Court of Appeals of Texas, Third District, Austin
THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-001271, THE HONORABLE DUSTIN M. HOWELL, JUDGE
Justices Goodwin, Baker, and Shannon [*]
an interlocutory appeal from the order of the district court
of Travis County denying a motion to dismiss claims for
failing to file a certificate of merit. See Tex.
Civ. Prac. & Rem. Code § 150.002(f) (authorizing
interlocutory appeal). Appellant is Michael Marquez,
architect; appellee is Russell David Calvo, homeowner. This
Court will affirm the order of the district court denying the
motion to dismiss.
filed a petition in intervention in Marquez's suit
against CBA, a construction company, and Jeffery Baessler,
CBA's principal, pending in Travis County. Upon agreement
of the parties, the district court severed Calvo's claims
into the instant lawsuit. By his petition, Calvo claimed
damages arising from the negotiations, contracting, and
construction of his house at 12812 Hacienda Ridge in Austin.
Calvo sued the builder with which he contracted, CBA,
Baessler, and Marquez, the project's architect. Calvo
alleged that Marquez and Baessler represented themselves as a
"team" in their operations.
six months after Calvo filed suit, Marquez moved to dismiss
Calvo's claims based on Calvo's failure to file a
certificate of merit. Pursuant to section 150.002 of the
Texas Civil Practice and Remedies Code, a plaintiff seeking
"damages arising out of the provision of professional
services by a licensed or registered professional . . . shall
be required to file with the complaint an affidavit of a
third-party" attesting to the merit of the
plaintiff's claims. "The plaintiff's failure to
file the affidavit . . . shall result in dismissal of the
complaint against the defendant." Id. §
appeal, Marquez asserts that the district court erred in not
dismissing the suit because Calvo sought damages arising out
of the provision of professional services by a licensed
architect and did not file a certificate of merit. In defense
of the district court's order, Calvo maintains that he
did not sue for damages arising out of Marquez's
provision of professional services. We agree with Calvo.
Court reviews an order on a motion to dismiss under section
150.002 for abuse of discretion. Jaster v. Comet II
Constr., Inc., 382 S.W.3d 554, 557 (Tex. App.-Austin
2012), aff'd 438 S.W.3d 556 (Tex. 2014). An
abuse of discretion is demonstrated where the trial court
renders a judgment or order that is so arbitrary and
unreasonable as to amount to a clear and prejudicial error of
law. Id., 382 S.W.3d at 557-58.
determine whether a claim falls within the "provision of
professional services," one must examine the relevant
acts alleged by the plaintiff in his petition. See RCS
Enters., LP v. Hilton, No. 02-12-00233-CV, 2013 WL
6795390, at *5 (Tex. App.-Fort Worth Dec. 19, 2013, no pet.)
(mem. op.). Calvo sued CBA, Baessler, and Marquez for damages
asserting claims against them, as a team, for negligence,
negligent misrepresentation, common law fraud, fraud in a
real-estate transaction, breach of contract, breach of
warranty, trust-fund violations, and violations of the
Deceptive Trade Practices Act.
petition, Calvo listed twelve "material
representations" made by the "team," two of
which did involve Marquez's status as an architect. But
nowhere in the petition did Calvo seek damages arising out of
Marquez's provision of architectural services. Rather, as
we understand, the claimed factual basis underlying
Calvo's theories of recovery were that CBA, Baessler, and
Marquez: (1) diverted funds ($34, 500) from the Calvo Project
to other unrelated CBA and Marquez jobs; (2) habitually
overcharged Calvo for work and materials; (3) provided false
information to Calvo concerning the Calvo project; (4)
allowed construction delays; and (5) did not complete
construction of the house.
Calvo's theories of recovery are based on Marquez's
status as an architect or on any architectural services
rendered. It is true that Calvo's petition identified
Marquez as the architect in the Calvo Project. Calvo,
however, did not contract with Marquez to provide
architectural services. Rather, Calvo's petition
represented Marquez as being a member of the construction
team Calvo engaged when he contracted with CBA to build his
house. In sum, Calvo's complaint was not about Marquez as
an architect or his architectural plans for the house; rather
it was about the manner in which the "team"
executed those plans; hence Texas Civil Practice and Remedies
Code Chapter 150 is not implicated.
order of the district court denying the motion to dismiss is