                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-19-00026-CV

                     STUDIO E ARCHITECTURE AND INTERIORS, INC.,
                                      Appellant

                                                   v.

                                        Emily LEHMBERG,
                                              Appellee

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016-CI-10649
                          Honorable Cathleen M. Stryker, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Beth Watkins, Justice

Delivered and Filed: April 17, 2019

REVERSED AND REMANDED

           Appellant Studio E Architecture and Interiors, Inc. (“Studio E”) files this accelerated

appeal from the trial court’s order denying its motion to dismiss pursuant to Texas Civil Practice

and Remedies Code section 150.002. Because we conclude dismissal is required, we reverse the

trial court’s order and remand this cause to the trial court for a determination of whether dismissal

should be with or without prejudice to refiling.
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                                            Background

       In 2012, appellee Emily Lehmberg (“Lehmberg”) hired Projekt Construction, Inc.

(“Projekt”) to perform construction on residential real property located in San Antonio. Lehmberg

alleges Joaquin and Aimee Escamilla (“the Escamillas”) initially represented that Projekt was a

partnership between themselves and another individual. Projekt shared office space with Studio

E—a separate company also owned by the Escamillas. Lehmberg contends Projekt’s construction

permit for the property was revoked, and the Escamillas subsequently began representing that the

construction project belonged to Studio E. According to Lehmberg’s pleading, Studio E was “the

de facto General Contractor at the Property” and ultimately “conducted construction management

and oversaw the project at the Property.”

       In an affidavit submitted in the trial court, Aimee Escamilla contends: “To the extent that

Studio E. provided any services[,] they related to construction administration, which is considered

a function of the practice of architecture in Texas.” There is no dispute that Aimee Escamilla is a

registered interior designer and Joaquin Escamilla is an architect licensed by the State of Texas.

According to the Escamillas, “Studio E. is engaged in the practice of architecture in Texas.”

       In June 2016, Lehmberg sued Studio E, the Escamillas, and others, alleging the Escamillas,

as representatives of Studio E, “manipulated, forged, and double paid on multiple invoices which

greatly increased the cost of construction.” Against Studio E specifically, Lehmberg asserted

claims for violations of the Texas Deceptive Trade Practices Act (DTPA), common law fraud,

money had and received, and breach of fiduciary duty. Lehmberg claimed Studio E and the other

defendants “committed fraud by making material misrepresentations regarding pricing and

invoicing,” “purposefully manipulated documents to hide their wrongful payments to contractors,

double payments to contractors, and payments to themselves,” and “misappropriated and

misapplied proceeds from [Lehmberg’s] construction trust fund.” In her second amended petition,


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Lehmberg expressly denied asserting any claims against Studio E “arising from its provision[ ] of

Professional Services, as that term is used in § 150 of the TEX. CIV. PRAC. & REM. CODE.”

Lehmberg pleaded: “The claims brought against Studio E stem not from the ‘Practice of

Architecture’ as defined by the Texas Occupations Code. Studio E was not the architect on the

Project at issue, nor did it perform architectural practices, nor does [Lehmberg] complain of any

architectural practices in this claim against Studio E.”

       Studio E filed its original answer in August 2016. In November 2018, Studio E filed a

motion to dismiss with prejudice all claims asserted against it on the basis that Lehmberg did not

attach to her pleading a certificate of merit required by Texas Civil Practice and Remedies Code

section 150.002. The trial court denied the motion, and Studio E brings this accelerated appeal.

                                             Discussion

       In two issues, Studio E argues the trial court erred by denying its motion to dismiss because:

(1) Lehmberg was required to attach a certificate of merit to her original petition, and (2) Studio E

did not waive its right to seek dismissal.

A.     Standard of review

       Texas Civil Practice and Remedies Code section 150.002 requires that “[i]n 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 architect . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a). A “licensed or

registered professional” includes a licensed architect or “any firm in which such licensed or

registered [architect] practices,” including a corporation. Id. § 150.001(1-a). A plaintiff’s failure

to file the required affidavit, known as a certificate of merit, “shall result” in dismissal of the

plaintiff’s claims against the defendant. Id. § 150.002(e). The dismissal may be with or without

prejudice. Id.


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       We review the trial court’s denial of a section 150.002 motion to dismiss for abuse of

discretion. Bruington Eng’g Ltd. v. Pedernal Energy L.L.C., 403 S.W.3d 523, 526 (Tex. App.—

San Antonio 2013, no pet.). To the extent we are required to interpret statutory language, we do

so de novo. Id. (citing Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)).

B.     Application

       In this case, we first determine whether Lehmberg was required to attach a certificate of

merit to her pleading. Where required, a certificate of merit must be filed with the original petition.

Pelco Constr., Inc. v. Dannenbaum Eng’g Corp., 404 S.W.3d 48, 53 (Tex. App.—Houston [1st

Dist.] 2013, no pet.) (“When required, the certificate of merit must be filed with the first-filed

complaint asserting the relevant claim against a professional.” (emphasis added)) (citing TEX. CIV.

PRAC. & REM. CODE ANN. § 150.002(a)). In construing Lehmberg’s claims, however, we consider

the live pleading on file when the trial court considered the motion to dismiss—the second

amended petition. See id.

       Lehmberg does not dispute that Joaquin Escamilla is a licensed architect and Studio E is a

“licensed or registered professional” as that term is defined by the statute. See TEX. CIV. PRAC. &

REM. CODE ANN. § 150.001(1-a). Instead, Lehmberg argues the statute does not apply to her claims

because they do not arise out of the provision of professional services. According to Lehmberg,

the “acts complained of” consist of “requiring [Lehmberg] to overpay and double billing through

fraudulent invoices,” which are not the provision of professional services. Lehmberg also

emphasizes the disclaimer in her second amended petition stating she does not assert any claims

“arising from [Studio E’s] provision[ ] of Professional Services, as that term is used in § 150 of

the TEX. CIV. PRAC. & REM. CODE” because “Studio E was not the architect on the Project at issue,

nor did it perform architectural practices, nor does [Lehmberg] complain of any architectural

practices in this claim against Studio E.”


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                                                                                   04-19-00026-CV


       We are not limited, however, by Lehmberg’s characterization of her own claims. See

Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804, 810 (Tex. App.—Houston [1st Dist.] 2011,

no pet.). Instead, to determine whether Lehmberg’s claims “arise out of” Studio E’s provision of

“professional services” within the meaning of section 150.002(a), we must look to whether the

claims implicate the professional’s education, training, and experience in applying special

knowledge or judgment. See Pelco Constr., 404 S.W.3d at 55–56; TDIndustries, Inc. v. Rivera,

339 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2011, no pet.). We also consider the

statutory definition of the “practice of architecture” in the Occupations Code. See Rivera, 339

S.W.3d at 754 (citing the definition of “engineering” in the Occupations Code). The Occupations

Code defines the “practice of architecture” as:

       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: . . .

         (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; . . .

TEX. OCC. CODE ANN. § 1051.001(7) (B), (C).

       Even claims that do not appear to implicate a professional’s education, training, or

experience, such as intentional torts, nevertheless may arise out of the provision of professional

services if the alleged wrongdoing was done in the context of providing professional services. For

example, in Pelco Construction, our sister court held claims against professionals for fraudulent



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misrepresentations regarding FEMA-approved funding made during a pre-bid conference arose

out of the provision of professional services because the alleged misrepresentations were made in

the context of the professionals’ participation in the redesign and construction of a fire station. 404

S.W.3d at 55–56. In a similar case, the court of appeals held claims against professionals for

misrepresentations regarding whether easements had been obtained arose out of the provision of

professional services because “the only reason that [the plaintiff] would have to rely upon

[defendant’s unlicensed employee’s] alleged false representations . . . was because the statements

were made as part of [defendant’s] performing a professional service necessary for the planning,

progress, or completion of [its] engineering services.” Capital One, N.A. v. Carter & Burgess, Inc.,

344 S.W.3d 477, 481 (Tex. App.—Fort Worth 2011, no pet.).

       Here, Lehmberg alleges DTPA violations, common law fraud, money had and received,

and breach of fiduciary duty against Studio E. The crux of Lehmberg’s claims is not that Studio E

was negligent in providing architectural services, but rather that Studio E wrongfully caused

Lehmberg to overpay for the residential construction project. Although Lehmberg pleaded “Studio

E was not the architect on the Project at issue” and did not “perform architectural practices” on the

project, she also pleaded Studio E “conducted construction management and oversaw the project

at the Property” as the “de facto General Contractor.”

       At least one of our sister courts has held similar project management work fits within the

statutory definition of the “practice of architecture.” See Sardari, 355 S.W.3d at 810. In that case,

the plaintiff claimed the defendant professional negligently inspected a stainless-steel door, jam,

and frame installed as part of a construction project. Id. Although the plaintiff argued the defendant

“was not functioning as an architect, but merely performing the function of an unlicensed project

manager” doing work not requiring an architectural license, the court held the allegations fit within

the statutory definition of the practice of architecture because they “involve[d] ‘observing the


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construction, modification, or alternation of work to evaluate conformance with architectural plans

and specifications.’” Id. (quoting TEX. OCC. CODE ANN. § 1051.001(7)(C)).

       Here, too, by alleging Studio E “conducted construction management and oversaw the

project at the Property,” Lehmberg alleges conduct involving “observing the construction,

modification, or alteration of work to evaluate conformance with architectural plans and

specifications.” See TEX. OCC. CODE ANN. § 1051.001(7)(C). And, while Lehmberg does not assert

Studio E was negligent in doing so, Studio E’s alleged misconduct necessarily took place in the

context of that activity. Therefore, we conclude that like the plaintiffs in Pelco Construction and

Capital One, Lehmberg seeks damages “arising out of the provision of professional services by a

licensed or registered professional.” TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a); see also

Pelco Constr., 404 S.W.3d at 55–56; Capital One, 344 S.W.3d at 481.

       Because Lehmberg failed to attach a certificate of merit to her original pleading asserting

claims against Studio E, we are constrained to hold the trial court erred in denying Studio E’s

motion to dismiss unless, as Lehmberg argues, Studio E waived its right to seek dismissal.

C.     Waiver

       Lehmberg argues that even if a certificate of merit were required, Studio E waived its right

to seek dismissal on this basis. In its second issue, Studio E argues it did not waive its rights

because it did not substantially invoke the judicial process prior to moving for dismissal.

       Several of our sister courts have held a defendant may “invoke the judicial process to such

a degree” as to “forfeit its right to seek dismissal under section 150.002.” Murphy v. Gutierrez,

374 S.W.3d 627, 630 (Tex. App.—Fort Worth 2012, pet. denied) (compiling authorities). “Some

factors significant to the issue of whether a party waived its right to move for dismissal under

section 150.002 include, among other factors, the moving party’s degree of participation in

discovery; whether the party sought affirmative action or judgment on the merits; and at what time


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during the judicial process the party sought dismissal.” Id. at 633 (citations omitted). Any conduct

demonstrating waiver must be evident in the record on appeal. See id.

        Lehmberg argues Studio E waived its right to seek dismissal by “participat[ing] in

substantial written discovery,” “attend[ing] two depositions, including the deposition of Aimee

Escamilla, and the deposition of Plaintiff Emily Lehmberg,” and waiting “over thirty-two months

[sic] 1 after filing its answer, and less than three months prior to the February 11, 2019 trial setting,”

before filing the motion to dismiss. While Studio E does not expressly deny that its counsel

attended two depositions, there is no evidence in the record on appeal demonstrating Studio E

noticed or participated in any depositions or engaged in any written discovery. The record also

does not reflect that Studio E sought any affirmative relief or judgment on the merits at any time

prior to filing its motion to dismiss.

        Further, while it is apparent from the record that Studio E did not file its motion to dismiss

until over two years after filing its answer, that fact alone is insufficient to demonstrate waiver.

See id. at 635 (“[E]ven when a party waits more than two years to seek its alternative to litigation,

the time elapsed alone does not necessarily constitute evidence of waiver.”); Found. Assessment,

Inc. v. O’Connor, 426 S.W.3d 827, 833–34 (Tex. App.—Fort Worth 2014, pet. denied) (holding

twenty-two month delay and participation in minimal discovery did not waive right to seek

dismissal because “we cannot imply waiver based only on delay when the legislature did not

provide a deadline for filing a motion to dismiss under section 150.002”); Ustanik v. Nortex Found.

Designs, Inc., 320 S.W.3d 409, 413–14 (Tex. App.—Waco 2010, pet. denied) (holding no waiver

although defendants delayed two years and five months to file motion to dismiss, participated in

discovery, and filed motions for summary judgment); DLB Architects, P.C. v. Weaver, 305 S.W.3d


1
 Studio E filed its original answer on August 1, 2016 and its motion to dismiss on November 16, 2018—twenty-seven
months, or two years and three months, later.


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407, 411 (Tex. App.—Dallas 2010, pet. denied) (holding delay of more than one year to file motion

to dismiss did not constitute waiver where there was no evidence in the record of intent to waive

rights).

           We conclude Studio E’s delay of two years and three months in filing its motion to dismiss,

without any evidence in the record that Studio E substantially participated in discovery or

otherwise sought any affirmative relief from the trial court, is insufficient to waive the right to seek

dismissal pursuant to section 150.002. Because Lehmberg failed to attach a certificate of merit to

her original pleading and Studio E did not waive its right to seek dismissal under section 150.002,

we conclude the trial court erred in denying Studio E’s motion to dismiss.

                                              Conclusion

           Because we conclude the trial court erred in denying Studio E’s motion to dismiss pursuant

to Texas Civil Practice and Remedies Code section 150.002, we reverse the trial court’s order and

remand this cause to the trial court to determine whether dismissal should be with or without

prejudice to refiling.

                                                    Sandee Bryan Marion, Chief Justice




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