC. § 150.002(a). If they did, a

compliant affidavit was required; otherwise, it was not required and the trial court properly

denied Jennings’s motion to dismiss.




                                               –6–
           In determining whether claims arise out of the provision of professional services, we look

to the substance of the plaintiff’s pleadings. TIC N. Cent. Dallas 3, 2014 WL 4724706, at *6.

The question is not whether the alleged mal-acts themselves constituted the provision of

professional services, but whether the claims arise out of the provision of professional services.1

Id.

           The statute does not define “the provision of professional services.” But our sister courts

have held, and we agree, that a claim arises out of the provision of professional services if the

claim implicates a professional’s education, training, and experience in applying special

knowledge or judgment. See Pelco Constr., Inc. v. Dannenbaum Eng’g Corp., 404 S.W.3d 48,

53 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“If a plaintiff’s claim [against an architect]

implicates the special knowledge and training of an architect, it is a claim for damages arising

out of the provision of professional services.”); TDIndustries, Inc. v. Citicorp N. Am., Inc., 378

S.W.3d 1, 5 (Tex. App.—Fort Worth 2011, no pet.) (claim against professional engineer “arises

out of the provision of professional services” if it “implicates the engineer’s education, training,

and experience in applying special knowledge or judgment”).

           Chapter 150 further explains the meaning of “professional services” in architect cases by

adopting the Occupations Code’s definition of “practice of architecture.”                                                 See CIV. PRAC.

§ 150.001(2); see also Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804, 809 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (using Occupations Code to flesh out meaning of “professional

services” under § 150.002). Under that definition, “practice of architecture” means


      1
         In JJW Development, we held that a prior version of § 150.002 applied only to negligence claims because that version of the statute
required the certificate to “set forth specifically at least one negligent act, error, or omission.” 378 S.W.3d at 578–79. The current version of
§ 150.002 requires the certificate to set forth “specifically for each theory of recovery . . . the negligence, if any, or other action, error, or
omission of the licensed or registered professional in providing the professional service.” CIV. PRAC. § 150.002(b). Thus, the certificate of merit
requirement now applies to all theories of recovery, and our holding in JJW Development has been legislatively abrogated. See Dunham Eng’g,
Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 791–92 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (collecting cases regarding the expanded
scope of amended § 150.002(b)). For a discussion of § 150.002’s history, see S&P Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390, 394–
95 (Tex. App.—Austin 2011, no pet.) (en banc).



                                                                      –7–
       a service or creative work applying the art and science of developing design
       concepts, planning for functional relationships and intended uses, and establishing
       the form, appearance, aesthetics, and construction details for the construction,
       enlargement, or alteration of a building or environs intended for human use or
       occupancy, the proper application of which requires education, training, and
       experience in those matters. The term includes:

          (A) establishing and documenting the form, aesthetics, materials, and
          construction technology for a building, group of buildings, or environs
          intended to be constructed or altered;

          (B) preparing, or supervising and controlling the preparation of, the
          architectural plans and specifications that include all integrated building
          systems and construction details, unless otherwise permitted under Section
          1051.606(a)(4);

          (C) observing the construction, modification, or alteration of work to evaluate
          conformance with architectural plans and specifications described in
          Paragraph (B) for any building, group of buildings, or environs requiring an
          architect; [and]

                                              ***

          (F) 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)–(C), (F) (West 2012) (emphasis added).

              b.      Do the District’s direct claims against Jennings “arise out of the
                      provision of professional services”?

       We first examine the District’s direct claims against Jennings, bearing in mind that the

question is not whether the specific acts giving rise to the District’s claims constitute the

provision of professional (architectural) services, but whether those claims arise out of the

provision of those services. See TIC N. Cent. Dallas 3, 2014 WL 4724706, at *6.

       First, the District alleges that Jennings breached its contract by not delivering a “fully

conditioned” building. Second, the District’s direct negligence claims against Jennings assert

that: (1) Jennings and TurkWorks negligently provided “mechanical engineering services under




                                              –8–
the circumstances in their defective design of the Building’s HVAC system,” and (2) Jennings

negligently hired and retained TurkWorks.2

           The crux of these theories is that Jennings, as a result of its services, provided a building

that was not “fully conditioned.” Although the parties do not explain the precise meaning of that

phrase, the District’s factual allegations show that it is complaining about the quality, condition,

or characteristics of the finished building, particularly its HVAC system.

           The District retained Jennings to provide professional architectural services regarding the

design for, construction of, and integration of building systems in the District’s new

environmental services building in Wylie, Texas. The selection of, planning and coordination

with, and integration of the HVAC systems in that building, and hiring of engineers for that

project, were among the services Jennings provided the District that implicate Jennings’s

professional education, training, and experience in applying special knowledge or judgment to

that project.            Because the District’s direct claims against Jennings derive from those

circumstances, we conclude that these claims arise out of Jennings’s provision of professional

(architectural) services and are subject to chapter 150. See Carter & Burgess, 355 S.W.3d at

810–11 (claims against architect for personal injuries caused by door’s sharp edge implicated

special architectural knowledge and the practice of architecture).

           2.          Does the Schober affidavit satisfy § 150.002’s requirements regarding the
                       District’s direct claims against Jennings?

           The next question is whether the Schober affidavit satisfied the District’s § 150.002

obligations as to its direct claims against Jennings. Schober identified himself as a Texas

licensed professional engineer and opined that TurkWorks “failed to exercise reasonable care
     2
       The District argues that Jennings failed to preserve its challenge to this claim in the trial court. Jennings did not attack the negligent hiring
claim by name in its motion to dismiss because that claim had not been pleaded yet. But Jennings attacked all of the District’s then-pleaded
claims in its motion to dismiss, contending that all of them arose from the provision of professional services. Because Jennings’s motion was
broad enough to encompass the later added theory of negligent hiring, the District’s argument fails. Cf. Callahan v. Vitesse Aviation Servs., LLC,
397 S.W.3d 342, 350 (Tex. App.—Dallas 2013, no pet.) (summary judgment may be granted as to later added claims if the motion is broad
enough to encompass the new claims).



                                                                         –9–
and act within industry standards when it designed the HVAC system at the premises.” He

substantiated his opinions against TurkWorks with some factual explanation. He did not offer

any opinions about Jennings.

        Under § 150.002(a), however, the certificate of merit must be an affidavit by 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.

CIV. PRAC. § 150.002(a) (emphases added).

        That statute unambiguously provides that a certificate of merit must be authored by

someone holding the same professional license or registration as the defendant. It is undisputed

that Jennings is a licensed architect and that Schober is a licensed professional engineer. There

is no allegation or evidence that Jennings is a licensed professional engineer, nor is there any

evidence that Schober is a licensed architect.          There is also no evidence that Schober is

knowledgeable in Jennings’s area of practice, as required by § 150.002(a)(3). For these reasons,

the Schober affidavit is not a sufficient certificate of merit for the District’s direct liability claims




                                                 –10–
against Jennings. Accordingly, we conclude that the trial court abused its discretion by refusing

to dismiss the District’s direct claims against Jennings pursuant to § 150.002(e).

          3.          Does § 150.002 require dismissal of the District’s vicarious liability claims
                      against Jennings?

          We next turn to the District’s vicarious liability claims against Jennings. The District

bases those claims on TurkWorks’ allegedly negligent conduct, which the District seeks to

impute to Jennings under theories of “respondeat superior, vicarious liability, and/or

principal/agent.”3

          The District’s vicarious liability claims against Jennings arise out of the provision of

professional services, but the provider of those professional services was the mechanical

engineering firm, TurkWorks, not Jennings. This fact determines the proper application in this

case of § 150.002(b), which requires the supporting affidavit to state specifically “the negligence,

if any, or other action, error, or omission of the licensed or registered professional in providing

the professional service.” CIV. PRAC. § 150.002(b) (emphasis added). The District’s pure

vicarious liability claims, however, do not assert any negligence or other act, error, or omission

by Jennings in providing professional services. They assert only negligence by TurkWorks for

which Jennings is allegedly vicariously liable.

          Because for each theory of recovery for which damages are sought and that arises from

the provision of professional services a plaintiff must provide an affidavit that (i) complies with

§ 150.002(a) and (ii) states the “negligence, if any, or other action, error, or omission of the

licensed or registered professional in providing the professional services,” that is, that describes

the covered professional’s wrongful conduct, the negative implication is that a qualified affidavit

is not, on this case’s facts, required for a pure vicarious liability claim that does not depend on


   3
       We do not address whether any of these theories have merit in this case.



                                                                     –11–
any wrongful conduct by the professional. See generally United Servs. Auto. Ass’n v. Brite, 215

S.W.3d 400, 403 (Tex. 2007) (applying maxim expressio unius est exclusio alterius); Dallas

Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 493 n.7 (Tex. 1993)

(same). It thus follows that the District was not required to file with its petition an affidavit from

an architect that meets § 150.002(a)’s standards regarding its pure vicarious liability claims.

                                        III. DISPOSITION

       We affirm the trial court’s order denying Jennings’s motion to dismiss regarding the

District’s vicarious liability claims against Jennings. We reverse the trial court’s order denying

Jennings’s motion to dismiss with respect to the District’s direct claims against Jennings, and we

remand this case for rendition of an order dismissing those claims after the trial court determines

whether the dismissal should be with or without prejudice, and for proceedings otherwise

consistent with this opinion.




141043F.P05                                          /Bill Whitehill/
                                                     BILL WHITEHILL
                                                     JUSTICE




                                                –12–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

JENNINGS, HACKLER & PARTNERS,                         On Appeal from the 296th Judicial District
INC., Appellant                                       Court, Collin County, Texas
                                                      Trial Court Cause No. 296-01197-2013.
No. 05-14-01043-CV          V.                        Opinion delivered by Justice Whitehill.
                                                      Justices Fillmore and Stoddart participating.
NORTH TEXAS MUNICIPAL WATER
DISTRICT, Appellee

        In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order
denying appellant Jennings, Hackler & Partners, Inc.’s motion to dismiss with respect to appellee
North Texas Municipal Water District’s claims against appellant Jennings, Hackler & Partners,
Inc. for direct liability for breach of contract, negligence, and negligent hiring and retention.

         We REMAND the case to the trial court for rendition of an order granting appellant
Jennings, Hackler & Partners, Inc.’s motion to dismiss with respect to appellee North Texas
Municipal Water District’s claims against appellant Jennings, Hackler & Partners, Inc. for direct
liability for breach of contract, negligence, and negligent hiring and retention after it determines
whether the dismissal should be with or without prejudice.

        We AFFIRM the trial court’s order denying appellant Jennings, Hackler & Partners,
Inc.’s motion to dismiss with respect to appellee North Texas Municipal Water District’s claims
against appellant Jennings, Hackler & Partners, Inc. for vicarious liability for the negligence of
TurkWorks Engineering, Inc.

       We ORDER each party to bear its own costs of this appeal.


Judgment entered July 30, 2015.




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