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Barron, Stark & Swift Consulting Engineers, Lp v. First Baptist Church

Court of Appeals of Texas, Ninth District, Beaumont

May 17, 2018

BARRON, STARK & SWIFT CONSULTING ENGINEERS, LP AND BARRON-BENNETT ARCHITECTURE, LP, Appellants
v.
FIRST BAPTIST CHURCH, VIDOR, TEXAS, Appellee

          Submitted on April 26, 2018

          On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A160310-C

          Before McKeithen, C.J., Kreger, and Johnson, JJ.

          OPINION

          CHARLES KREGER JUSTICE.

         This is an interlocutory appeal of the trial court's denial of Barron, Stark & Swift Consulting Engineers, LP and Barron-Bennett Architecture, LP's (Appellants) motion to dismiss the complaint of First Baptist Church, Vidor (FBCV) pursuant to Civil Practice and Remedies Code section 150.002. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (West 2011).

         Background

         On November 20, 2011, FBCV contracted with G.L. Barron Company, Inc. ("G.L. Barron") to oversee a multimillion dollar construction and renovation project following a bidding process that began in June 2011. One of the priorities of the project was to make sure the buildings' roofs did not leak and would efficiently and properly shed water. The proposal G.L. Barron provided included a team of engineers, architects, and other companies to contribute to the design and work for the project. G.L. Barron hired Barron-Bennett Architecture, LP (BBA) to oversee and approve the architectural design of the project, which was performed under the license of Architect Bennett. The engineering services of Barron, Stark & Swift Consulting Engineers, LP (BSSCE) were performed under the license of Civil Engineer Stark.

         Beginning in June of 2013, FBCV had problems with water intrusion and leaks in various rooms throughout the church campus. Despite notifying G.L. Barron, the leaks were never repaired to the satisfaction of FBCV, and the church ultimately had problems with mold.[1]

         The substantial completion date of the project was October 17, 2014. On October 14, 2016, FBCV filed its original petition against multiple defendants, including Appellants. In that petition, FBCV asserted claims against the defendants for breach of contract, violations of the DTPA, breach of express warranties, breach of implied warranties, negligence, and fraud. With its original petition, FBCV did not provide the certificates of merit required by section 150.002 of the Texas Civil Practice and Remedies Code. See id. Accordingly, on November 14, 2016, Appellants filed their motion to dismiss pursuant to section 150.002. See id. § 150.002(e). Later that same day, FBCV filed its first amended petition accompanied by a certificate of merit from Charles R. Norman, a licensed professional engineer, but did not include a certificate of merit from an architect. On June 13, 2017, FBCV filed its second amended petition, which included certificates of merit from Charles R. Norman and Walter Anthony Eeds, a licensed professional architect.

         The crux of Appellants' argument is the certificates of merit were untimely, because FBCV did not file them contemporaneously with its first-filed petition. Moreover, FBCV did not allege in its first-filed petition that it was unable to provide certificates of merit because it was filed within ten days of the statute of limitations expiring and because of that, FBCV was unable to obtain a certificate of merit that would have entitled it to an extension of thirty days to file a certificate of merit. See id. § 150.002(c).

         In this interlocutory appeal, Appellants complain in one issue that the trial court abused its discretion by denying their motion to dismiss under Chapter 150 of the Texas Civil Practice and Remedies Code based on FBCV's failure to comply with the certificate of merit requirements. See id. § 150.002(e), (f).

         Standard of Review

         A party may pursue an interlocutory appeal of an order denying or granting a motion to dismiss for failure to file a certificate of merit. Id. § 150.002(f); Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804, 808 (Tex. App.-Houston [1st Dist.] 2011, no pet.). "We review a trial court's ruling on a motion to dismiss a case for failure to comply with section 150.002 for an abuse of discretion." Capital One v. Carter & Burgess, Inc., 344 S.W.3d 477, 479 (Tex. App.-Fort Worth 2011, no pet.); see also TDIndustries, Inc. v. Rivera, 339 S.W.3d 749, 752 (Tex. App.- Houston [1st Dist.] 2011, no pet.). If a trial court acts arbitrarily or unreasonably, without reference to any guiding rules and principles, it constitutes an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To the extent our review necessitates ...


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