                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-10-00025-CV


CAPITAL ONE, NATIONAL                                              APPELLANT
ASSOCIATION

                                          V.

CARTER & BURGESS, INC.                                              APPELLEE


                                      ------------

        FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                                     OPINION

                                      ------------

                                  I. INTRODUCTION

      In two issues, Appellant Capital One, National Association (CONA)

appeals the trial court‘s order granting Appellee Carter & Burgess, Inc.‘s (C&B)

motion to dismiss for failure to file a civil practice and remedies code section

150.002 certificate of merit. We will affirm.
                  II. FACTUAL AND PROCEDURAL BACKGROUND

      CONA filed its original petition against C&B and New America

Georgetown, LLC in July 2009. CONA alleged that it had entered into a lease

agreement with New America for CONA to construct a bank branch on a piece of

property located in Georgetown and that C&B had entered into a ―Professional

Services Agreement‖ with CONA‘s architect, Levinson & Associates, ―to provide

professional engineering and surveying services for [CONA] in connection with

[CONA‘s] development of‖ the property. Because the lease agreement obligated

New America to bring water, sanitary sewer, and storm sewer lines to the

boundary of the property, New America was responsible for acquiring five

wastewater easements from neighboring properties.         According to CONA,

although New America ultimately obtained only four of the five wastewater

easements, it informed C&B that it had acquired all five easements, and Chris

Weigand, a ―C&B representative,‖ represented to CONA that all five easements

had been obtained.      Relying on New America‘s and Weigand‘s alleged

misrepresentations regarding the acquisition of the fifth easement, CONA

allowed the period during which it had the right to terminate the lease agreement

to expire and signed a ―Tenant Estoppel Certificate‖ in favor of the subsequent

owner of the property, the Williams Family Trust.        CONA alleged that it

terminated the lease agreement after learning that only four of the five

easements had been obtained, and arbitration apparently ensued between

CONA and the Trust.

                                   2
      CONA alleged claims in its first amended petition against C&B for

negligent misrepresentation, statutory fraud, and aiding and abetting fraud. C&B

filed a motion to dismiss CONA‘s suit pursuant to civil practice and remedies

code section 150.002(a), arguing that each of CONA‘s claims should be

dismissed because it was required but failed to file a certificate of merit. After the

case was transferred from Travis County to Tarrant County, the trial court

granted C&B‘s motion to dismiss and later denied CONA‘s motion for new trial

and motion for reconsideration. This appeal followed.

                             III. STANDARD OF REVIEW

      We review a trial court‘s ruling on a motion to dismiss a case for failure to

comply with section 150.002 for an abuse of discretion. TDIndustries, Inc. v.

Citicorp N. Am., Inc., No. 02-10-00030-CV, 2011 WL 1331501, at *2 (Tex. App.—

Fort Worth Apr. 7, 2011, no pet. h.); Curtis & Windham Architects, Inc. v.

Williams, 315 S.W.3d 102, 106 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A

trial court abuses its discretion when its ruling is arbitrary, unreasonable, or

without reference to any guiding rules or legal principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.

1159 (1986).

      If resolution of the issue requires us to construe statutory language, we

review using a de novo standard. Palladian Bldg. Co., Inc. v. Nortex Foundation

Designs, Inc., 165 S.W.3d 430, 436 (Tex. App.—Fort Worth 2005, no pet.). In

construing a statute, our primary objective is to determine and give effect to the

                                      3
legislature‘s intent. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.

2002). Once we determine the proper construction of the statute, we determine

whether the trial court abused its discretion in the manner in which it applied the

statute to the instant case. Palladian Bldg. Co., 165 S.W.3d at 436.

                             IV. CERTIFICATE OF MERIT

      Both CONA and C&B agree that the versions of sections 150.001 and

150.002 as amended in 2005 apply to the issues presented in this appeal.

Former section 150.002(a) stated in relevant part as follows:

        (a) In any action . . . for damages arising out of the provision of
      professional services by a licensed or registered professional, the
      plaintiff shall be required to file with the complaint an affidavit of a
      third-party . . . licensed professional engineer competent to testify,
      . . . which affidavit shall set forth specifically at least one negligent
      act, error, or omission claimed to exist and the factual basis for each
      such claim.

See Act of May 12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws

348, 348 and Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen.

Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac. & Rem. Code

Ann. § 150.002(a) (Vernon 2011)). Former section 150.001(1) defined ―licensed

or registered professional,‖ stating in relevant part that a ―‗[l]icensed or registered

professional‘ means a . . . licensed professional engineer, or any firm in which

such licensed professional practices . . . .‖ See Act of May 12, 2005, 79th Leg.,

R.S., ch. 189, § 1, 2005 Tex. Gen. Laws 348, 348 and Act of May 18, 2005, 79th

Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current

version at Tex. Civ. Prac. & Rem. Code Ann. § 150.001(1) (Vernon 2011)).

                                      4
Section 150.002‘s certificate of merit requirement is compulsory; the statute

mandates dismissal of any claims for which a certificate is required but not

produced. TDIndustries, 2011 WL 1331501, at *3.

      To guide our determination whether an action for damages arises ―out of

the provision of professional services by a licensed [professional engineer],‖ both

CONA and C&B direct us to the occupations code‘s definition of the ―practice of

engineering.‖    See id. (citing occupations code); Ashkar Eng’g Corp. v. Gulf

Chem. & Metallurgical Corp., No. 01-09-00855-CV, 2010 WL 376076, at *9 (Tex.

App.—Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) (same).             The

occupations code defines the ―practice of engineering‖ as ―the performance of

. . . any public or private service or creative work, the adequate performance of

which requires engineering education, training, and experience in applying

special knowledge or judgment of the mathematical, physical, or engineering

sciences to that service or creative work.‖ Tex. Occ. Code Ann. § 1001.003(b)

(Vernon Supp. 2010).       The ―practice of engineering‖ includes ―any other

professional service necessary for the planning, progress, or completion of an

engineering service.‖ Id. § 1001.003(c)(12).

                V. PROFESSIONAL SERVICES AND LICENSED ENGINEER

      In its first issue, CONA argues that the trial court abused its discretion by

granting C&B‘s motion to dismiss because the negligent misrepresentations of

which CONA complains—―[d]iscussions surrounding a land easement and

recording the same in the real property records‖ or the ―misrepresentation of

                                    5
facts surrounding the procurement of the five easements‖—(1) do not arise out of

the provision of C&B‘s professional services and (2) were performed by an

unlicensed intern, not a licensed professional engineer.

      CONA does not dispute that C&B entered into an agreement with CONA‘s

architect to provide professional engineering services in connection with CONA‘s

development of the property, nor is there any indication in the record that C&B

had any duties or responsibilities in addition to those outlined in its agreement

with CONA‘s architect.    The professional services agreement states that the

―scope of [C&B‘s] services‖ is ―[a]s described in attached scope letter.‖     The

attached letter identifies the following ―professional engineering and surveying

services‖ to be performed by C&B: ―Surveys,‖ ―Preliminary Plat,‖ ―Final Plat,‖

―Construction Documents,‖ 1 and ―Construction Phase Services.‖ As C&B points

out, the only reason that CONA would have to rely upon Weigand‘s alleged false

representations regarding the procurement of all five easements was because

the statements were made as part of C&B‘s performing a professional service

necessary for the planning, progress, or completion of C&B‘s engineering

services—an activity that expressly constitutes ―the practice of engineering‖

under the occupations code. See id. Accordingly, we hold that the trial court did

not abuse its discretion by concluding that CONA‘s claim against C&B for


      1
        This includes ―Erosion and Sedimentation Control Plans,‖ ―Grading and
Drainage Plans,‖ ―Utility Plans,‖ ―Landscape Plans,‖ a ―Site Plan/Dimensional
Control Plan,‖ a ―Traffic Control Plan,‖ a ―Site Lighting Plan,‖ and ―Construction
details.‖

                                    6
negligent misrepresentation is one for damages arising out of the provision of

professional services, as contemplated by civil practice and remedies code

section 150.002(a). We overrule this part of CONA‘s first issue.

      CONA further argues that it did not have to file a certificate of merit

because Weigand was not a ―licensed or registered professional‖ as defined by

section 150.001(1). The record demonstrates that CONA sued C&B but did not

sue Weigand, C&B‘s unlicensed intern.         CONA thus seeks to hold C&B

responsible for Weigand‘s alleged misrepresentations made in the course and

scope of his employment with C&B. Therefore, CONA cannot seek to impose

liability upon C&B—a firm indisputably hired to provide professional engineering

services—for a tort allegedly committed by Weigand but also successfully argue

that the misrepresentation claim against C&B does not implicate section

150.002(a)‘s requirement that professional services be provided by a ―licensed or

registered professional‖ because the claim is premised upon Weigand‘s actions.

We cannot conclude that the legislature intended for section 150.002(a) to be

circumvented in such a way. Accordingly, we hold that the trial court did not

abuse its discretion by concluding that the acts of which CONA complains were

performed by a licensed or registered professional. We overrule the remainder

of CONA‘s first issue.

             VI. STATUTORY FRAUD AND AIDING AND ABETTING FRAUD

      In its second issue, CONA argues that even if section 150.002 applies to

its negligent misrepresentation claim, the trial court abused its discretion by

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dismissing CONA‘s claims for statutory fraud and aiding and abetting fraud

because a certificate of merit is not required for non-negligence causes of actions

against a licensed professional engineer. This court has previously held that the

version of section 150.002(a) in effect before its 2009 amendment does not apply

in a suit other than one for negligence arising out of the provision of professional

services, and we decline to revisit that holding here.2           See Parker Cnty.

Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., No. 02-08-00380-CV, 2009 WL

3938051, at *3 (Tex. App.—Fort Worth Nov. 19, 2009, no pet.) (mem. op.); see

also Curtis & Windham Architects, Inc., 315 S.W.3d at 108 (holding same);

Kniestedt v. Sw. Sound and Elect., Inc., 281 S.W.3d 452, 455 (Tex. App.—San

Antonio 2007, no pet.) (same). Therefore, we agree with CONA that a certificate

of merit is not required for its statutory fraud and aiding and abetting fraud claims

to the extent that those are claims other than ones for negligence. See Parker

Cnty., 2009 WL 3938051, at *3. C&B disputes that CONA‘s fraud-related claims

are non-negligence claims, arguing that ―the essence of [CONA]‘s claims [is] that

it was injured by a lapse in professional judgment, which is akin to a negligence

claim regardless of the nomenclature used to describe the claims,‖ and that




      2
       C&B attempts to distinguish Parker County from this case, arguing that
the holding in that case was limited to ―claims for breach of contract.‖ We did not
so hold. We held that section 150.002(a) ―does not apply in a suit other than one
for negligence arising out of the provision of professional services.‖ Parker Cnty.,
2009 WL 3938051, at *3 (emphasis added). A suit ―other than one for
negligence‖ includes, but is certainly not limited to, a claim for breach of contract.

                                      8
CONA‘s claims ―are nothing more than artfully plead claims of negligent

misrepresentation.‖ We agree with C&B.

      We are not bound by the labels used by CONA. Id. We look to CONA‘s

pleadings to determine if its statutory fraud and aiding and abetting fraud claims

are in fact non-negligence claims.      Id.; see Ashkar Eng’g Corp., 2010 WL

376076, at *8–10.

      The basis of CONA‘s claim against C&B for negligent misrepresentation is

that it suffered injury proximately caused by C&B‘s false representation that all

five wastewater easements had been obtained and delivered for recording.

CONA alleged as part of that claim that the misrepresentation ―was supplied for

the guidance of [CONA].‖ Regarding CONA‘s statutory fraud claim, it alleged

that C&B made a false statement of fact that was made for the purpose of

inducing CONA to enter into a contract and that CONA relied on the false

representation, incurring an injury. Regarding CONA‘s aiding and abetting fraud

claim, CONA alleged that C&B provided substantial assistance to New America

in accomplishing the fraud by misrepresenting that all five wastewater easements

had been signed and recorded.

      Considering CONA‘s claims and factual allegations against C&B, it is

evident that CONA is complaining only of an injury that was caused by C&B‘s

alleged false representation about procuring all five wastewater easements and

that the allegations underlying CONA‘s negligent misrepresentation, statutory

fraud, and aiding and abetting fraud claims all implicate the same negligence-

                                    9
based conduct. Therefore, although labeled as non-negligence claims, CONA‘s

claims for statutory fraud and aiding and abetting fraud are not claims other than

ones for negligence.    Instead, they are recharacterized claims for negligence

arising out of the provision of professional services by a licensed or registered

professional and, thus, are subject to civil practice and remedies code section

150.002‘s certificate of merit requirement. Compare CH2M Hill Trigon, Inc. v. J7

Contractors, Inc., No. 10-10-00058-CV, 2010 WL 3619898, at *7–9 (Tex. App.—

Waco Sept. 15, 2010, no pet.) (mem. op.) (holding that claims of tortious

interference and fraud constituted claims of professional negligence and, thus,

required certificate of merit because underlying complaint was that appellee was

injured by appellant‘s failing to disclose information and providing inaccurate

information) with Curtis, 315 S.W.3d at 107–08 (holding that claims of breach of

fiduciary duty, fraud, deceptive trade practices, and unjust enrichment did not

require certificate of merit because gist of claims was that appellant had engaged

in pervasive and systemic overbilling) and Parker Cnty., 2009 WL 3938051, at *3

(holding that trial court erred by dismissing breach of contract claim because

appellee made promises to perform specific acts in contract, the breach of which

would give rise to a breach of contract action). Accordingly, we hold that the trial

court did not abuse its discretion by dismissing CONA‘s claims for statutory fraud

and aiding and abetting fraud. We overrule CONA‘s second issue.




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                               VII. CONCLUSION

      Having overruled CONA‘s two issues, we affirm the trial court‘s order

granting C&B‘s motion to dismiss.




                                                 BILL MEIER
                                                 JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: May 19, 2011




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