      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00334-CV



                           Sylva Engineering Corporation, Appellant

                                                  v.

                                   Hasan Giray Kaya, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
         NO. D-1-GN-11-002649, HONORABLE TIM SULAK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Sylva Engineering Corporation (“Sylva”) brings this interlocutory appeal from a

district court order denying its motion to dismiss appellee Hasan Giray Kaya’s negligence claim.

On appeal, Sylva asserts that the trial court erred in denying its motion to dismiss because (1) the

“certificate of merit” filed by Kaya does not comply with the requirements of chapter 150 of the

civil practice and remedies code, and (2) the certificate of merit does not provide a sufficient

factual basis to support one of Kaya’s theories of negligence. See Tex. Civ. Prac. & Rem. Code Ann.

§ 150.001–.002 (West 2011). We affirm the trial court’s order in part and reverse and dismiss in part.


                                         BACKGROUND

               In his pleadings, Kaya claims that he was involved in an automobile accident on State

Highway 45 (“SH 45"). According to Kaya, he was driving below the speed limit after a light rain
when his car “unexpectedly hit a pool of water,” causing Kaya to lose control of the vehicle and

crash into a concrete barrier. Kaya asserts that as a result of the accident, he is permanently disabled.

                Kaya brought this suit against multiple construction and engineering firms,

alleging various theories of how each defendant’s negligence contributed to his accident.1 In his

amended petition, Kaya alleged that Kellogg Brown & Root, LLC (“KBR”) and Sylva, KBR’s

subcontractor, “failed to perform engineering designs for the area where Mr. Kaya’s accident

occurred.” Specifically, Kaya alleged that KBR and Sylva negligently (1) designed a portion of SH

45 immediately preceding the “gore area”—the portion of a highway with a ramp for either exiting

or merging traffic—to be “almost flat” and (2) failed to specify installment of “pavement drainage

inlets” in this almost flat area. Kaya argues that these two negligent design features resulted in water

failing to drain from the area immediately preceding the gore, thus leading to the “pooling” of water

which caused Kaya’s accident.

                Kaya attached a certificate of merit to his amended petition as required by the civil

practice and remedies code. See id. § 150.002(a) (providing that in any action for damages arising

out of provision of professional services by licensed engineers or their firms, plaintiff is required to

file affidavit of third-party engineer). Kaya’s certificate of merit contains the affidavit of Raymond

G. Helmer, Jr., who, according to the affidavit, is a licensed engineer “actively engaged in roadway

and drainage design and traffic engineering consultation.” Sylva filed its motion to dismiss, claiming

that Helmer’s affidavit did not satisfy the requirements of section 150.002(a) and (b). See id.


        1
          The record indicates that the other defendants did not join Sylva’s motion to dismiss, and
they are not parties to this appeal. Therefore, we will discuss Kaya’s negligence claims only as they
relate to Sylva.

                                                   2
§ 150.002(e) (“The plaintiff’s failure to file the affidavit in accordance with this section shall result

in dismissal of the complaint against the defendant.”). The trial court denied the motion to dismiss,

and Sylva appeals the trial court’s order denying the motion. See id. § 150.002(f) (“An order

granting or denying a motion for dismissal is immediately appealable as an interlocutory appeal.”).


                                    STANDARD OF REVIEW

                We review a trial court’s order denying a motion to dismiss pursuant to section

150.002 under an abuse-of-discretion standard. M-E Eng’rs, Inc. v. Tochihara, 365 S.W.3d 497, 500

(Tex. App.—Austin 2012, pet. denied) (internal citations omitted). Generally, a trial court abuses

its discretion when it acts without reference to any guiding rules or principles. Id. However, a trial

court has no discretion in determining what the law is or how the law applies to a given set of facts.

Id. Therefore, the trial court abuses its discretion when it misinterprets or misapplies the law. Id.

(citing Perry Homes v. Cull, 258 S.W.3d 580, 598 n.102 (Tex. 2008); Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992)).

                The issues raised by Sylva on appeal primarily concern interpretation of the

requirements of section 150.002. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a)–(b). We

review issues of statutory construction de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).

In construing statutes, our objective is to give effect to the legislature’s intent. Id. When statutory

text is unambiguous, we adopt the construction supported by the statute’s plain language, unless that

construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,

284 (Tex. 1999).



                                                   3
                                           DISCUSSION

               On appeal, Sylva asserts that the trial court abused its discretion in denying Sylva’s

motion to dismiss because Helmer’s affidavit does not comply with section 150.002 of the civil

practice and remedies code in two respects. First, Sylva claims that the affidavit fails to establish

the applicable standard of care. Second, Sylva asserts that the affidavit alleges that KBR, not Sylva,

negligently designed SH 45 to be almost flat, and thus the affidavit fails to provide a factual basis

to support Kaya’s claim that Sylva was negligent for this aspect of SH 45’s design. We address

these two issues separately.


Standard of care

               In its first issue on appeal, Sylva claims that the trial court erred in failing to

dismiss this case because Helmer’s affidavit does not expressly or implicitly provide the applicable

standard of care. Specifically, Sylva argues that Helmer’s affidavit never states the “appropriate

location, size, or number of any such ‘critical’ drainage inlets,” and thus it is unclear from the

affidavit what the applicable standard of care is or how Sylva breached that standard. Whether

section 150.002 requires an affiant to explicitly state what specific actions a defendant should have

taken to comply with the standard of care is a question of law, which we review de novo. See Shumake,

199 S.W.3d at 284.

               The certificate of merit serves the “legislative goal of requiring merely that plaintiffs

make a threshold showing that their claims have merit.” M-E Eng’rs, Inc., 365 S.W3d at 504; see

also Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 399–400 (Tex. App.—Beaumont 2008,

no pet.) (“[T]he purpose of the certificate of merit is to provide a basis for the trial court to

                                                  4
conclude that the plaintiff’s claims have merit.”). To further this goal, section 150.002 provides

that the certificate of merit must:


                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 professional
                services, 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.


Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b).

                This Court, interpreting the above language, recently held that a certificate of merit

need not separately or explicitly recite the applicable standard of care that was breached by the act,

error, or omission made the basis of recovery. Elness Swenson Graham Architects, Inc. v. RLJ II-C

Austin Air, LP, No. 03-10-00805-CV, 2011 WL 1562891, at *4 (Tex. App.—Austin Apr. 20, 2011,

pet. denied) (mem. op.). In that case, we noted that “[t]he legislature has amended section 150.002

three times since it was enacted in 2003 and has not incorporated a specific ‘standard of care’

requirement for certificates of merit in any of those amendments.” Id. (citing Benchmark Eng’g

Corp. v. Sam Houston Race Park, 316 S.W.3d 41, 45–46 (Tex. App.—Houston [14th Dist.] 2010,

pet. withdrawn)). Furthermore, we explained that negligence is, by definition, conduct that falls

below the applicable standard of care, and thus “[b]y averring that the licensed or registered

professional’s conduct is ‘negligent,’ the affiant is necessarily opining that the complained-of

conduct did not meet the applicable standard of care.” Id. Therefore, we concluded a certificate of

merit that states that the complained-of conduct was negligent is sufficient to satisfy the requirements

of section 150.002(b). Id.

                                                   5
                On appeal, Sylva argues that our holding in Elness Swenson “should be modified to

address the situation where, as here, a Certificate completely fails to identify what the design

professional should have done to avoid the single omission as the sole negligent act.” Sylva urges

that we should adopt the standard established by our sister court of appeals in Criterium-Farrell

Engineers, 248 S.W.3d at 399–400. In Criterium-Farrell, the Beaumont Court of Appeals held that

“the certificate of merit must necessarily address the applicable standard of care and the defendant’s

failure to meet the standard.” Id. at 400 (emphasis added). Under this construction, Sylva asserts,

Helmer’s affidavit is insufficient because it fails to specify where Sylva should have installed

drainage inlets.

                As an initial matter, we note that Criterium-Farrell was decided prior to the 2009

amendments to section 150.002, and that even after the 2009 amendment, the statute still does not

reference any requirement that a certificate of merit must specifically or explicitly recite the

applicable standard of care. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a)–(b). Several courts,

including this one, have held that the legislature’s repeated decision not to incorporate any language

about the standard of care in chapter 150 indicates that the legislature does not intend to create such

a requirement. See Elness Swenson, 2011 WL 1562891, at *4 (citing Cameron v. Terrell & Garrett,

Inc., 618 S.W.2d 535, 540 (Tex. 1981), for proposition that courts presume every word excluded

from statute was excluded for reason); see also Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d

421, 427–28 (Tex. App.—Dallas 2012, no pet.) (noting legislature has never incorporated standard

of care requirement in any of section 150.002’s amendments); Benchmark Eng’g Corp., 316 S.W.3d

at 45–46. For this reason, at least two of our sister courts have rejected Criterium-Farrell’s conclusion



                                                   6
that the certificate of merit must “address” the standard of care. See Benchmark Eng’g Corp.,

316 S.W.3d at 45–46 (disagreeing with holding in Criterium-Farrell); see also Zion, 384 S.W.3d

at 427–28 (noting disagreement between courts of appeals on this issue and concluding that

certificate of merit need not recite standard of care).

               Furthermore, Criterium-Farrell does not support Sylva’s argument here.               In

Criterium-Farrell, the affidavit attached to the certificate of merit listed several acts and omissions

that the affiant averred resulted in the defendant’s failure to detect structural problems in the

plaintiff’s residence. 248 S.W.3d at 397–99. The affidavit never used the word “negligence,” and

those portions of the affidavit quoted in the opinion do not include the phrase “standard of care.”2

Id. Nevertheless, the court held that the affidavit satisfied the requirements of the then-applicable

version of section 150.002 because the affidavit, taken as a whole, listed several specific omissions

and averred that had it not been for those omissions, the plaintiff would not have suffered harm. See

id. at 400. Nothing in Criterium-Farrell can be read to suggest that—in addition to stating what

actions or omissions by the defendant constituted negligence—an affiant must state what additional

actions the defendant should have taken and how those proposed actions would have complied with

the applicable standard of care.

               In this case, Helmer’s affidavit states, in relevant part, that:


               [KBR] and Sylva Engineering Corporation failed to specify the
               installation of a Pavement Drainage Inlet in a location where it was


       2
           In fact, the statement that most readily implicates the appropriate standard of care is the
affiant’s assertion that “any prudent inspector who is duly qualified and experienced . . . would have
sensed the excessive slope of the second floor simply by walking across the floor.” See Criterium-
Farrell Eng’rs v. Owens, 248 S.W.3d 395, 399–400 (Tex. App.—Beaumont 2008, no pet.).

                                                   7
               critically needed. Exhibits 7 and 8 show five Grate Inlets in the
               shoulder of Eastbound SH 45 beyond the gore area . . . . However,
               the inlet that is closest to the gore area is 182.25 feet beyond it. The
               engineering plans prepared by [KBR] and Sylva Engineering
               Corporation did not specify a Grate Inlet in the gore area where water
               ponded due to the previously-described “almost flat” pavement area.

               The SH 45 North/Loop 1 Interchange project . . . was opened to
               traffic on or about November 2006. A number of vehicular traffic
               accidents occurred in the vicinity of Mr. Kaya’s accident during the
               time period after November 2006. Mr. Kaya’s accident occurred on
               February 8, 2010.

               Texas Department of Transportation finally identified a solution to
               the water ponding problem . . . . [that] included installation of an
               additional Grate Inlet . . . only 22.72 feet from the gore area, and also
               Pavement Grinding (planing) to direct storm water to the additional
               Grate Inlet.

               Expert Opinion

               It is more probable than not that Mr. Kaya’s February 8, 2010
               vehicular traffic accident would not have occurred if the additional
               Grate Inlet had been installed, and if the Pavement Grinding (planing)
               had been performed, prior to that date.

                ....

                      The acts, errors and/or omissions described above show that
               [KBR] and Sylva Engineering Corporation did not meet the Standard
               of Care for appropriate Civil Engineer roadway and drainage design
               and engineering, and constitute professional design negligence.


               Thus, Helmer’s affidavit states that (1) Sylva failed to specify drainage inlets in the

“critical area” near the gore; (2) this failure to install drains near the gore area further prevented

water from draining properly; (3) had Sylva designated a drainage inlet where the department of

transportation subsequently installed one, Kaya’s accident would not have occurred; and (4) Sylva’s

failure to specify drainage inlets closer to the gore breached the standard of care and constituted

                                                  8
professional negligence. We conclude that Helmer’s affidavit, like the affidavit in Criterium-

Farrell, states specific omissions by Sylva in providing professional services.3 See 248 S.W.3d at

399–400. Nothing in section 150.002 can be read to require Helmer to specify what additional

drainage inlets Sylva could have also designed to comply with the standard of care. See CBM

Eng’rs, Inc. v. Tellepsen Builders, L.P., No. 01-11-01033-CV, 2013 WL 125713, at *5–6 (Tex.

App.—Houston [1st Dist.] Jan. 10, 2013, pet. filed) (concluding nothing in chapter 150 requires

certificate of merit to specify where defendant should have installed additional bracing).

                In its reply brief, Sylva claims that Kaya’s suggested analysis amounts to reliance on

a res ipsa loquitur theory of negligence which is inconsistent with chapter 150 of the civil practice

and remedies code. Specifically, Sylva asserts that Kaya’s allegation against Sylva relies on the

“syllogism that: [1] Ponding in a roadway is a bad thing; [2] Sylva, as a design professional,

participated in the design of the roadway; and [3] the Roadway, built as designed, was subject to

ponding that contributed to Kaya’s accident.” Sylva claims that Kaya relies on this syllogism to

imply that Sylva’s design must have contributed to the accident, and thus Sylva must have been

negligent in its design.


        3
          Sylva also argues that Helmer’s affidavit fails to imply a standard of care because it states
that Sylva should have installed a grate inlet where the department of transportation subsequently
installed one, that the department of transportation’s grate inlet was not in the “gore area,” and thus
Helmer’s proposed solution is inconsistent with Helmer’s general complaint that a grate inlet was
needed in the gore area. This argument is without merit, however, because Helmer’s affidavit does
not state that Sylva should have installed an inlet in the gore area, but rather states that grate inlets
were needed “in the [almost flat] area immediately preceding the gore area,” which could reasonably
be interpreted to include the area where the department of transportation ultimately installed the
inlet. (emphasis added). Therefore, we cannot conclude that the trial court abused its discretion in
interpreting Helmer’s affidavit to state that a grate inlet should have been installed in the nearly flat
area preceding the gore area.

                                                   9
                Leaving aside that Sylva did not raise this argument in its opening brief,4 Kaya’s

pleadings and Helmer’s affidavit do not assert a res ipsa loquitur claim. “Res ipsa loquitur, meaning

‘the thing speaks for itself,’ is an evidentiary rule applied when the circumstances surrounding an

accident are sufficient to support an inference of negligence.” Burchinal v. PJ Trailers-Seminole

Mgmt. Co., 375 S.W.3d 200, 220 (Tex. App.—Texarkana 2012, no pet.) (internal citations omitted).

This rule applies when (1) the character of the accident is such that it would not normally occur in

the absence of negligence and (2) the instrumentality causing the injury was under the management

and control of the defendant. Id. As discussed above, neither Kaya’s pleadings nor Helmer’s affidavit

rely on a general proposition that the character of this roadway accident is such that it would not have

happened absent negligence, but rather, assert specific negligent actions or omissions by Sylva that

proximately caused Kaya’s injuries. Cf. Burchinal, 375 S.W.3d at 220 (stating res ipsa loquitur

theory applies when plaintiff alleges character of accident indicates it would not normally occur

absent negligence). Thus, Kaya’s allegations do not rely on a res ipsa loquitur theory of negligence,

and we conclude that the trial court did not abuse its discretion in denying Sylva’s motion to dismiss

on this basis. We overrule Sylva’s first issue on appeal.


Factual basis for certain negligence claims

                In its second issue on appeal, Sylva complains that the trial court erred in failing

to dismiss Kaya’s claim that Sylva negligently designed portions of SH 45 to be almost flat.




       4
          See Sunbeam Envtl. Servs. v. Texas Workers’ Comp. Ins. Facility, 71 S.W.3d 846, 851
(Tex. App.—Austin 2002, no pet.) (finding waiver of appellate issue raised for first time in reply
brief rather than opening brief); see also Tex. R. App. P. 38.3.

                                                  10
Specifically, Sylva argues that Helmer’s affidavit states that KBR, not Sylva, was responsible for

designing the relevant portion of SH 45 to be flat, and thus the affidavit fails to provide a sufficient

factual basis to support a negligence claim against Sylva in this respect. Whether the facts alleged

in Helmer’s affidavit satisfy the requirements of section 150.002(b) is a question of law that we

review de novo. See M-E Eng’rs, Inc., 365 S.W.3d at 500 (noting that trial court has no discretion

in determining how law applies to given facts).

                In his amended petition, Kaya asserts that “KBR LLC’s and/or SYLVA’s roadway

design for this area had ‘almost flat’ longitudinal and transverse pavement slopes . . . .” However,

Helmer’s affidavit states that KBR—or more specifically KBR’s predecessor, Brown & Root

Services—engineered that portion of SH 45 to be almost flat. The affidavit does not indicate that

Sylva was involved in designing the slope of the road, but rather states that Sylva was a

subcontractor that KBR employed for the engineering of the drainage inlets discussed above.

Furthermore, given that Sylva was KBR’s subcontractor, there is nothing in Kaya’s pleadings or

Helmer’s affidavit to suggest that Sylva could be vicariously liable for KBR’s design of the roadway

generally. Cf. id. at 506–07 (concluding certificate of merit that described agent’s negligence was

sufficient to demonstrate principal’s liability under respondeat superior theory alleged in pleadings).

                Therefore, we conclude that Helmer’s affidavit fails to provide a factual basis to

support Kaya’s claim that Sylva was negligent in designing the relevant portion of SH 45 to be

almost flat. Accordingly, we conclude that the trial court abused its discretion by failing to dismiss

Kaya’s negligence claim in this respect. We sustain Sylva’s second issue on appeal, reverse the trial




                                                  11
court’s order in part, and dismiss Kaya’s claim that Sylva was negligent in designing the relevant

portions of SH 45 to be almost flat.5


                                           CONCLUSION

                Having sustained Sylva’s second appellate issue, we reverse the trial court’s order in

part and dismiss Kaya’s claim that Sylva was negligent in designing the relevant portions of SH 45

to be almost flat. Having overruled Sylva’s remaining points of error, we affirm the remainder of

the trial court’s order denying Sylva’s motion to dismiss.



                                                __________________________________________

                                                Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed in Part, Reversed and Dismissed in Part

Filed: April 18, 2013




        5
           In its reply brief, Sylva also asserts that Helmer’s affidavit is insufficient because it does
not meet the standards for admissibility for an expert affidavit. See, generally Tex. R. Evid. 702
(providing for admissibility of expert opinion at trial to assist the trier of fact). Once again leaving
aside the fact that Sylva did not make this argument in its opening brief, see supra n.4, Sylva did not
raise this issue in the trial court. See Tex. R. Evid. 33.1(a) (requiring party to make timely request,
objection, or motion at trial court to preserve issue for appellate review). And even if it had
preserved this issue for appeal, we would still conclude that Sylva’s argument is without merit
because Sylva’s argument is identical to the one considered and rejected by this court in M-E
Engineers, Inc. v. Tochihara, 365 S.W.3d 497, 502–03 (Tex. App.—Austin 2012, pet. denied).

                                                   12
