

Opinion issued October 14, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00667-CV
———————————
Carter & Burgess, Inc., Appellant
V.
Yasameen
Sardari, Appellee

 

 
On Appeal from the 151st District Court
Harris County, Texas

Trial Court Case No. 2010-28382
 

 
O P I N I O N
          In
this interlocutory appeal, the architectural firm Carter & Burgess, Inc. challenges
the trial court’s order denying its motion to dismiss.  C&B contends that a certificate of merit was
required by Civil Practice and Remedies Code section 150.002, but plaintiff
Yasameen Sardari failed to file a certificate of merit in support of her claims
against C&B.  Sardari contends that
no certificate of merit was required because her tailored allegations of
negligent project management relate to the actions of an unlicensed employee
and therefore did not arise out of the “provision of professional services.”  Because we nevertheless conclude that the
action against C&B arose from its provision of professional services as an
architectural firm, the trial court abused its discretion by denying the motion
to dismiss.  Accordingly, we reverse and
remand this case with instructions for the trial court to dismiss Sardari’s
claims against C&B.
Background
          Sardari
cut her wrist on the sharp edge of “the inside of the door” when entering
Gigi’s Asian Bistro and Dumpling Bar in the Houston Galleria.  The cut severed an artery, and Sardari filed
suit to recover damages arising from her injury.  In her original petition, she alleged
negligence claims against the owners of Gigi’s and one of the contractors
responsible for installing the door. 
After the contractor named C&B as a responsible third party, Sardari
amended her petition to join C&B as a defendant.  Sardari alleged that C&B “was the project
manager overseeing the installation of the door and project in general.”  She further alleged:
6.1     On or about June 21, 2008 and at all times
mentioned herein and prior thereto, Defendants ET Diamond Contractors, as general
contractor and JC Glass as subcontractor, installed and/or performed work upon
the door in issue; the door in issue constituted a hazardous condition.  The door was fabricated by Craftsman.  The Defendants Galleria I, II, and III are
the owners of the Galleria Mall where the incident occurred and are responsible
for making sure the premises are safe from known dangers such as the sharp
edges of stainless steel doors.  The
Defendant Carter Burgess, Inc. was the project manager in charge of inspecting the
door for safety purposes and the implied warranty of habitability.  All of the Defendants knew or should have
known that stainless steel doors sharpen from operating the door.  This door allegedly did not have all parts of
the door.
 
. . . 
6.3     Plaintiff asserts that Defendants ET
Diamond Contractors, as general contractor and JC Glass, as subcontractor,
breached the duties it owed to Plaintiff and were negligent in its installation
and/or work performed on the door in issue and/or they failed to warn of and/or
remove the dangerous condition.  The
Defendant Carter Burgess, Inc. as project manager made the same mistakes
described in this paragraph.
 
6.4     In the alternative, on or before the
accident in question, Defendants ET Diamond Contractors, as general contractor,
Carter Burgess, Inc., as project manager, and JC Glass, Inc. as subcontractor,
voluntarily undertook the duty to install and/or repair the door to the
premises where Plaintiff was subsequently injured.  In connection with undertaking the duty to
install and/or repair properly, Defendants were negligent, which was a
proximate cause of Plaintiff’s injuries and damages.
 
6.5     At all times pertinent herein, Defendants
ET Diamond Contractors, as general contractor, Carter Burgess, Inc. as project
manager, and JC Glass, as subcontractor, Galleria I, II, III as the owner and
management company, and Craftsman as the fabricator and any of Defendants’
agents, who were acting in the scope of their employment, were guilty of
negligent conduct toward the Plaintiff in one or more of the following ways:
 
A. Failing to properly install, inspect, maintain, and/or repair the
door; 
B. Failing to install and/or maintain the door in a reasonably safe
condition;
C. Failing to give adequate and understandable warnings to Plaintiff of
the unsafe condition of the door;
D. Failing to repair the condition of the door and or properly
fabricate the door;
E. Failing to discover and repair the door within a reasonable time;
and/or
F.  Failing to perform the work in question in a good and workmanlike
fashion.
G. In breaching the contract(s) for services on the area near
Plaintiff’s fall.
H. Failing to ensure that the door did not contain sharp and/or jagged
edges.
I.   Installing the door with an unfinished edge.
 
6.6     Each and every, all and singular of the
foregoing acts and omission, on the part of Defendants, taken separately and/or
collectively, constituted negligence and a proximate cause of the injuries and
damages of Plaintiff set forth below.
 
Sardari also alleged that all of the defendants had
violated the Texas Deceptive Trade Practices Act.
          C&B
answered and moved to dismiss the claims against it because Sardari had not
filed and served a certificate of merit supporting those claims as required by
Chapter 150 of the Civil Practice and Remedies Code.  In its motion, C&B alleged that it is “an
architectural and engineering design firm” and that it had entered into
professional service agreements with Gigi’s pertaining to construction and
renovation work at the restaurant. 
C&B alleged that all of its services were professional architecture
services pursuant to the Texas Occupations Code.  C&B thus argued that because all of
Sardari’s claims arose from the provision of professional services, she was
required to file a certificate of merit to proceed with her claim against it.
C&B attached to its motion an
affidavit from Stephen A. Clarke, P.E. who was the Associate Principal and
Building Programs Unit Manager for C&B. 
Clarke signed the contract with Gigi’s on behalf of C&B.  In his affidavit, he swore that C&B
rendered professional services that “were defined by the contracts with Ms.
Gigi Huang and included field verification, schematic design, design
development, construction documents, permitting, bid negotiations, and certain
construction administration.”
C&B also attached to its motion
the contract with Gigi’s, entitled “Authorization of Professional Services,”
which included a project description and scope of work.  The scope of the project was summarily
described as “Provide the Interior / Patio design and build out of an upscale
Asian restaurant with approximately 5825 square feet in a lease space within
the Houston Galleria Mall.”  A breakdown
of “Basic Services” to be included with the scope of services itemized “Field
Verification,” “Schematic Design,” “Design Development,” “Construction
Documents,” “Permit,” “Bid Negotiations,” and “Construction
Administration.”  The Authorization for
Professional Services referenced a separate definition of “Basic Services,”
which provided definitions for each of the itemized “Basic Services.”  “Field Verification” was defined as follows:
“The Architect will review the existing construction documents and existing
conditions of the lease.  The Architect
will make field visits to verify the accuracy of these documents and make minor
adjustments as necessary.”  The
“Construction Administration Phase” was defined as follows:
The Architect shall make one
(1) site visit each week for a four (4) month period to administer the contract
for construction which includes the following:
 
a.                
Monthly Payment Applications.
 
b.       Shop Drawing Review.
 
b.                
Product Data and Sample Review.
 
d.       Construction Directives.
 
e.       Change Orders and Clarifications.
 
f.       Bimonthly Field Reports.
 
g.       Final Payment Applications.
 
h.       Certificate of Occupancy.
 
Nothing in the contracts between C&B and Gigi’s
assigns to C&B the responsibilities of performing the actual construction,
to include construction, installation, or repair of the door referenced by
Sardari’s claims.
          In
her response to the motion to dismiss, Sardari argued that her case had
“nothing to do with negligent design by a licensed or registered
professional.”  Rather, she argued that
her case was for the “negligent supervision and negligent repair of a stainless
steel door, jam, and frame that was sharp upon installation or that sharpened
as it opened and closed during the day.” 
Sardari argued that in this respect C&B was acting as a project
manager, not as a design professional, and that the C&B employee who
Sardari contended was most responsible for the negligence was not a licensed
architect.  In support of her arguments,
she noted that under C&B’s contracts, project managers were paid at a
different rate than licensed architects. 
In addition, quoting from C&B’s interrogatory responses, Sardari
observed that C&B had asserted that inspection of the door was beyond the
scope of its contract for professional services, though C&B allegedly did
admit to conducting a “‘punch list’ walk-through.”  However, Sardari did not attach C&B’s
interrogatory responses to her response, and those responses are not part of
the appellate record.
In reply, C&B argued that it
provided a project manager as part of its professional services in designing
and constructing the restaurant and that these services could not be separated
from C&B’s professional services. 
The trial court denied the motion to dismiss, and C&B appealed.
Analysis
An order granting or denying a
motion to dismiss for failure to file a certificate of merit is immediately
appealable.  See Tex. Civ. Prac. &
Rem. Code Ann. § 150.002(f) (West 2011). 
We review a trial court’s order denying a motion to dismiss for abuse of
discretion.  See, e.g., TDIndustries, Inc.
v. Rivera, 339 S.W.3d 749, 752 (Tex. App.—Houston [1st Dist.] 2011, no
pet.).  A trial court abuses its
discretion when it acts arbitrarily or unreasonably, without reference to any guiding
rules and principles.  See Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985).  To
the extent we are required to interpret a statute, that aspect of our review is
performed de novo.  See, e.g., TDIndustries, 339
S.W.3d at 752.
          A
plaintiff is required to file a certificate of merit in “any action or
arbitration proceeding for damages arising out of the provision of professional
services by a licensed or registered professional.”  Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(a).  In this context, a “licensed or registered
professional” includes “a licensed architect, licensed professional engineer .
. . or any firm in which such licensed or registered professional practices . .
. .”  Id.
§ 150.001(1).  If a plaintiff’s
claim for damages implicates the special knowledge and training of an
architect, it is a claim for damages arising out of the provision of
professional services.  See, e.g., Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102,
108 (Tex. App.—Houston [1st Dist.] 2010, no pet.).  
The Legislature has defined the
practice of architecture, see Tex. Occ. Code Ann. § 1051.001(7)
(West Supp. 2010), and we defer to that legislation to define the scope of
professional services provided by an architectural firm for purposes of
determining whether a certificate of merit is required under the Civil Practice
and Remedies Code.  See, e.g., Curtis &
Windham Architects, 315 S.W.3d at 108. 
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:
 
(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;
 
(D)  programming for construction projects,
including identification of economic, legal, and natural constraints and
determination of the scope and spatial relationship of functional elements;
 
(E)  recommending and overseeing appropriate
construction project delivery systems;
 
(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;
 
(G)  research to expand the knowledge base of the
profession of architecture, including publishing or presenting findings in
professional forums; and
 
(H)  teaching, administering, and developing
pedagogical theory in academic settings offering architectural education.
 
Tex. Occ. Code Ann. §
1051.001(7); see also 22 Tex. Admin. Code § 1.5(48) (2011) (Tex. Board of Architectural Examiners,
Definition of Practice of Architecture). 
The practice of architecture therefore has been legislatively defined to
include, among other things, 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).
          With
this statutory background, we must determine whether Sardari’s negligence
claims against C&B are claims for damages arising out of the provision of
professional services by a licensed or registered professional.  Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(a).  In determining the nature of a party’s claims
with respect to Chapter 150, we look to the allegations in the party’s
pleadings.  E.g., TDIndustries, 339
S.W.3d at 753.  Sardari argues that in
committing its allegedly negligent acts, C&B was not functioning as an
architect, but merely performing the function of an unlicensed project manager,
which is work that allegedly does not require an architectural license.  As such, Sardari argues that the services
rendered by C&B did not implicate the special knowledge and training of an
architect, and thus her claims for damages do not arise out of the provision of
professional services.  
We are not bound by the labels that
the plaintiff uses in formulating her pleadings.  See,
e.g., Capital One v. Carter &
Burgess, Inc., 344 S.W.3d 477, 482 (Tex. App.—Fort Worth 2011, no pet.); UOP, L.L.C. v. Kozak, No.
01-08-00896-CV, 2010 WL 2026037, at *6 (Tex. App.—Houston [1st Dist.] May 20,
2010, no pet.).  Instead, we will examine
the substance of Sardari’s pleadings to determine if her cause of action
against C&B arises out of the practice of architecture.  See Tex. Occ. Code Ann. § 1051.001(7);
22 Tex. Admin. Code § 1.5(48).  Regardless of whether C&B agreed that it
was part of its contractual duties to Gigi’s, Sardari alleged that C&B was
negligent performing its duty of inspecting the stainless steel door, jam, and
frame that was installed as part of the construction project.  She further alleged that C&B failed to
discover the door’s defect within a reasonable time and failed to ensure that
“the door did not contain sharp and/or jagged edges.”  These allegations fit within the statutory
definition of the practice of architecture in that they involve “observing the
construction, modification, or alteration of work to evaluate conformance with
architectural plans and specifications.” 
Tex. Occ. Code Ann.
§ 1051.001(7)(C).  They implicate an
architect’s special knowledge because an architect may prepare—or supervise and
control preparation of—specifications that include all construction
details.  See id. § 1051.001(7)(B). 
The allegations are made against a “licensed or registered professional”
because C&B is a firm in which a licensed or registered professional
practices.  Tex. Civ. Prac. & Rem. Code Ann. § 150.001(1).
Sardari alleged that C&B failed
to give adequate and understandable warnings to her about unsafe condition of
the door and failed to repair the door within a reasonable time.  To the extent C&B owed any duty to
Sardari in these respects, the allegations arise from C&B’s alleged role as
an architectural firm responsible for observing that the construction was done
in accordance with the architectural specifications.  See
Tex. Occ. Code Ann. § 1051.001(7)(C).  Accordingly, these allegations also implicate
the practice of architecture.  See id.
Sardari also alleged that C&B
was negligent for failing to perform the work in question in a good and
workmanlike fashion and for breaching the contract for services.  These allegations arise directly from duties
allegedly created by the contract between C&B and Gigi’s, which provided
that the scope of services to be performed by C&B would include, among
other things, field verification, schematic design, design development,
preparation of construction documents, and administration of the construction
phase.  The contract referred to C&B
as “the architect.”  For example, the
contract stated, “The Architect will review the existing construction documents
and existing conditions of the lease. 
The Architect will make field visits to verify the accuracy of these
documents and make minor adjustments as necessary.”  The contract specifically included work that
constituted the practice of architecture. 
As such, the allegations that C&B failed to provide services
consistent with its contractual obligations also implicate an architect’s
special knowledge. 
Sardari’s briefing provides no
arguments that her allegations do not implicate the practice of architecture as
defined by the Occupations Code.  Her
only response to the statutory definition of the practice of architecture is
that C&B should be held to alleged admissions in discovery that inspection
of the door was not part of the professional services that it contractually
agreed to perform.  As noted previously,
those discovery responses are not part of the appellate record before us.  See
Tex. R. Civ. P. 191.4(c)
(permitting filing of discovery materials in opposition to a motion or as
necessary to facilitate a proceeding in an appellate court).  Regardless, even assuming that Sardari’s representation
about the substance of C&B’s interrogatory response is correct, C&B’s
contention that it had no contractual duty to inspect the door does not imply
an admission that its employees were not engaged in the provision of
professional services when present on the construction site.
In her attempt to avoid the
requirement of a certificate of merit, Sardari argues that the alleged
negligence underlying her claim arose from the actions or omissions of
C&B’s “project manager” who was not a licensed professional.  But the use of an unlicensed employee in the
course of providing professional services does not eliminate the certificate of
merit requirement applicable when the plaintiff seeks to impose liability on a
professional architecture or engineering firm. 
See, e.g., Capital One, 344 S.W.3d at 481 (certificate of merit requirement
cannot be circumvented by alleging that a licensed professional is liable for
the negligence committed by an unlicensed intern in the course and scope of
employment with the licensed professional). 
An action for damages against a firm in which a “licensed or registered
professional” practices must be supported by a certificate of merit if the
action arises out of the firm’s provision of professional services.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 150.001(1),
150.002(a).  So long as the action arises
out of the provision of professional services, the statute permits no exception
for an action alleging a firm’s vicarious liability for the negligence of an
unlicensed employee.
Sardari also suggests it would be
an absurd result for her to be required to file a certificate of merit,
prepared by a third-party licensed architect, to explain her theory of recovery
based on the actions of a nonprofessional assigned the tasks of a project
manager.  We disagree.  The Legislature and the Board of
Architectural Examiners have each determined that the practice of architecture
includes “observing the construction, modification, or alteration of work to
evaluate conformance with architectural plans and specifications . . . for any
building, group of buildings, or environs requiring an architect.”  Tex.
Occ. Code Ann. § 1051.001(7)(C); 22 Tex. Admin. Code §
1.5(48)(A)(iii).  Accordingly, it is not
implausible to suggest that the statute requiring a certificate of merit, Tex. Civ. Prac. & Rem. Code Ann. § 150.002,
requires a claimant to engage a licensed architect or architectural firm to
provide an affidavit setting forth the claimant’s theory of negligence,
including a theory of vicarious liability for the actions of a nonprofessional
employee acting in the course and scope of employment asserted against a
defendant architectural firm providing those professional services.
We hold that Sardari alleged claims
for damages arising out of the provision of professional services by an
architectural firm.  Cf. Curtis & Windham Architects, 315 S.W.3d at 108.  She was required to file a certificate of
merit pertaining to these claims against C&B, and because she did not, her
claims should have been dismissed.  See Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(a), (e).  We hold that the trial court abused its
discretion in denying C&B’s motion to dismiss for failure to file a
certificate of merit, and we sustain C&B’s sole issue.
Conclusion
          We
reverse the judgment of the trial court, and we remand this case with
instructions for the trial court to dismiss Sardari’s claims against C&B.
 
 
 
                                                                   Michael
Massengale
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Massengale.
 

