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Hidalgo County Clerk
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CAUSE N0. CL-20-2384-H
ERIC GARZA and BLACKBIRD
U7!!!»
IN THE COUNTY COURT
LEASING, INC.
Plaintiffs,
“73‘4”
v. AT LAW NO. 8
“75‘4”
FRANK P. KEY, individually and d/b/a “73‘1”
FRANK P. KEY & ASSOCIATES, and
VICTOR PALACIOS
U7!!!»
Defendants. HIDALGO COUNTY, TEXAS
FRANK P. KEY INDIVIDUALLY AND D/B/A FRANK P. KEY & ASSOCIATES’
BRIEF IN SUPPORT OF ITS MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Frank P. Key, individually, and d/b/a Frank P. Key & Associates
(collectively “Key & Associates"), a Defendant in the above-styled and -numbered cause, and,
pursuant to this Court’s request for issue-specific briefing, files this Brief in Support of its
Motion to Dismiss. In support thereof, Key & Associates would respectfully show this Court
the following:
I. Issue Presented
1. Key & Associates moved for dismissal of Plaintiff’s claims against it for
Plaintiff's failure to file a certificate-of-merit affidavit as required by Texas Civil Practice and
Remedies Code section 150.002. At the December 14, 2020 hearing of Key & Associates’
Motion to Dismiss, this Court requested the submission of briefing 0n the following issue:
whether the certificate of merit statute applies t0 breach 0f contract causes 0f action.
II. Statement of the Case
2. This suit for damages arises out of the architectural design 0f an office and
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warehouse complex in Hidalgo County, Texas (the “Project”). Plaintiff alleges that Key &
Associates performed its architectural design work unsatisfactorily and in breach of the
parties’ written contract.1
3. The written proposal provided by Key & Associates included a tentative
construction budget of $1.15 million. After coordinating with Plaintiff to develop a design 0f
the Project to Plaintiff’s liking, Key & Associates solicited bids from third-party general
contractors. Per Plaintiff’s live pleading, two general contractors submitted bids well in
excess of the tentative construction budget? These bids form the sole basis for Plaintiff’s
asserted breach 0f contract cause of action.
4. Following months of nonpayment for its architectural design services, on lune
19, 2019, Key & Associates filed an Affidavit Claiming a Lien with the County of Hidalgo, State
of Texas against the property on which the Project was designed.
5. In Texas, pleadings stating Claims for damages against registered architects
arising out of the provision of professional services must be filed with an accompanying
certificate-of—merit affidavit prepared by a similarly-licensed professional stating the
wrongful action, error, 0r omission which forms the basis 0f the Claimant’s action. See Tex.
CiV. Prac. & Rem. Code § 150.002.
6. On Iune 26, 2020, Plaintiff brought suit against Key & Associates for breach of
contract and wrongful lien.3 Plaintiff’s Original Petition, still its live pleading, does not attach
a certificate-of—merit affidavit. The certificate of merit statute4 requires dismissal when a
1
See Plaintiff’s Original Petition, filed lune 26, 2020, a copy of which is on file with the Court, at 111T 10, 12—16.
2
See id. at 11 13.
3 12—18.
See id. at 111T
4 See Tex. CiV. Prac. & Rem. Code §§ 150.001 et seq.
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claimant fails to file a certificate-of-merit affidavit in accordance with the statutory
requirement. That dismissal may be with prejudice. See id. at (e).
III. Arguments and Authorities
A. The plain language of the certificate of merit statute compels application
to breach of contract causes of action
7. The operative language of the certificate of merit statute reads as follows:
In any action or arbitration proceeding for damages arising out
of the provision of professional services by a licensed or
registered professional, a claimant shall be required to file with
the complaint an affidavit 0f a third-party licensed architect,
licensed professional engineer, registered landscape architect,
or registered professional land survey0r[.] 5
8. By its clear language, the statute requires an affidavit for any action against a
licensed or registered professional. The only limiting phrase is that such action must “aris[e]
out of" that professional’s professional services.
9. This is in stark contrast to the position taken by Plaintiff that the statute only
applies to Claims of professional negligence. T0 wit, Plaintiff's breach 0f contract claim
against Key & Associates "arise[es] out of" Key & Associates’ provision of professional
architectural design services.
10. After all, Plaintiff complains that Key & Associates either erroneously provided
a tentative construction budget 0r else improperly solicited construction bids from general
contractors. Either of those actions is squarely within the ambit of the Texas Legislature’s
5
Tex. CiV. Prac. & Rem. Code § 150.002(a).
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definition of the “practice of architecture". See Tex. Occ. Code § 1051.001(7). In particular,
the practice of architecture includes, without limitation: “programming for construction
projects, including identification of economic, legal, and natural constraints and
determination of the scope and spatial relationship of function elements"; and
“recommending and overseeing appropriate construction project delivery systems". Id. at
(D) and (E).
B. The certificate-of-merit requirement applies to breach of contract
causes of action
11. Plaintiff’s position that the certificate-of—merit requirement is limited to
negligence causes of action is based on a prior, and superseded, formulation 0f the certificate
of merit statute.
12. The certificate-of-merit statute was modified by the Texas Legislature in
2009.6 Prior thereto, the statute required conforming affidavits to “set forth specifically at
least one negligent act, error, or omission" supporting the claimant’s cause(s) of action.7 As
a result, when the pre-2009 version of the statute was in effect at the time that a claim
accrued, the statute would only require a conforming affidavit in negligence actions. See]]W
Development, LLCv. Strand Sys. Eng’g, Inc., 378 S.W.3d 571, 575 (Tex. App.—Dallas 2012, pet.
denied) (holding certificate-of-merit affidavit not required in non-negligence action against
licensed professional engineer).
13. However, this holding was superseded by the 2009 revision t0 the statute as
explicitly set forth by the Fifth Court 0f Appeals three years later. See jennings, Hackler &
Partners, Inc. v. N. Texas Mun. Water Dist, 471 S.W.3d 577, 581, fn. 1 (Tex. App.—Dallas 2015,
6
See Act 0f September 1, 2009, 8lst Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1992 (amended 2019).
7
Id. at (a).
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pet. denied). In relevant part, the Fifth Court held that the certificate-of—merit statute applied
t0 all causes 0f action so long as they arose from the provision 0f professional services, in
View of the statute’s 2009 revision:
In]]W Development, we held that a prior version of§
150.002 applied only to negligence claims because that version
of the statute required the certificate to “set forth specifically at
least one negligent act, error, or omission." 378 S.W.3d at 578—
79. The current version 0f § 150.002 requires the certificate to
set forth “specifically for each theory of recovery the
negligence, if any, or other action, error, or omission of the
licensed or registered professional in providing the professional
service.” CIV. PRAC. § 150.002(b). Thus, the certificate of merit
requirement now applies to all theories of recovery, and our
holding in]]W Development has been legislatively
abrogated. See Dunham Eng 'g, Inc. v. Sherwin—Williams C0,, 404
S.W.3d 785, 791—92 (Tex. App.—Houston [14th Dist] 2013, n0
pet.) (collecting cases regarding the expanded scope of
amended § 150.002(b)). For a discussion 0f § 150.002'5 history,
see S &P Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390,
394—95 (Tex. App.—Austin 2011, no pet.) (en banc).
14. This holding and instructive dicta is bolstered by holdings from other court of
appeals in Texas. See Geotel Eng’g, Inc. v. Hyde, 2010 WL 5419018 at *2 (Tex. App.—Wac0
2010, no pet.) (mem. op.) (finding certificate of merit was required even though plaintiff did
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not bring negligence action); Bruington Eng'g, Ltd. v. Pedernal Energy, LLC, 403 S.W.3d 523,
523-30 (Tex. App.—San Antonio 2013, no pet.) (holding absence of a negligence cause of
action does not evade purview 0f section 150.002).
IV. Conclusion
Texas courts have squarely considered and rejected the very argument which Plaintiff
urges in the case. The certificate 0f merit required by Texas Civil Practice and Remedies Code
section 150.002 is equally required in non-negligence actions which arise from the provision
of professional services, just like the action brought against Key & Associates in the suit at
bar. Plaintiff cannot now declare which statutory pleading requirements d0 and d0 not apply
to its causes of action.
WHEREFORE, Defendant Frank P. Key, individually and d/b/a Frank P. Key &
Associates, respectfully requests the Court grant its Motion to Dismiss, thereby dismissing
Plaintiff's action against Key & Associates with prejudice t0 refiling of same action against
Key & Associates. In the alternative, Key & Associates respectfully requests the Court grant
this Motion without prejudice. Finally, Key & Associates respectfully requests that all costs
of court be taxed against Plaintiff, and that Key & Associates be awarded such other and
further relief, at law or in equity, to which this Court deems it justly entitled.
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Hidalgo County Clerk
Accepted by: Alma Navarro
Respectfully submitted,
BENJAMIN, VANA, MARTINEZ & CANo, LLP
By: /S/ Patrick St. Pierre
David P. Benjamin
State Bar No. 02134375
Email: dbenjamin@benlawsa.com
Patrick St. Pierre
State Bar No. 24106461
Email: pstpierre@_benlaw.com
2161 NW Military Highway, Suite 111
San Antonio, Texas 78213
Telephone: (210) 881-0667
Facsimile: (210) 881—0668
COUNSEL FOR DEFENDANT
FRANK P. KEY INDIVIDUALLY AND D/B/A
FRANK P. KEY & ASSOCIATES
04/02/2021 1:34PM
AN
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Hidalgo County Clerk
Accepted by: Alma Navarro
CERTIFICATE OF SERVICE
This is and correct copy of the above and foregoing
to certify that a true, full has, this
18th day of December, 2020, been delivered by e-mail and/or e-service to:
Reynaldo Ortiz
Texas Bar No. 15324275
LAW OFFICE 0F REYNALDO ORTIZ, L.P.
1305 East Nolana Loop, Suite F
McAllen, Texas 78504
Counselfor Plaintifl”
/S/ Patrick St. Pierre
Patrick St. Pierre
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Preview
Electronically Submitted 12/18/2020 4:31 PM Hidalgo County Clerk Accepted by: Alma Navarro CAUSE N0. CL-20-2384-H ERIC GARZA and BLACKBIRD U7!!!» IN THE COUNTY COURT LEASING, INC. Plaintiffs, “73‘4” v. AT LAW NO. 8 “75‘4” FRANK P. KEY, individually and d/b/a “73‘1” FRANK P. KEY & ASSOCIATES, and VICTOR PALACIOS U7!!!» Defendants. HIDALGO COUNTY, TEXAS FRANK P. KEY INDIVIDUALLY AND D/B/A FRANK P. KEY & ASSOCIATES’ BRIEF IN SUPPORT OF ITS MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Frank P. Key, individually, and d/b/a Frank P. Key & Associates (collectively “Key & Associates"), a Defendant in the above-styled and -numbered cause, and, pursuant to this Court’s request for issue-specific briefing, files this Brief in Support of its Motion to Dismiss. In support thereof, Key & Associates would respectfully show this Court the following: I. Issue Presented 1. Key & Associates moved for dismissal of Plaintiff’s claims against it for Plaintiff's failure to file a certificate-of-merit affidavit as required by Texas Civil Practice and Remedies Code section 150.002. At the December 14, 2020 hearing of Key & Associates’ Motion to Dismiss, this Court requested the submission of briefing 0n the following issue: whether the certificate of merit statute applies t0 breach 0f contract causes 0f action. II. Statement of the Case 2. This suit for damages arises out of the architectural design 0f an office and 441-120 Pagell Electronically Submitted 12/18/2020 4:31 PM Hidalgo County Clerk Accepted by: Alma Navarro warehouse complex in Hidalgo County, Texas (the “Project”). Plaintiff alleges that Key & Associates performed its architectural design work unsatisfactorily and in breach of the parties’ written contract.1 3. The written proposal provided by Key & Associates included a tentative construction budget of $1.15 million. After coordinating with Plaintiff to develop a design 0f the Project to Plaintiff’s liking, Key & Associates solicited bids from third-party general contractors. Per Plaintiff’s live pleading, two general contractors submitted bids well in excess of the tentative construction budget? These bids form the sole basis for Plaintiff’s asserted breach 0f contract cause of action. 4. Following months of nonpayment for its architectural design services, on lune 19, 2019, Key & Associates filed an Affidavit Claiming a Lien with the County of Hidalgo, State of Texas against the property on which the Project was designed. 5. In Texas, pleadings stating Claims for damages against registered architects arising out of the provision of professional services must be filed with an accompanying certificate-of—merit affidavit prepared by a similarly-licensed professional stating the wrongful action, error, 0r omission which forms the basis 0f the Claimant’s action. See Tex. CiV. Prac. & Rem. Code § 150.002. 6. On Iune 26, 2020, Plaintiff brought suit against Key & Associates for breach of contract and wrongful lien.3 Plaintiff’s Original Petition, still its live pleading, does not attach a certificate-of—merit affidavit. The certificate of merit statute4 requires dismissal when a 1 See Plaintiff’s Original Petition, filed lune 26, 2020, a copy of which is on file with the Court, at 111T 10, 12—16. 2 See id. at 11 13. 3 12—18. See id. at 111T 4 See Tex. CiV. Prac. & Rem. Code §§ 150.001 et seq. 441-120 Page | 2 Electronically Submitted 12/18/2020 4:31 PM Hidalgo County Clerk Accepted by: Alma Navarro claimant fails to file a certificate-of-merit affidavit in accordance with the statutory requirement. That dismissal may be with prejudice. See id. at (e). III. Arguments and Authorities A. The plain language of the certificate of merit statute compels application to breach of contract causes of action 7. The operative language of the certificate of merit statute reads as follows: In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, a claimant shall be required to file with the complaint an affidavit 0f a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land survey0r[.] 5 8. By its clear language, the statute requires an affidavit for any action against a licensed or registered professional. The only limiting phrase is that such action must “aris[e] out of" that professional’s professional services. 9. This is in stark contrast to the position taken by Plaintiff that the statute only applies to Claims of professional negligence. T0 wit, Plaintiff's breach 0f contract claim against Key & Associates "arise[es] out of" Key & Associates’ provision of professional architectural design services. 10. After all, Plaintiff complains that Key & Associates either erroneously provided a tentative construction budget 0r else improperly solicited construction bids from general contractors. Either of those actions is squarely within the ambit of the Texas Legislature’s 5 Tex. CiV. Prac. & Rem. Code § 150.002(a). 441-120 Page | 3 Electronically Submitted 12/18/2020 4:31 PM Hidalgo County Clerk Accepted by: Alma Navarro definition of the “practice of architecture". See Tex. Occ. Code § 1051.001(7). In particular, the practice of architecture includes, without limitation: “programming for construction projects, including identification of economic, legal, and natural constraints and determination of the scope and spatial relationship of function elements"; and “recommending and overseeing appropriate construction project delivery systems". Id. at (D) and (E). B. The certificate-of-merit requirement applies to breach of contract causes of action 11. Plaintiff’s position that the certificate-of—merit requirement is limited to negligence causes of action is based on a prior, and superseded, formulation 0f the certificate of merit statute. 12. The certificate-of-merit statute was modified by the Texas Legislature in 2009.6 Prior thereto, the statute required conforming affidavits to “set forth specifically at least one negligent act, error, or omission" supporting the claimant’s cause(s) of action.7 As a result, when the pre-2009 version of the statute was in effect at the time that a claim accrued, the statute would only require a conforming affidavit in negligence actions. See]]W Development, LLCv. Strand Sys. Eng’g, Inc., 378 S.W.3d 571, 575 (Tex. App.—Dallas 2012, pet. denied) (holding certificate-of-merit affidavit not required in non-negligence action against licensed professional engineer). 13. However, this holding was superseded by the 2009 revision t0 the statute as explicitly set forth by the Fifth Court 0f Appeals three years later. See jennings, Hackler & Partners, Inc. v. N. Texas Mun. Water Dist, 471 S.W.3d 577, 581, fn. 1 (Tex. App.—Dallas 2015, 6 See Act 0f September 1, 2009, 8lst Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1992 (amended 2019). 7 Id. at (a). 441-120 Page | 4 Electronically Submitted 12/18/2020 4:31 PM Hidalgo County Clerk Accepted by: Alma Navarro pet. denied). In relevant part, the Fifth Court held that the certificate-of—merit statute applied t0 all causes 0f action so long as they arose from the provision 0f professional services, in View of the statute’s 2009 revision: In]]W Development, we held that a prior version of§ 150.002 applied only to negligence claims because that version of the statute required the certificate to “set forth specifically at least one negligent act, error, or omission." 378 S.W.3d at 578— 79. The current version 0f § 150.002 requires the certificate to set forth “specifically for each theory of recovery the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service.” CIV. PRAC. § 150.002(b). Thus, the certificate of merit requirement now applies to all theories of recovery, and our holding in]]W Development has been legislatively abrogated. See Dunham Eng 'g, Inc. v. Sherwin—Williams C0,, 404 S.W.3d 785, 791—92 (Tex. App.—Houston [14th Dist] 2013, n0 pet.) (collecting cases regarding the expanded scope of amended § 150.002(b)). For a discussion 0f § 150.002'5 history, see S &P Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390, 394—95 (Tex. App.—Austin 2011, no pet.) (en banc). 14. This holding and instructive dicta is bolstered by holdings from other court of appeals in Texas. See Geotel Eng’g, Inc. v. Hyde, 2010 WL 5419018 at *2 (Tex. App.—Wac0 2010, no pet.) (mem. op.) (finding certificate of merit was required even though plaintiff did 441-120 Page | 5 Electronically Submitted 12/18/2020 4:31 PM Hidalgo County Clerk Accepted by: Alma Navarro not bring negligence action); Bruington Eng'g, Ltd. v. Pedernal Energy, LLC, 403 S.W.3d 523, 523-30 (Tex. App.—San Antonio 2013, no pet.) (holding absence of a negligence cause of action does not evade purview 0f section 150.002). IV. Conclusion Texas courts have squarely considered and rejected the very argument which Plaintiff urges in the case. The certificate 0f merit required by Texas Civil Practice and Remedies Code section 150.002 is equally required in non-negligence actions which arise from the provision of professional services, just like the action brought against Key & Associates in the suit at bar. Plaintiff cannot now declare which statutory pleading requirements d0 and d0 not apply to its causes of action. WHEREFORE, Defendant Frank P. Key, individually and d/b/a Frank P. Key & Associates, respectfully requests the Court grant its Motion to Dismiss, thereby dismissing Plaintiff's action against Key & Associates with prejudice t0 refiling of same action against Key & Associates. In the alternative, Key & Associates respectfully requests the Court grant this Motion without prejudice. Finally, Key & Associates respectfully requests that all costs of court be taxed against Plaintiff, and that Key & Associates be awarded such other and further relief, at law or in equity, to which this Court deems it justly entitled. 441-120 Page | 6 Electronically Submitted 12/18/2020 4:31 PM Hidalgo County Clerk Accepted by: Alma Navarro Respectfully submitted, BENJAMIN, VANA, MARTINEZ & CANo, LLP By: /S/ Patrick St. Pierre David P. Benjamin State Bar No. 02134375 Email: dbenjamin@benlawsa.com Patrick St. Pierre State Bar No. 24106461 Email: pstpierre@_benlaw.com 2161 NW Military Highway, Suite 111 San Antonio, Texas 78213 Telephone: (210) 881-0667 Facsimile: (210) 881—0668 COUNSEL FOR DEFENDANT FRANK P. KEY INDIVIDUALLY AND D/B/A FRANK P. KEY & ASSOCIATES 04/02/2021 1:34PM AN 441-120 Page | 7 Electronically Submitted 12/18/2020 4:31 PM Hidalgo County Clerk Accepted by: Alma Navarro CERTIFICATE OF SERVICE This is and correct copy of the above and foregoing to certify that a true, full has, this 18th day of December, 2020, been delivered by e-mail and/or e-service to: Reynaldo Ortiz Texas Bar No. 15324275 LAW OFFICE 0F REYNALDO ORTIZ, L.P. 1305 East Nolana Loop, Suite F McAllen, Texas 78504 Counselfor Plaintifl” /S/ Patrick St. Pierre Patrick St. Pierre 441-120 Page | 8