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CAUSE NO. 2017-17619
JUSTIN JORDAN IN THE DISTRICT COURT
HARRIS COUNTY, TEXAS
VOPAK TERMINAL DEER PARK INC §
AND VOPAK NORTH AMERICA INC. §
(d/b/a VOPAK AMERICAS) JUDICIAL DISTRICT
DEFENDANT LUNA ENGINEERING AND DESIGN, INC.’S MOTION TO DISMISS
PLAINTIFF’SCLAIMS UNDER CHAPTER 150 OF THE
TEXAS CIVIL PRACTICE AND REMEDIES CODE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Luna Engineering and Design, Inc. (“Luna Engineering”), one of the
efendants in the above entitled and numbered cause, and files this Motion to Dismiss Plaintiff’s
Claims under Chapter 150 of the Texas Civil Practice and Remedies Code, and would
respectfully show as follows:
SUMMARY OF THE ARGUMENT
Plaintiff’s claims against Luna Engineering implicate Section 150.002 of the Texas Civil
Practice and Remedies Code (“Certificate of Merit statute”), which imposes a mandatory duty to
contemporaneously file a certificate of merit with a plaintiff’s original complaint and requires
dismissal in the event this requirement is not met. The sanction of dismissal serves the purpose
of deterring meritless claims and bringing them quickly to an end.
Here, Plaintiff did not produce the required certificate of merit with his Second Amended
Original Complaint, filed on March 6, 2018, through which Luna Engineering was first added
CTL/Thompson Texas, LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex. 2013) (“Section
150.002(e) dismissal is a sanction ... to deter meritless claims and bring them quickly to an end.”).
See Plaintiff’s Second Amended Original Complaint.
as a defendant, or his Third Amended Original Petition, filed on August 23, 2018. In addition to
negligence claims, Plaintiff asserted inapplicable causes of action against Luna Engineering
under theories of strict product liability and breach of warranty. Plaintiff also asserted each of his
claims against Defendants collectively, which directly conflicts with the purpose of Section
to show that valid claims exist against each of the professional defendant firms
Considering Plaintiff’s failure to file a certificate of merit with his first filed petition against
Luna Engineering the disconnect between the facts and Plaintiff’s causes of action gainst Luna
Engineering and Plaintiff’s failure to identify a single act committed by any efendant
individually, dismissal is required and appropriate under Section 150.002.
FACTUAL BACKGROUND
This lawsuit arises out of an incident that occurred on November 17, 2016, when Plaintiff
Justin Jordan was allegedly exposed to the chemical, DMDS, while performing monitoring
during a tank transfer “because the DMDS scrubber on the Vopak Defendant’ property, part of
Vopak’s transfer system, failed to work properly.” In particular, Plaintiff alleges that
“Defendant Luna Engineering and Design, Inc., through its agent Ronald Moon and others,
substantially participated in designing Vopak’s transfer system, including the DMDS scrubber,
and did so negligently.” Plaintiff asserts causes of action against all defendants under theories of
negligence and gross negligence, strict product liability claims against Defendants Arkema,
Vapor Technologies, Evoqua, and Luna Engineering collectively, and breach of warranty claims
against Defendants Arkema, Vapor Technologies, Evoqua, and Luna Engineering collectively
See Plaintiff’s Third Amended Original Petition.
. at para 4.01.
. at para. 4.07.
See id. at para. 5.00(A).
See id. at para. 5.00(B).
See id. at para. 5.00(C).
With regard to Plaintiff’s strict product liability and breach of warranty claims, Plaintiff
failed to allege that any of the defendants placed a product in the “stream of commerce,” that
Plaintiff entered into a contract with any of the defendants, that the scrubber qualifies as a
“good” under the Texas Business and Commerce Code, 10 or that any of the defendants qualified
“merchant seller” of the system. 11
LEGAL ARGUMENT AND AUTHORITIES
Chapter 150 requires dismissal because Plaintiff’sclaims aro se out of the provision
of professional services and Plaintiffs failed to file the requiredcertificate of merit
Section 150.002 of the Texas Civil Practice and Remedies Code provides that in any
action “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, licensed professional engineer, registered landscape architect, or registered
professional land surveyor . . ..” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (emphasis
added)).
The purpose of the certificate of merit is to provide a basis for the trial court to conclude
that the plaintiff’s claims are not frivolous. CBM Engineers, Inc. v. Tellepsen Builders, L.P. 403
S.W.3d 339, 345 (Tex. App.Houston [1 Dist.] , pet. denied citing Criterium Farrell
Engineers v. Owens, 248 S.W.3d 395, 398 (Tex. App.Beaumont 2008, no pet.) ). The
Tex. Civ. Prac. & Rem. Code Ann. § 82.001(3) (4) (emphasis added) (“’Seller’ means a person who is engaged in
the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or
consumption a product or any component part thereof . .. .’Manufacturer’ means a person who is a designer,
formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any
component part thereof and who places the product or any component part thereof in the stream of commerce.”).
Tex. Bus. & Com. Code Ann. § 2.105 (a) (“‘Goods’ means all things (including specially manufactured goods)
which are movable at the time of identification to the contract for sale other than the money in which the price is to
be paid, investment securities (Chapter 8) and things in action.”).
Tex. Bus. & Com. Code Ann. § 2.104(a) (“’Merchant” means a person who deals in goods of the kind or
otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods
involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or
broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”).
certificate of merit must provide a factual basis for the allegations of professional errors or
omissions. Id. (citing ME Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 506 (Tex.
Austin 2012, pet. denied)). Section 150.002(e) expressly provides that “[t]he plaintiff’s failure to
file the affidavit in accordance with this section shall result in dismissal of the complaint against
the defendant. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e) (emphasis added)
Standard of Review
An order granting or denying a motion to dismiss for failure to file a certificate of merit is
immediately appealable and is reviewed for abuse of discretion. See CBM Engineers, Inc., 403
S.W.3d at 342 citing Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f); Carter & Burgess v.
Sardari, 355 S.W.3d 804, 808 (Tex. App. ouston [1st Dist.] 2011, no pet.)). A trial court has
“no ‘discretion’ in determining what the law is or applying the law to the facts.” Robert Navarro
& Associates Eng’g, Inc. v. Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475, 478 (Tex.
App.El Paso 2012, no pet.) ( citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
Accordingly, a trial court abuses its discretion if it misinterprets or misapplies the law. citing
Perry Homes v. Cull, 258 S.W.3d 580, 598 n. 102 (Tex. 2008); Walker 827 S.W.2d at 840). To
the extent a court of appeals is required to interpret a statute, that aspect of its review is
performed de See CBM Engineers, Inc., 403 S.W.3d at 342 citing Carter & Burgess,
355 S.W.3d at 809).
Plaintiff’s claims “arose out of the provision of professional services;”
therefore Section 150.002 applies to all of Plaintiff’sclaims
In determining the nature of a party’s claims with respect to Chapter 150, Texas courts
look to the allegations in the party’s pleadings. See TIC N. Cent. Dallas 3, L.L.C. v.
Envirobusiness, Inc., 463 S.W.3d 71, 79 (Tex. App.Dallas 2014, pet. denied) ( citing Carter &
Burgess 355 S.W.3d TDIndustries, Inc. v. Rivera, 339 S.W.3d 749, 753 (Tex. App.
ouston [1st Dist.] 2011, no pet.)). Nevertheless, courts are not bound by the labels the plaintiff
uses in formulating its pleadings. (emphasis added) citing Carter & Burgess, 355 S.W.3d at
. Instead, Texas courts “examine the ‘substance’ of the plaintiff’s pleadings to determine
whether the ‘cause of action’ arises out of the provision of professional services.” Id. 12
In 2009, the Texas Legislature amended section 150.002(a) to directly address holdings
of intermediate appellate courts which limited the application of the statute to negligence claims,
and expressly provided that the requirement for a certificate of merit applies “[i]n any acti ...
for damages arising out of the provision of professional [engineering] services . . .” See Pro Plus,
Inc. v. Crosstex Energy Services, L.P., 388 S.W.3d 689, 70708 (Tex. App. 2012), aff’ 430
S.W.3d 384 (Tex. 2014) (citing Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a); S & P
Consulting Eng’rs v. Baker, 334 S.W.3d 390, 399400 (Tex. App. ustin 2011, no pet.)
(discussing bill analysis of section 150.002 showing legislature’ rustration with appellate
court’s continued limitation of statute to negligence actions) see also Melden & Hunt, Inc. v. E.
Rio Hondo Water Supply Corp., 520 S.W.3d 887, 894 (Tex. 2017) (“The 2009 amendment thus
clarified that the statute was not to be limited to professional negligence claims.”)
To determine whether a plaintiff’s causes of action against an engineering firm were “for
damages arising out of the provision of professional services,” Texas courts “look to the
definition of ‘practice of engineering’ in the Texas Occupations Code.” CBM Engineers, Inc.
403 S.W.3d at 343 (citingTDIndustries, Inc.,339 S.W.3d at 754). Under that definition, the
“practice of engineering” includes:
In Pro Plus, Inc. v. Crosstex Energy Services, L.P., the plaintiff asserted claims including general and specific
negligence, negligent misrepresentation, breach of implied and express warranty, and breach of contract. Pro Plus,
Inc., 388 S.W.3d at 692. There, the Texas First Court of Appeals held that the plaintiffwas required to
contemporaneously file with its original petition a certificate of merit addressing each of its claims, even its breach
of contract claim. See id. at 708. Here, Plaintiff cannot avoid the certificate of merit requirement simply by alleging
inapplicable causes of action under strict product liability and
contractual breach of warranty theories; it is well
settled that Section 150.002 applies to all of Plaintiff’s claims.
(1) consultation, investigation, evaluation, analysis, planning, engineering for
program management, providing an expert engineering opinion or
testimony, engineering for testing or evaluating materials for construction or
other engineering use, and mapping;
(2) design, conceptual design, or conceptual design coordination of
engineering works or systems;
(3) development or optimization of plans and specifications for engineering
works or systems;
(4) planning the use or alteration of land or water or the design or analysis of
works or systems for the use or alteration of land or water;
(5) responsible charge of engineering teaching or the teaching of engineering;
(6) performing an engineering survey or study;
(7) engineering for construction, alteration, or repair of real property;
(8) engineering for preparation of an operating or maintenance manual;
(9) engineering for review of the construction or installation of engineered works
to monitor compliance with drawings or specifications;
(10) a service, design, analysis, or other work performed for a public or
private entity in connection with a utility, structure, building, machine,
equipment, process, system, work, project, or industrial or consumer product
or equipment of a mechanical, electrical, electronic, chemical, hydraulic,
pneumatic, geotechnical, or thermal nature;
(11) providing an engineering opinion or analysis related to a certificate of merit
under Chapter 150, Civil Practice and Remedies Code; or
(12) any other professional service necessary for the planning, progress, or
completion of an engineering service.
Tex. Occ. Code Ann. § 1001.003 (emphasisadded).
In this case, Plaintiff’s claims against Luna Engineering undeniably fit within multiple
sections of the Texas Occupations Code’s definition of professional engineering services
(including, but not limited to, those identified above in bold) See TDIndustries, Inc., 378 S.W.3d
at 6 (finding the plaintiff’s claim implicated the defendant’s “engineering education, training,
and experience” because it was premised on the defendant’s “knowledge of the installation and
testing of complex machinery and equipment”). In particular Plaintiff’s claims clearly implicate
the specialized knowledge and judgment of professional engineers with regard to the design and
manufacture of the scrubber at issue. See Plaintiff’s Third Amended Petition, para. 4.07, 5.00(A),
5.00(B), and 5.00(C)
Luna Engineeringis a licensed or registered professionalunder Chapter
Luna Engineering is a “licensed or registered professional as contemplated by Section
150.002(a). 13 The attached affidavit of Ronald Dale Moon, P.E. confirms that Luna Engineering
employed a licensed professional engineer in the State of Texas at all times during its existence.
See Exhibit Affidavit of Ronald Dale Moon, P.E Therefore, Luna Engineering qualifies as “a
licensed or registered professional” under Section 150.002.
D. Section 150.002 does not allow for collective assertions of negligence
Texas courts have held that the statutory language of section does not allow for
collective assertions of negligence against licensed or registered professional , as seen here in
Plaintiff’s Third Amended Original Petition See Robert Navarro & Associates Eng’
S.W.3d Macina, Bose, Copeland & Associates v. Yanez CV, 2017 WL
4837691, at *7 (Tex. App.Dallas Oct. 26 , 2017, pet. filed) Section 150.002(b) requires the
affidavit to “set forth specifically for each theory of recovery for which damages are sought, the
Tex. Civ. Prac. & Rem. Code Ann. § 150.001(a 1) (“’Licensed or registered professional’ means a licensed
architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any
firm in which such licensed or registered professional practices, including but not limited to a corporation,
professional corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship,
joint venture, or any other business entity.”).
negligence, if any, or other action, error, or omission of the licensed or registered professional.”
cina2017 WL 4837691, at *7 citing§ 150.002(b) (emphasis added)
In Robert Navarro & Associates Engineering Inc. v. Flowers Baking Company of El
Paso, the Texas Eighth Court of Appeals considered whether a certificate of merit complied with
section 15.002 where the certificate stated that the alleged negligence was committed by “Robert
Navarro and Associates Engineering, Inc. and/or Bath Engineering Corporation.” Robert
Navarro & Associates Eng’g, 389 S.W.3d at 480 In finding that the certificate did not comply
with section 15.002, the Court held as follows, “It cannot be presumed that anytime two
defendants are accused of similar conduct that valid claims exist against both of themif such
claims indeed exist, the expert must actually say so, and do so in the form of positive averments
made under oath. See id. at 482 see also Macina, 2017 WL 4837691, at *7 (citing Robert
Navarro & Associates Eng’g, 389 S.W.3d at 475 we agree with the statement in Navarro that
he statutory language does not allow for collective assertions of negligence.”
Here, Plaintiff has failed to distinguish between the conduct of Luna Engineering, a
“licensed or registered professional” under the statute, and each of the other defendants in this
case. This is further evidence that dismissal is appropriate and warrantedunder Section 150.002
CONCLUSION
For these reasons, Defendant Luna Engineering and Design, Inc. respectfully requests
that this Court grant its Motion to Dismiss Plaintiff’s claims, with prejudice, pursuant to Chapter
150 of the Texas Civil Practice and Remedies Code. Luna Engineering further prays for such
other and further relief, general or special, to which it may show itself justly entitled.
Respectfully submitted,
SHEEHY, WARE & PAPPAS, P.C.
By: /s/ James L. Ware
James L. Ware
SBN 20861800
Jamie R. Guidry
SBN 24073512
2500 Two Houston Center
909 Fannin Street
Houston, Texas 77010
1000 or 713 1151
1199 Facsimile
jware@sheehyware.com
guidry@sheehyware.com
Attorneys for Defendant
Luna Engineering and Design, Inc.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been
forwarded to all counsel of record, via efiling, pursuant to the Texas Rules of Civil Procedure on
November 6,
Jim Cole
Cole, Easley, Sciba & Williams, PC
302 W. Forrest St.
Victoria, Texas 77901
jcole@colefirmservice.com
James D. Smith
William A. Moss Rodney J. Cappel
Christopher L. Dodson The Smith Law Firm
Bracewell LLP 550 Westcott Street, Suite 250
711 Louisiana, Suite 2300 Houston, Texas 77007
Houston, Texas 77002 (713) 652
Will.moss@bracewell.com (713) 652 3201 fax
Chris.dodson@bracewell.com jim@smithtexaslaw.com
rodney@smithtexaslaw.com
George T. Shipley
Laina R. Miller Roger Nebel
Shipley Snell Montgomery LLP Maron, Marvel, Bradley, Anderson &
713 Main St., Suite 1400 Tardy, LLC
Houston, Texas 77002 2950 North Loop West, Suite 500
gshipley@shipleysnell.com Houston, Texas 77092
lmiller@shipleysnell.com houstonEservice@maronmarvel.com
/s/ James L. Ware
James L. Ware
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CAUSE NO. 2017-17619 JUSTIN JORDAN IN THE DISTRICT COURT HARRIS COUNTY, TEXAS VOPAK TERMINAL DEER PARK INC § AND VOPAK NORTH AMERICA INC. § (d/b/a VOPAK AMERICAS) JUDICIAL DISTRICT DEFENDANT LUNA ENGINEERING AND DESIGN, INC.’S MOTION TO DISMISS PLAINTIFF’SCLAIMS UNDER CHAPTER 150 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Luna Engineering and Design, Inc. (“Luna Engineering”), one of the efendants in the above entitled and numbered cause, and files this Motion to Dismiss Plaintiff’s Claims under Chapter 150 of the Texas Civil Practice and Remedies Code, and would respectfully show as follows: SUMMARY OF THE ARGUMENT Plaintiff’s claims against Luna Engineering implicate Section 150.002 of the Texas Civil Practice and Remedies Code (“Certificate of Merit statute”), which imposes a mandatory duty to contemporaneously file a certificate of merit with a plaintiff’s original complaint and requires dismissal in the event this requirement is not met. The sanction of dismissal serves the purpose of deterring meritless claims and bringing them quickly to an end. Here, Plaintiff did not produce the required certificate of merit with his Second Amended Original Complaint, filed on March 6, 2018, through which Luna Engineering was first added CTL/Thompson Texas, LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex. 2013) (“Section 150.002(e) dismissal is a sanction ... to deter meritless claims and bring them quickly to an end.”). See Plaintiff’s Second Amended Original Complaint. as a defendant, or his Third Amended Original Petition, filed on August 23, 2018. In addition to negligence claims, Plaintiff asserted inapplicable causes of action against Luna Engineering under theories of strict product liability and breach of warranty. Plaintiff also asserted each of his claims against Defendants collectively, which directly conflicts with the purpose of Section to show that valid claims exist against each of the professional defendant firms Considering Plaintiff’s failure to file a certificate of merit with his first filed petition against Luna Engineering the disconnect between the facts and Plaintiff’s causes of action gainst Luna Engineering and Plaintiff’s failure to identify a single act committed by any efendant individually, dismissal is required and appropriate under Section 150.002. FACTUAL BACKGROUND This lawsuit arises out of an incident that occurred on November 17, 2016, when Plaintiff Justin Jordan was allegedly exposed to the chemical, DMDS, while performing monitoring during a tank transfer “because the DMDS scrubber on the Vopak Defendant’ property, part of Vopak’s transfer system, failed to work properly.” In particular, Plaintiff alleges that “Defendant Luna Engineering and Design, Inc., through its agent Ronald Moon and others, substantially participated in designing Vopak’s transfer system, including the DMDS scrubber, and did so negligently.” Plaintiff asserts causes of action against all defendants under theories of negligence and gross negligence, strict product liability claims against Defendants Arkema, Vapor Technologies, Evoqua, and Luna Engineering collectively, and breach of warranty claims against Defendants Arkema, Vapor Technologies, Evoqua, and Luna Engineering collectively See Plaintiff’s Third Amended Original Petition. . at para 4.01. . at para. 4.07. See id. at para. 5.00(A). See id. at para. 5.00(B). See id. at para. 5.00(C). With regard to Plaintiff’s strict product liability and breach of warranty claims, Plaintiff failed to allege that any of the defendants placed a product in the “stream of commerce,” that Plaintiff entered into a contract with any of the defendants, that the scrubber qualifies as a “good” under the Texas Business and Commerce Code, 10 or that any of the defendants qualified “merchant seller” of the system. 11 LEGAL ARGUMENT AND AUTHORITIES Chapter 150 requires dismissal because Plaintiff’sclaims aro se out of the provision of professional services and Plaintiffs failed to file the requiredcertificate of merit Section 150.002 of the Texas Civil Practice and Remedies Code provides that in any action “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, licensed professional engineer, registered landscape architect, or registered professional land surveyor . . ..” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (emphasis added)). The purpose of the certificate of merit is to provide a basis for the trial court to conclude that the plaintiff’s claims are not frivolous. CBM Engineers, Inc. v. Tellepsen Builders, L.P. 403 S.W.3d 339, 345 (Tex. App.Houston [1 Dist.] , pet. denied citing Criterium Farrell Engineers v. Owens, 248 S.W.3d 395, 398 (Tex. App.Beaumont 2008, no pet.) ). The Tex. Civ. Prac. & Rem. Code Ann. § 82.001(3) (4) (emphasis added) (“’Seller’ means a person who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof . .. .’Manufacturer’ means a person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce.”). Tex. Bus. & Com. Code Ann. § 2.105 (a) (“‘Goods’ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Chapter 8) and things in action.”). Tex. Bus. & Com. Code Ann. § 2.104(a) (“’Merchant” means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”). certificate of merit must provide a factual basis for the allegations of professional errors or omissions. Id. (citing ME Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 506 (Tex. Austin 2012, pet. denied)). Section 150.002(e) expressly provides that “[t]he plaintiff’s failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the defendant. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e) (emphasis added) Standard of Review An order granting or denying a motion to dismiss for failure to file a certificate of merit is immediately appealable and is reviewed for abuse of discretion. See CBM Engineers, Inc., 403 S.W.3d at 342 citing Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f); Carter & Burgess v. Sardari, 355 S.W.3d 804, 808 (Tex. App. ouston [1st Dist.] 2011, no pet.)). A trial court has “no ‘discretion’ in determining what the law is or applying the law to the facts.” Robert Navarro & Associates Eng’g, Inc. v. Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475, 478 (Tex. App.El Paso 2012, no pet.) ( citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). Accordingly, a trial court abuses its discretion if it misinterprets or misapplies the law. citing Perry Homes v. Cull, 258 S.W.3d 580, 598 n. 102 (Tex. 2008); Walker 827 S.W.2d at 840). To the extent a court of appeals is required to interpret a statute, that aspect of its review is performed de See CBM Engineers, Inc., 403 S.W.3d at 342 citing Carter & Burgess, 355 S.W.3d at 809). Plaintiff’s claims “arose out of the provision of professional services;” therefore Section 150.002 applies to all of Plaintiff’sclaims In determining the nature of a party’s claims with respect to Chapter 150, Texas courts look to the allegations in the party’s pleadings. See TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 79 (Tex. App.Dallas 2014, pet. denied) ( citing Carter & Burgess 355 S.W.3d TDIndustries, Inc. v. Rivera, 339 S.W.3d 749, 753 (Tex. App. ouston [1st Dist.] 2011, no pet.)). Nevertheless, courts are not bound by the labels the plaintiff uses in formulating its pleadings. (emphasis added) citing Carter & Burgess, 355 S.W.3d at . Instead, Texas courts “examine the ‘substance’ of the plaintiff’s pleadings to determine whether the ‘cause of action’ arises out of the provision of professional services.” Id. 12 In 2009, the Texas Legislature amended section 150.002(a) to directly address holdings of intermediate appellate courts which limited the application of the statute to negligence claims, and expressly provided that the requirement for a certificate of merit applies “[i]n any acti ... for damages arising out of the provision of professional [engineering] services . . .” See Pro Plus, Inc. v. Crosstex Energy Services, L.P., 388 S.W.3d 689, 70708 (Tex. App. 2012), aff’ 430 S.W.3d 384 (Tex. 2014) (citing Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a); S & P Consulting Eng’rs v. Baker, 334 S.W.3d 390, 399400 (Tex. App. ustin 2011, no pet.) (discussing bill analysis of section 150.002 showing legislature’ rustration with appellate court’s continued limitation of statute to negligence actions) see also Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 894 (Tex. 2017) (“The 2009 amendment thus clarified that the statute was not to be limited to professional negligence claims.”) To determine whether a plaintiff’s causes of action against an engineering firm were “for damages arising out of the provision of professional services,” Texas courts “look to the definition of ‘practice of engineering’ in the Texas Occupations Code.” CBM Engineers, Inc. 403 S.W.3d at 343 (citingTDIndustries, Inc.,339 S.W.3d at 754). Under that definition, the “practice of engineering” includes: In Pro Plus, Inc. v. Crosstex Energy Services, L.P., the plaintiff asserted claims including general and specific negligence, negligent misrepresentation, breach of implied and express warranty, and breach of contract. Pro Plus, Inc., 388 S.W.3d at 692. There, the Texas First Court of Appeals held that the plaintiffwas required to contemporaneously file with its original petition a certificate of merit addressing each of its claims, even its breach of contract claim. See id. at 708. Here, Plaintiff cannot avoid the certificate of merit requirement simply by alleging inapplicable causes of action under strict product liability and contractual breach of warranty theories; it is well settled that Section 150.002 applies to all of Plaintiff’s claims. (1) consultation, investigation, evaluation, analysis, planning, engineering for program management, providing an expert engineering opinion or testimony, engineering for testing or evaluating materials for construction or other engineering use, and mapping; (2) design, conceptual design, or conceptual design coordination of engineering works or systems; (3) development or optimization of plans and specifications for engineering works or systems; (4) planning the use or alteration of land or water or the design or analysis of works or systems for the use or alteration of land or water; (5) responsible charge of engineering teaching or the teaching of engineering; (6) performing an engineering survey or study; (7) engineering for construction, alteration, or repair of real property; (8) engineering for preparation of an operating or maintenance manual; (9) engineering for review of the construction or installation of engineered works to monitor compliance with drawings or specifications; (10) a service, design, analysis, or other work performed for a public or private entity in connection with a utility, structure, building, machine, equipment, process, system, work, project, or industrial or consumer product or equipment of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature; (11) providing an engineering opinion or analysis related to a certificate of merit under Chapter 150, Civil Practice and Remedies Code; or (12) any other professional service necessary for the planning, progress, or completion of an engineering service. Tex. Occ. Code Ann. § 1001.003 (emphasisadded). In this case, Plaintiff’s claims against Luna Engineering undeniably fit within multiple sections of the Texas Occupations Code’s definition of professional engineering services (including, but not limited to, those identified above in bold) See TDIndustries, Inc., 378 S.W.3d at 6 (finding the plaintiff’s claim implicated the defendant’s “engineering education, training, and experience” because it was premised on the defendant’s “knowledge of the installation and testing of complex machinery and equipment”). In particular Plaintiff’s claims clearly implicate the specialized knowledge and judgment of professional engineers with regard to the design and manufacture of the scrubber at issue. See Plaintiff’s Third Amended Petition, para. 4.07, 5.00(A), 5.00(B), and 5.00(C) Luna Engineeringis a licensed or registered professionalunder Chapter Luna Engineering is a “licensed or registered professional as contemplated by Section 150.002(a). 13 The attached affidavit of Ronald Dale Moon, P.E. confirms that Luna Engineering employed a licensed professional engineer in the State of Texas at all times during its existence. See Exhibit Affidavit of Ronald Dale Moon, P.E Therefore, Luna Engineering qualifies as “a licensed or registered professional” under Section 150.002. D. Section 150.002 does not allow for collective assertions of negligence Texas courts have held that the statutory language of section does not allow for collective assertions of negligence against licensed or registered professional , as seen here in Plaintiff’s Third Amended Original Petition See Robert Navarro & Associates Eng’ S.W.3d Macina, Bose, Copeland & Associates v. Yanez CV, 2017 WL 4837691, at *7 (Tex. App.Dallas Oct. 26 , 2017, pet. filed) Section 150.002(b) requires the affidavit to “set forth specifically for each theory of recovery for which damages are sought, the Tex. Civ. Prac. & Rem. Code Ann. § 150.001(a 1) (“’Licensed or registered professional’ means a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices, including but not limited to a corporation, professional corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship, joint venture, or any other business entity.”). negligence, if any, or other action, error, or omission of the licensed or registered professional.” cina2017 WL 4837691, at *7 citing§ 150.002(b) (emphasis added) In Robert Navarro & Associates Engineering Inc. v. Flowers Baking Company of El Paso, the Texas Eighth Court of Appeals considered whether a certificate of merit complied with section 15.002 where the certificate stated that the alleged negligence was committed by “Robert Navarro and Associates Engineering, Inc. and/or Bath Engineering Corporation.” Robert Navarro & Associates Eng’g, 389 S.W.3d at 480 In finding that the certificate did not comply with section 15.002, the Court held as follows, “It cannot be presumed that anytime two defendants are accused of similar conduct that valid claims exist against both of themif such claims indeed exist, the expert must actually say so, and do so in the form of positive averments made under oath. See id. at 482 see also Macina, 2017 WL 4837691, at *7 (citing Robert Navarro & Associates Eng’g, 389 S.W.3d at 475 we agree with the statement in Navarro that he statutory language does not allow for collective assertions of negligence.” Here, Plaintiff has failed to distinguish between the conduct of Luna Engineering, a “licensed or registered professional” under the statute, and each of the other defendants in this case. This is further evidence that dismissal is appropriate and warrantedunder Section 150.002 CONCLUSION For these reasons, Defendant Luna Engineering and Design, Inc. respectfully requests that this Court grant its Motion to Dismiss Plaintiff’s claims, with prejudice, pursuant to Chapter 150 of the Texas Civil Practice and Remedies Code. Luna Engineering further prays for such other and further relief, general or special, to which it may show itself justly entitled. Respectfully submitted, SHEEHY, WARE & PAPPAS, P.C. By: /s/ James L. Ware James L. Ware SBN 20861800 Jamie R. Guidry SBN 24073512 2500 Two Houston Center 909 Fannin Street Houston, Texas 77010 1000 or 713 1151 1199 Facsimile jware@sheehyware.com guidry@sheehyware.com Attorneys for Defendant Luna Engineering and Design, Inc. CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record, via efiling, pursuant to the Texas Rules of Civil Procedure on November 6, Jim Cole Cole, Easley, Sciba & Williams, PC 302 W. Forrest St. Victoria, Texas 77901 jcole@colefirmservice.com James D. Smith William A. Moss Rodney J. Cappel Christopher L. Dodson The Smith Law Firm Bracewell LLP 550 Westcott Street, Suite 250 711 Louisiana, Suite 2300 Houston, Texas 77007 Houston, Texas 77002 (713) 652 Will.moss@bracewell.com (713) 652 3201 fax Chris.dodson@bracewell.com jim@smithtexaslaw.com rodney@smithtexaslaw.com George T. Shipley Laina R. Miller Roger Nebel Shipley Snell Montgomery LLP Maron, Marvel, Bradley, Anderson & 713 Main St., Suite 1400 Tardy, LLC Houston, Texas 77002 2950 North Loop West, Suite 500 gshipley@shipleysnell.com Houston, Texas 77092 lmiller@shipleysnell.com houstonEservice@maronmarvel.com /s/ James L. Ware James L. Ware