Consol. Reinforcement, L.P. v. Carothers Executive Homes, Ltd

In Consol. Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887, 891 (Tex. App.--Austin 2008, no pet.), Carothers Executive Homes filed claims against Consolidated, an engineering firm, for breach of contract, deceptive trade practices, and breach of warranty regarding Consolidated's "design and construction of the buildings' foundations." 271 S.W.3d at 890. The Austin Court of Appeals reasoned that: "Plaintiff's non-negligent causes of action do not implicate a professional engineer's education, training, and experience in applying special knowledge or judgment. An affidavit of a licensed or registered professional setting forth the negligent act, error, or omission and factual basis for each appears irrelevant to claims that do not arise from the provision of professional services. We believe the non-negligence causes of action did not require a certificate of merit." Id. at 894. The Court concluded that "non-negligence" causes of action do not require a certificate of merit. There, the plaintiff homebuilder, Carothers, sued an engineering firm, Consolidated, alleging, inter alia, negligence, breach of contract, and breach of warranty "arising out of Consolidated's design and construction of certain duplex foundations." Id. at 889-90. Consolidated moved to dismiss the suit, contending that Carothers had failed to timely file a certificate of merit, as required by Section 150.002(a). Id. at 890. Carothers responded by filing an amended petition, in which it dropped its negligence claim and proceeded on its other claims. Id. Carothers continued to assert through its non-negligence claims, however, that it had engaged Consolidated to design and construct, and to supervise the construction of, the duplex foundations and that those foundations "experienced numerous problems, including significant cracking." Id. The trial court denied the motion to dismiss. Id. On appeal, Consolidated contended that the trial court erred in that Carothers was required to file a certificate of merit, based on "the undisputed fact that it provided engineering and design services related to the duplexes and that the remaining claims implicated those engineering and design services." Id. at 890-91. Consolidated directed the court to the 2005 amendment to Section 150.002(a) and argued that it showed the legislature's intent to broaden the scope of the statute's application beyond negligence claims to those claims generally arising from services such as those provided by Consolidated. Id. at 892. The court disagreed on the basis that Consolidated's construction was inconsistent with other language in Section 150.002(a) stating that the "affidavit shall set forth specifically at least one negligent act, error, or omission." Id. The court, applying Gomez and without apparently looking into the substance of the claims, concluded that the "non-negligence" causes of action did not require a certificate of merit. Id. at 893-94. Notably, however, the court looked to the petition and considered the substance of Carothers's claim of negligent misrepresentation. Id. at 894-95. Carothers alleged that Consolidated's employees had failed to exercise reasonable care or competence concerning the information they gave to Carothers concerning the design and construction of the duplex foundations. Id. at 894 n.7. The court concluded that it was "not clear, however, that Carothers's negligent misrepresentation claim arose out of the provision of professional services." Id. at 895.