Curtis & Windham Architects, Inc. (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Jenning)
(actions “arising out of the provision of professional services, no certificate of merit required here)
It simply makes no sense to require an affidavit of a licensed or registered
professional setting forth “at least one negligent act, error, or omission claimed to
exist and the factual basis for each such claim” when, in fact, a plaintiff’s causes of
action do not concern negligence.
Accordingly, we hold that the Williamses were not required to file a certificate of merit
with their claims and the trial court did not err in denying C&W’s motion to dismiss.
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-09-00760-CV Curtis & Windham Architects, Inc., Russel Windham and William Curtis
v. John E. Williams and Sheridan Williams
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Ravi K. Sandill
O P I N I O N
In this interlocutory appeal, appellants, Curtis & Windham Architects, Inc., Russell Windham, and William
Curtis (collectively “C&W”) challenge the trial court’s order denying its motion to dismiss the counterclaims
and third-party petition for damages of appellees, John Eddie Williams and Sheridan Williams. In its sole
issue, C&W contends that the trial court erred in not dismissing the Williamses’ counterclaims and third-party
claims, which arose out of C&W’s provision of architectural services to the Williamses.
We affirm the order of the trial court.
In its original petition, C&W alleges that the Williamses retained C&W to provide “architectural services in
connection with the design, construction and landscaping of a proposed residence.” C&W explained to the
Williamses that, on a monthly basis, it would “bill for its time on a hourly basis according to a schedule of
hourly rates that was provided to the Williams[es].” The Williamses “agreed to proceed on this basis and to
pay C&W’s monthly invoices for hourly fees and expenses.” C&W explained to the Williameses that “its fees
typically run in the range of 12 to 15% of the project’s construction costs.” The Williamses paid all invoices
between February 2008 and March 2009 but refused to pay the April 2009 invoice in the amount of
$47,103.49. C&W also alleges that the fees and expenses were “not insubstantial, but the amount was
driven, in large part, by the expansive scope of the project specified by [the] Williams[es] and by the
countless changes they requested.” Payment was due on May 22, 2009, but the Williamses did not pay and
instructed C&W to stop work on the residence, which it did. C&W further alleges that the “April 2009 invoice
in the amount of $47,103.49 is just, due and owing” and the Williamses’ failure to pay constituted a breach of
In their original answer, the Williamses specifically deny that the amount owed on the April 2009 invoice is
“just, due, and owing.” They assert the affirmative defenses of “breach of fiduciary duty,” “fraudulent acts,
specifically, but without limitation, C&W’s fraudulent billing practices,” “waiver, ratification, . . . acquiescence,”
lack of a written contract, and, alternatively, C&W’s prior breach of the contract, statute of frauds, laches,
unclean hands, and equitable estoppel.
The Williamses assert counterclaims against C&W for (1) breach of fiduciary duty because C&W’s invoices
“reflect hours billed that cannot be reconciled with C&W’s actual work product,” “C&W’s project design was
and is materially inconsistent with the design parameters established by the Williams[es],” and C&W failed to
provide an accounting upon request to support its invoices; (2) fraud because C&W “pervasive[ly] and
systemic[ally] overbill[ed] the Williams[es],” C&W “either knew [its] invoices were over-stated, or was reckless
about the accuracy of the information contained in the invoices,” and C&W had a “duty to disclose to the
Williams[es] that C&W was seeking to bill 15-18% of construction costs”; (3) deceptive trade practices based
on C&W’s engaging in “false and misleading acts related to its billing practices and through its failure to
disclose . . . that C&W was seeking to bill the project as if the Williams[es] had agreed to a percentage
contract”; (4) unjust enrichment because C&W has been paid “nearly $1 million and [the Williamses] have
received little or no tangible benefit”; (5) damages incurred as a result of C&W’s frivolous lawsuit against the
Williamses because it failed “to disclose in its pleadings that it has already offered to credit the purported
balance owed by more than the amount claimed”; and (6) a declaration that C&W’s “architectural designs . .
. are not protected as original works . . . and/or the Williams[es] should have the full right to use the
designs.” The Williamses also filed a third-party petition alleging the same claims against Russell Windham
and William Curtis individually.
In their counterclaims and third-party petition, the Williamses specifically allege that C&W held “itself out as a
premier architectural firm . . . [with an] ability to develop ‘design solutions that are appropriate for their
context and that serve the programmatic requirements and budgets of [their] clients.’” Based on C&W’s
“design excellence,” the Williamses hired C&W as their architects. The Williamses believed that C&W was
“operating in a fiduciary capacity,” would perform work as instructed by the Williamses using the design
criteria and other information supplied by the them, and they would be charged only for work “actually
performed.” However, C&W “fundamentally ignored much of the design criteria and information supplied by
the Williams[es] and billed almost $1 million for an overall design that is not consistent with the [Williamses’]
instructions.” They also allege that Mr. Williams had engaged an attorney to draft a contract to govern the
engagement but the contract was never executed. The Williamses further allege that as of March 2009, they
had paid C&W “$926,232.51 . . . that only represented 40% of the total architectural costs.” The Williamses
then learned that “C&W had apparently been striving to bill 15-18% of the anticipated construction costs in
lieu of simply billing hours on authorized and necessary work” and C&W’s design “was inconsistent with the
design parameters provided by the Williams[es].” After the Williamses conveyed their disappointment to
C&W, it offered to refund the “landscape architect fees of $113,883.75.” On May 22, 2009, the Williamses
served a “written demand letter on C&W, demanding a full refund.”
C&W moved to dismiss the Williamses’ counterclaims and third-party petition on the ground that the
Williamses had filed claims accusing it of “wrongful conduct in the provision of professional services, but their
[counterclaims and third-party petition were] not accompanied” by a certificate of merit, i.e., an affidavit of
a third-party licensed architect describing the factual bases for their claims. The trial court denied C&W’s
Standard of Review
We review a trial court’s decision to deny a motion to dismiss for failure to file a certificate of merit under an
abuse of discretion standard. Consol. Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d
887, 891 (Tex. App.—Austin 2008, no pet.); Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 397 (Tex.
App.—Beaumont 2008, no pet.); Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433
(Tex. App.—Fort Worth 2005, no pet.).
A trial court abuses its discretion “if it acts in an arbitrary or unreasonable manner without reference to
guiding rules and principles.” See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). When reviewing
matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial
court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion
merely because it decides a discretionary matter differently than an appellate court would in a similar
circumstance. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). However, a trial court has “no discretion in determining what the law is or in applying the law to the
facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909,
916 (Tex. App.—Dallas 2007, pet. denied).
We review matters of statutory construction de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22,
25 (Tex. 2003). In construing statutes, our primary goal is to determine and give effect to the legislature’s
intent. Id. We begin with the plain language of the statute at issue and apply its common meaning. Id. Where
the statutory text is unambiguous, we adopt a construction supported by the statute’s plain language, unless
that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284
(Tex. 1999). “Once we determine the statute’s proper construction, we must then decide whether the trial
court abused its discretion in applying the statute.” Owens, 248 S.W.3d at 397.
Certificate of Merit
In its sole issue, C&W argues that the trial court erred in not dismissing the Williamses’ counterclaims and
third-party petition because the Williamses’ claims “arose out of the provision of professional services by a
licensed architect,” and the Williamses “did not file a certificate of merit setting forth ‘at least one negligent
act, error, or omission claimed to exist and the factual basis for each such claim.’” See Act of May 18, 2005,
79th Leg., R.S., ch. 208, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac.
& Rem. Code Ann. § 150.002 (Vernon Supp. 2009)).
The 2005 version of section 150.002, which is applicable to this case and entitled “Certificate of Merit,”
provided,(a) In any action or arbitration proceeding for damages 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 . . . competent to testify, holding the same
professional license as, and practicing in the same area of practice as the defendant, which affidavit shall
set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for
each such claim. The third-party . . . licensed architect shall be licensed in this state and actively engaged in
the practice of architecture . . . .
. . . .
(d) The plaintiff’s failure to file the affidavit . . . shall result in dismissal of the complaint against the
defendant. This dismissal may be with prejudice.
Id. (emphasis added).
Here, C&W and the Williamses disagree as to whether the Williamses’ claims “arise out of the provision of
professional services by a licensed architect” such that those claims are subject to the affidavit requirement
in section 150.002(a).
C&W argues that because the Williamses’ “counterclaims and third-party claims arise out of the provision of
architectural professional services,” the Williamses “were required to file with [their] petition an affidavit . . .
from a third-party licensed architect setting forth at least one negligent act, error or omission claimed to exist
and the factual basis for each such claim.” C&W emphasizes that “the statute was amended in 2005 to
broaden its application from claims for ‘damages alleging professional negligence’ to claims for damages
‘arising out of the provision of professional services.’” C&W asserts that the 2005 version of section 150.002
requires that for the Williamses “to assert any cause of action arising out of the provision of professional
services by a licensed or registered professional—whether the allegations are based on negligence or
intentional acts—the Williamses must come forward with at least proof of [or at a minimum] the lesser offense
of negligence—that is, [C&W’s] professional services fell below the applicable standard of care.” The
Williamses counter that because their claims arise out of “C&W’s alleged overbilling,” they were not required
to file a certificate of merit with their counterclaims and third-party petition.
In 2005, the legislature amended section 150.002 to apply to actions “arising out of the provision of
professional services.” Id. However, the Austin, San Antonio, and Corpus Christi Courts of Appeals have
concluded that no certificate of merit is required under the 2005 version of section 150.002 when the plaintiff
does not allege “a negligent act, error or omission.” Landreth v. Las Brisas Council of Co-Owners, 285 S.W.
3d 492, 500 (Tex. App.—Corpus Christi 2009, no pet.); Consol. Reinforcement, L.P., 271 S.W.3d at 892;
Kniestedt v. Southwest Sound and Elecs., Inc., 281 S.W.3d 452, 455 (Tex. App.—San Antonio 2007, no
pet.). The plain wording of the 2005 version of section 150.002 necessarily leads to this conclusion because
otherwise the legislature would not have specified that the affidavit “shall set forth specifically at least one
negligent act, error, or omission claimed to exist.” Act of May 18, 2005, 79th Leg., R.S., ch. 208, 2005 Tex.
Gen. Laws 370 (amended 2005). Because a straight-forward reading of the 2005 version of section 150.002
reveals that the filing of a certificate of merit is not required for causes of action that do not allege a
negligent act, error, or omission, we, along with our sister courts of appeal, decline to expand the scope of
the 2005 version of section 150.002 to causes of action “generally arising from” services provided by
licensed engineers and architects. Consol. Reinforcement, L.P., 271 S.W.3d at 892. Accordingly, we hold
that the 2005 version of section 150.002 does not apply in a suit other than one for negligent acts, errors, or
omissions arising out of the provision of professional services. See id.; Landreth, 285 S.W.3d at 500;
Kniestedt, 281 S.W.3d at 455.
We note that the practice of architecture is defined as “a service or creative work applying the art and
science of developing design concepts, planning for functional relationships and intended uses, and
establishing the form, appearance, aesthetics, and construction details for the construction . . . of a building
or environs intended for human use or occupancy, the proper application of which requires education,
training, and experience in those matters.” Tex. Occ. Code Ann. § 1051.001(7) (Vernon Supp. 2009). Thus,
if a plaintiff’s claim for damages does not implicate the special knowledge and training of an architect, it
cannot be a claim for damages arising out of the provision of professional services. See Consol.
Reinforcement, L.P., 271 S.W.3d at 894.
In Consol. Reinforcement, L.P., Carothers Executive Homes filed claims against Consolidated, an
engineering firm, for breach of contract, deceptive trade practices, and breach of warranty regarding
Consolidated’s “design and construct[ion of the buildings’] foundations.” 271 S.W.3d at 890. The Austin
Court of Appeals reasoned that:
[Plaintiff’s non-negligent causes of action] do not implicate a professional engineer’s education, training, and
experience in applying special knowledge or judgment. An affidavit of a licensed or registered professional
setting forth the negligent act, error, or omission and factual basis for each appears irrelevant to claims that
do not arise from the provision of professional services. We believe the non-negligence causes of action did
not require a certificate of merit.
Id. at 894 (quoting Gomez v STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at *2–3 (Tex. App.—San
Antonio Oct. 3, 2007, no pet.)).
Likewise, the Williamses’ causes of action do not implicate a professional architect’s “education, training, and
experience” in applying “special knowledge or judgment.” The gist of the Williamses’ claims, which are made
in response to C&W’s breach of contract claim for the Williamses’ non-payment of fees, is that C&W
engaged in “pervasive and systemic overbilling.” The Williamses’ claims for damages for breach of fiduciary
duty, fraud, deceptive trade practices, unjust enrichment, and the filing of a frivolous lawsuit against them
and their request for a declaratory judgment do not implicate a negligent act, error, or omission by C&W. It
simply makes no sense to require an affidavit of a licensed or registered professional setting forth “at least
one negligent act, error, or omission claimed to exist and the factual basis for each such claim” when, in fact,
a plaintiff’s causes of action do not concern negligence.
Accordingly, we hold that the Williamses were not required to file a certificate of merit with their claims and
the trial court did not err in denying C&W’s motion to dismiss.
We overrule C&W’s sole issue.
We affirm the order of the trial court.
Panel consists of Justices Jennings, Higley, and Sharp.