CV BRIEF OF APPELLEE BUCK ZION

05-11-01093-CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 10/31/11 14:00 Lisa Matz, Clerk MORRISON SEIFERT MURPHY, INC., Appellant vs. BUCK ZION, Appellee On interlocutory appeal from Cause No. 10-10977, 95 th Judicial District Court Dallas County, Texas The Honorable Ken Molberg, Presiding ORAL ARGUMENT REQUESTED BRIEF OF APPELLEE BUCK ZION Rosalyn R. Tippett State Bar of Texas No. 24007818 TIPPETT LAW OFFICE 106 N. Denton Tap Road, Suite 210-242 Coppell, TX 75019 Telephone: (972) 906-9598 Facsimile: (972) 346-8051 Brian A. Eberstein State Bar No. 06386000 Amy K. Witherite State Bar No. 00788698 Shelly T. Greco State Bar No. 24008168 EBERSTEIN & WITHERITE, LLP 3100 Monticello Avenue, Suite 500 Dallas, TX 75205 Telephone: (214) 378-6665 Facsimile: (214) 378-6670 ATTORNEYS FOR APPELLEE BUCK ZION

IDENTITY OF PARTIES AND COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a list of parties to the Trial Court s judgment, and their trial and appellate counsel: Defendant / Appellant: Morrison Seifert Murphy, Inc. Plaintiff / Appellee: Buck Zion Trial and Appellate Counsel: Gino J. Rossini Dwayne J. Hermes Deke D. Owen Hermes Sargent Bates, LLP 901 Main Street, Suite 5200 Dallas, Texas 75202 Appellate Counsel: Rosalyn R. Tippett Tippett Law Office 106 N. Denton Tap Road, Suite 210-242 Coppell, Texas 75019 Trial and Appellate Counsel: Brian A. Eberstein Amy K. Witherite Shelly T. Greco Eberstein & Witherite, LLP 3100 Monticello Avenue, Suite 500 Dallas, Texas 75205 Other Interested Parties (Defendant, not party to appeal) One Arts Plaza Condominium Association, Inc. and Billingsley Property Services, Inc. Trial Counsel: George N. Wilson, III (Trey) Thompson, Coe, Cousins & Irons, LLP Plaza of the Americas 700 N. Pearl Street, 25 th floor Dallas, TX 75201 i

TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL.. TABLE OF CONTENTS INDEX OF AUTHORITIES Page i ii iv-vi STATEMENT OF THE CASE 1 STATEMENT REGARDING ORAL ARGUMENT. 2 ISSUES PRESENTED.... 2 STATEMENT OF FACTS.. 3 SUMMARY OF THE ARGUMENT.. 4 ARGUMENT.. 5 I. The Trial Court s order denying MSM s motion to dismiss is reviewed under an abuse of discretion standard.. 5 II. Statutory construction issues in this case are reviewed de novo. 6 III. IV. The preliminary requirement of a certificate of merit under TEX. CIV. PRAC. & REM. CODE 150.002, serves to provide a means by which to give the Trial Court a basis to conclude at the outset whether a plaintiff s claims have merit.. 7 Mr. Drebelbis is qualified to tender the Certificate of Merit, as he possesses the same professional license as MSM, and he is knowledgeable in the same area of practice as MSM.. 8 A. There is no legal support for the contention that only an architect with some kind of specialized interior design credentials can knowledgeably opine on the propriety of the architectural design of a large glazed panel in a public building 9 B. Mr. Drebelbis adequately demonstrates his qualifications to render opinions about MSM s architectural design of the glazed glass panel.. 13 ii

C. Although the statute requires a certificate of merit be made only by certain qualified persons, it does not require all qualifications be recited in the certificate of merit. 17 D. Landreth v. Las Brisas Council of Co-Owners is distinguishable, as it was based entirely on statutory language that has been superseded and not applicable to this case.. 19 E. No certificate of merit is required for interior designers 20 V. The Certificate of Merit meets the substantive requirements of section 150.002(b) by setting forth MSM s negligent acts, as well as the factual basis for Mr. Drebelbis s claims..... 21 VI. VII. Mr. Drebelbis adequately identifies the factual basis for his opinions in the Certificate of Merit... 24 Any complaint about the Drebelbis Affidavit that was submitted in response to the motion to dismiss, was not preserved for review. But, if Mr. Zion s use of the Affidavit is considered, this Court should conclude that the Affidavit was proper controverting evidence of the nature of architectural specializations and proper clarification of Mr. Drebelbis s qualifications in light of the controverting evidence 27 A. Appellant has not preserved its right to complain about the Drebelbis Affidavit.. 28 B. Even if this Court considers the Trial Court s failure to strike the Drebelbis Affidavit, the use of a such an Affidavit by Mr. Zion was proper to controvert the evidence about architectural specializations that MSM presented with its motion to dismiss 29 VIII. In the unlikely event this Court concludes the Certificate of Merit was deficient, the case should be remanded to allow the Trial Court to determine whether good cause exists for an extension to allow Mr. Zion to cure the deficiencies.. 31 PRAYER.. 32 CERTIFICATE OF SERVICE 34 iii

INDEX OF AUTHORITIES Cases Page Arellano v. Americanos USA, LLC, 334 S.W.3d 326 (Tex. App. El Paso 2010, no pet. h.)... 28 The Belvedere Condominiums at State Thomas, Inc. v. Meeks Design Group, Inc., 329 S.W.3d 219 (Tex. App. Dallas 2010, no pet.)... 10 Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) 12 Capital One v. Carter & Burgess, Inc., 344 S.W.3d 477 (Tex. App. Fort Worth 2011, no pet. h.).. 6 City of Denton v. Page, 701 S.W.2d 831 (Tex. 1986) 22 Criterium-Farrell Engineers v. Owens, 248 S.W.3d 395 (Tex. App. Beaumont 2007, no pet.). 24 Dukes v. Philip Johnson / Alan Ritchie Architects, P.C., 252 S.W.3d 586 (Tex. App. Fort Worth 2008, pet. denied) 22, 23, 25 Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-10-00805-CV, 2011 WL 1562891 (Tex. App. Austin, Apr. 20, 2011, pet. denied) 16, 18, 23, 30 Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009). 6 Epco Holdings, Inc. v. Chicago Bridge and Iron Co., No. 14-10-01226-CV, 2011 WL 4919749 (Tex. App. Houston [14 th Dist.] Oct. 18, 2011, no pet. h.)... 7 Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713 (Tex. 1998). 10 iv

Hardy v. Matter, No. 04-10-00785-CV, 2011 WL 2889355 (Tex. App. San Antonio, July 20, 2011, pet. filed)... 18, 30 Howe-Baker Engineers, Ltd. v. Enterprise Products Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715 (Tex. App. Houston [1 st Dist.] Apr. 29, 2011, no pet. h.). 5, 13 Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004)... 5 Landreth v. Las Brisas Council of Co-Owners, 285 S.W.3d 492 (Tex. App. Corpus Christi 2009, no pet.). 19 Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937 (Tex. 1993).. 6 Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728 (Tex. App. Texarkana 2010, pet. dism d w.o.j.) 5, 17, 20, 30 St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997)... 6 TDIndustries, Inc. v. Rivera, 339 S.W.3d 749 (Tex. App. Houston [1st Dist.] 2011, no. pet. h.).. 5 WCM Group, Inc. v. Brown, 305 S.W.3d 222 (Tex. App. Corpus Christi 2009, pet. dism'd) 31 WCM Group, Inc. v. Camponovo, 305 S.W.3d 214 (Tex. App. Corpus Christi 2009, pet. dism'd). 31 Williams v. Bank One, Tex., N.A., 15 S.W.3d 110 (Tex. App. Waco 1999, no pet.) 29 Constitutions U.S. Const. amend. XIV 7 TEX. CONST. art. I, 19. 7 v

Statutes, Rules & Codes TEX. R. APP. P. 33.1(a). 28, 29 TEX. R. EVID. 702. 11 TEX. CIV. PRAC. & REM. CODE 150.001(1).. 7, 21 TEX. CIV. PRAC. & REM. CODE 150.002 passim TEX. OCC. CODE 105.001(7). 14 vi

05-11-01093-CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS MORRISON SEIFERT MURPHY, INC., Appellant vs. BUCK ZION, Appellee On interlocutory appeal from Cause No. 10-10977, 95 th Judicial District Court Dallas County, Texas The Honorable Ken Molberg, Presiding BRIEF OF APPELLEE BUCK ZION STATEMENT OF THE CASE Morrison Seifert Murphy, Inc. ( MSM ) filed a motion to dismiss Buck Zion s claims against it for negligence in the architectural design of a glazed glass panel in the lobby of One Arts Plaza. C.R. 93-112. In support of its motion to dismiss, MSM argued that Plaintiff s Certificate of Merit from James R. Drebelbis, AIA, P.E., did not comply with TEX. CIV. PRAC. & REM. CODE 150.002, which requires the filing of a certificate of merit from a qualified third-party licensed architect. C.R. 93-112. Buck Zion responded to the motion, and after hearing, the Trial Court denied MSM s Motion to Dismiss. C.R. 154-168, 190. MSM filed this interlocutory appeal of the Trial Court s ruling, pursuant to TEX. CIV. PRAC. & REM. CODE 150.002(f). C.R. 191. 1

STATEMENT REGARDING ORAL ARGUMENT Appellee respectfully requests the opportunity to present oral argument to aide the Court in its decisional process, as several issues pertain to statutory construction and matters that by omission, are left vague by TEX. CIV. PRAC. & REM. CODE 150.002. ISSUES PRESENTED ISSUE NO 1. Because third-party licensed architect, James R. Drebelbis, AIA, P.E., is knowledgeable in the area of Defendant MSM s practice and offers opinions based on his qualifications about MSM s architectural services in a Certificate of Merit, the Trial Court did not abuse its discretion in denying MSM s motion to dismiss that was filed pursuant to TEX. CIV. PRAC. & REM. CODE 150.002. ISSUE NO 2. The Trial Court did not abuse its discretion in denying MSM s motion to dismiss because Mr. Drebelbis s Certificate of Merit substantively meets the requirements of TEX. CIV. PRAC. & REM. CODE 150.002, by setting forth MSM s acts of negligence. ISSUE NO. 3. The Trial Court did not abuse its discretion in denying MSM s motion to dismiss because Mr. Drebelbis s Certificate of Merit substantively meets the requirements of TEX. CIV. PRAC. & REM. CODE 150.002, by setting forth the factual basis for Mr. Drebelbis s opinions. ISSUE NO. 4. The issue of whether or not the Trial Court did or should have considered the Drebelbis Affidavit, served with Plaintiff Zion s response to the motion to dismiss, was not preserved for appeal. But, even if this Court reviews the Trial Court s failure to strike the Drebelbis affidavit, it should conclude that use of the Affidavit was proper to controvert the evidence about architectural specializations that MSM presented with its motion to dismiss. ISSUE NO. 5. The Trial Court did not abuse its discretion in denying MSM s motion to dismiss because the Certificate of Merit complies with the requirements of TEX. CIV. PRAC. & REM. CODE 150.002, which warrants this Court to affirm. However, in the unlikely event this Court concludes the Certificate of Merit is deficient, the case should be remanded to allow the Trial Court to determine whether good cause exists for an extension to cure deficiencies. 2

STATEMENT OF FACTS When Plaintiff Buck Zion amended his Petition to add claims against MSM for its negligent architectural services, relating to the design and construction of a glazed glass panel in the lobby of One Arts Plaza, he contemporaneously filed a Certificate of Merit, pursuant to TEX. CIV. PRAC. & REM. CODE 150.002. C.R. 59-70. This Certificate of Merit, authored by James R. Drebelbis, AIA, P.E., along with the curriculum vitae provided therewith, set forth Mr. Drebelbis s qualifications and identified the negligence of MSM. C.R. 66-75. MSM filed a motion to dismiss, pursuant to TEX. CIV. PRAC. & REM. CODE 150.002(e), arguing that the Certificate of Merit was nonetheless deficient. C.R. 93-114. The motion to dismiss was accompanied by the affidavit of Lionel Morrison, explaining the allegedly specialized nature of architectural design services. C.R. 117-118. Mr. Zion filed a response showing that the Certificate of Merit met the statutory requirements of 150.002 because Mr. Drebelbis, a third-party licensed architect, was knowledgeable in the area of MSM s practice and the Certificate of Merit set forth the theories of recovery and the factual basis for Mr. Drebelbis s opinions. C.R. 154-168. Mr. Zion included with his response, a controverting Affidavit from Mr. Drebelbis, that explained the nature of architectural services and certifications for same, and clarified the nature of his qualifications to render opinions as to MSM s architectural services. C.R. 171-172. After hearing on the matter, the Trial Court denied MSM s motion to dismiss. C.R. 190. 3

SUMMARY OF THE ARGUMENT James R. Drebelbis, AIA, PE, a licensed third-party architect, is qualified to author a certificate of merit identifying the negligence in MSM s provision of architectural services because he holds the same professional license or registration as MSM, and is knowledgeable in the area of practice of MSM, satisfying the requirements of TEX. CIV. PRAC. & REM. CODE 150.002(a). The Drebelbis Certificate of Merit further meets each of the requirements of TEX. CIV. PRAC. & REM. CODE 150.002(b) because it sets forth each theory of recovery for which damages are sought, the negligent actions of MSM, and provides the factual basis for the claim. Accordingly, reviewing the record in the light most favorable to the Trial Court's ruling, this Court should conclude that the Trial Court did not abuse its discretion when it denied MSM s motion to dismiss. Moreover, because MSM failed to secure a ruling on its motion to strike the Drebelbis controverting Affidavit, submitted for consideration with Plaintiff Zion s response to the motion to dismiss, MSM has waived its right to complain on appeal about the use of this evidence. Alternatively, if this Court does review the propriety of Mr. Zion s use of the Drebelbis Affidavit to controvert MSM s expert s statements about the specialized practice of architecture, it should conclude that nothing in the TEX. CIV. PRAC. & REM. CODE 150.002 precludes outside evidence of the nature of specializations, or allows a defendant to file such evidence without providing the Plaintiff any mechanism by which to controvert it. Thus, even though the record does not indicate whether the Trial Court considered the Affidavit, and there is no ruling on the motion to 4

strike the Affidavit, this Court should find that the Trial Court did not abuse its discretion in denying the motion to dismiss. The Trial Court s order should be affirmed. Alternatively, should the Court find any deficiency in regard to the Certificate of Merit, this case should be remanded for a determination of whether good cause exists for an extension to allow Plaintiff Buck Zion to cure deficiencies in the Certificate of Merit. ARGUMENT I. The Trial Court s order denying MSM s motion to dismiss is reviewed under an abuse of discretion standard. A trial court's order granting or denying a motion to dismiss brought under TEX. CIV. PRAC. & REM. CODE 150.002, is reviewed under an abuse of discretion standard. TDIndustries, Inc. v. Rivera, 339 S.W.3d 749, 752 (Tex. App. Houston [1st Dist.] 2011, no. pet. h.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules and principles and when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. (citing Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)). In reviewing a trial court's denial of a section 150.002 motion to dismiss, this Court must review the record in the light most favorable to the court's ruling. Howe-Baker Engineers, Ltd. v. Enterprise Products Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, at *5 (Tex. App. Houston [1 st Dist.] Apr. 29, 2011, no pet. h.)(citing Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728, 737 (Tex. App. Texarkana 2010, pet. dism d w.o.j.)). 5

II. Statutory construction issues in this case are reviewed de novo. If resolution of an issue requires the court to construe statutory language, statutory construction is reviewed de novo. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). When a statutory provision is clear and unambiguous, the court need not resort to extrinsic aids to determine the meaning of the provision. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). Rather, the court must adopt the interpretation supported by the plain meaning of the provision's words. Id.; Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993). In this case, the Court should decline to read elements and proscriptions into the statute that simply are not present. This Court is being asked to construe the legal intent and effect of TEX. CIV. PRAC. & REM. CODE 150.002, and particularly (1) whether it distinguishes between sub-specialties of third-party licensed architects in determining their knowledge and qualifications; (2) whether it prohibits evidence of qualifications from sources outside of the certificate of merit; (3) whether it prohibits consideration of controverting evidence about the nature of architectural specialties, outside of a certificate of merit; and (4) whether it gives a judge authority to extend the deadline, for good cause shown, for a plaintiff to revise a certificate of merit to comply with the statutory requirements. Once this Court determines the proper construction of the statute, it determines whether the Trial Court abused its discretion in the manner in which it applied the statute. Capital One v. Carter & Burgess, Inc., 344 S.W.3d 477, 479-80 (Tex. App. Fort Worth 2011, no pet. h.). 6

III. The preliminary requirement of a certificate of merit under TEX. CIV. PRAC. & REM. CODE 150.002, serves to provide a means by which to give the Trial Court a basis to conclude at the outset whether a plaintiff s claims have merit. follows: The pertinent portion of TEX. CIV. PRAC. & REM. CODE 150.002 provides as (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, licensed professional engineer, registered landscape architect, or registered professional land surveyor who: (1) is competent to testify; (2) holds the same professional license or registration as the defendant; and (3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person's: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice. (b) 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 or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying. (c) The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires. 7

TEX. CIV. PRAC. & REM. CODE 150.002(a), (b) and (c). Further, licensed or registered professional, as used in section (a) above, is defined as: a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices TEX. CIV. PRAC. & REM. CODE 150.001(1). The apparent purpose of this statute is to allow a court to determine whether certain claims have merit and to provide a vehicle for dismissal when claims lack merit. Epco Holdings, Inc. v. Chicago Bridge and Iron Co., No. 14-10-01226-CV, 2011 WL 4919749, at*5 (Tex. App. Houston [14 th Dist.] Oct. 18, 2011, no pet. h.). Thus, to the extent there are reasonable interpretations of the statute, one of which would summarily foreclose suit without any determination on the merits, and one of which would allow the case to proceed to an evidentiary stage, this Court should adopt the one that allows the case to go forward to avoid running afoul due process, under the fourteenth amendment to the United States Constitution, and due course of law, under article I, section 19 of the Texas Constitution. See U.S. Const. amend. XIV; TEX. CONST. art. I, 19. IV. Mr. Drebelbis is qualified to tender the Certificate of Merit, as he possesses the same professional license as MSM, and he is knowledgeable in the same area of practice as MSM. It is not disputed that the Certificate of Merit and curriculum vitae outline Mr. Drebelbis s knowledge, skill, experience, education, training and practice in the area of architecture. Nor is it disputed that like Mr. Drebelbis, MSM is licensed to provide architectural services. However, MSM argues that Mr. Drebelbis s Certificate of Merit 8

does not meet the substantive requirements of TEX. CIV. PRAC. & REM. CODE 150.002(a) because the Certificate of Merit and curriculum vitae, do not show he is qualified in the area of the interior design aspect of architectural services. MSM s argument should be rejected because the statute does not distinguish between sub-specialties within architecture; there is no legal support for the contention that only an architect with specialized interior design credentials could knowledgeably opine on the propriety of glazing done on a large glass panel in a public building; and because Mr. Drebelbis does sufficiently show that he possesses the qualifications to render opinions about the architectural design services MSM performed with respect to the glazing of the glass panel. A. There is no legal support for the contention that only an architect with some kind of specialized interior design credentials can knowledgeably opine on the propriety of the architectural design of a large glazed panel in a public building. MSM suggests that architectural interior design services are a specialized area of law requiring unique knowledge, skill, etc. Yet, there is no law that characterizes interior design services as being entitled to special legal characteristics in the context of 150.002. And certainly, there is no law that states that the architectural design of a large glass panel in a lobby of a public building requires expertise in a very technical and specialized sub-specialty of the practice of architecture. Section 150.002 itself does not mention any distinction between sub-specialties within the architectural license. See TEX. CIV. PRAC. & REM. CODE 150.002. Thus, the Trial Court correctly looked at the plain wording of the statute in considering Mr. Drebelbis s qualifications, and in 9

determining that he had the requisite knowledge required for the Certificate of Merit. R.R. 5-6. MSM s citation to The Belvedere Condominiums at State Thomas, Inc. v. Meeks Design Group, Inc., 329 S.W.3d 219 (Tex. App. Dallas 2010, no pet.), to support its argument that broad-based education and experience do not qualify an expert to opine on all matters in the expert s field, misses the point. In Belvedere, the plaintiff attempted to use an engineer to criticize a landscape architect, a completely different licensure and completely different area of practice. Id. at 221. The court in Belvedere noted that the certificate of merit did not identify the engineer s experience or expertise in landscape architecture, indicate that the engineer s practice area included the design and construction of drainage systems, or provide information that the engineer practiced in the same area as the landscape architect. Id. By contrast, in this case, both Mr. Drebelbis and MSM share the same license and professional specialization of architecture, and there was information in the Certificate of Merit and curriculum vitae to assist the Trial Court in determining that Mr. Drebelbis practices in the same area as MSM. MSM has inappropriately urged this Court to consider the Daubert/Robinson test for determining an expert s qualifications, as recited in Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713 (Tex. 1998). No Texas court has ever applied the Gammill analysis to the determination of whether the author of a certificate of merit is knowledgeable in the area of practice of the defendant. Regardless, MSM s counsel misrepresented to the Trial Court that Gammill s analysis had been applied in evaluating 10

an expert s qualifications under TEX. CIV. PRAC. & REM. CODE 150.002, as reflected in the following exchange during the hearing on the motion to dismiss: THE COURT: So does the the statute doesn t support any distinction between subspecialties within the practice of or the licensed architect? It just MR. OWEN: The statute itself does not, but in Landreth verses Las Briasas, one of the biggest cases on the certificate of merit in the lower court, they did differentiate between subspecialities of architecture. They relied on the Broders case and the Gammell case, which state that all medical doctors can t testify about all medical matters, and Gammell applied that to THE COURT: Well, yeah, but that you know, one of the reasons I don t follow the reasoning of that case all that well is that what they latch onto is something that s an evidentiary matter whereas what we ve got here is kind of a precondition of suit matter. MR. OWEN: Sure. THE COURT: And it just seems to me that they really botched the test when they when they they were comparing apples to oranges. R.R. 5-6. As the Trial Court clearly comprehended, it is inappropriate to apply Gammill s full evidentiary review of an expert s qualifications under Texas Rule of Evidence 702 1, for the purpose of determining whether the expert will be allowed to testify at trial. Whether or not a third-party architect is found knowledgeable sufficient to author a Certificate of Merit, has no bearing ultimately on whether the individual will be permitted to testify as an expert at trial. MSM further inappropriately tries to analogize the issue of whether an expert is knowledgeable under TEX. CIV. PRAC. & REM. CODE 150.002, with the requirement 1 TEX. R. EVID. 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. 11

that an expert against a healthcare professional be qualified before he or she can testify about medical care given. MSM cites to the Texas Supreme Court s statement about medical specialties: [G]iven the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of medical specialization. See Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). However, there is no evidence that the complexity of medical specialties is in any way comparable to services performed by architects, at least with respect to the practice of glazing and placement of a glass panel in a public lobby. And, there is no basis in law to treat medical specialties the same as architectural services in this regard. As stated in a controverting Affidavit submitted in response to the motion to dismiss, Architects frequently provide interior design services even though they may not hold an interior design license. See Affidavit of Drebelbis, at C.R. 171. The State of Texas permits licensed architects to obtain an interior designer license by simply filling out a form and sending it in along with a fee. Id. at C.R. 171. Architects are not licensed to preserve aesthetics. Id. at C.R. 171. Architects are licensed, rather, to ensure that they have working knowledge of the building codes, building materials, and project management. Id. at C.R. 171. There is also nothing unique about the nature of specifying glazing that only an interior designer can accomplish. Id. at C.R. 171. Architects specify glazing, and Mr. Drebelbis has specified and detailed glazing in his practice. Id. at C.R. 12

171. Thus, there is no support for the contention that Mr. Drebelbis must have more interior design credentials in order to qualify him to author a Certificate of Merit criticizing MSM s architectural design. B. Mr. Drebelbis adequately demonstrates his qualifications to render opinions about MSM s architectural design of the glazed glass panel. An evaluation of whether the third-party licensed architect is knowledgeable in the same area of practice as MSM for purposes of section 150.002, requires comparison of the allegations in the petition, each alleged supporting negligent act, error, or omission identified in the affidavit, and the relevant practice areas of the affiant and the defendant in relation to the supporting statements identified in the certificate of merit. See Howe- Baker Engineers, Ltd. v. Enterprise Products Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, at *5 (Tex. App. Houston [1 st Dist.] Apr. 29, 2011, no pet. h.). The allegations stated in Plaintiff s First Amended Petition, are that MSM was negligent in designing the glazed glass panel in the One Arts Plaza Lobby, which was mistaken on a number of occasions as an open exit; and that MSM failed to meet the applicable work product standards of design professions to safely accommodate the use for which the building was intended. C.R. 62-63. Further there is no dispute that MSM s practice area is that of architecture. Section 105.001(7) of the Texas Occupations Code defines the "practice of architecture" 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, enlargement, 13

or alteration 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 105.001(7). Thus, under this definition, by virtue of having a license to practice architecture, Mr. Drebelbis is qualified to opine on the negligence of the design concepts, the planning of the functional relationship and intended uses, and the form, appearance, and aesthetics of the use of the glazed panel where it was located in the lobby of One Arts Plaza. Plaintiff has more particularly demonstrated that Mr. Drebelbis is knowledgeable in the same area of practice of MSM based on the following statements contained in the Certificate of Merit: Mr. Drebelbis holds the same professional license (Architect) as MSM. Mr. Drebelbis is an Architect, registered with the State of Texas. Mr. Drebelbis holds a license to practice as a professional engineer. Mr. Drebelbis has a bachelor of science degree in Architectural Engineering. Mr. Drebelbis has been actively engaged in the practice of architecture and engineering for over 40 years. During his career, Mr. Drebelbis has performed engineering and architectural work on numerous types of buildings, and his work experience includes the design, specification and detailing associated with defining the components found therein. By virtue of his knowledge, skill, education, training and professional experience and practice, Mr. Drebelbis has personal knowledge of the general acceptable standards for the practice of architectural services in the State of Texas and specifically of the same area of practice as MSM. 14

C.R. 69. Mr. Drebelbis s curriculum vitae, incorporated into the Certificate of Merit, further identifies Mr. Drebelbis s qualifications in the area of practice of MSM, as follows: Mr. Drebelbis worked for SHWC, Inc., a development firm specializing in designs for educational facilities and high-rise condominiums, where he was a project architect. Mr. Drebelbis worked for Kingscott Associates, Inc., an architectural and engineering firm, as a project designer/architectural job captain, handling architectural design. While he was an engineer in training, Mr. Drebelbis worked for Clark Engineering Company and Grover Dimond Associates, Inc., doing structural design. C.R. 73-74. The qualifications set forth in the Certificate of Merit and curriculum vitae alone sufficiently demonstrate Mr. Drebelbis s knowledge in the area of practice of MSM. But even further, Mr. Drebelbis outlines his interior design experience (as a component of his architectural practice) in his Affidavit served with the response to the motion to dismiss, which states: I have specified and detailed glazing in my architectural practice. As to my qualifications in the areas addressed by interior designers, in addition to having education, knowledge, training and having practiced in similar areas, I have on three occasions provided continuing education seminars to interior designers on the subjects of building codes and architectural programming through one of their professional organizations, TAID. In other words I am qualified enough to be the source of knowledge for the interior designers. C.R. 171-172. 15

A similar qualifications challenge was presented in Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-10-00805-CV, 2011 WL 1562891 (Tex. App. Austin, Apr. 20, 2011, pet. denied). There, the defendant ESG contended that the court abused its discretion in denying ESG's motion to dismiss because thirdparty architect Nyfeler s affidavit did not demonstrate he was qualified to provide a certificate of merit. Id. at *2. One of ESG s complaints was that Nyfeler's affidavit failed to establish that he was knowledgeable in the area of practice of ESG. Id. In its pleadings, the plaintiff alleged that ESG was the Project architect, signed and sealed the architectural plans and drawings for the Project, and provided overall Architecture, Civil, and Structural Engineering design, documentation and coordination for the Project; thus, according to the court, ESG's area of practice was general, involving the preparation and review of architectural drawings and the coordination of various aspects of the project. Id. The Court looked to Nyfeler s affidavit, which stated that he had been a registered architect in Texas for 40 years, was the senior vice president of a Texasbased architecture and engineering firm for 10 years, and currently managed his own architectural practice. Id. Even though Nyfeler did not specifically state that he was knowledgeable in the same area of practice of ESG, the court said, such specific and precise language is not required when it is evident from the affidavit that the requirement has been met. Id. Accordingly, the court held that the trial court did not abuse its discretion in concluding that Nyfeler's affidavit established that he was knowledgeable 16

in the area of practice of ESG, i.e., providing architectural plans and drawings, design, documentation, and coordination for the construction of a building. Id. In this case, MSM is an architectural firm that happens to provide interior design services. MSM s contract AIA B151, to which MSM refers in its brief, is by its own terms for architects who are providing interior design services -- it is not an owner/interior designer contract. C.R. 119-137. The crux of the issue of negligence is whether the glazing, as architecturally designed and used in the building at issue, represents an unsafe condition. As to Mr. Drebelbis s knowledge with regard to this architectural practice, Mr. Drebelbis states he is aware of the building code requirements for making glazing safe. See Certificate of Merit, at C.R. 69. Based on this and the education, training and experience outlined in Mr. Drebelbis s curriculum vitae and the Certificate of Merit itself, Mr. Drebelbis has been shown to be imminently qualified to provide the opinions he does, to satisfy the requirements of TEX. CIV. PRAC. & REM. CODE 150.002(a). C. Although the statute requires a certificate of merit be made only by certain qualified persons, it does not require all qualifications be recited in the certificate of merit. As explained in Natex Corp. v. Paris Independent School Dist., section 150.002(a), requiring the author of a certificate of merit against a licensed architect be qualified, does not require an affidavit that slavishly tracks the wording of the statute or that the court hearing a challenge to the qualifications of the affiant rely solely on the content of the affidavit. Natex Corp. v. Paris Independent School Dist., 326 S.W.3d 728, 17

735 n.5 (Tex. App. Texarkana 2010, pet. dism d w.o.j.). In other words, although the statute requires the affidavit to be made only by certain qualified persons, it is not required that the affidavit set out those qualifications. Id.; see also Elness Swenson Graham, 2011 WL 1562891, at *2; Hardy v. Matter, No. 04-10-00785-CV, 2011 WL 2889355, at *4-5 (Tex. App. San Antonio, July 20, 2011, pet. filed)( we look no further than the literal text of the statute, which simply does not state the affiant's qualifications must appear on the face of the initial affidavit ). Thus, although Mr. Drebelbis s relevant qualifications in the area of architecture were disclosed in the Certificate of Merit and his curriculum vitae attached thereto, the Trial Court also had the legal authority to consider the Affidavit from Mr. Drebelbis. C.R. 171-172. As shown in the Affidavit, Mr. Drebelbis possesses the same unique qualifications to give him the same specialized knowledge as MSM. C.R. 171. The Affidavit states that Mr. Drebelbis has specified and detailed glazing in his architectural practice, and he has even, on three occasions, provided continuing education seminars to interior designers on the subjects of building codes and architectural programming through one of their professional organizations, TAID. C.R. 171-172. This additional evidence could have been properly used by the Trial Court to conclude that Mr. Drebelbis was sufficiently qualified to opine on MSM s architectural design in the Certificate of Merit. 18

D. Landreth v. Las Brisas Council of Co-Owners is distinguishable, as it was based entirely on statutory language that has been superseded and not applicable to this case. MSM cites to Landreth v. Las Brisas Council of Co-Owners, 285 S.W.3d 492 (Tex. App. Corpus Christi 2009, no pet.), a case which coincidentally involved the same Mr. Drebelbis serving as the author of a certificate of merit against an architect. In Landreth, the 13 th Court of Appeals determined that the Certificate of Merit was inadequate, because it did not state that Drebelbis was practicing in the same area of practice as the defendant. Id. at 499. The court s decision was extremely narrow in that it addressed the singular issue of the wording of the phrase "practices in the same area of practice as... Id. at 497-98. Landreth is distinguishable from this case and citation to Landreth is wholly inconsequential to MSM s argument, as the practicing in the same area of practice as the defendant standard changed in 2009. Now, under the applicable statute, Mr. Drebelbis is not required to practice in the same area of practice as MSM; but rather, need only be knowledgeable in the area of practice of defendant. TEX. CIV. PRAC. & REM. CODE 150.002(a)(3). Thus, because the holding in Landreth was narrowly based on statutory language that is no longer in the statute and not applicable to this case, the holding in Landreth is not relevant to the issue of whether Mr. Drebelbis s Certificate of Merit complies with the statute (TEX. CIV. PRAC. & REM. CODE 150.002) as amended in 2009. Even if this Court looks at the Landreth case as instructive in determining whether an expert may be qualified by his knowledge in the area of another architect s practice, 19

this case does not support the contention that Mr. Drebelbis is ill qualified, as it does not state that architectural interior design is a distinct or specialized form of a general architectural practice. In fact, in Natex Corp., the defendant Natex, using the Landreth case as support, argued that the author of the certificate of merit was not qualified because he was only an architect who provided design services, while the defendant Natex was hired to provide architecture and design services in the specific areas of school renovations and new construction. Natex, 326 S.W.3d at 735. The court rejected the defendant s argument and its reliance on Landreth, saying there is no requirement in the law suggesting that Weir (author of the certificate of merit) would have to practice in the specific field of architectural design of educational facilities in order to qualify under the statute. Id. at 736. E. No certificate of merit is required for interior designers. MSM has tried to re-characterize its architectural services as interior design services in an inappropriate attempt to argue that Mr. Drebelbis is not qualified. To make its argument, MSM even goes so far as to point out the differing definitions of practice of architecture and interior design as set out in the Texas Occupations Code. However, if the practice at issue was exclusively one of interior design, there would be no need for a certificate of merit at all, as TEX. CIV. PRAC. & REM. CODE, Chapter 150, does not apply to claims against interior designers. See TEX. CIV. PRAC. & REM. CODE 150.001(1). A certificate of merit is only required in an action arising out of the provision of professional services by a licensed or registered professional, and a licensed or 20

registered professional is defined exclusively as: a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices TEX. CIV. PRAC. & REM. CODE 150.002, 150.001(1). Licensed or registered interior designers are not among this list. Thus, to the extent MSM was actually practicing as an interior designer on the project at issue, there was no need for a certificate of merit to be filed with the Petition at all. As outlined herein, Mr. Drebelbis has more than adequately shown that he holds the same professional license as MSM and that he is knowledgeable in the same area of practice as MSM. Accordingly, Mr. Drebelbis is qualified to tender the Certificate of Merit; and thus, the Trial Court did not abuse its discretion in denying the motion to dismiss. V. The Certificate of Merit meets the substantive requirements of section 150.002(b) by setting forth MSM s negligent acts, as well as the factual basis for Mr. Drebelbis s claims. MSM contends that Mr. Drebelbis did not properly allege any negligent action, error or omission by MSM. This argument is without merit, as Mr. Drebelbis succinctly identifies MSM s decision to incorporate a glass panel into the egress of a public area of a building as the negligence/act/omission at issue. C.R. 69. In doing so, the Certificate of Merit sets forth specifically at least one negligent act, error, or omission as required by the statute. 21

MSM s theory is that the facts alleged do not amount to negligence. In support of this theory, MSM highlights allegations in the Certificate of Merit that say MSM was negligent by violating obligations to the public allegedly established by the rules and regulations of the Texas Board of Architectural Examiners. Mr. Drebelbis does opine that MSM violated guidelines set out by the Texas Board of Architectural Examiners. C.R. 69. And, Appellee concedes that violation of a professional standard does not necessarily give rise to a legal cause of action by an injured third party. However, Mr. Drebelbis s statements about MSM s errors and omissions are separate and apart from the professional standard violations; they relate directly to MSM s duties under the law of general and premises liability negligence. Specifically, MSM s legal duty to the public is supported by the laws of general negligence and premises liability negligence, in that MSM created the dangerous condition that caused injury to the Plaintiff. See City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986)(stating a private person who has created the dangerous condition may be liable even though not in control of the premises at the time of injury). While, MSM s duty to ensure the safety of the public, under a general negligence analysis, may on the one hand depend on the scope of contract it entered into with the premises owner, MSM may also be held liable under a premises liability analysis if the party agreed to make safe a known, dangerous condition and failed to do so or if the party created the dangerous condition. See Dukes v. Philip Johnson / Alan Ritchie Architects, P.C., 252 S.W.3d 586, 595-96 (Tex. App. Fort Worth 2008, pet. denied). 22

Like in the Elness Swenson Graham case, MSM is essentially arguing that the Certificate of Merit is deficient because it does not expressly state the correct or applicable standard of care. Elness Swenson Graham, 2011 WL 1562891, at *4. However, as the court in Elness Swenson Graham stated, [s]ection 150.002 does not expressly require that the affiant state the applicable standard of care; rather, it requires only that the affiant set forth the negligence, if any, or other action, error or omission of the licensed or registered professional. Id. By averring that the licensed or registered professional's conduct is negligent, the affiant is necessarily opining that the complained-of conduct did not meet the applicable standard of care. Id. Such an opinion suffices to fulfill the certificate's purpose of providing a basis for the trial court to conclude whether the plaintiff's claims have merit. Id. Like in Elness Swenson Graham, the Certificate of Merit here sets forth the alleged negligence by specifically identifying the actions, errors, and omissions that deviated from the applicable standard of care and caused the harm. Id. at *5. Thus, as in Elness Swenson Graham, this Court should hold that the Trial Court did not abuse its discretion in denying the motion to dismiss on this basis. See id. Even if MSM disputes that it owes Plaintiff a duty of care under the factual scenario set forth in the Certificate of Merit, a duty analysis under either negligence or premises liability theories centers around an examination of the evidence. See Dukes, 252 S.W.3d at 596 (stating that to determine whether a party may be held liable under a premises liability analysis based on an agreement to make safe a known dangerous 23

condition or based on the creation of dangerous condition, requires the court to examine the summary judgment evidence). The purpose of the Certificate of Merit is to provide a basis for the trial court to conclude that the plaintiff's claims have merit. Criterium- Farrell Engineers v. Owens, 248 S.W.3d 395, 399 (Tex. App. Beaumont 2007, no pet.). It is not a vehicle in which to evaluate all of the evidence proving or disproving the existence of a duty of care owed by MSM. While there may be a dispute as to whether or not MSM actually owed a duty to the Plaintiff, such evidentiary dispute need not be resolved at this juncture. As the statute sets forth, the Certificate of Merit simply needs to address the applicable standard of care and the defendant's failure to meet the standard. Id. at 400. Mr. Drebelbis succinctly identifies the standard of care in paragraph nine of the Certificate of Merit, and thereafter identifies how that standard of care was breached by MSM in paragraphs 10 and 11. C.R. 69. Thus, even if MSM disputes the standard of care as Mr. Drebelbis states it, and disputes the evidence supporting MSM s breach of the standard of care, the Certificate of Merit still adequately meets the requirements of TEX. CIV. PRAC. & REM. CODE 150.002(b). VI. Mr. Drebelbis adequately identifies the factual basis for his opinions in the Certificate of Merit. MSM contends that Mr. Drebelbis did not state the factual basis for his conclusions because none of the documents cited by Mr. Drebelbis include any drawings, contract or records from MSM. MSM argues that since Mr. Drebelbis did not analyze any documents related to MSM s contract or records, opinions about MSM s scope of 24

services are without foundation. This argument is flawed because an expert would not find relevant contracts and scope of service documents to render the simple opinion that it was an architectural design flaw to incorporate a clear glass wall into a building at a point of egress. This opinion can be rendered based on photographs of the glass panel and the building alone. Further, there is no authority for the proposition that the expert must look at the architect s contract with the building owner in order to opine that the architect was negligent. MSM s argument about scope of services may be based on a misunderstanding of Dukes, where the court found that the defendant architects were under no obligation to report unsafe or hazardous conditions they observed during their architectural review of the Fort Worth Water Gardens. Dukes v. Philip Johnson / Alan Ritchie Architects, P.C., 252 S.W.3d 586, 593 (Tex. App. Fort Worth 2008, pet. denied). The architects could not be liable for design defects of the Water Gardens because they owed no duty, as all they did was conduct a conditions survey and the City never retained them to design or implement any of the matters in the condition survey. Id. at 593-95. This scenario is distinct from the case against MSM because MSM in fact created the dangerous condition that caused Plaintiff s injury, under its contract with the building. There is simply no debate that MSM designed and created the condition complained of in contrast to the architects in Dukes, who were only contracted to evaluate a pre-existing structure. 25