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H. W. Lochner, Inc. v. Rainbo Club, Inc.

Court of Appeals of Texas, Twelfth District, Tyler

May 8, 2018


          Appeal from the 392nd District Court of Henderson County, Texas (Tr.Ct.No. CV16-0461-392)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          Greg Neeley, Justice

         In this interlocutory appeal, Appellant H. W. Lochner, Inc. contends the trial court erred in not dismissing the claims brought against it by Appellee, Rainbo Club, Inc. In two issues, Lochner argues that the certificate of merit required to be filed pursuant to Section 150.002 of the Civil Practice and Remedies Code was inadequate because the certificate's author was unqualified and his affidavit did not include an affirmative factual basis to support the claims of professional errors or omissions being made.[1] We affirm.


         The underlying litigation arose from roadway improvements to upgrade an approximate seven mile stretch of highway on U.S. 175 southeast of the city of Athens in Henderson County (the Project). In 2014, the Texas Department of Transportation (TXDOT) contracted with A. L. Helmcamp, Inc. and Big Creek Construction, Ltd. to act as general contractors on the Project. The Project's plans called for adding extensive soil embankments to elevate the roadway's existing profile. This, in turn, required nearby areas of excavation to acquire the necessary soil to build the embankments.

          TXDOT required the formulation of a Storm Water Pollution Prevention Plan (SW3P) before construction began to address the potential risk of storm water runoff carrying disturbed soils, from both excavation and soil embankment sites, and polluting downstream surface waterways. Engineering work for the Project was performed by TranSystems Corporation who subcontracted the development of the SW3P to Arredondo, Zepeda and Brunz, LLC. (AZB). Lochner was contracted to be the Project Construction Engineering Inspector.

         Almost from the outset of construction in the summer of 2015, the Project was plagued by heavy rains. Storm water runoff carrying disturbed soils from the Project site made its way into Safari Lake, a privately owned lake downstream from the Project. Further downstream from the construction site lies Rainbo Lake, owned by Rainbo Club, and described as a first class bass trophy fishing lake. Fishing is restricted to members, some of whom live in homes constructed around the lake. The lake is managed and stocked to provide its members the ultimate fishing experience.

         Rainbo retained an expert who confirmed that the storm water runoff carrying displaced soils which affected Safari Lake had made its way further downstream and was also polluting Rainbo Lake. Armed with its expert's reports, Rainbo demanded that Helmcamp cease work on the Project and reimburse it for its expenses and proposed remediation costs. Helmcamp denied Rainbo Lake had been damaged from storm water runoff, did not cease work, and did not modify the SW3P plan.

         In a March 2016 report, Rainbo's expert confirmed that continued high levels of suspended clay particles were present within the lake and addressed its impact on the lake's fish population. The report stated that unless greater efforts to stabilize the soil at the Project site were implemented, the attempted remedial efforts would fail, and the lake's fish population would continue to be endangered. Rainbo engaged in communications with TXDOT in an attempt to resolve its complaints and obtain remediation compensation, but were unsuccessful.

         Rainbo initially filed suit against TXDOT and the Project's general contractors in 2016. By its first amended petition, Rainbo also sued TranSystems, AZB, and Lochner for claims related to the SW3P. To comply with the certificate-of-merit statute, Rainbo attached the affidavit of a professional engineer, Jason Womack, P.E., to its amended petition. Womack's affidavit asserted the SW3P plan prepared by AZB did not include adequate means for the timely control and stabilization of disturbed soils in either the embankments or excavation sites. He faulted both TranSystems and AZB for not recognizing the inadequacies in the SW3P design during the final plan reviews and modifying the plan to correct the inadequacies.

         The affidavit identified Lochner, which was contracted to be the on-site inspector for the Project, as the Project Construction Engineering Inspector. Womack asserted Lochner was negligent in that role for (1) failing to properly inspect and identify the inadequacies of the SW3P during construction, (2) report to TXDOT and the contractors that heavy rains caused extensive soil erosion which entered into downstream waterways, and (3) take steps to seek temporary suspension of work on the Project and pursue modifications in the design and implementation of the SW3P to address the pollution of downstream surface waters from soil infiltration. Lochner filed a motion to dismiss pursuant to Section 150.002(e) asserting Womack's affidavit failed to satisfy Chapter 150's requirements. The district court denied the motion to dismiss. This appeal followed.

         Standard of Review and Applicable Law

         We review a trial court's decision to grant or deny a defendant's Chapter 150 motion to dismiss for abuse of discretion. Gaertner v. Langhoff, 509 S.W.3d 392, 395 (Tex. App.- Houston [1st Dist.] 2014, no pet.). To the extent we analyze statutory construction, however, our review is de novo. Id. Once we determine the statute's proper construction, we must then decide whether the trial court abused its discretion in applying the statute. Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421, 425 (Tex. App.-Dallas 2012, no pet.). In general, a trial court abuses its discretion when it acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

         In construing statutes, we ascertain and give effect to the Legislature's intent as expressed by the statutory text. M-E Eng'rs, Inc. v. City of Temple, 365 S.W.3d 497, 500 (Tex. App.- Austin 2012, pet. denied). We consider the words in context, not in isolation. Id. We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. Id. We also presume that the Legislature was aware of the background law and acted with reference to it. Id.

         Chapter 150 mandates the filing of a certificate of merit, the purpose of which is to require a plaintiff to make a threshold showing that its claims have merit. Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 520 S.W.3d 887, 897 (Tex. 2017). A plaintiff must file a certificate of merit in 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(a) (West 2011). The term "licensed or registered professional" includes licensed architects, licensed professional engineers, and firms in which licensed architects or licensed professional engineers practice. Id. § 150.001(1).

         If a certificate of merit is required, the general rule is that the plaintiff must file the certificate with its original petition. See id. § 150.002(a). A certificate of merit must be an affidavit by a person who is competent to testify, holds the same professional license or registration as the subject defendant, is knowledgeable about the defendant's area of practice, and offers testimony based on the affiant's knowledge, skill, experience, education, training, and practice. Id. ยง 150.002(a)(1)-(3). The affiant must ...

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