In Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419 (Tex. App.--San Antonio Oct. 3, 2007, no pet.), the issue was whether "a trial court must dismiss all claims against the defendant because the plaintiff failed to file an expert affidavit under section 150.002."
In three consolidated lawsuits, the plaintiffs alleged "tortious interference with plaintiff's contracts, conspiracy, breach of contract, wrongful termination, breach of fiduciary duty, breach of loyalty, and breach of good faith and fair dealing." Id.
In one of the three, the plaintiff also alleged negligence in the "rendering of development costs and estimates." Id.
Faced with a motion to dismiss the plaintiff's entire suit for failure to file an affidavit, the trial court dismissed the negligence claim but allowed the remainder of the claims to proceed without an affidavit. Id.
In affirming the trial court and allowing the non-negligence causes of action to proceed, our sister court relied on the definition from the occupations code of the practice of "professional engineers." Id.
The occupations code defines the practice of engineering as "the performance of . . . any public or private service or creative work, the adequate performance of which requires engineering education, training, and experience in applying special knowledge or judgment of the mathematical, physical, or engineering sciences to that service or creative work." Tex. Occ. Code Ann. § 1001.003(b) (West Supp. 2008).
Included in the practice of engineering is "any other professional service necessary for the planning, progress, or completion of an engineering service." Id. § 1001.003(c)(12) (West Supp. 2008).
The court reasoned:
"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."
The court also relied on the acknowledgment in section 150.002 that an affidavit was not required for all suits involving licensed or registered professionals because subsection (a) is expressly limited to actions "arising out of the provision of professional services" and subsection (g) excludes suits for the payment of fees. See id.; Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a), (g).
The Court concluded that "non-negligence causes of action do not require a certificate of merit."
There, the plaintiffs sued an architect for, inter alia, negligence and breach of contract.
The architect moved to dismiss the entire suit because the plaintiff failed to file a certificate of merit. See id.
The trial court dismissed the negligence claim, but allowed the remainder of the claims to proceed, and the architect appealed. Id.
On appeal, the court noted that Tex. Civ. Prac. & Rem. Code Ann. Section 150.002 was amended in 2005 to "expand its application" from actions "alleging professional negligence" to "any action or arbitration proceeding arising out of the provision of professional services."
The court reasoned, however, that a certificate of merit was not required solely because a complaint had a causal connection or relation to the rendition of professional services. Id.
Rather, the court looked to the definition of the practice of professional engineering in the Texas Occupations Code and considered it against the theories alleged in the petition.