Court of Appeals of Texas, Fourth District, San Antonio
the 57th Judicial District Court, Bexar County, Texas Trial
Court No. 2016-CI-10649 Honorable Cathleen M. Stryker, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C.
Martinez, Justice, Beth Watkins, Justice
BRYAN MARION, CHIEF JUSTICE
Studio E Architecture and Interiors, Inc. ("Studio
E") files this accelerated appeal from the trial
court's order denying its motion to dismiss pursuant to
Texas Civil Practice and Remedies Code section 150.002.
Because we conclude dismissal is required, we reverse the
trial court's order and remand this cause to the trial
court for a determination of whether dismissal should be with
or without prejudice to refiling.
2012, appellee Emily Lehmberg ("Lehmberg") hired
Projekt Construction, Inc. ("Projekt") to perform
construction on residential real property located in San
Antonio. Lehmberg alleges Joaquin and Aimee Escamilla
("the Escamillas") initially represented that
Projekt was a partnership between themselves and another
individual. Projekt shared office space with Studio E-a
separate company also owned by the Escamillas. Lehmberg
contends Projekt's construction permit for the property
was revoked, and the Escamillas subsequently began
representing that the construction project belonged to Studio
E. According to Lehmberg's pleading, Studio E was
"the de facto General Contractor at the Property"
and ultimately "conducted construction management and
oversaw the project at the Property."
affidavit submitted in the trial court, Aimee Escamilla
contends: "To the extent that Studio E. provided any
services[, ] they related to construction administration,
which is considered a function of the practice of
architecture in Texas." There is no dispute that Aimee
Escamilla is a registered interior designer and Joaquin
Escamilla is an architect licensed by the State of Texas.
According to the Escamillas, "Studio E. is engaged in
the practice of architecture in Texas."
2016, Lehmberg sued Studio E, the Escamillas, and others,
alleging the Escamillas, as representatives of Studio E,
"manipulated, forged, and double paid on multiple
invoices which greatly increased the cost of
construction." Against Studio E specifically, Lehmberg
asserted claims for violations of the Texas Deceptive Trade
Practices Act (DTPA), common law fraud, money had and
received, and breach of fiduciary duty. Lehmberg claimed
Studio E and the other defendants "committed fraud by
making material misrepresentations regarding pricing and
invoicing," "purposefully manipulated documents to
hide their wrongful payments to contractors, double payments
to contractors, and payments to themselves," and
"misappropriated and misapplied proceeds from
[Lehmberg's] construction trust fund." In her second
amended petition, Lehmberg expressly denied asserting any
claims against Studio E "arising from its provision[ ]
of Professional Services, as that term is used in § 150
of the Tex. Civ. Prac. & Rem. Code." Lehmberg
pleaded: "The claims brought against Studio E stem not
from the 'Practice of Architecture' as defined by the
Texas Occupations Code. Studio E was not the architect on the
Project at issue, nor did it perform architectural practices,
nor does [Lehmberg] complain of any architectural practices
in this claim against Studio E."
E filed its original answer in August 2016. In November 2018,
Studio E filed a motion to dismiss with prejudice all claims
asserted against it on the basis that Lehmberg did not attach
to her pleading a certificate of merit required by Texas
Civil Practice and Remedies Code section 150.002. The trial
court denied the motion, and Studio E brings this accelerated
issues, Studio E argues the trial court erred by denying its
motion to dismiss because: (1) Lehmberg was required to
attach a certificate of merit to her original petition, and
(2) Studio E did not waive its right to seek dismissal.
Standard of review
Civil Practice and Remedies Code section 150.002 requires
that "[i]n any action . . . for damages arising out of
the provision of professional services by a licensed or
registered professional, the plaintiff shall be required to
file with the complaint an affidavit of a third-party
licensed architect . . . ." Tex. Civ. Prac. & Rem.
Code Ann. § 150.002(a). A "licensed or registered
professional" includes a licensed architect or "any
firm in which such licensed or registered [architect]
practices," including a corporation. Id. §
150.001(1-a). A plaintiff's failure to file the required
affidavit, known as a certificate of merit, "shall
result" in dismissal of the plaintiff's claims
against the defendant. Id. § 150.002(e). The
dismissal may be with or without prejudice. Id.
review the trial court's denial of a section 150.002
motion to dismiss for abuse of discretion. Bruington
Eng'g Ltd. v. Pedernal Energy L.L.C., 403 S.W.3d
523, 526 (Tex. App.- San Antonio 2013, no pet.). To the
extent we are required to interpret statutory language, we do
so de ...