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Holt Engineering, Inc. v. Prouty

Court of Appeals of Texas, Third District, Austin

January 12, 2018

Holt Engineering, Inc., Appellant
v.
Jordan Prouty, Appellee

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-16-003297, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING.

          Before Justices Pemberton, Goodwin, and Field

          MEMORANDUM OPINION

          Bob Pemberton, Justice

         This appeal, brought under Chapter 150 of the Civil Practice and Remedies Code-the statute requiring that a sworn "certificate of merit" accompany a lawsuit "arising out of the provision of professional services" by engineers and certain other "licensed or registered professional[s]"[1]-stems from the same underlying cause that gave rise to the Chapter 150 appeal in Jaster-Quintanilla & Associates, Inc., v. Jordan Prouty, which we also decide today.[2] The appellant here, Holt Engineering, Inc., is a professional engineering firm that was joined as a defendant through amendments to the pleadings that had originally named only Jaster. In the live pleadings, the claimant, Jordan Prouty, attributes the injury-causing steel-canopy collapse in part to Holt's alleged professional negligence or breach of duty in "fail[ing] to identify and correct deficiencies in the structures' design, fabrication, and/or welds" while performing "observation and inspection services" on the project. Like his original claims against Jaster, Prouty's claims against Holt implicated the Chapter 150 certificate-of-merit requirement, and Prouty accordingly obtained an affidavit from professional engineer Wesley J. Oliphant-the same affiant he used in regard to his claims against Jaster-in an attempt to comply. Like Jaster, Holt moved to dismiss Prouty's claims against it, urging that Oliphant's affidavit fell short of the requirements, found in Section 150.002, Subsection (b), that the affidavit "shall 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 the professional service . . . and the factual basis for each such claim."[3] As with Jaster, the district court denied Holt's dismissal motion, and Holt perfected this appeal from that order. We will affirm.

         Holt's appellate arguments hinge upon the same underlying construction of Subsection (b) that Jaster advocated in its appeal.[4] Consequently, for the reasons we explained in Jaster, Holt's sole challenge that could be viable under Subsection (b), properly construed, is a contention that Oliphant failed to supply a "factual basis" for his opinion that Holt had "failed to meet the standard of care expected of an AWS Certified Weld Inspector and the requirements of the engagement." And Oliphant supplied a "factual basis" that suffices under Subsection (b), for the reasons we explained in Jaster-"the services H[olt] was engaged to provide would have clearly identified any compliance, quality, or workmanship issues related to the fabrication and welding of the failed embed plates on the Canopy Structure, " such that "[f]ailure to do so, " as had been alleged of Holt, "would have failed to meet the standard of care . . . and the requirements of the engagement." The district court did not abuse its discretion in denying Holt's motion to dismiss.

         We affirm the district court's order.

         Affirmed.

---------

Notes:

[1] See Tex. Civ. Prac. & Rem. Code §§ 150.001-.002. We have jurisdiction by virtue of Section 150.002, Subsection (f). See id. § 150.002(f) ("An order granting or denying a motion for dismissal [under Chapter 150] is immediately appealable as an interlocutory order.").

[2] No. 03-16-00793-CV (Tex. App.-Austin Jan. 12, 2018, no pet. h.).

[3] Tex. Civ. Prac. & Rem. Code § 150.002(b). In regard to Subsection (b), Oliphant attested to the following:

3. I have carefully reviewed a number of documents provided to me regarding the Materials Testing and Observation scope of services role of H[olt] Engineering, Inc. (H[olt]) as may relate to the October 22, 2014 failure of a Canopy under construction at the Austin Bergstrom International Airport.
4. Among the various [s]ervices H[olt] was retained to provide was: "Structural Steel Inspection- Includes inspection by an AWS Certified Welding Inspector of structural elements, welding, high strength bolt testing, framing connections, verification of fabricator ...

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