The Dallas Court of Appeals has reversed a trial court order denying a Texas engineering firm’s motion to dismiss a wrongful death lawsuit under Chapter 150, CPRC, for failure to file a certificate of merit.
Lina T. Ramey & Associates, Incorporated v. Jeremy Comeaux, et al. (No. 05-23-00562-CV; filed November 27, 2023) arose from a head-on collision on SH 121 in Dallas County, killing the driver of one of the vehicles and injuring five others. At the time, SH 121 was under construction. TxDOT contracted with Ramey, a civil engineering firm, to design and implement a traffic control plan for the construction area. Plaintiffs asserted premises liability and negligence claims for failure to provide a safe roadway, failure to design, control, implement, and maintain a safe traffic control plan, failure to provide adequate signage and warning of changes in traffic patterns, failure to properly maintain and inspect the worksite, and other negligent conduct. Plaintiff Comeaux filed the original suit but nonsuited when Ramey filed a motion to dismiss for failure to file a certificate of merit. Comeaux filed a second suit with an affidavit signed by a civil engineer who was not licensed in Texas. Five other plaintiffs then intervened in the suit, evidently relying on Comeaux’s certificate of merit to satisfy Chapter 150.
Ramey again filed a motion to dismiss for failure to comply with Chapter 150 because plaintiffs’ certificates of merit were not rendered by a Texas-licensed engineer, as required by § 150.002, CPRC. Plaintiffs responded by filing a certificate of merit signed by a Texas-licensed civil engineer. They also asserted that the statute did not require a certificate of merit for their claim that Ramey failed to properly inspect the work site and roadway to ensure that the contractor complied with the standard of care under the Texas Manual on Uniform Traffic Control Devices (TxMUTCD). This standard requires that the original pavement markings “be removed or obliterated as soon as possible,” whereas plaintiffs alleged that the contractor had merely painted over them with black paint. Plaintiffs argued that the failure to remove the original markings was not an “engineering service” under Chapter 150. The trial court partially granted and partially denied Ramey’s motion to dismiss and ordered all claims against Ramey be dismissed without prejudice except the TxMUTCD compliance issue. Ramey sought an interlocutory appeal.
The court of appeals reversed. Section 150.002 requires that “in any action for damages arising out of the provision of services by a licensed professional, a claimant file with the complaint an affidavit of a third-party professional engineer licensed in [Texas].” Consequently, a claimant must file the COM “with the pleading which for the first time, raises a claim against a licensed professional for damages arising from the provision of professional services by the licensed professional.” The issue was thus whether plaintiffs’ claim based on TxMUTCD non-compliance “arose” from the provision of professional services. Applying the statutory definition of the practice of engineering, the court concluded that the alleged failure with respect to painting over the original pavement markings “directly involves the practice of engineering” because it is part “the monitoring of compliance with drawings or specifications and ‘other professional services necessary for the planning, progress, or completion of an engineering service’” (citing § 1001.003(c)(9), (12), CPRC). Further, the court held, plaintiffs’ claims “arose” from the provision of such services since inspecting the worksite and roadway “was necessarily done as a component part of the necessary steps for implementing the traffic control plan.” The trial court thus abused its discretion when it denied the motion to dismiss these claims. The court remanded to the trial court for a determination of whether the claims should be dismissed with or without prejudice.
