Opinion issued January 18, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00307-CV ———————————— COSTELLO, INC. AND ALEX KHOSHAKHLAGH, P.E., Appellants V. BRIGGS BROTHERS ENTERPRISES CORPORATION, Appellee
On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 23-DCV-30067
MEMORANDUM OPINION
Appellants—Alex Khoshakhlagh, P.E., and his employer Costello, Inc.—
challenge the trial court’s order denying their motion to dismiss appellee Briggs
Brothers Enterprises Corporation’s (BBEC) tortious interference claim. The motion
to dismiss was based on Civil Practice and Remedies Code section 150.002(a), which requires a plaintiff suing for damages arising out of the provision of
professional services by a licensed or registered professional, such as an engineer,
to file with its complaint an affidavit, commonly referred to as a certificate of merit.
It is undisputed that BBEC did not file a certificate of merit.
Costello and Khoshakhlagh contend that the trial court erred because BBEC’s
tortious interference claim arose out of the provision of professional engineering
services, thus section 15.002(a) required BBEC to file a certificate of merit prepared
by a qualified third-party engineer. Because we conclude that the record supports
the trial court’s implied conclusion that section 150.002(a) does not apply to BBEC’s
tortious interference claim, we affirm the trial court’s order denying Costello and
Khoshakhlagh’s motion to dismiss.
Background
In January 2023, BBEC sued Costello and Khoshakhlagh along with Fulshear
Municipal Utility District MUD No. 1 (Fulshear MUD).1 In its original petition,
BBEC described itself as “a successful and trusted contractor with experience in the
construction industry, including experience performing earthwork and paving
work.” BBEC alleged that it “performed labor and furnished materials necessary for
the construction of five [Fulshear MUD] projects.” BBEC listed the five projects and
their titles, which indicated that the projects entailed paving and grading work.
1 Fulshear MUD is not a party to this appeal. 2 BBEC stated that it performed the work “pursuant to separate contracts [with
Fulshear MUD] for each of the projects.”
BBEC claimed that, although it had substantially performed under the five
construction contracts, Fulshear MUD failed to pay it what it was contractually
owed. Based on these allegations, BBEC asserted causes of action against Fulshear
MUD for breach of contract and violation of the Texas Prompt Payment Act and
sought declaratory relief.
Regarding Costello and Khoshakhlagh, BBEC alleged,
Costello and its employee Khoshakhlagh acted as the engineer and owner’s representative on the projects. Throughout the projects, Khoshakhlagh and Costello interfered with BBEC’s contracts with both subcontractors and Fulshear MUD. For example, Costello, through Khoshakhlagh, solicited baseless and fraudulent claims for nonpayment from BBEC’s subcontractors. Further, knowing that various subcontractors’ nonpayment claims were without merit, Costello, through Khoshakhlagh, nonetheless used the baseless claims it had solicited to encourage Fulshear MUD to cease paying BBEC, an endeavor in which Costello ultimately succeeded.
BBEC sued Costello and Khoshakhlagh for tortious interference with the
existing contracts. Specifically, BBEC asserted,
BBEC had valid contracts with Fulshear MUD and various subcontractors, suppliers, and other vendors. Costello and Khoshakhlagh tortiously interfered with these contracts by soliciting fraudulent nonpayment claims from vendors, disparaging BBEC, and encouraging Fulshear MUD to stop paying and/or terminate BBEC based upon the fraudulent claims. Costello and Khoshakhlagh’s interference proximately caused BBEC actual damages. BBEC also seeks recovery of exemplary damages.
3 Costello and Khoshakhlagh filed a motion to dismiss BBEC’s tortious
interference claim. They asserted that BBEC did not comply with Civil Practice and
Remedies Code section 150.002, requiring that a certificate of merit, signed by a
qualified professional, accompany a plaintiff’s “complaint” in an action “aris[ing]
out of the provision of professional services by [certain] licensed or registered
professional[s],” such as engineers. See TEX. CIV. PRAC. & REM. CODE
§ 150.002(a).2
In their dismissal motion, Costello and Khoshakhlagh stated that Fulshear
MUD hired Costello, “an engineering firm,” and Khoshakhlagh, “a licensed
engineer under the State of Texas,” to serve as “the professional engineer” for
Fulshear MUD’s “projects at issue.” They asserted that they were retained by BBEC
“to provide the engineering, consulting, construction management, inspection
services, and other professional services as authorized by Fulshear MUD.” They
claimed that, “as part of their professional engineer services,” they were required to
2 The legislature amended section 150.002 in 2023, but the amendments apply only to actions filed on or after September 1, 2023. See Act of May 17, 2023, 88th Leg., R.S., ch. 438, §§ 1–3, 2023 Sess. Law Serv. 1037, 1037–38. This suit is governed by the pre-amendment version of section 150.002 because it was filed before September 1, 2023. Thus, all our citations refer to the pre-amendment version of section 150.002. See Act of May 23, 2019, 86th Leg., R.S., ch. 661, § 2, 2019 Sess. Law Serv. 1916, 1916–17.
4 review “applications for payment” submitted by Fulshear MUD’s contractors and
“[to] make recommendations to the Fulshear MUD regarding such applications.”3
In its response to the motion, BBEC asserted that it was not required to file a
certificate of merit. BBEC pointed to its previous allegation that Costello and
Khoshakhlagh had “acted as both the engineer and the owner’s representative on
[Fulshear MUD’s] projects.” BBEC repeated its allegations that, “[d]uring the
course of construction [of Fulshear MUD’s projects], Khoshakhlagh solicited
fraudulent non-payment claims from BBEC’s subcontractors, advised Fulshear
MUD to withhold payment to BBEC for labor and materials BBEC provided to the
projects, and encouraged Fulshear MUD to terminate its contracts with BBEC.”
BBEC explained that “[t]he acts creating [its tortious interference] claim were the
misrepresentations regarding project financing and alleged unpaid subcontractors.”
It asserted, “Khoshakhlagh made these misrepresentations while serving as the
project manager/owner representati[ve] and not as a licensed engineer. The
misrepresentations were not made in reference to any professional engineering
activities.”
3 After Costello and Khoshakhlagh filed the motion to dismiss, Fulshear MUD filed a counter-claim against BBEC for breach of contract. Fulshear MUD alleged that it had received notices from BBEC’s subcontractors and suppliers stating that BBEC had not paid them. As permitted by the parties’ contract, Fulshear MUD withheld part of its payments to BBEC based on the non-payment notices. Fulshear MUD alleged that BBEC then refused to finish its work on the projects in breach of the contract. 5 Costello and Khoshakhlagh replied. They claimed, “Providing contract
administration services is a professional service that Costello Defendants were
contractually required to provide to Fulshear MUD. Owners typically request these
construction phase and contract administration services to ensure that a project is
built in accordance with the design professional’s plans and specifications.”
The trial court denied the motion to dismiss, and Costello and Khoshakhlagh
now appeal the denial. See id. § 150.002(f) (“An order granting or denying a motion
for dismissal [under section 150.002] is immediately appealable as an interlocutory
order.”).
Certificate of Merit
In their sole issue, Costello and Khoshakhlagh (together, Appellants) assert
that the trial court erred in denying their motion to dismiss BBEC’s tortious
interference claim because BBEC did not file a certificate of merit with its original
petition as required by section 150.002.
A. Standard of Review
We review a trial court’s order on a motion to dismiss under Civil Practice
and Remedies Code section 150.002 for an abuse of discretion. TRW Eng’rs, Inc. v.
Hussion St. Bldgs., LLC, 608 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.]
2020, no pet). “A court abuses its discretion if it fails to analyze or apply the law
correctly,” id., and when it makes decisions in an arbitrary or unreasonable manner,
6 without reference to guiding rules or principles, Pedernal Energy, LLC. v. Bruington
Eng’g, Ltd., 536 S.W.3d 487, 492 (Tex. 2017). “As the party complaining of an
abuse of discretion, [Appellants have] the burden of bringing forth a record showing
such abuse.” See Jacobs Field Servs. N. Am., Inc. v. Willeford, No. 01-17-00551-
CV, 2018 WL 3029060, at *3 (Tex. App.—Houston [1st Dist.] June 19, 2018, no
pet.) (mem. op.).
If the resolution of a motion to dismiss requires us to construe statutory
language, we review such questions de novo. Pedernal Energy, 536 S.W.3d at 491.
In construing a statute, our goal is to determine and give effect to the legislature’s
intent. Id. “We look to and rely on the plain meaning of a statute’s words as
expressing legislative intent unless a different meaning is supplied, is apparent from
the context, or the plain meaning of the words leads to absurd or nonsensical results.”
Id. We construe the words and phrases chosen by the legislature in context, rather
than in isolation. Aleman v. Tex. Med. Bd., 573 S.W.3d 796, 802 (Tex. 2019).
B. Applicable Legal Principles
Section 150.002(a) requires a plaintiff to file a certificate of merit in “any
action . . . for damages arising out of the provision of professional services by a
licensed or registered professional.” TEX. CIV. PRAC. & REM. CODE § 150.002(a). By
its plain language, the statute applies to “any action arising out of the provision of
professional services, regardless of the legal theory.” Melden & Hunt, Inc. v. E. Rio
7 Hondo Water Supply Corp., 520 S.W.3d 887, 894 (Tex. 2017). Chapter 150 defines
a “licensed or registered professional” to include “a licensed professional
engineer . . . or any firm in which such . . . professional practices.” TEX. CIV. PRAC.
& REM. CODE § 150.001(1–c). “The term ‘arising out of’ is not defined in the statute.
The ordinary meaning of ‘arise’ is ‘[t]o originate; to stem (from) . . . to result
(from).’” Terracon Consultants, Inc. v. N. Pride Commc’ns, Inc., No. 01-22-00755-
CV, 2023 WL 2316351, at *4 (Tex. App.—Houston [1st Dist.] Mar. 2, 2023, no pet.)
(mem. op.) (quoting Arise, BLACK’S LAW DICTIONARY (11th ed. 2019)).
A claim “arises out of the provision of professional [engineering] services if
the claim implicates the engineer’s education, training, and experience in applying
special knowledge or judgment.” CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403
S.W.3d 339, 343 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). To determine
whether a plaintiff’s claim “arises out of” the provision of professional engineering
services, we look to the definition of the “practice of engineering” in the Texas
Occupations Code and to the allegations in the plaintiff’s petition. Terracon
Consultants, 2023 WL 2316351, at *4 (citing CBM Eng’rs, 403 S.W.3d at 343); see
TEX. CIV. PRAC. & REM. CODE § 150.001(3) (“‘Practice of engineering’ has the
meaning assigned by Section 1001.003, Occupations Code.”); Jennings, Hackler &
Partners v. N. Tex. Mun. Water Dist., 471 S.W.3d 577, 581 (Tex. App.—Dallas
8 2015, pet. denied) (“To determine whether and how § 150.002 applies, we consider
the live pleadings when the trial court ruled on the motion to dismiss.”).
When it applies, section 150.002 “obligates the plaintiff to get an affidavit
from a third-party expert attesting to the defendant’s professional errors or omissions
and their factual basis.” Melden & Hunt, 520 S.W.3d at 896. The certificate of merit
must be filed with the first-filed complaint that asserts the relevant claim against the
professional. See TEX. CIV. PRAC. & REM. CODE §§ 150.001(1-b), 150.002(a); TRW
Eng’rs, 608 S.W.3d at 321. “The trial court then determines whether the expert’s
affidavit sufficiently demonstrates that the complaint is not frivolous.” Melden &
Hunt, 520 S.W.3d at 896; see LaLonde v. Gosnell, 593 S.W.3d 212, 216 (Tex. 2019)
(“The certificate-of-merit requirement is a substantive hurdle that helps ensure
frivolous claims are expeditiously discharged.”). Failure to file a certificate of merit
in such instances requires dismissal of the complaint against the defendant. TEX.
CIV. PRAC. & REM. CODE § 150.002(e).
C. Analysis
To determine whether section 150.002 applies here, the threshold questions
are (1) whether Appellants are licensed or registered professionals and (2) whether
BBEC’s tortious interference claim constitutes an action for damages “arising out of
the provision of professional services.” See Terracon Consultants, 2023 WL
2316351, at *4 (citing TEX. CIV. PRAC. & REM. CODE § 150.002(a)). The parties do
9 not dispute that Khoshakhlagh is a licensed engineer or that Costello is a licensed
professional engineering firm. See TEX. CIV. PRAC. & REM. CODE § 150.001(1–c).
Instead, the dispute centers on whether BBEC’s claim for tortious interference
damages arises out of Appellants’ provision of professional engineering services.
See TEX. CIV. PRAC. & REM. CODE § 150.002(a). To make that determination, we
look to the definition of the ‘practice of engineering’ in the Occupations Code and
to the allegations in BBEC’s original petition. See Terracon Consultants, 2023 WL
2316351, at *4.
In its original petition, BBEC alleged that Appellants “acted as the engineer
and [as Fulshear MUD’s] representative on the projects.” Beyond that, BBEC did
not elaborate or offer a more detailed description of the engineering services
provided by Appellants to Fulshear MUD. Nor did BBEC elaborate on Appellants’
role as Fulshear MUD’s “representative on the projects.”
BBEC alleged that Appellants had “solicited baseless and fraudulent claims”
from BBEC’s subcontractors. Specifically, BBEC claimed that Appellants had
encouraged the subcontractors to falsely state to Fulshear MUD that BBEC had
failed to pay them. BBEC further alleged that, knowing that the subcontractors’
claims of non-payment had no merit, “Costello, through Khoshakhlagh, nonetheless
used the baseless claims [of nonpayment that] it had solicited [from the
subcontractors] to encourage Fulshear MUD to cease paying BBEC, an endeavor in
10 which Costello ultimately succeeded.” BBEC asserted that, based on the
subcontractors’ claims of non-payment solicited by Appellants, Fulshear MUD did
not pay BBEC what it was contractually owed.
Later in the petition—in conjunction with asserting its tortious interference
cause of action—BBEC reiterated these allegations. BBEC alleged that it had “valid
contracts with Fulshear MUD and various subcontractors, suppliers, and other
vendors,” but “Costello and Khoshakhlagh tortiously interfered with these contracts
by soliciting fraudulent nonpayment claims from vendors, disparaging BBEC, and
encouraging Fulshear MUD to stop paying and/or terminate BBEC based upon the
fraudulent claims.” BBEC asserted that Appellants’ interference with the contracts
proximately caused it actual damages.
Under the Occupations Code, the “practice of engineering” means “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
§ 1001.003(b). The Occupations Code further provides:
(c) The practice of engineering includes:
....
11 (9) engineering for review of the construction or installation of engineered works to monitor compliance with drawings or specifications; [or]
(12) any other professional service necessary for the planning, progress, or completion of an engineering service.
Id. § 1001.003(c)(9), (12).
Appellants asserted that their actions, from which the claimed tortious
interference damages arise, qualify as the practice of engineering under subsections
(c)(9) and (12). Appellants acknowledge that their alleged tortious conduct of
soliciting BBEC’s subcontractors to falsely state that they had not been paid and
encouraging Fulshear MUD not to pay BBEC based on those false statements do not
qualify as professional engineering services. Appellants correctly point out that
“section 150.002 does not require the specific acts creating the claim for the tort [to]
also constitute the provision of professional services. Instead, the acts creating the
claim must ‘aris[e] out of the provision of professional services.’” Pelco Const., Inc.
v. Dannenbaum Eng’g Corp., 404 S.W.3d 48, 55 (Tex. App.—Houston [1st Dist.]
2013, no pet.) (quoting TEX. CIV. PRAC. & REM. CODE § 150.002(a)); see Jennings,
471 S.W.3d at 581 (recognizing that issue is not “whether the alleged mal-acts
themselves constituted the provision of professional services, but whether the claims
arise out of the provision of professional services”).
12 Appellants asserted they were retained by BBEC “to provide the engineering,
consulting, construction management, inspection services, and other professional
services as authorized by Fulshear MUD.” Appellants claimed that, as part of these
professional engineering services, they were required to review “applications for
payment” submitted to Fulshear MUD by its contractors, like BBEC, and “[to] make
recommendations to the Fulshear MUD regarding such applications.” According to
Appellants, professional engineers are “typically” hired to review contractor
payment applications because the review involves “ensur[ing] that a project is built
in accordance with the design professional’s plans and specifications.”
Appellants asserted that the acts creating the tortious interference claim—that
is, Appellants alleged false statements regarding the non-payment of BBEC’s
subcontractors—arose out of Appellants’ review and recommendations regarding
BBEC’s payment applications—conduct that Appellants claimed constituted a
professional engineering service. BBEC acknowledged that Appellants reviewed
their payment applications for Fulshear MUD but denied that Appellants provided
that service in their role as licensed engineers.
In support of their argument, Appellants cite V.R. & Sons, L.P. v. CIVE
Consulting, Inc., a case in which the pleadings supported a conclusion that the
review of a contractor’s payment application constituted the practice of engineering
under Occupations Code subsections 1001.003(c)(9) and (12). See No. 01-11-
13 00967-CV, 2012 WL 3133605, at *4 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012,
no pet.) (mem. op.). We agree that V.R. & Sons is helpful to the analysis here but
disagree that it supports Appellants’ position. Instead, V.R. & Sons serves to
highlight why the pleadings here, unlike there, do not establish that Appellants’
review of BBEC’s payment applications constituted the practice of engineering.
In V.R. & Sons, the owner of a hotel project hired a contractor to construct the
hotel. Id. at *1. The agreement between the owner and the contractor “required the
owner to make progress payments to the contractor, and it stated that an architect—
identified in the contract as appellee CIVE Consulting—would review the
contractor’s work as described in the applications for payment and certify to the
owner the amount of money owed.” Id. Steve Williams acted as CIVE’s “principal
representative on the project.” Id.
The owners later sued the CIVE and Williams along with the contractor. The
owners attached their agreement with the contractor to their petition and
incorporated it by reference. Id. at *3. The agreement contained the building
specifications for the project and provided that CIVE would “review” the
contractor’s work, including comparing the contractor’s work to the building
specifications. Id. at *3–4. The owners claimed, inter alia, “that [CIVE and
Williams] committed negligence by breaching a duty to properly inspect the work
14 performed by the contractor and by failing to properly certify applications for
payment.” Id. at *3.
CIVE and Williams “filed a motion to dismiss the owners’ claims, arguing
that the owners were required to file a certificate of merit and failed to do so.” Id. at
*2. They claimed that section 150.002 applied because “the owners’ claimed
damages arose from their provision of professional services.” Id. (citing TEX. CIV.
PRAC. & REM. CODE § 150.002(a)). The trial court agreed, dismissing the owners’
claims. Id.
On appeal, this Court affirmed the trial court’s dismissal order. Id. at *4. In
our analysis, “we examine[d] the specific allegations [in the owners’ petition] and
compare[d] them with the statutory definition of the practice of engineering to
determine if the [owners’] claims implicate[d] the provision of professional
services.” Id. at *3. The allegations in the owners’ pleadings had shown that, “to
review and substantiate the contractor’s applications for payment, CIVE Consulting
and Williams were required to provide inspection, certification, and oversight
services in connection with a construction project.” Id. at *4. We determined that
“[t]hese duties are included within the ‘practice of engineering,’ which
include[d] . . . ‘any other professional services necessary to complete an engineering
service.’” Id. (quoting TEX. OCC. CODE § 1001.003(12)). We also determined that
“the review of the contractor’s applications for payment required comparison of the
15 contractor’s work to the specifications incorporated into the contract documents,
which also qualifie[d] as the ‘practice of engineering.’” Id. (citing TEX. OCC. CODE
§ 1001.003(9) (providing that practice of engineering included “engineering for
review of the construction or installation of engineered works to monitor compliance
with drawings or specifications”). For these reasons, we concluded that “the services
that Williams provided implicated the special knowledge and training that he had as
a licensed professional.” Id. In affirming the trial court’s dismissal of the owners’
claims, we “agree[d] with the trial court that the underlying claims in [that] case
constitute[d] an action for damages arising from the provision of professional
services by a licensed professional.” Id.
In contrast, BBEC’s petition does not show that, “to review and substantiate
the contractor’s applications for payment, [Appellants] were required to provide
inspection, certification, and oversight services in connection with a construction
project.” See id. Appellants assert that the contract between Costello and Fulshear
MUD required Appellants to make payment recommendations in their capacity “as
the principal engineer of the Projects.” But, unlike in V & R Sons, the petition does
not reveal the contract requirements relating to pay recommendations, nor was any
contract attached to the petition. See id. at *3. BBEC’s petition also does not indicate,
as did the petition in V & R Sons, that Appellants were required to inspect BBEC’s
work to determine whether it complied with the required building specifications as
16 part of the payment-review and substantiation process. See id. at *3, *4. Without
similar allegations, subsection 1001.003(c)(9) does not support a determination that
Appellants’ review of BBEC’s payment applications constituted the practice of
engineering. See TEX. OCC. CODE § 1001.003(c)(9) (practice of engineering includes
“engineering for review of the construction or installation of engineered works to
monitor compliance with drawings or specifications”).
The petition also contains no allegations that can be construed to support a
determination that Appellants’ review of BBEC’s payment applications and
payment recommendations was “necessary for the planning, progress, or completion
of any engineering service,” as provided in subsection (c)(12). Id. § 1001.003(c)(12).
We note that subsection (c)(12)’s application is not limited to activities that require
an engineer to perform them, but to be included, an activity must be necessary for
the planning, progress, or completion of a service that involves the practice of
engineering. See id. Whether Appellants’ application review and payment
recommendations were “necessary” to plan, progress, or complete their engineering
services cannot be ascertained without knowing what the payment-review process
entailed, and the record is silent on that point. Cf. V & R Sons, 2012 WL 3133605,
at *4 (showing that review and substantiation of contractor’s payment applications
was necessary to completion of engineering services where process entailed, inter
alia, inspecting and certifying contractor’s work).
17 Despite BBEC’s allegation that Appellants were hired to perform two roles
on the projects—Fulshear MUD’s project representative and its project engineer—
Appellants maintain that their “role on the Projects was solely that of a professional
engineer.” We understand Appellants’ argument to assert that, because Appellants
engaged in the practice of engineering on the projects, BBEC’s tortious interference
claim necessarily arises out of the provision of professional services. Appellants
appear to suggest that, if an engineer provides engineering services to a project, then
all the services that he provides on the project constitute the practice of engineering.
That view is not supported by section 150.002.
Courts have recognized that “section 150.002 does not apply to every claim
against a professional engineer or engineering firm.” Jacobs Eng’g Grp., Inc. v.
Elsey, 502 S.W.3d 460, 467 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The
fact that the defendant [is] an engineering firm and was providing services of some
kind [is] not dispositive.” See RCS Enters., LP v. Hilton, No. 02-12-00233-CV, 2013
WL 6795390, at *6 (Tex. App.—Fort Worth Dec. 19, 2013, no pet.) (mem. op.)
(holding that plaintiff was not required to file certificate of merit to support claim
against engineering firm hired to provide both engineering services and non-
engineering third-party inspection services because plaintiff’s claim arose from
third-party inspection services, not from engineering services); see also Jacobs
Eng’g Grp., 502 S.W.3d at 468 (holding that, as pleaded, certificate of merit was not
18 required in work-place safety suit against professional engineering firm because
claim arose out of firm’s alleged breach of duties that it owed to employees rather
than out of its provision of professional engineering services); TDIndustries, Inc. v.
Rivera, 339 S.W.3d 749, 755 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(holding that certificate-of-merit requirement did not apply to personal-injury claim
against engineering firm hired to provide management services to convention center
because claim arose out of firm’s negligent operation of elevator and not out of
provision of professional engineering services).
Rather than applying to all services provided by a professional engineer,
section 150.002 applies only to a claim arising out of the provision of professional
engineering services—that is, a claim implicating “the engineer’s education,
training, and experience in applying special knowledge or judgment.” CBM Eng’rs,
403 S.W.3d at 343; see TEX. OCC. CODE § 1001.003(b). As discussed, Appellants
contend that BBEC’s tortious interference claim—alleging that Appellants made
false statements about BBEC’s non-payment of its subcontractors—arose out of
Appellants’ review of BBEC’s payment applications. Reviewing and making
recommendations on a contractor’s payment application may, as seen in V & R Sons,
implicate a professional engineer’s education, training, and experience in applying
special knowledge or judgment. See 2012 WL 3133605, at *4. But reviewing
payment applications may also not require the special knowledge and judgment of
19 an engineer. For instance, BBEC indicates that Appellants’ review of its payment
applications did not require engineering skills because the purpose of the review was
to ensure that BBEC had paid its subcontractors so that liens would not be filed on
the projects. Without allegations in BBEC’s petition addressing what the application
review process entailed, Appellants have not shown that their review of the payment
applications implicated their education, training, or experience as engineers. See
RCS Enters, 2013 WL 6795390, at *6; Rivera., 339 S.W.3d at 755; V & R Sons,
2012 WL 3133605, at *4; see also FAI Eng’rs, Inc. v. Logan, No. 02-20-00255-CV,
2020 WL 7252315, at *4 (Tex. App.—Fort Worth Dec. 10, 2020, no pet.) (mem.
op.) (“[T]he burden of proof remained with [the movant] to demonstrate that [the
claimant’s] suit met the requisites of Section 150.002(a) such that [the claimant] was
required to file a certificate of merit with his original petition.”); Jacobs Field Servs.
N. Am., 2018 WL 3029060, at *3 (stating that appellant had burden to present record
showing that trial court abused its discretion by denying appellant’s section 150.002
motion to dismiss).
Given the record, we conclude that BBEC’s tortious interference claim did
not arise from Appellants’ provision of professional engineering services and that
BBEC was not required to comply with section 150.002 by filing a certificate of
merit with its original petition. See TEX. CIV. PRAC. & REM. CODE §§ 150.001(1–b),
150.002(a). We hold that the trial court did not abuse its discretion in denying
20 Appellants’ motion to dismiss BBEC’s tortious interference claim.4 See id.
§ 150.002(e).
We overrule Appellants’ sole issue.
Conclusion
We affirm the order of the trial court denying Appellants’ motion to dismiss.
Richard Hightower Justice
Panel consists of Justices Kelly, Hightower, and Guerra.
4 We need not reach Appellants’ additional appellate argument that BBEC’s tortious interference claim should be dismissed with prejudice. See TEX. R. APP. P. 47.1. 21