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Studio E Architecture and Interiors, Inc. v. Lehmberg

Court of Appeals of Texas, Fourth District, San Antonio

April 17, 2019

STUDIO E ARCHITECTURE AND INTERIORS, INC., Appellant
v.
Emily LEHMBERG, Appellee

          From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-10649 Honorable Cathleen M. Stryker, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice, Beth Watkins, Justice

          MEMORANDUM OPINION

          SANDEE BRYAN MARION, CHIEF JUSTICE

         Appellant 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.

         Background

         In 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 Lehmberg contends Projekt's construction permit for the property was revoked, and the Escamillas subsequently began representing that the construction project belonged to Studio E. According to Lehmberg's pleading, Studio E was "the de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."

         In an 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."

         In June 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."

         Studio 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 appeal.

         Discussion

         In two 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.

         A. Standard of review

         Texas 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.

         We 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 ...


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