07-18-00068-CV ACCEPTED SEVENTH COURT OF APPEALS AMARILLO, TEXAS 5/29/2018 2:18 PM Vivian Long, Clerk
CASE NO. 07-18-00068-CV
IN THE FILED IN 7th COURT OF APPEALS SEVENTH COURT OF APPEALS AMARILLO, TEXAS AMARILLO, TEXAS 5/29/2018 2:18:19 PM VIVIAN LONG CLERK
RONALD R. WAGNER & CO., LP, APPELLANT
v.
APEX GEOSCIENCE, INC. AND BRAUN INTERTEC CORPORATION, APPELLEES
INTERLOCUTORY APPEAL FROM THE 181ST JUDICIAL DISTRICT COURT OF POTTER COUNTY, TEXAS, THE HONORABLE JOHN B. BOARD, PRESIDING
APPELLEES APEX GEOSCIENCE, INC. AND BRAUN INTERTEC CORPORATION’S BRIEF
D. Wilkes Alexander FISK ALEXANDER, PC State Bar No. 00783527 2711 N. Haskell Ave. walexander@fiskalexander.com Suite 1550 – LB 10 Dallas, Texas 75204 James B. Pruden 214/638-3744 - Telephone State Bar No. 24090822 214/638-5105 – Facsimile jpruden@fiskalexander.com ATTORNEYS FOR APPELLEE APEX GEOSCIENCE, INC. AND BRAUN INTERTEC CORP.
Oral Argument Requested Identity of Parties and Counsel
Appellees Apex Geoscience, Inc. (hereinafter “Apex”) and Braun Intertec
Corporation (hereinafter “Braun”) do not take issue with the identification of parties
and counsel except to note two corrections.
First, prior to 2015, Apex was an independently owned and operated Texas
Corporation, properly registered as Firm No. 3179 with the Texas Board of
Professional Engineers and actively engaged in the practice of engineering within
the State of Texas. In September 2015, Braun acquired Apex, which is now a
division of Braun Intertec Corporation and not a wholly owned subsidiary. Braun is
a licensed Engineering Firm, properly registered as Firm No. 12228 with the Texas
Board of Professional Engineers and actively engaged in the practice of engineering
within the State of Texas.
Second, Apex and Braun are also represented in this matter by Attorney James
Pruden, State Bar No. 24090822.
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ 2
TABLE OF CONTENTS ...........................................................................................3
INDEX OF AUTHORITIES......................................................................................5
SUPPLEMENTAL STATEMENT OF JURISDICTION ......................................... 6
SUPPLEMENTAL STATEMENT OF THE CASE ................................................. 6
REQUEST FOR ORAL ARGUMENT ..................................................................... 6
RESPONSIVE ISSUE PRESENTED ....................................................................... 7
The Trial Court did not err or abuse its discretion in dismissing all of the Plaintiff’s alleged causes of action against the Defendants Apex and Braun due to plaintiff’s failure to file a certificate of merit, as Appellee Apex and Braun were licensed engineering firms engaged in the practice of engineering for the public.
SUPPLEMENTAL STATEMENT OF FACTS ........................................................ 7
SUMMARY OF THE ARGUMENT ........................................................................ 8
ARGUMENT AND AUTHORITIES ........................................................................ 9
1. Appellee Apex and Appellee Braun are both licensed engineering firms performing engineering services within the State of Texas. ................. 9 2. The Certificate of Merit Requirement .................................................11 3. Triggering the Certificate of Merit Requirement ................................12 4. Even if Texas Courts incorporate the § 150.001 “the practice of engineering” definition into the § 150.002(a) “arising out of the provision of professional services” requirement; Appellee was engaged in the practice of engineering ..............................................................13 a. The exemptions to the “practice of engineering” listed in Tex. Occ. Code. §§ 1001.053-063 do not apply to an Appellees pursuant to Tex. Occ. Code. § 1001.051 ..................................14
3 b. Even if the Court finds that Tex. Occ. Code. § 1001.051 does not apply to Appellees, Tex. Occ. Code. § 1001.062 does not apply in this case .................................................................................14 5. Dismissal for Failure to Comply was the Proper Remedy .................. 16
CONCLUSION AND PRAYER .............................................................................17
CERTIFICATE OF SERVICE ................................................................................19
CERTIFICATE OF COMPLIANCE .......................................................................20
4 INDEX OF AUTHORITIES
Statutes
Tex. Civ. Prac. & Rem. Code
§ 150.001 ............................................................................................................11, 13
§ 150.002(a) .......................................................................................................10, 12
§ 150.002(e) .........................................................................................................9, 16
Tex. Occ. Code
§ 1001.003(b) ...........................................................................................................13
§ 1001.003(c)(10).....................................................................................................10
§ 1001.051 ............................................................................................................9, 14
§ 1001.053 ................................................................................................................13
§ 1001.062 ................................................................................................................14
Tex. R. App. P.
Rule 39.1 ....................................................................................................................6
Rule 39.7 ....................................................................................................................6
5 SUPPLEMENTAL STATEMENT OF JURISDICTION
Appellee’s Apex and Braun Intertec Corporation do not take issue with the
Appellant Ronald R. Wagner & Co., LP’s (hereinafter “Wagner”) Supplemental
Statement of Jurisdiction.
SUPPLEMENTAL STATEMENT OF THE CASE
Apex and Braun do not take issue with the Appellant’s Supplemental
Statement of The Case, to the extent that it reflects the procedural history of the case.
However, Apex and Braun object to sentences 1 – 4 on Page 11 of Appellant’s Brief
as argumentative and incorrect conclusions of law.
On or about November 19, 2017, Plaintiff filed its First Amended Original
Petition naming (1) Advantage Asphalt of Lubbock, LLC; (2) Advanced Pavement
Maintenance, Ltd.; (3) Apex Geoscience, Inc.; (3) Braun Intertec Corporation; (4)
Glenn E. Braudt, Individually; and (5) Brad Scott Knutson, Individually as
defendants to the lawsuit. In that petition, Appellant alleged no contractual
relationship with either Apex or Braun.
REQUEST FOR ORAL ARGUMENT
Pursuant to Rules 39.1 and 39.7 of the TEXAS RULES OF APPELLATE
PROCEDURE, Appellees Apex and Braun request that the Court hear oral argument
of this appeal.
6 RESPONSIVE ISSUE PRESENTED
The Trial Court did not err or abuse its discretion in dismissing all of
Wagner’s alleged causes of action against Appellees Apex and Braun due to
Wagner’s failure to file a Certificate of Merit, as Appellees Apex and Braun were
licensed engineering firms engaged in the practice of engineering for the public.
SUPPLEMENTAL STATEMENT OF FACTS
Appellees Apex and Braun do not take issue with paragraphs I – III of
Appellant’s Supplemental Statement of Facts.
Appellees object to the inclusion of the “facts” set out in paragraphs IV – VII
as entirely misleading and meant to confuse the Court in this matter. The Appellant’s
use of the word “defendant” and not “Appellee” is seemingly meant to imply that
Apex and Braun performed actions made by other defendants in this case. For
example, Appellant appears to claim that Apex and Braun provided Wagner with an
unsolicited bid to provide materials for the project made basis of this case, which is
simply not true.
Apex and Braun’s only involvement with this project was that defendant
Advanced Pavement Maintenance, LTD hired Appellees Apex and Braun to perform
engineering analysis and geotechnical testing for the “Wilson Pit.” [RR, Vol.1
Exhibit 1]. See also [CR 25]. This engineering report is signed by Shane E. Nance,
P.E., a senior engineer for Appellee Apex Geoscience.
7 By improperly characterizing the role of the parties in this case, Appellant’s
are attempting to make it appear as if Appellees Apex and Braun provided Appellant
Wagner with pricing and raw materials for the construction of the roadway.
SUMMARY OF THE ARGUMENT
Appellees Apex and Appellee Braun are both licensed engineering firms
performing professional engineering services within the State of Texas. [CR 48]
Appellant’s claims against Appellees arise out of the performance of their
professional geotechnical engineering services [CR 39 - 41], and as such Appellant
failed to follow the requirements of TEX. CIV. PRAC. & REM. CODE, § 150.
To circumvent the Certificate of Merit requirement, Appellant attempts to
argue that Appellees were not engaged in the “practice of engineering.” However,
this is irrelevant to the application of § 150, as the statute does not include the phrase
“the practice of engineering” but requires a certificate of merit be filed “In any action
… for damages arising out of the provision of professional services by a licensed
[Engineer].”
Additionally, Appellant attempts to argue that Appellees are exempt from the
definition of the practice of engineering by citing an exemption meant to exclude
individuals who are constructing some type of improvement upon real property and
who are working from engineer’s plans that have another engineer’s seal. [CR 14,
15]
8 That exception is totally inapplicable to the situation we have here in which a
geotechnical engineer has signed a geotechnical engineering analysis as a part of his
employment at a geotechnical engineering firm. Furthermore, the cited exemption
only applies to a “a person who does not offer to the public to perform engineering
services.” TEX. OCC. CODE. § 1001.051
Appellant failed to follow the requirements of TEX. CIV. PRAC. & REM. CODE,
§ 150 and pursuant to the provisions of § 150.002(e), the Trial Court properly
dismissed the action against Appellees for Appellant's failure to file the affidavit in
accordance with Texas Law.
ARGUMENT AND AUTHORITES
1. Appellees Apex and Appellee Braun are both licensed engineering firms performing engineering services within the State of Texas.
Prior to 2015, Apex was an independently owned and operated Texas
Corporation, properly registered as Firm No. 3179 with the Texas Board of
Professional Engineers and actively engaged in the practice of engineering within
the State of Texas. Founded around 1995, Apex provided geotechnical engineering,
construction materials testing, and environmental consulting services; including a
myriad of specialty engineering services, such as, deep foundation design and
testing, building sciences, nondestructive examination, structures evaluations and
forensic investigations, drilling and cone penetration testing (CPT), and geospatial
and unmanned aerial vehicle services
9 Then in September 2015, Braun, a geotechnical engineering, testing and
environmental consulting firm, acquired Apex, which is now a division of Braun
Intertec Corporation and not a wholly owned subsidiary. Braun is a licensed
Engineering Firm, properly registered as Firm No. 12228 with the Texas Board of
Professional Engineers and actively engaged in the practice of engineering within
the State of Texas. [CR 48 – 50]
Prior to this acquisition, Advanced Pavement Maintenance, LTD contracted
with Apex to perform engineering analysis and geotechnical testing for the “Wilson
Pit.” [RR, Vol.1 Exhibit 1]. This engineering report is signed by Shane E. Nance,
P.E., a senior engineer for Apex Geoscience. [CR 39, 40] Shane Nance is a
Professional Engineer, properly licensed as PE No. 81519 with the Texas Board of
Professional Engineers and actively engaged in the practice of engineering within
the State of Texas. [CR 39, 40]
This engineering testing analysis, which was signed by a licensed engineer in
the State of Texas, and who was working for a firm that was registered as an
engineering firm in the State of Texas is clearly and unequivocally “the practice of
engineering” as outlined in TEX. OCC. CODE § 1001.003(c)(10-12), which defines
the practice of engineering as follows:
(10) A service, design, analysis or other work performed for a public or private entity in connection with the utility, structure, building, machine, equipment, process, system, work, project, or industrial or consumer product or equipment of a mechanical, electrical, electronic, 10 chemical, hydraulic, pneumatic, geotechnical, or thermal nature. (Emphasis added)
(12) Any other professional service necessary for the planning, progress or completion of an engineering service.
2. The Certificate of Merit Requirement
Appellant’s claims against Appellees Braun and Apex arise out of the
performance of their professional geotechnical engineering services. [CR 10] TEX.
CIV. PRAC. & REM. CODE § 150.002(a) clearly states that “in any action or arbitration
proceeding for damages arising out of the provision of professional services by a
licensed or registered [Engineer], the plaintiff shall be required to file with the
complaint” a certificate of merit.
In this case, Appellant failed to comply with this provision by failing to file
with its complaint an affidavit of a licensed engineer who:
(a) Is competent to testify; (b) Holds the same professional license or registration in the state of Texas as the involved agents, servants and representatives of the Defendant; (c) Is knowledgeable in the area of practice of the Defendant; (d) Offers testimony based on the person’s knowledge, skill, experience, education, training and practice; (e) Is actively engaged in the practice of architecture. [CR 10]
Furthermore, the statute requires that the affidavit shall set forth specifically
for each theory of recovery for which damages are sought, the negligence, if any, or
other action, error, or omission of the licensed professional in providing the
11 professional services including identifying the error or omission which may have
occurred in providing advice, judgment, opinions, or similar professional skills
claimed to exist and the factual basis for each such claim. [CR 10]
3. Triggering the Certificate of Merit Requirement In this case, Appellant’s argue that TEX. CIV. PRAC. & REM. CODE § “150.001
defines what ‘licensed professional engineer’ means, [but] what constitutes the
‘practice of engineering’ by such a licensed professional engineer is not defined.”
[CR 14]
Appellee’s argument is wholly irrelevant. TEX. CIV. PRAC. & REM. CODE §
150.002(a), commonly referred to as the Certificate of Merit requirement, does not
include the phrase “the practice of engineering.” Rather, TEX. CIV. PRAC. & REM.
CODE § 150.002(a) requires that a certificate of merit be contemporaneously filed
“In any action or arbitration proceeding for damages arising out of the provision of
professional services by a licensed or registered professional.”
The question then presented by the statute is not “what constitutes the
‘practice of engineering’”, but rather does the dispute “[arise] out of the provision
of professional services” by a licensed engineer.
In this case, a licensed engineer (Shane E. Nance, PE No. 81519) performed
engineering services as a part of his employment for a licensed engineering firm
(Apex, Engineering Firm No. 3179), which had contracted with defendant Advanced 12 Pavement Maintenance, LTD to perform geotechnical engineering analysis and
testing. [CR 39, 40] Therefore, this dispute “[arises] out of the provision of
professional services” and triggers the Certificate of Merit Requirement.
4. Even if Texas Courts incorporate the § 150.001 “the practice of engineering” definition into the § 150.002(a) “arising out of the provision of professional services” requirement; Appellee was engaged in the practice of engineering Even if Texas Courts incorporated the definition of “the practice of
engineering” from TEX. CIV. PRAC. & REM. CODE § 150.001 into the “arising out of
the provision of professional services” requirement from TEX. CIV. PRAC. & REM.
CODE § 150.002(a); Appellee was clearly engaged in the practice of engineering.
TEX. CIV. PRAC. & REM. CODE § 150.001(3) states that “’Practice of
engineering’ has the meaning assigned by Section 1001.003, Occupations Code.”
“Practice of engineering” means the performance of or an offer or attempt to perform 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). A. The exemptions to the “practice of engineering” listed in Tex. Occ. Code. §§ 1001.053-063 do not apply to an Appellees pursuant to Tex. Occ. Code. § 1001.051 The Occupations Code lists out several exemptions to the definition of the
“practice of engineering.” TEX. OCC. CODE. §§ 1001.053-063. These exemptions
13 are meant to allow non-engineers to perform certain and specific tasks, which would
otherwise be considered the unlawful practice of engineering. See, “An exemption
under this subchapter applies only to a person who does not offer to the public to
perform engineering services.” TEX. OCC. CODE. § 1001.051.
As active and properly registered engineering firms, Appellees offered
engineering services to the public for hire. In this very dispute, Appellee Apex was
hired by Advanced Pavement Maintenance, LTD, an unrelated member of the
public, to perform Engineering Services.
B. Even if the Court finds that Tex. Occ. Code. § 1001.051 does not apply to Appellees, Tex. Occ. Code. § 1001.062 does not apply in this case
Appellant attempts to argue that TEX. OCC. CODE. § 1001.062 is an exemption
that applies in this case. That exemption, titled CERTAIN EMPLOYEES WORKING FROM
ENGINEER’S PLANS exempts “a regular full-time employee of a private business
entity who is engaged in erecting, constructing, enlarging, altering, repairing,
rehabilitating, or maintaining an improvement to real property in accordance with
plans or specifications that have an engineer’s seal.”
Appellant’s attempt to use this as an exemption in this case is preposterous at
best. Obviously, by reading the cited sections of the TEX. OCC. CODE outlined above,
the exception outlined in 1001.062 is meant to exclude individuals who are
constructing some type of improvement upon real property and who are working
14 from engineer’s plans that have an engineer’s seal. That exception is totally
inapplicable to the situation we have here in which a geotechnical engineer has
signed a geotechnical engineering analysis as a part of his employment at a
geotechnical engineering firm.
On this project, Appellee did not erect, construct, enlarge, alter, repair,
rehabilitate, or maintain any improvements to real property. Rather, Apex performed
geotechnical and engineering analysis of a borrow pit, with an engineering report as
the only deliverable. Furthermore, Appellant has offered no evidence showing that
Appellees Apex and/or Braun erected, constructed, enlarged, altered, repaired,
rehabilitated, or maintained any improvements to real property
Furthermore, Appellees were not working from or “in accordance with plans
or specifications that have an engineer’s seal.” Appellee Apex independently tested
materials located within a borrow pit, and provided a report detailing the engineering
analysis to Advanced Pavement Maintenance, LTD. [CR 39, 40]
The actions or omissions of defendant Advanced Pavement Maintenance,
LTD, a separate company, are entirely irrelevant to the issue in this appeal. Just
because Advanced Pavement Maintenance, LTD attached the Apex Engineering
Report to its bid proposal, does not mean that somehow Appellees Apex and Braun
15 were working under the seal of a project, for which it had neither contractual privity
or even so much as a copy of the sealed plans.
If we take Appellant’s cited exception as valid, any engineer that has anything
to do with a project is actually not practicing engineering. This is completely
contrary to the strict regulations that the TBPE places upon the engineers licensed
and the firms registered to practice within the State.
5. Dismissal for Failure to Comply was the Proper Remedy
Pursuant to the provisions of TEX. CIV. PRAC. & REM. CODE § 150.002(e),
Appellant’s failure to file the affidavit in accordance with this statute shall result in
the dismissal of the complaint. The statute as written states that although the Court
must dismiss the case, the dismissal may be with prejudice, and it is up to the Court’s
sound discretion as to whether the dismissal should be with prejudice. In this
situation, the Trial Court chose to dismiss the causes of action against Appellees
without prejudice.
16 CONCLUSION AND PRAYER
Appellant failed to follow the requirements of TEX. CIV. PRAC. & REM. CODE,
§ 150 and pursuant to the provisions of § 150.002(e), the Trial Court properly
dismissed the causes of action against Appellees for the failure to file the affidavit
in accordance with Texas Law.
WHEREFORE, PREMISES CONSIDERED, Appellees Apex Geoscience, Inc. and
Braun Intertec Corporation requests that this Honorable Court affirm the Trial
Court’s order of dismissal and that Appellees Apex Geoscience, Inc. and Braun
Intertec Corporation have such other and further relief to which they may show
themselves justly entitled.
17 Respectfully submitted,
FISK ALEXANDER, P.C.
By: /s/ D. Wilkes Alexander D. WILKES ALEXANDER State Bar No. 00783527 walexander@fiskalexander.com JAMES B. PRUDEN State Bar No. 24090822 jpruden@fiskalexander.com 2711 N. Haskell Avenue Suite 1550 – LB 10 Dallas, Texas 75204 214/638-3744 - Telephone 214/638-5105 - Facsimile
ATTORNEYS FOR APPELLEES APEX GEOSCIENCE, INC. AND BRAUN INTERTEC CORPORATION
18 CERTIFICATE OF SERVICE
I hereby certify that on May 29, 2018, a copy of the foregoing document was served upon all attorneys of record as indicated below.
JERRY N. DENNARD 3250 Mid Hollow Drive San Antonio, Texas 78230 dennardlaw@aol.com Attorney for Ronald R. Wagner & Co., L.P.
Brian R. Smith ATTORNEY AT LAW Chase Tower, Suite 600 P.O. Box 9134 Amarillo, Texas 79105 brs@suddenlinkmail.com Attorney for Advantage Asphalt of Lubbock, LLC, Advanced Pavement Maintenance, Ltd., Glenn E. Braudt and Brad Scott Knutson
/s/ D. Wilkes Alexander D. Wilkes Alexander
19 CERTIFICATE OF COMPLIANCE
The undersigned certifies that the above computer-generated document
contains a total of 2,220 words, not counting the caption, identity of parties and
counsel, statement regarding oral argument, table of contents, index of authorities,
supplemental statement of the case, statement of issues presented, signature, proof
of service, certification, certificate of compliance, and appendix, as shown by the
computer program creating said document