Court of Appeals of Texas, Ninth District, Beaumont
Submitted on April 20, 2017
Appeal from the 172nd District Court Jefferson County, Texas
Trial Cause No. B-198, 469
McKeithen, C.J., Kreger and Horton, JJ.
CHARLES KREGER JUSTICE
interlocutory appeal, Appellant, CH2M Hill Engineers, Inc.
("CH2M"), challenges the trial court's denial
of its motion to dismiss for failure to file a certificate of
merit in accordance with Texas Civil Practice and Remedies
Code § 150.002. We affirm the trial court's
and Procedural Background
September of 2014, CH2M and the City of Beaumont (the
"City") entered into an "agreement for
professional services, " whereby CH2M was to evaluate
the City's water distribution and sewer collection
services. In accordance with the agreement, CH2M produced a
written report summarizing its findings and offering
recommendations for improving the City's operations. The
report was critical of some of the City's practices,
including the amount of overtime incurred by the water
utility staff, referring to it as "excessively
high." After receiving CH2M's report, the City made
personnel changes to the water utility staff, including the
demotion, termination, or forced resignation of the
of 2016,  Appellees filed suit against CH2M seeking
damages for defamation and tortious interference with
contract. Among a host of other assertions, the Appellees
argue that their claims "aris[e] out of false and
intentionally misleading statements published in [the
report]." Appellees complain that the report "was
deceptive, spurious, false, forged, and bogus." On June
3, 2016, CH2M filed its motion to dismiss pursuant to Section
150.002 of the Texas Civil Practices and Remedies Code,
averring that Appellees failed to timely file the required
"certificate of merit" setting forth each theory
for which damages are sought, as well as the negligence or
other action, error, or omission of the engineer. After a
hearing, the trial court denied CH2M's motion, and CH2M
consequently brought this interlocutory appeal, arguing that
the trial court abused its discretion in denying CH2M's
motion to dismiss.
order denying a motion to dismiss for failure to file a
certificate of merit in accordance with section 150.002 is
immediately appealable. Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002(f) (West 2011). We review a trial court's
order on a motion to dismiss under section 150.002 for an
abuse of discretion. Epco Holdings, Inc. v. Chicago
Bridge & Iron Co., 352 S.W.3d 265, 269 (Tex.
App.-Houston [14th Dist.] 2011, pet. dism'd) (citing
Sharp Eng'g v. Luis, 321 S.W.3d 748, 752 (Tex.
App.-Houston [14th Dist.] 2010, no pet.)). The trial court
abuses its discretion when it "acts in an unreasonable
and arbitrary manner or without reference to any guiding
rules or principles." Benchmark Eng'g Corp. v.
Sam Houston Race Park, 316 S.W.3d 41, 44 (Tex.
App.-Houston [14th Dist.] 2010, pet. granted, judgm't
vacated w.r.m.) (citations omitted). A trial court also
abuses its discretion if it fails to analyze or apply the law
correctly. Epco Holdings, 352 S.W.3d at 269;
Benchmark, 316 S.W.3d at 44 (citing Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
review matters of statutory construction de novo. Epco
Holdings, 352 S.W.3d at 269; Benchmark, 316
S.W.3d at 44. We construe statutory language to ascertain and
effectuate legislative intent, and we look to the
statute's plain meaning because we presume that the
Legislature intends the plain meaning of its words. Epco
Holdings, 352 S.W.3d at 269-70 (citing Sharp
Eng'g, 321 S.W.3d at 750). We view statutory terms
in context, giving them full effect. Benchmark, 316
S.W.3d at 44 (citation omitted). We presume that every word
of a statute was used for a purpose and every omitted word
was purposefully not chosen. Epco Holdings, 352
S.W.3d at 270; Benchmark, 316 S.W.3d at 44.
"Finally, in determining the plain meaning of a statute,
we read the words in context and construe the language
according to the rules of grammar and common usage."
Benchmark, 316 S.W.3d at 45 (citing Tex. Gov't
Code Ann. § 311.011(a) (West 2005)). After deciding the
proper construction, we then determine whether the trial
court abused its discretion in its application of the
statute. Morrison Seifert Murphy, Inc. v. Zion, 384
S.W.3d 421, 425 (Tex. App.-Dallas 2012, no pet.).
of Registered Professionals and Certificates of
150.002 requires a plaintiff to file a certificate of merit
"[i]n any action . . . for damages arising out of the
provision of professional services by a licensed or
registered professional[.]" Tex. Civ. Prac. & Rem.
Code Ann. § 150.002. Therefore, to determine if a
certificate of merit was required, we must decide whether
CH2M qualifies as a "licensed or registered
professional" under the statute, and if so, whether
Appellees' claimed damages arose from CH2M's
provision of professional services. See id.
§§ 150.001(1-a)(West Supp. 2017), 150.002(a);
Dunham Eng'g, Inc. v. Sherwin-Williams Co., 404
S.W.3d 785, 792 (Tex. App.-Houston [14th Dist.] 2013, no
pet.). As the party complaining of an abuse of discretion,
CH2M has the burden of bringing forth a record showing such
abuse. See Simon v. York Crane & Rigging Co.,
739 S.W.2d 793, 795 (Tex. 1987).
statute defines a "licensed or registered
professional" to mean "a licensed architect,
licensed professional engineer, registered professional land
surveyor, registered landscape architect, or any firm in
which such licensed or registered professional
practices, including but not limited to a corporation,
professional corporation, limited liability corporation,
partnership, limited liability partnership, sole
proprietorship, joint venture, ...