Court of Appeals of Texas, Twelfth District, Tyler
H. W. LOCHNER, INC., APPELLANT
RAINBO CLUB, INC., APPELLEE
from the 392nd District Court of Henderson County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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. We affirm.
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.
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.
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.
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.
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.
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
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.
of Review and Applicable Law
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.
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
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).
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. §
150.002(a)(1)-(3). The affiant must ...