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NO. 05-11-01093-CV In The Fifth District Court Of Appeals At Dallas 5th Court of Appeals FILED: 10/12/11 14:00 Lisa Matz, Clerk MORRISON SEIFERT MURPHY, INC. v. Appellant, BUCK ZION Appellee. ON INTERLOCUTORY APPEAL FROM THE 95 TH JUDICIAL DISTRICT COURT, DALLAS COUNTY, TEXAS CAUSE NO. 10-10977, THE HONORABLE KEN MOLBERG, PRESIDING BRIEF OF APPELLANT MORRISON SEIFERT MURPHY, INC. Gino J. Rossini State Bar No. 24007953 Dwayne J. Hermes State Bar No. 09514400 Deke D. Owen State Bar No. 24046572 HERMES SARGENT BATES, LLP 901 Main Street, Suite 5200 Dallas, Texas 75202 (214) 749-6000 (214) 749-6100 (Fax) Attorneys for Appellant ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL In accordance with Texas Rule of Appellate Procedure 38.1, and to assist the members of this Court in determining whether disqualification and recusal under Texas Rule of Appellate Procedure 16 is necessary, Appellant certifies that the following is a complete list of the parties, attorneys, and other persons who have an interest in the outcome of this appeal: Defendant/Appellant Morrison Seifert Murphy, Inc. represented by Gino J. Rossini State Bar No. 24007953 Dwayne J. Hermes State Bar No. 09514400 Deke D. Owen State Bar No. 24046572 HERMES SARGENT BATES, LLP 901 Main Street, Suite 5200 Dallas, Texas 75202 (214) 749-6000 Telephone (214) 749-6100 Facsimile Plaintiff/Appellee Buck Zion represented by BRIAN A. EBERSTEIN State Bar No. 06386000 AMY K. WITHERITE State Bar No. 00788698 SHELLY T. GRECO State Bar No. 24008168 ZACHARY R. BURD State Bar No: 24066807 EBERSTEIN & WITHERITE, LLP 3100 Monticello Avenue, Suite 500 Dallas, Texas 75205 Tel: (214) 378-6665 Fax: (214) 378-6670 i

Co-Defendants (not parties to this appeal) One Arts Plaza Condominium Association, Inc. and Billingsley Property Services, Inc. represented by George N. Wilson III (Trey) State Bar No. 24003183 THOMPSON, COE, COUSINS & IRONS, L.L.P Plaza of the Americas 700 N. Pearl Street, 25th Floor Dallas, Texas 75201 ii

TABLE OF CONTENTS ORAL ARGUMENT REQUESTED... i IDENTITY OF PARTIES AND COUNSEL... i INDEX OF AUTHORITIES... vi STATEMENT OF THE CASE... ix STATEMENT REGARDING ORAL ARGUMENT... xi ISSUES PRESENTED... xii 1. The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to demonstrate that Mr. Drebelbis is qualified in the area of MSM s practice, architectural interior design... xii 2. The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to set forth any negligent action, error or omission under Texas law, as Chapter 150 requires; rather, Drebelbis Certificate alleges that MSM violated its professional code and rendered flawed contract documents and a design that has a history of causing harm to the Public, and none of these allegations supports a negligence claim.... xii 3. The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to set forth any factual basis for Mr. Zion s claim against MSM, as Chapter 150 requires; Mr. Zion alleges that MSM prepared flawed contract [design] documents but the Drebelbis Certificate fails to set forth that Mr. Drebelbis even looked at the contract design documents that MSM allegedly prepared.... xii 4. The trial court erred by implicitly overruling MSM s objection to Mr. Drebelbis supplemental affidavit because the trial court may only look to the original, timely field affidavit to determine merit under Chapter 150.... xii 5. The trial court erred by not dismissing Mr. Zion s cause of action against MSM with prejudice because dismissal is mandated under the Code and the statute of limitations has run on Mr. Zion s claim for negligence, making dismissal without prejudice an unwarranted and needless exercise.... xii RECORD... xii STATEMENT OF FACTS... 1 iii

SUMMARY OF THE ARGUMENT... 5 ARGUMENT AND AUTHORITIES... 9 I. Standard of Review.... 9 II. Applicable Rules of Statutory Construction.... 10 III. IV. Applicable Provisions of Chapter 150 of the Texas Civil Practice and Remedies Code are Designed to Allow the Trial Court to Determine Whether Claims Against Design Professionals Have Merit.... 10 ISSUE ONE: The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to demonstrate that Mr. Drebelbis is qualified in the area of MSM s practice, architectural interior design.... 12 A. MSM provided specific architectural interior design services on the Project.... 13 B. Mr. Drebelbis is not qualified in the practice of architectural interior design.... 15 C. Broad-based education and experience do not qualify an expert to opine on all matters regarding the expert s field.... 17 V. ISSUE TWO: The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to set forth any negligent action, error or omission under Texas law, as Chapter 150 requires.... 21 VI. VII. ISSUE THREE: The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to set forth any factual basis for Mr. Zion s claim against MSM, as Chapter 150 requires.... 26 ISSUE FOUR: The trial court erred by implicitly overruling MSM s objection to Mr. Drebelbis supplemental affidavit because the trial court may only look to the original, timely field affidavit to determine merit under Chapter 150.... 30 VIII. ISSUE FIVE: The trial court erred by not dismissing Mr. Zion s cause of action against MSM with prejudice because dismissal is mandated under the Code and the statute of limitations has run on Mr. Zion s claim for negligence, making dismissal without prejudice an unwarranted and needless exercise.... 32 iv

A. The plain language of Chapter 150 and the Legislature s intent mandate dismissal of Mr. Zion s claims.... 33 B. The statute of limitations for Mr. Zion s claim has expired.... 33 C. Plain language and legislative purpose mandate dismissal of Mr. Zion's claim with prejudice.... 33 IX. Conclusion.... 34 PRAYER... 35 CERTIFICATE OF SERVICE... 37 v

INDEX OF AUTHORITIES Cases American Centennial Ins. v. Canal Ins., 810 S.W. 246, 255 (Tex. App. Houston [1st Dist.]), aff d in part, rev d in part on other grounds, 843 S.W2d 480 (Tex. 1992)... 2 AMS Const. Co. v. Warm Springs Rehabilitation Foundation, Inc., 94 S.W.3d 152 (Tex. App. Corpus Christi 2002, no pet.)... 29 Belvedere Condominiums at State Thomas, Inc. v. Meeks Design Group, Inc., 329 S.W.3d 219 (Tex. App. Dallas 2010, no pet.)... 8, 9, 12, 17, 18, 19, 30 Benchmark Eng'g. Corp. v. Sam Houston Race Park, 316 S.W. 3d 41 (Tex. App. Houston [14th Dist.] 2010, pet. dism d by agr.)... 19 Broders v. Heise, 924 S.W.2d 148 (Tex. 1996)... 19, 20, 21 Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex. 1981)... 30 Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004)... 9 City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008)... 9 Cobb v. Thomas, 565 S.W.2d 281 (Tex. Civ. App. Tyler 1978, writ ref d n.r.e.)... 22, 24 Criterium-Farrell Engineers v. Owens, 248 S.W.3d 395 (Tex. App. Beaumont 2008, no pet.)... 9, 10, 22, 29 DLB Architects, P.C. v. Weaver, 305 S.W.3d 407 (Tex. App. Dallas 2010, pet. denied)... 9, 10, 30, 34 Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586 (Tex. App. Fort Worth 2008, pet. denied)... 7, 24, 25 Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713 (Tex. 1998)... 19, 20, 21 Graham v. Freese & Nichols, Inc., 927 S.W.2d 294 (Tex. App. Eastland 1996, writ denied)... 24 vi

Haynes v. City of Beaumont, 35 S.W.3d 166 (Tex. App. Texarkana 2000, no pet.)... 29 I.O.I. Sys. Inc. v. City of Cleveland, 615 S.W.2d 786 (Tex. App. Houston [1st Dist.] 1980, writ ref d n.r.e.)... 7, 22, 24, 25 Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006)... 9 Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004)... 24 Jones v. Blume, 196 S.W.3d 440 (Tex. App. Dallas 2006, pet. denied)... 24 Judwin Props., Inc. v. Griggs & Harrison, P.C., 981 S.W.2d 868 (Tex. App. Houston [1st Dist.] 1998, pet. denied)... 24 Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995)... 10 Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex. App. Corpus Christi 2009, no pet.)... 8, 12, 18, 19, 30, 31 Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728 (Tex. App. Texarkana 2010, pet. granted)... 19 Polland & Cook v. Lehmann, 832 S.W.2d 729 (Tex. App. Houston [1st Dist.] 1992, writ denied)... 24 Randall Noe Chrysler Dodge, LLP v. Oakley Tire Co., 308 S.W.3d 542 (Tex. App. Dallas 2010, pet. denied)... 22 Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192 (Tex. App. Fort Worth 2006, no pet.)... 29 Romero v. Parkhill, Smith & Cooper, Inc., 881 S.W.2d 522 (Tex. App. El Paso 1994, writ denied)... 24 Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996)... 29 W. Invs., Inc. v. Urena, 162 S.W.3d 547 (Tex. 2005)... 22 vii

WCM Group, Inc. v. Brown, 305 S.W.3d 222 (Tex. App. Corpus Christi 2009, pet. denied)... 10 Statutes TEX. CIV. PRAC. & REM. CODE ANN. 150.001... ix, 14 TEX. CIV. PRAC. & REM. CODE ANN. 150.001(f)... x TEX. CIV. PRAC. & REM. CODE ANN. 150.002... ix, 9, 34 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a)... 6, 8, 10, 11, 12, 22, 25, 26, 29, 30 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(b)... 6, 7, 12 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(d)... 33 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(e)... 30, 33, 34 TEX. CIV. PRAC. & REM. CODE ANN. 16.003(a)... 2, 3, 8, 9, 33 TEX. OCC. CODE ANN. 1051.001... 14 Rules TEX. R. APP. P. 16... i TEX. R. APP. P. 38.1... i TEX. R. APP. P. 39.7... xi Regulations 22 TEX. ADMIN. CODE... 24 22 TEX. ADMIN. CODE 1.141(d)... 7, 24, 25 viii

STATEMENT OF THE CASE This is an interlocutory appeal from an order denying Defendant/Appellant Morrison Seifert Murphy, Inc. ( MSM ) s motion to dismiss a negligence claim brought by Plaintiff/Appellee Buck Zion ( Mr. Zion ). App. Tab A, Order. On or about March 18, 2011, Mr. Zion first filed suit against MSM for negligence based on the architectural interior design professional services MSM provided at One Arts Plaza Condominiums (the Project ). 1 Mr. Zion does not dispute that the 2009 version of Chapter 150 of the Texas Civil Practice and Remedies Code 2 applies to Mr. Zion s negligence claim against MSM. Chapter 150 requires Mr. Zion to support his claim against MSM with a complying certificate of merit. In an attempt to meet Chapter 150 s requirements, Mr. Zion filed contemporaneously with his negligence claim a purported certificate of merit in the form of an affidavit from James R. Drebelbis, AIA, P.E. (the Drebelbis Certificate ). 3 App. Tab B. MSM moved the trial court to dismiss Mr. Zion s claim with prejudice because the Drebelbis Certificate fails satisfy three separate requirements set forth in Chapter 150. Specifically, MSM argued that the Drebelbis Certificate (1) failed to demonstrate that Mr. 4 1 CR: 59, Plaintiff s First Amended Original Petition and Request for Disclosure to Defendant Morrison Seifert Murphy, Inc. ( Petition ). Mr. Zion also brought negligence claims against One Arts Plaza Condominium Association, Inc. and Billingsley Property Services, Inc., neither of whom is a party to this appeal. CR: 61-62, Petition. 2 Throughout Appellant s Brief, Chapter 150 and sections thereof shall refer to Chapter 150 and sections of Chapter 150 in effect following the effective dates of the 2009 amendments to Chapter 150 of the Texas Civil Practice and Remedies Code, unless another code or version is specified. See TEX. CIV. PRAC. & REM. CODE ANN. 150.001, -.002 (West 2011). App. Tab E. 3 CR: 138, Certificate of Merit by James R. Drebelbis, AIA, P.E. Pursuant to Tex. Civ. Prac. & Rem. Code 150.002 ( Drebelbis Certificate ). 4 CR: 93, Defendant Morrison Seifert Murphy, Inc. s Motion to Dismiss ( Motion to Dismiss ). ix

Drebelbis was qualified to opine about MSM s services because Mr. Drebelbis was not shown to possess the adequate knowledge in the area of practice of MSM, architectural interior design, (2) alleges conduct by MSM but fails to set forth any action, error, or omission that constitutes negligence under Texas law, and (3) fails to set forth any factual basis of Mr. Zion s claim against MSM. 5 MSM supported its motion with affidavit testimony introducing the contract for architectural interior design services under which it performed work for the Project and establishing that MSM s area of practice, architectural interior design, is different from the practice of architecture in general. 6 App. Tap C. In his Response, Mr. Zion attempted to submit an additional affidavit by Mr. Drebelbis (the Supplemental Affidavit, App. Tab D), but failed to cite any authority for this untimely submission. 7 In its Reply, MSM argued that the Supplemental Affidavit was submitted untimely, should be stricken, and, regardless, did not bring the Drebelbis Certificate into compliance. 8 The trial court heard MSM s Motion on July 28, 2011, the Hon. Ken Molberg presiding. 9 From the bench, the trial court signaled its apparent disagreement with key cases analyzing Chapter 150 10 and the view that the legislature intended Chapter 150 to protect covered design professionals against frivolous lawsuits. 11 The trial court issued 5 Id. 6 CR: 171-172, Affidavit of James R. Drebelbis, AIA, P.E. ( Supplemental Affidavit ). 7 CR: 154, Plaintiff s Response in Opposition to Defendant Morrison Seifert Murphy, Inc. s Motion to Dismiss ( Plaintiff s Response ). 8 CR: 174, Morrison Seifert Murphy, Inc. s Reply to Plaintiff s Response In Opposition To Its Motion To Dismiss ( MSM s Reply ). 9 RR: 2; CR: 190. 10 RR: 5-6. 11 RR: 21-22. x

an Order failing to strike the untimely Supplemental Affidavit and denying MSM s Motion to Dismiss. 12 App. Tab A. MSM then timely brought this interlocutory appeal. 13 STATEMENT REGARDING ORAL ARGUMENT Appellant MSM submits that this appeal presents issues of first impression regarding the application and interpretation of the 2009 version of Chapter 150 of the Texas Civil Practice and Remedies Code. Accordingly, Appellant respectfully requests the opportunity to present oral argument, as also noted on the cover of this Brief pursuant to Rule 39.7 of the Texas Rules of Appellate Procedure. 12 CR: 190, Order Denying Defendant Morrison Seifert Murphy, Inc. s Motion to Dismiss ( Order ). 13 An order granting or denying a Chapter 150 motion for dismissal is immediately appealable as an interlocutory order. TEX. CIV. PRAC. & REM. CODE ANN. 150.001(f) (West 2011). xi

ISSUES PRESENTED 1. The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to demonstrate that Mr. Drebelbis is qualified in the area of MSM s practice, architectural interior design. 2. The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to set forth any negligent action, error or omission under Texas law, as Chapter 150 requires; rather, Drebelbis Certificate alleges that MSM violated its professional code and rendered flawed contract documents and a design that has a history of causing harm to the Public, and none of these allegations supports a negligence claim. 14 3. The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to set forth any factual basis for Mr. Zion s claim against MSM, as Chapter 150 requires; Mr. Zion alleges that MSM prepared flawed contract [design] documents but the Drebelbis Certificate fails to set forth that Mr. Drebelbis even looked at the contract design documents that MSM allegedly prepared. 15 4. The trial court erred by implicitly overruling MSM s objection to Mr. Drebelbis supplemental affidavit because the trial court may only look to the original, timely field affidavit to determine merit under Chapter 150. 5. The trial court erred by not dismissing Mr. Zion s cause of action against MSM with prejudice because dismissal is mandated under the Code and the statute of limitations has run on Mr. Zion s claim for negligence, making dismissal without prejudice an unwarranted and needless exercise. RECORD The record of this appeal consists of a one-volume Clerk s Record and a onevolume Reporter s Record. The Clerk s Record will be cited in this Brief as CR:. The Reporter s Record will be cited as RR:. Materials forming the Appendix to this Brief will be cited as App. Tab. 14 CR: 141, Drebelbis Certificate 10. 15 See CR: 138-142, Drebelbis Certificate 5, 10. xii

TO THE HONORABLE FIFTH COURT OF APPEALS: Appellant Morrison Seifert Murphy, Inc. presents this its brief appealing the trial court s Order denying its motion to dismiss Appellee s lawsuit for Appellee s failure to serve a certificate of merit that complied with the 2009 version of Texas Civil Practice and Remedies Code Chapter 150. In support of its appeal, MSM shows as follows: STATEMENT OF FACTS This lawsuit concerns Appellee Mr. Zion s alleged March 19, 2009 injury at the One Arts Plaza Condominiums in Dallas, Texas. 16 Mr. Zion alleges that he was injured when he walked directly into a clear, unmarked, unetched and unprotected glass wall. 17 Mr. Zion contends that MSM was negligent for violating statutory obligations in designing the glazed glass panel at issue, which was located in the Arts Plaza Lobby. 18 Mr. Zion specifically alleges that the glazed glass panel was mistaken on a number of occasions as an open exit. 19 Mr. Zion also alleges that design professionals professional conduct codes supply the proper standard of care for architects work product, and that the glazed glass panel at issue failed to meet that standard of care because it does not safely accommodate the use for which the building was intended by the public. 20 MSM is a professional architectural firm that was hired by Arts Residential Partners, Inc. ( Arts Residential ) to perform professional interior design architectural 16 CR: 60, Petition Facts. 17 CR: 61, Petition Facts. 18 CR: 63, Petition. 19 CR: 63, Petition. 20 CR: 63, Petition. 1

services for the Project. 21 MSM and Arts Residential entered into a Standard Form of Agreement Between Owner and Architect for Architectural Interior Design Services dated June 15, 2005 (the Architectural Interior Design Contract ). 22 See App. Tab C. In accordance with its Architectural Interior Design Contract, MSM provided professional architectural interior design services for Arts Residential during construction of the Project. 23 MSM did not enter into any other contracts regarding its work on the Project. 24 The design of the interior glass portion of the Project, including the glazed glass panel at issue in this matter, was performed by MSM under and in accordance with the Architectural Interior Design Contract. 25 On September 1, 2010, Mr. Zion brought negligence claims against Billingsley Property Services, Inc. and One Arts Plaza Condominium Association, Inc. 26 On March 18, 2011, one day before the two year anniversary of Mr. Zion s March 19, 2009 accident, 27 Mr. Zion amended his suit and filed his First Amended Original Petition ( Petition ) naming for the first time, and bringing a negligence claim against, MSM. 28 21 CR: 117, Motion to Dismiss, Exhibit 1, Affidavit of Lionel Morrison in Support of Morrison Siefert Murphy Inc. s Motion to Dismiss ( Morrison Affidavit ) 2. 22 CR: 119, Standard Form of Agreement Between Owner and Architect for Architectural Interior Design Services, dated June 15, 2011, and signed by Lionel Morrison, President, on behalf of MSM and Lucilo Pena, President, on behalf of Arts Residential Partners, Inc., A Texas Corporation (the Architectural Interior Design Contract ). 23 Id. 24 Id. 25 CR: 118. 26 CR: 6, Petition. 27 CR: 59. 28 Actions for negligence are governed by a two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE ANN. 16.003(a) (West Supp. 2010); American Centennial Ins. v. Canal Ins., 810 S.W. 246, 255 (Tex. App. Houston [1 st Dist.]), aff d in part, rev d in part on other grounds, 843 S.W2d 480 (Tex. 1992). 2

Under the applicable limitations statute, March 19, 2011 was the bar date for Mr. Zion s negligence claim against MSM. 29 Mr. Drebelbis two principle complaints against MSM, as set forth in the Drebelbis Certificate, are that MSM prepared flawed contract documents that caused harm to the Public and that this harm allegedly violates MSM s purported professional obligations as codified in the Texas Administrative Code. 30 The Drebelbis Certificate expressly sets forth the documents Mr. Drebelbis reviewed but fails to set forth the factual basis for his claim that MSM prepared flawed contract documents because it establishes that Mr. Drebelbis did not review any MSM contract documents. 31 See App. Tab B. Furthermore, through counsel, Mr. Zion judicially admitted during the hearing on MSM s Motion to Dismiss that Mr. Drebelbis did not review the Contract prior to authoring the Certificate. 32 Mr. Zion s counsel specifically stated before the court: Just for the Court's purposes he mentioned this Drebelbis we did not have the contract at the time that, given the statute of limitations, the certificate of merit needed to be filed. Drebelbis has looked at the contract 33 since. In addition to alleging that MSM prepared flawed contract documents for the Arts Plaza, 34 the Drebelbis Certificate also states that: MSM is responsible for at least but not limited to the design of a glazed panel in the Arts Plaza Lobby located in the area used as a means of egress from the Lobby that can be, and has on several occasions been, mistaken for an exit from the Lobby. This design constitutes an act, error, or 29 TEX. CIV. PRAC. & REM. CODE ANN. 16.003(a); CR: 59. 30 Id. 31 Id., see RR: 27. 32 RR: 27. 33 Id. 34 CR: 141, Drebelbis Certificate 10. 3

omission that has a history of causing harm to the Public. Further the glazed sidelights in the Lobby on the Arts Plaza as designed and as existed on 3/19/2009 has the potential to further harm the Public. 35 Strikingly, the Drebelbis Certificate never states what an architectural interior design professional such as MSM should have done in same or similar circumstances, and fails to state in even the most conclusory terms that MSM breached the standard of care for design professionals in MSM s area of practice. 36 Also, the Drebelbis Certificate fails to show that Mr. Drebelbis is qualified to opine about MSM s area of practice, architectural interior design services. On July 11, 2011, MSM filed its Motion to Dismiss on the basis that Mr. Zion failed to file a certificate of merit that complies with the requirements set forth in Chapter 150 of the Texas Civil Practice and Remedies Code. 37 In his Response to MSM s Motion to Dismiss, Mr. Zion asserted in part that Mr. Drebelbis is qualified to opine regarding architectural interior design because he is an architect, and that Mr. Drebelbis opinion regarding MSM s alleged preparation of flawed contract documents is properly rendered based solely on photographs of the glazed glass panel and the building alone. 38 Specifically, Mr. Zion claims: 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 ingress and egress. This opinion can be rendered based on photographs of the glass 39 panel and the building alone. 35 Id. 36 CR: 138-142, Drebelbis Certificate. 37 CR: 93, Motion to Dismiss. 38 CR: 163, Plaintiff s Response. 39 CR: 163, Plaintiff s Response. 4

MSM has consistently maintained, however, that Mr. Drebelbis mere analysis of pictures and the accident site do not provide Mr. Drebelbis any factual basis to support the claim that MSM prepared flawed contract documents given that there is no basis to conclude that the glazed glass panel at issue was constructed as designed or not modified after construction. The Drebelbis Certificate is wholly conclusory and fails to comply with Chapter 150 and the applicable case law on other bases as well, as is further shown herein. Significantly, Mr. Drebelbis lack of qualifications was also an issue before the Corpus Christi Court in Landreth v. Las Brisas Council of Co-Owners, Inc., and that court struck Mr. Drebelbis affidavit because it did not show he was qualified to opine about the area of practice of the architect defendant in that matter, design restoration architecture. 40 Similarly, in this matter, MSM has consistently maintained that the Drebelbis Certificate fails to show that Mr. Drebelbis is qualified to opine about MSM s area of practice, architectural interior design services, based merely on his knowledge and practice of architecture in other areas. SUMMARY OF THE ARGUMENT Mr. Zion s claims against MSM should be dismissed because the affidavit serving as Mr. Zion s certificate of merit does not meet the substantive requirements of Chapter 150, and the trial court s Order should be reversed for each of the following separate reasons: 40 Id. 5

1. Mr. Drebelbis fails to show he is qualified to opine regarding MSM s area of practice, architectural interior design services [ADDRESSING ISSUE ONE]. Chapter 150 requires Mr. Zion to provide an affidavit from an affiant who is qualified to tender a certificate of merit against the defendant based on the requisite knowledge, skill, experience, education, training, or practice in the area of design professional services such as the services provided by the defendant. 41 The Drebelbis Certificate fails in this regard. MSM rendered architectural interior design services at the Project, and Mr. Zion has alleged MSM did so negligently. But the Drebelbis Certificate fails to establish that Mr. Drebelbis has sufficient knowledge, skill, experience, education, training, or practice in MSM s relevant practice area, architectural interior design services. 42 2. Mr. Drebelbis fails to set forth any negligent action, error, or omission committed by MSM [ADDRESSING ISSUE TWO]. Chapter 150 requires the affiant to set forth an alleged negligent action, error, or omission of the licensed or registered professional. 43 The Drebelbis Certificate fails to comply with this requirement. Although Mr. Drebelbis asserts that MSM allegedly violated its professional code of conduct, as codified in the Texas Administrative Code, such conduct does not constitute negligence because by its own terms the Texas Administrative Code does not create a 41 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a) (West 2011). 42 CR: 138-139, Drebelbis Certificate 1-4; RR: 27. 43 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(b) (West 2011). 6

standard of care for civil actions under Texas law. 44 The duties of an architect arise out of the architect s contract, 45 not the architect s professional code of conduct. 46 3. Mr. Drebelbis fails to set forth any factual basis for his claim regarding MSM s conduct [ADDRESSING ISSUE THREE]. Chapter 150 requires Mr. Zion to provide an affidavit that, in part, sets forth the factual basis for his claim. 47 Instead of providing any factual basis, the Drebelbis Certificate offers only conclusory opinions that lack any basis in fact. Specifically, Mr. Zion and the Drebelbis Certificate itself establish that Mr. Drebelbis lacked direct knowledge of the contract governing MSM s work on the Project, any of MSM s drawings or specifications generated for the Project, or any other actual knowledge of MSM s work on the Project. 48 Thus, even assuming MSM s alleged provision of contract documents that are flawed under the Texas Administrative Code constitutes negligence, which it does not, the Drebelbis Certificate fails to provide any factual basis for this claim. Based on any one of these three fatal Drebelbis Certificate deficiencies, the trial court should have dismissed this suit against MSM because Mr. Zion failed to comply with Chapter 150. 44 22 TEX. ADMIN. CODE 1.141(d) (Texas Board of Architectural Examiners). The Texas Board of Architectural Examiners provides that its rules of professional conduct are not intended to suggest or define standards of care in civil actions against Architects involving their professional conduct. Id. 45 See I.O.I. Sys. Inc. v. City of Cleveland, 615 S.W.2d 786, 790 (Tex. App. Houston [1st Dist.] 1980, writ ref d n.r.e.). 46 Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 593 (Tex. App. Fort Worth 2008, pet. denied) ( [W]e determine that professional negligence law has not yet been broadened to include the evaluation of professional codes of ethics in the determination of whether a duty is owed. ). 47 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(b). 48 CR: 139-141, Drebelbis Certificate 5-11; RR: 27. 7

4. The trial court erroneously considered Mr. Drebelbis Supplemental Affidavit [ADDRESSING ISSUE FOUR]. The trial court also erred by failing to strike, and implicitly considering, Mr. Drebelbis untimely Supplemental Affidavit. The plain language of Chapter 150 and applicable case law state that the certificate of merit must be analyzed from within its four comers and any attachments thereto, such as the affiant s curriculum vitae, if any. 49 Additionally, the certificate of merit must be filed contemporaneously with any complaint. 50 The Supplemental Affidavit was filed after the Petition and Drebelbis Certificate and, therefore, should not be considered. And the Supplemental Affidavit does not cure the deficiencies of the original Drebelbis Certificate regardless. 5. Mr. Zion s claim should be dismissed with prejudice [ADDRESSING ISSUE FIVE]. Lastly, the trial court erred by failing to dismiss Mr. Zion s claim against MSM with prejudice. The Drebelbis Certificate is fatally deficient in three respects and the statute of limitations on Mr. Zion s negligence claim expired only one day after it was filed. 51 Thus, even if the Drebelbis Certificate s deficiencies were cured in a subsequent filing, any negligence claim subsequently filed by Mr. Zion would be barred by 49 Belvedere Condominiums at State Thomas, Inc. v. Meeks Design Group, Inc., 329 S.W.3d 219, 221 (Tex. App. Dallas 2010, no pet.) ( Pursuant to the plain language in section 150.002(a), we examine Ray s certificate of merit, which includes his affidavit and resume, and compare his areas of practice with identifiable areas of landscape architecture practiced by Meeks. ); Landreth v. Las Brisas Council of Co- Owners, Inc., 285 S.W.3d 492, 500 (Tex. App. Corpus Christi 2009, no pet.) ( Because nothing in the statute suggests or anticipates that the trial court may look outside the four corners of the report for guidance, we hold, under the plain language of the statute, it cannot. ). 50 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a) (stating that the plaintiff shall be required to file with the complaint a complying affidavit). 51 CR: 59. Actions for negligence are governed by a two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE ANN. 16.003(a); American Centennial Ins., 810 S.W. at 255. 8

limitations. 52 The Legislature s intent in passing Chapter 150 is to allow the trial court to dismiss claims that have no merit. 53 Failing to dismiss Mr. Zion s claim with prejudice only invites the filing of a subsequent meritless claim, to MSM s undue detriment and the waste of judicial resources. ARGUMENT AND AUTHORITIES I. Standard of Review. An appellate court reviews a trial court s ruling on a motion to dismiss for an abuse of discretion. 54 To determine whether a trial court abused its discretion, the appellate court must decide whether the trial court acted without reference to any guiding rules or principles, or whether the trial court s act was arbitrary or unreasonable. 55 Statutory construction is a question of law, which the appellate court reviews de novo. 56 Once the appellate court determines the proper construction of a statute, it determines whether the trial court abused its discretion in the manner in which it applied the statute to the instant case. 57 52 See TEX. CIV. PRAC. & REM. CODE ANN. 16.003(a). 53 TEX. CIV. PRAC. & REM. CODE ANN. 150.002; see Criterium-Farrell Engineers v. Owens, 248 S.W.3d 395, 399 (Tex. App. Beaumont 2008, no pet.) ( We agree that 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. ); Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 854, 79th Leg., R.S. (2005) (stating that the 2003 legislation was passed protecting engineers and architects from frivolous lawsuits ). 54 Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Belvedere Condominiums, 329 S.W.3d at 221. 55 Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). 56 City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008); see DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 409 (Tex. App. Dallas 2010, pet. denied). 57 Landreth, 285 S.W.3d at 496. 9

II. Applicable Rules of Statutory Construction. When interpreting a statutory provision such as Chapter 150, the court s goal is to give effect to the intent of the Legislature. 58 To determine legislative intent, we look to the plain and common meaning of the words the legislature used. 59 Likewise, every word of a statute must be presumed to have been used for a purpose and every word excluded from a statute must be presumed to have been excluded for a purpose. 60 Only when it is necessary to give effect to the clear legislative intent may the courts insert additional words into a statutory provision. 61 III. Applicable Provisions of Chapter 150 of the Texas Civil Practice and Remedies Code are Designed to Allow the Trial Court to Determine Whether Claims Against Design Professionals Have Merit. By its very wording and purpose, Chapter 150 is designed to be a mechanism to allow the trial court to determine whether claims of negligence against certain design professionals have merit. 62 This case focuses on three separate requirements set forth in Chapter 150 to accomplish this end: the affiant must provide evidence to the court that he 58 DLB Architects, 305 S.W.3d at 409. 59 Id. 60 See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). 61 DLB Architects, 305 S.W.3d at 409. 62 See TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a); WCM Group, Inc. v. Brown, 305 S.W.3d 222, 230 (Tex. App. Corpus Christi 2009, pet. denied) ( [T]he purpose of the statute is to provide a basis for the trial court to conclude that the plaintiff's claims have merit. ); Criterium-Ferrell, 248 S.W.3d at 339 ( We agree that 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. ). 10

is properly qualified; the affidavit must state a claimed negligent action, error, or omission; and the affidavit must state the factual basis for such claim. As a threshold matter, section 150.002(a) requires that the affiant be properly qualified to render an opinion against the defendant, as follows: Sec. 150.002. CERTIFICATE OF MERIT. (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. 63 The Legislature thus ensured that the affiant is qualified through knowledge in the same area of practice as the defendant. 64 Moreover, when considering the adequacy of the expert s certificate of merit, this Court in Belvedere Condominiums at State Thomas, Inc. v. Meeks Design Group, Inc. properly confined its inquiry to the four corners of the 63 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a) (emphasis added). 64 See TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a). 11

affidavit, that is, the affidavit and its attachments, including the affiant s curriculum vitae. 65 Second, a certificate of merit must set forth the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service. 66 This Court has correctly indicated that the phrase negligence, if any, or other action, error, or omission in this statute refers to actions, errors, or omissions supporting plaintiff s theory of recovery. 67 In this case, Mr. Zion only asserts one theory of recovery against MSM, a negligence claim. 68 Third, a certificate of merit must set forth the factual basis for each such claim. 69 IV. ISSUE ONE: The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to demonstrate that Mr. Drebelbis is qualified in the area of MSM s practice, architectural interior design. The Drebelbis Certificate fails to demonstrate that Mr. Drebelbis is knowledgeable in MSM s area of practice, architectural interior design. Mr. Zion attempts to address this failure by claiming that any architect, such as Mr. Drebelbis, is qualified to opine regarding architectural interior design. But this argument fails because it ignores Chapter 150 case law and other authority that establishes meaningful distinctions between the 65 Belvedere Condominiums, 329 S.W.3d at 221 (determining whether affiant practiced in the same area as defendant by looking only at certificate of merit, which includes his affidavit and resume... pursuant to the plain language in section 150.002(a) ) (citing Landreth, 285 S.W.3d at 500-501 ( Because nothing in the statute suggests or anticipates that the trial court may look outside the four corners of the report for guidance, we hold, under the plain language of the statute, it cannot. )). 66 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(b). 67 Belvedere Condominiums, 329 S.W.3d at 222 n.2 (stating that the 2009 amendments to Chapter 150 expanded the detail to support each theory of recovery ). 68 CR: 59, Petition. 69 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(b). 12

broader practice of architecture in general and a defined architecture sub-specialty such as architectural interior design. A. MSM provided specific architectural interior design services on the Project. The facts of this case show that MSM was engaged by Arts Residential to provide architectural interior design services on the Project. 70 Architectural interior design services are a specialized area of law that requires unique knowledge, skill, experience, education, training, or practice. 71 Moreover, the American Institute of Architects ( AIA ) recognizes the important distinctions between interior design and other types of architectural design services by promulgating a separate standard form contract for architectural interior design services. 72 Significantly, the contract regarding MSM s work on this project is the specialized AIA document B171 contract (Standard Form of Agreement Between Owner and Architect for Architectural Interior Design Services) that has different terms and conditions than the AIA document B101 contract (Standard Form of Agreement Between Owner and Architect). 73 The AIA B171 document in this case is utilized specifically when architectural interior design services are provided on a project, 74 and MSM s work at issue was performed in accordance with the AIA B171 contract. 75 70 CR: 117, Motion to Dismiss, Exhibit 1, Morrison Affidavit 2. 71 CR: 118, Motion to Dismiss, Exhibit 1, Morrison Affidavit 5. 72 Id. 73 Id. 74 Id. 75 CR: 117, Motion to Dismiss, Exhibit 1, Morrison Affidavit 2. 13

In addition, section 150.001 of Chapter 150 expressly allows for reliance on the Texas Occupations Code, stating that the [p]ractice of architecture has the meaning assigned by Section 1051.001, Occupations Code. 76 Section 1051.001(1) of the Texas Occupations Code, in turn, distinguishes between the practice of architecture generally and the practice of interior design, because it defines those terms separately. 77 Interior design is defined as follows: Interior design means the: (A) identification, research, or development of a creative solution to a problem relating to the function or quality of an interior environment; (B) performance of a service relating to an interior space, including programming, design analysis, space planning of non-load-bearing interior construction, and application of aesthetic principles, by using specialized knowledge of interior construction, building codes, equipment, materials, or furnishings; or (C) preparation of an interior design plan, specification, or related document about the design of a non-load-bearing interior space. 78 By incorporation of Texas Occupations Code definition regarding the [p]ractice of architecture, Chapter 150 thus calls on courts to distinguish between the practice of architecture generally and the practice of architectural interior design, which is a unique, defined sub-specialty under the Texas Occupations Code. Both the Texas Legislature, through incorporation of the Occupation Code definition, and the American Institute of Architects, through its separate contract for architectural interior design services, recognize the difference between architectural 76 See TEX. CIV. PRAC. & REM. CODE ANN. 150.001. 77 TEX. OCC. CODE ANN. 1051.001(1) (West Supp. 2010). 78 TEX. OCC. CODE ANN. 1051.001(1). 14

interior design services and the practice of architecture in general. Affidavit testimony offered by MSM also establishes that the area of architectural interior design services is a distinct sub-specialty of the practice of architecture. 79 Accordingly, and in compliance with section 150.002(a) of Chapter 150, Mr. Drebelbis is required to show he practices and is knowledgeable in the specific area of MSM s practice at issue here architectural interior design services not merely the practice of architecture in general. B. Mr. Drebelbis is not qualified in the practice of architectural interior design. The Drebelbis Certificate does not demonstrate that Mr. Drebelbis has adequate knowledge of the practice of architectural interior design. The Drebelbis Certificate merely makes the following conclusory statement: By virtue of my knowledge, skill, education, training, and professional experience and practice, I therefore have 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. 80 The Drebelbis Certificate further expressly sets forth Mr. Drebelbis practice areas and experience, none of which includes architectural interior design: During my career, I have performed engineering and architectural work on numerous types of buildings, my work experience includes the design, specification, and detailing associated with defining the components found therein. A true and correct copy of my resume is attached hereto as Exhibit A and is incorporated herein by reference for all purposes. By virtue of my knowledge, skill, education, training, and professional experience and practice, I therefore have personal knowledge of the general 79 CR: 117-118, Motion to Dismiss, Exhibit 1, Morrison Affidavit. 80 CR: 139, Drebelbis Certificate 4. 15

acceptable standards for the practice of architectural services in the State of Texas and specifically of the same area of practice as MSM. 81 Mr. Drebelbis own curriculum vitae accompanying the Drebelbis Certificate shows that he does not practice in the area of architectural interior design services, as an area separate from the practice of architecture in general. 82 Specifically, the section of Mr. Drebelbis curriculum vitae entitled Areas of Technical Experience and Expertise states the following as Mr. Drebelbis practice areas: Construction technology Building codes Forensic engineering Weather & disaster related damage Roofing & waterproofing systems Water and moisture intrusion Stair construction Performance of building materials Application of building materials Selection of building materials Structural engineering Site and building drainage Foundation design Soil behavior Concrete workmanship and design Professional ethics Delivery of architectural and engineering services. 83 In this case, MSM practiced in the area of architectural interior design, but the Drebelbis Certificate establishes that Mr. Drebelbis is not qualified in this area. 84 Indeed, the only expressly mention of MSM s particular practice area in the Drebelbis Certificate is when Mr. Drebelbis makes the conclusory statement that he has personal knowledge 81 Id. 82 CR: 143, Curriculum Vitae James R. Drebelbis, AIA, P.E. ( Drebelbis C.V. ). 83 Id. 84 CR: 138-139, Drebelbis Certificate 1-4. 16

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. 85 This conclusory statement fails to demonstrate the specialized knowledge possessed by Mr. Drebelbis regarding the subject matter of this lawsuit, architectural interior design services, because the Drebelbis Certificate, with curriculum vitae, elsewhere shows Mr. Drebelbis to be in fact not qualified in architectural interior design. 86 Indeed, the words interior design are not located in Mr. Drebelbis curriculum vitae when he discusses his Areas of Technical Experience and Expertise, his Education, or his Professional History. 87 Ultimately, the Drebelbis Certificate and curriculum vitae wholly fail to establish any knowledge of the practice of architectural interior design. 88 C. Broad-based education and experience do not qualify an expert to opine on all matters regarding the expert s field. Relevant case law also confirms that a professional s general education and experience do not qualify an expert in every practice area in the field. In Belvedere Condominiums at State Thomas, Inc. v. Meeks Design Group, Inc., for instance, this Court determined that an engineer was not qualified to opine in a certificate of merit about the practice area of landscape architecture. 89 This Court made a detailed examination into the expert s certificate of merit to determine if the expert provided evidence of experience regarding the defendant s area of practice, landscape architecture 85 CR: 139, Drebelbis Certificate 4. 86 CR: 138-147, Drebelbis Certificate, including Drebelbis C.V. 87 Id. 88 Id. 89 Belvedere Condominiums, 329 S.W.3d at 221. 17

and the design and construction of drainage systems. 90 This Court determined that the certificate of merit did not provide adequate evidence regarding the expert s practice in the defendant s specific practice area and, thus, the plaintiff s claim was properly dismissed for failure to comply with Chapter 150. 91 Furthermore, in Landreth, the Corpus Christi Court addressed a certificate of merit authored by Mr. Drebelbis, 92 the same architected whose testimony Mr. Zion procured in this case. 93 See App. Tabs B, D. Although the Landreth court evaluated the certificate of merit under the less exacting 2005 version of section 150.002(a), it nonetheless held that Mr. Drebelbis was not qualified because Mr. Drebelbis was not shown to practice in the same area as the defendant. 94 Specifically, Mr. Drebelbis stated that his practice area included forensic architecture, but the defendant in Landreth practiced design restoration architecture. 95 Moreover, the Landreth Court held that the plaintiff bears the burden of establishing the affiant s qualifications. 96 In this case, the trial court erred when disagreeing with Landreth s reasoning regarding the importance of sub-specialties and, thus, construed and applied Chapter 150 incorrectly. 97 The trial court judge stated the following: 90 Id. 91 Id. 92 285 S.W.3d 492 (Tex. App. Corpus Christi 2009, no pet.). The 2005 version applicable in Landreth was less exacting than the 2009 version and merely required the affiant architect to practice in the same area of practice as the defendant architect, as opposed to being knowledgeable in the area of practice. Id. at 496 (citing the 2005 version of Chapter 150). 93 CR: 138, Drebelbis Certificate. 94 Landreth, 285 S.W.3d at 497-499. 95 Id. 96 Id. 97 See RR: 5-6. 18

THE COURT: So does the -- the statute doesn t support any distinction between sub-specialties within the practice of -- or the licensed architect? It just MR. OWEN [MSM s COUNSEL]: The statute itself does not, but in Landreth versus Las Brisas, one of biggest cases on the certificate of merit in the lower court, they did differentiate between subspecialties of architecture 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 THE COURT: And it just seems to me that they really botched the test when they -- when they -- they were comparing apples and oranges. 98 As did the plaintiff in Landreth, Mr. Zion presented an affidavit by Mr. Drebelbis that fails to establish his qualification and knowledge in the same area of practice as the defendant. As were the plaintiffs claims in Landreth, Mr. Zion s claim against MSM should be dismissed for this reason alone. In the analogous context of expert testimony admissibility, the Texas Supreme Court similarly looks not merely to an expert s general area of practice, but rather the expert s specific knowledge, training, and experience in the sub-specialty relevant to the case at hand. Thus, in Broders v. Heise, 99 and Gammill v. Jack Williams Chevrolet, 100 the Supreme Court looked to the witness s knowledge, training, and experience in the relevant sub-specialty as opposed to the affiant s mere general qualifications. In Broders 98 RR: 5-6. Before the trial court, Mr. Zion attempted to rely on the non-precedential holdings of sister courts that disagreed with the holding in Landreth. See Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728 (Tex. App. Texarkana 2010, pet. granted); Benchmark Eng g. Corp. v. Sam Houston Race Park, 316 S.W. 3d 41, 49 (Tex. App. Houston [14th Dist.] 2010, pet. dism d by agr.). 99 924 S.W.2d 148, 150 (Tex. 1996). 100 972 S.W.2d 713, 717 (Tex. 1998). 19

v. Heise, the Supreme Court evaluated whether a licensed medical doctor with a background in general emergency medicine was qualified to offer opinions regarding the causation of neurological trauma in a medical malpractice case. 101 The Supreme Court rejected the notion that the witness s status as a medical doctor made the witness qualified to testify about all medical matters. 102 The Court explained that there is no validity to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. 103 The Broders Court established that the party seeking to rely on the witness s opinions must establish that the witness has knowledge, skill, experience, training, or education regarding the specific issue before the court, which would qualify the expert to give an opinion on that particular subject. 104 In Gammill, the Supreme Court applied Broders when considering the level of specialized knowledge required by a mechanical engineer to offer expert opinion in a products liability case. 105 The engineer was experienced in designing and testing fighter planes and missiles, but did not have any training or experience in the area at issue, which was the design or manufacture of automobiles or their components. 106 The engineer s only personal knowledge and experience with automobile components was obtained working part-time as a mechanic doing general repairs while completing his master s 101 924 S.W.2d at 150. 102 Id. at 152. 103 Id. 104 Id. at 153. 105 972 S.W.2d at 717. 106 Id. 20

degree. 107 The Supreme Court upheld the district court s exclusion the engineer s opinion testimony because he did not have sufficient experience regarding the specific issues made the basis of the of the lawsuit to testify as an expert. 108 The Court noted that just as not every physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case. 109 As the Supreme Court did in Broders 110 and Gammill, 111 under section 150.002 courts should look to an affiant s knowledge, skill, experience, education, training, and practice in relation to the sub-specialty at hand, not merely the affiant s broad general practice area. Without evidence of specialized education or training in the area of architectural interior design, the Drebelbis Certificate and curriculum vitae cannot and do not establish that Mr. Drebelbis has the requisite skill or knowledge of MSM s practice of architectural interior design to be qualified to render a certificate of merit regarding MSM. Consequently, the Drebelbis Certificate fails to satisfy Mr. Zion s obligations under Chapter 150 and Mr. Zion s claim against MSM should be dismissed. V. ISSUE TWO: The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to set forth any negligent action, error or omission under Texas law, as Chapter 150 requires. A certificate of merit must set forth specifically the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the 107 Id. 108 Id. at 719. 109 Id. at 717. 110 924 S.W.2d at 150. 111 972 S.W.2d at 717. 21

professional service and the factual basis for each such claim. 112 In this case, Mr. Zion only asserts one theory of recovery against MSM, a negligence claim. 113 When the plaintiff brings a negligence claim, no Texas court has held that a certificate of merit complies with Chapter 150 without specifically setting forth at least one negligent action, error, or omission. 114 But in this matter, Mr. Drebelbis has not properly alleged any negligent action, error or omission by MSM. Instead, he has alleged conduct by MSM that simply fails to constitute negligence under Texas law. 115 To prevail on a negligence cause of action, a plaintiff must establish the existence of a duty, a breach of that duty, and damages proximately caused by the breach. 116 It is well-settled Texas law that the scope of a design professional s duty depends on the professional s contractual agreement to provide services. 117 The Drebelbis Certificate does not, even in conclusory terms, complain of an action by MSM in reference to any alleged failure to comply with any duty based on MSM s contractual duties. 118 Instead, the Drebelbis Certificate erroneously alleges MSM was negligent by violating obligations 112 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a). 113 CR: 59, Petition. 114 In Criterium-Ferrell Engineers v. Owens, the Beaumont Court held that the affidavit at issue complied with this requirement even though the affidavit failed to articulate an applicable standard of care. Criterium-Ferrell, 248 S.W.3d at 400. In that case, the court reasoned that since negligence is conduct that falls below the applicable standard of care, the certificate of merit must necessarily address the applicable standard of care and the defendant s failure to meet the standard. Id. Nonetheless, the Criterium-Ferrell court affirmed that the affidavit must at a minimum state a negligent act, error or omission claimed to exist. Id. 115 CR: 141, Drebelbis Certificate 9-11. 116 W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Randall Noe Chrysler Dodge, LLP v. Oakley Tire Co., 308 S.W.3d 542, 547 (Tex. App. Dallas 2010, pet. denied). 117 I.O.I. Sys., 615 S.W.2d at 790; Cobb v. Thomas, 565 S.W.2d 281, 286 (Tex. Civ. App. Tyler 1978, writ ref d n.r.e.). 118 Id. 22

to the public allegedly established by the rules and regulations of the Texas Board of Architectural Examiners, or TBAE, as follows: 9. In preparing designs for construction, MSM s obligation to the Client and the Public are established by the TBAE Rules and Regulations of the Board Regulating the Practice of Architecture, hereafter referred to as the Texas Architectural Practice Act. Specifically, MSM is obligated by statute to perform as follows: a. During the delivery of a professional service, MSM is obligated to act with reasonable care and competence and shall apply the technical knowledge and skill which is ordinarily applied by reasonably prudent architects practicing wider similar circumstances and conditions. [1.142 COMPETENCE (a)] b. MSM must not practice architecture in any manner which, when measured by generally accepted architectural standards or procedures, is reasonably likely to result or does result in the endangerment of the safely, health, or welfare of the public. [1.143 RECKLESSNESS (a)] 10. In violation of previously stated statute obligations, MSM prepared flawed contract documents for the Arts Plaza. Based on my education, training, professional experience, and review of the Project and Related Documents, it is my professional opinion that MSM is responsible for at least but not limited to the design of a glazed panel in the Arts Plaza Lobby located in the area used as a means of egress from the Lobby that can be, and has on several occasions been, mistaken for an exit from the Lobby. This design constitutes an act, error, or omission that has a history of causing harm to the Public. Further the glazed sidelights in the Lobby on the Arts Plaza as designed and as existed on 3/1912009 has the potential to further harm the Public. 119 Mr. Zion and Mr. Drebelbis fail to offer any authority, and no such authority exists, to support the contention that the regulations cited by Mr. Drebelbis the TBAE [Texas Board of Architectural Examiners] Rules and Regulations of the Board Regulating the Practice of Architecture referred to as the Texas Architectural Practice Act, codified in 119 CR: 138, Certificate of Merit by James R. Drebelbis, AIA, P.E. Pursuant to Tex. Civ. Prac. & Rem. Code 150.002 (bold emphasis added, italic emphasis in original). 23

section 22 of the Texas Administrative Code create an affirmative duty for a professional architect to the general public. Contrary to the Drebelbis Certificate, the Texas Administrative Code specifically states it is not to be utilized as a standard of care in civil actions: These rules of professional conduct are not intended to suggest or define standards of care in civil actions against Architects involving their professional conduct. 120 And in the analogous context of the tort obligations of a legal, as opposed to design or engineering, professional, it is settled Texas law that alleged violations of the State Bar Disciplinary Rules likewise do not give rise to private causes of action. 121 The design professional s duties depend on the contractual agreement it enters regarding the rendition of its services. 122 The design professional does not owe the public any duty of safety that does not arise out of, and depend upon, the professional s contractual obligations. 123 For example, in Dukes v. Philip Johnson/Alan Ritchie Architects, P.C. 124 the Fort Worth Court addressed alleged tort duties where the 120 22 TEX. ADMIN. CODE 1.141(d). 121 See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 159 n.2 (Tex. 2004) (noting that the Rules of Professional Conduct do not define standards of civil liability for lawyers); Jones v. Blume, 196 S.W.3d 440, 449 (Tex. App. Dallas 2006, pet. denied) (holding that a private cause of action does not exist for a disciplinary rules violation); Judwin Props., Inc. v. Griggs & Harrison, P.C., 981 S.W.2d 868, 869-70 (Tex. App. Houston [1st Dist.] 1998, pet. denied) (holding that State Bar Rules are not enforceable through an appellants negligence claim); Polland & Cook v. Lehmann, 832 S.W.2d 729, 736 (Tex. App. Houston [1st Dist.] 1992, writ denied) ( We note that a private cause of action is not created by a violation of the State Bar Rules, the disciplinary code or the Texas Disciplinary Rules of Professional Conduct. ). 122 I.O.I. Sys., 615 S.W.2d at 790 ( An architect s or engineer s duty depends on the particular agreement entered into with his employer. ); Cobb, 565 S.W.2d at 286. 123 See, e.g., Dukes, 252 S.W.3d at 593; Graham v. Freese & Nichols, Inc., 927 S.W.2d 294, 295 (Tex. App. Eastland 1996, writ denied) (holding workplace safety outside the scope of the architect/engineering firm s contracted services, and, therefore, the firm owed no duty to the injured worker); Romero v. Parkhill, Smith & Cooper, Inc., 881 S.W.2d 522, 526 (Tex. App. El Paso 1994, writ denied) (holding the scope of the engineering firm s contract did not extend to job site premises safety). 124 Dukes, 252 S.W.3d at 593. 24

architect s contract with the City related to the restoration of a city fountain but did not expressly require the architects to address safety issues. 125 The court held that the architect had no duty to the public to report or make safe any hazards they may have detected in the fountain. 126 In this case, MSM s Architectural Interior Design Contract establishes both MSM s scope of work on the Project and MSM s duties, if any, to the public. 127 MSM simply owes no duty to Mr. Zion or the public at large based upon the TBAE Rules and Regulations of the Board Regulating the Practice of Architecture, as the Drebelbis Certificate erroneously alleges. 128 Moreover, the Architectural Interior Design Contract is a limited interior-design AIA contract that focuses on the interior design aspects of the Project and does not address safety issues. 129 The Drebelbis Certificate alleges that MSM violated duties owed to the public under the Texas Architectural Practice Act, but no such duties exist. 130 Consequently, even though the Drebelbis Certificate alleges certain behavior by MSM, the Drebelbis Certificate, as a matter of law, fails to satisfy Chapter 150 s requirement that it set forth the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service. 131 On this basis alone, the trial court erred by failing to dismiss Mr. Zion s claim of negligence against MSM. 125 Id. 126 Id. 127 See id.; see also I.O.I. Sys., 615 S.W.2d at 790. 128 CR: 138, Drebelbis Certificate 9-11. 129 CR: 119, Architectural Interior Design Contract. 130 See 22 TEX. ADMIN. CODE 1.141(d); Dukes, 252 S.W.3d at 593; I.O.I. Sys., 615 S.W.2d at 790. 131 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a). 25

VI. ISSUE THREE: The trial court erred by ruling Mr. Zion complied with Chapter 150 even though the Drebelbis Certificate fails to set forth any factual basis for Mr. Zion s claim against MSM, as Chapter 150 requires. As stated above, a certificate of merit must provide at least a negligent act, error or omission claimed to exist and the factual basis for each such claim. 132 Because the Drebelbis Certificate fails to satisfy the requirement that it set forth the factual basis for each claim, Mr. Zion s claim against MSM must be dismissed for this reason alone. The Drebelbis Certificate is conclusory and unsupported on its face because Mr. Drebelbis alleges that MSM created flawed contract documents but the Drebelbis Certificate itself establishes that that Mr. Drebelbis reviewed no MSM contract or Project design documents when Mr. Drebelbis formed his opinions. Specifically, the Drebelbis Certificate states that Mr. Drebelbis referenced the following documents to form his opinions against MSM, none of which include any MSM contract or design documents: [ 5] I have generally reviewed the project related documents produced by MSM. The following documents, hereafter referred to as Project Documents, relate to the Arts Plaza and services provided by MSM in this matter. This information along with my education, experience, and training establishes the basis for me to form each of my claims of negligence or other actions, errors or omissions of MSM in providing professional services: a. 8 Color Print Photos of One Arts plaza, Dallas, Texas-Entrance and Lobby b. CD with the following: 1) Recorded Statements of Witnesses Charles Jones, Lane Dixon, Pamela Green, and Stephen Cook taken by Tony McCarty, of Fireman s Fund 132 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a) (emphasis added). 26

2) 11 Color Scene Photos separately and accompanied by descriptions with statement that photos were obtained 8/27/09 c. Defendants 11/15/10 Supplemental Response to Plaintiff s First Request for Production (11 Color Photos Bates # 000152-162) d. Defendant Billingsley Property Services, Inc. s Objections and Responses to Plaintiff Buck Zion s First Set of Interrogatories, First Request for Admissions, First Request for Production, and Request for Privilege Log [COA 11/5/10] (Bates #0001-127 attached). [ 6] In addition to the Project Documents, I have also reviewed and relied upon the following Related Documents including codes, statutes and/or regulations: a. 2003 International Building Code, Chapter 24 Glass & Glazing b. 2006 International Building Code & Commentary, Chapter 24 Glass & Glazing c. Rules and Regulations of the Board and the Statutes Regulating the Practice of Architecture Texas Administrative Code: Title 22 Examining Boards, Part 1 Texas Board of Architectural Examiners, Chapter 1 Architects, Subchapter H Professional Conduct (Texas Architectural Practice Act). 133 No documents, drawings, or designs related to MSM are mentioned anywhere in the Drebelbis Certificate s list of information Mr. Drebelbis reviewed. 134 Instead, the information listed consists solely of pictures of the site of the accident, recorded statements of the incident, and documents regarding the Co-Defendants entity formation. 135 And, to remove all doubt regarding the lack of a factual basis of Mr. Drebelbis claims, at the hearing on the Motion to Dismiss Mr. Zion judicially admitted, 133 CR: 139-140, Drebelbis Certificate 5-6. 134 See id. 135 See id. 27

through counsel, that Mr. Drebelbis did not analyze MSM s Architectural Interior Design Contract prior to authoring the Drebelbis Certificate. 136 Despite the fact that the Drebelbis Certificate expressly recites the specific information Mr. Drebelbis reviewed, the Drebelbis Certificate sets forth the conclusory and, in this case, contradictory statement that, based on Mr. Drebelbis review of the Project and Related Documents MSM violated the Texas Architectural Practice Act by preparing flawed contract documents for the Arts Plaza. 137 Mr. Drebelbis fails to state which contract documents are flawed and how they are allegedly flawed. 138 Moreover, because the Drebelbis Certificate lists all of the information Mr. Drebelbis reviewed without listing any MSM contract documents, it establishes that Mr. Drebelbis in fact never reviewed the Architectural Interior Design Contract or any designs or drawings generated by MSM under the Architectural Interior Design Contract s terms. 139 Mr. Zion now squarely contends that Mr. Drebelbis opinion regarding MSM s alleged flawed contract documents may be rendered based on photographs of the glass panel and the accident cite alone. 140 But Mr. Zion s position is untenable for three reasons. First, a design professional s duty and related scope of work cannot be determined without referencing its contract, and Mr. Drebelbis failed to review MSM s Architectural Interior Design Contract as a basis to determine whether MSM was negligent. Second, Mr. Drebelbis has no logical basis for his claim of alleged faulty 136 RR: 27. 137 CR: 141, Drebelbis Certificate 10. 138 Id. 139 CR: 139, Drebelbis Certificate 5. 140 CR: 163, Plaintiff s Response. 28

contract documents absent review of, and reference to, the contract documents themselves. Third, Mr. Drebelbis has no basis to conclude that the glass panel at issue was constructed as designed by MSM, or was not altered after construction. Consequently, there can be no dispute that the Drebelbis Certificate is conclusory, 141 and, therefore, devoid of any factual basis to support any claims regarding MSM s conduct. Because Mr. Drebelbis did not analyze any documents related to MSM s Architectural Interior Design Contract or records, any opinions of Mr. Drebelbis as to MSM s scope of services are wholly without foundation and are a mere piling of assumption on assumption. Accordingly, the Drebelbis Certificate lacks any factual basis for its claims. 142 As such, the Drebelbis Certificate does not satisfy Chapter 150 s requirement that it provide the factual basis for at a claimed negligent action, error, or omission. 143 The trial court, therefore, erred by denying MSM s motion to dismiss Mr. Zion s negligence claim on this basis and its judgment should be reversed. 141 A conclusory statement is one that does not provide the underlying facts to support the conclusion. Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 197 (Tex. App Fort Worth 2006, no pet.); see also Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App. Texarkana 2000, no pet.). Similar to Chapter 150 s requirement that a complying affidavit set forth facts to support the plaintiff s claim of negligence, affidavits that contain conclusory statements are not proper summary judgment evidence. See AMS Const. Co. v. Warm Springs Rehabilitation Foundation, Inc., 94 S.W.3d 152, 157 (Tex. App. Corpus Christi 2002, no pet.); see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). 142 See Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 854, 79th Leg., R.S. (2005) (stating that the 2003 legislation was passed protecting engineers and architects from frivolous lawsuits ); see also Criterium-Farrell Engineers, 248 S.W.3d at 399 ( We agree that 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. ). 143 TEX. CIV. PRAC. & REM. CODE ANN. 150.002(a) (emphasis added). 29

VII. ISSUE FOUR: The trial court erred by implicitly overruling MSM s objection to Mr. Drebelbis supplemental affidavit because the trial court may only look to the original, timely field affidavit to determine merit under Chapter 150. The sufficiency of a Chapter 150 certificate of merit must be made from within the four comers of the certificate and attached curriculum vitae, if any. 144 In Belvedere Condominiums at State Thomas, Inc. v. Meeks Design Group, Inc., this Court implicitly agreed by assessing the sufficiency of a Chapter 150 certificate of merit upon review of the affidavit and accompanying curriculum vitae of the affiant. 145 The trial court erred in this case by failing to strike, and thus implicitly considering, an additional affidavit from Mr. Drebelbis offered by Mr. Zion in an attempt to bolster the defective Drebelbis Certificate (the Supplemental Affidavit). 146 And regardless, the Supplemental Affidavit and Drebelbis Certificate together are not compliant with Chapter 150. Trial courts are charged with carrying out the legislative intent and purpose of the statute. 147 By Chapter 150 s plain language, the Texas Legislature clearly intended for trial courts to dismiss those suits that fail to strictly adhere to the contemporaneous filing requirement. 148 As stated in Landreth, [t]he design professional statute specifically requires the initial affidavit to be filed contemporaneously with the complaint by a 144 Landreth, 285 S.W.3d at 500-501 ( Because nothing in the statute suggests or anticipates that the trial court may look outside the four corners of the report for guidance, we hold, under the plain language of the statute, it cannot. ). 145 Belvedere Condominiums, 329 S.W.3d at 221 (determining whether affiant practiced in the same area as defendant by looking only at certificate of merit, which includes his affidavit and resume pursuant to the plain language in section 150.002(a) ); see 146 CR: 174, MSM s Reply. In denying MSM s Motion to Dismiss, the trial court implicitly overruled MSM s objection to the supplemented affidavit material. CR: 190, Order. 147 See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981); DLB Architects, 305 S.W.3d at 409. 148 TEX. CIV. PRAC. & REM. CODE 150.002(e). 30

design professional... 149 There is nothing in the plain language of the statute that allows for affidavits or evidence to be offered after-the-fact to remediate an inadequate affidavit filed pursuant to the statute. In this case, Mr. Zion filed the Drebelbis Certificate with his First Amended Original Petition on March 18, 2011. 150 Mr. Zion did not file the Supplemental Affidavit until four months later, on July 20, 2011, with his Response and Opposition to MSM s Motion to Dismiss. 151 Thus, there can be no dispute that the Supplemental Affidavit was not filed contemporaneously with Mr. Zion s complaint against MSM. In addition, even though the trial court erroneously considered the Supplemental Affidavit, the Supplemental Affidavit does not cure the Drebelbis Certificate s deficiencies. 152 In the Supplemental Affidavit, Mr. Drebelbis still fails to provide the trial court information (1) that he is qualified through knowledge of MSM s practice area, architectural interior design services, (2) of any claimed negligent action, error, or omission by MSM, or (3) of the factual basis for any such claim. 153 The lone additional information supplied by the Supplemental Affidavit regarding Mr. Drebelbis knowledge of the practice of architectural interior design is as follows: As to my qualifications in 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 149 Landreth, 285 S.W.3d at 499. 150 CR: 59, Petition. 151 CR: 154, Plaintiff s Response. 152 CR: 154, Plaintiff s Response. 153 CR: 171, Supplemental Affidavit 1-8. 31

other words I am qualified enough to be the source of knowledge for the interior designers. 154 Mr. Drebelbis practice in similar areas and provision of continuing education seminars to interior designers in no way provides the court evidence that Mr. Drebelbis possesses adequate knowledge of MSM s practice area, architectural interior design, based on his knowledge, skill, experience, education, training, or practice. In addition, Mr. Drebelbis supplemental affidavit does not even attempt to address the Drebelbis Certificate s failure to set forth any negligent action, error, or omission of MSM or the factual basis of any such claim. 155 Thus, even if the Supplemental Affidavit were considered, which it cannot not be for purposes of Chapter 150, it cannot possibly cure the Drebelbis Certificate s three fatal deficiencies. Regardless of any consideration given to the Supplemental Affidavit, Mr. Zion fails to comply with Chapter 150 and his negligence claim against MSM should be dismissed. VIII. ISSUE FIVE: The trial court erred by not dismissing Mr. Zion s cause of action against MSM with prejudice because dismissal is mandated under the Code and the statute of limitations has run on Mr. Zion s claim for negligence, making dismissal without prejudice an unwarranted and needless exercise. The trial court erred because it should have dismissed Mr. Zion s claim against MSM with prejudice. In contrast, dismissal of the claim without prejudice only could lead to a frivolous filing against MSM since Mr. Zion s statute of limitation to bring a negligence claim against MSM expired as of March 20, 2011. 154 CR: 172, Supplemental Affidavit 8. 155 CR: 154, Plaintiff s Response. 32

A. The plain language of Chapter 150 and the Legislature s intent mandate dismissal of Mr. Zion s claims. Texas Civil Practice & Remedies Code section 150.002(d) provides that a plaintiff s failure to file a complying certificate of merit shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice. 156 According to the plain language of the statute, therefore, Mr. Zion s failure to comply with Chapter 150 mandates dismissal of his claim against MSM. 157 B. The statute of limitations for Mr. Zion s claim has expired. On March 18, 2011, Mr. Zion first filed his claim against MSM. 158 Thus, the Petition was filed one day before the two year anniversary of Mr. Zion s March 19, 2009 accident. 159 Actions for negligence are governed by a two-year statute of limitations. 160 Accordingly, Mr. Zion first filed his claim against MSM one day before the applicable statute of limitations would have run. 161 C. Plain language and legislative purpose mandate dismissal of Mr. Zion s claim with prejudice. In light of the circumstances presented in this case regarding the expiration of the statute of limitations one day after the Petition was filed, and Mr. Zion s failure to comply with Chapter 150, MSM is entitled to and hereby requests dismissal of Mr. Zion s claim with prejudice. The trial court was required to carry out the legislative 156 Tex. Civ. Prac. & Rem. Code 150.002(e) (West 2011) (emphasis added). 157 See Tex. Civ. Prac. & Rem. Code 150.002(d) (West 2011). 158 CR: 59, Petition. 159 CR: 59, Petition. 160 TEX. CIV. PRAC. & REM. CODE ANN. 16.003(a); American Centennial, 810 S.W. at 255. 161 Id. 33

purpose of the statute. 162 Chapter 150 is intended as a tort reform measure to prevent frivolous lawsuits. 163 Clearly, the legislature s intent was to deter meritless claims by forcing litigants to accompany their lawsuit with the appropriate expert affidavit at the time of filing. 164 The trial court should have concluded that Mr. Zion s failure to strictly comply with Chapter 150 means that his case has no merit and should be dismissed with prejudice so as to avoid any spurious re-filing of the claim well past the statute of limitations. Consequently, both reason and judicial economy support dismissal with prejudice of a claim that has no merit based on Chapter 150 and is barred limitations grounds. IX. Conclusion. The trial court misinterpreted and misapplied Chapter 150 of the Texas Civil Practice and Remedies Code. The trial court improperly construed section 150.002 without discretion to do so, and abused its discretion in misapplying the same statute, when it failed to hold that (1) Mr. Drebelbis is not qualified to provide opinions against MSM as it relates to MSM s services on this Project, (2) the Drebelbis Certificate fails to set forth a specific negligent act, error or omission by MSM, and (3) the Drebelbis Certificate fails to provide a factual basis for any claims against MSM. Moreover, under Chapter 150 the Supplemental Affidavit should not have been considered by the trial court. Mr. Zion s failure to comply with Chapter 150 thus establishes that his claim has 162 See DLB Architects, 305 S.W.3d at 409. 163 See Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 854, 79th Leg., R.S. (2005) (stating that the 2003 legislation was passed protecting engineers and architects from frivolous lawsuits ). 164 Id.; TEX. CIV. PRAC. & REM. CODE 150.002(e). 34

no merit and should be dismissed with prejudice so as to avoid spurious re-filing well past the applicable limitations bar date. Therefore, this court should reverse and render judgment dismissing Mr. Zion s claim against MSM, with prejudice, pursuant to Chapter 150. PRAYER For these reasons, Appellant Morrison Seifert Murphy, Inc. requests that the trial court s Order denying its Motion to Dismiss be reversed and judgment rendered dismissing Mr. Zion s claim with prejudice. Appellant Morrison Seifert Murphy, Inc. further requests such other relief to which it may be justly and equitably entitled. 35

Respectfully submitted, HERMES SARGENT BATES, LLP By: GINO J. ROSSINI State Bar No. 24007953 DWAYNE J. HERMES State Bar No. 09514400 DEKE D. OWEN State Bar No. 24046572 901 Main Street, Suite 5200 Dallas, Texas 75202 (214) 749-6000 Telephone (214) 749-6100 Facsimile ATTORNEYS FOR APPELLANT/ DEFENDANT MORRISON SEIFERT MURPHY, INC. 36

CERTIFICATE OF SERVICE The undersigned certifies that on the 12th day of September, 2011, a true and correct copy of the foregoing document was forwarded via certified mail, return receipt requested and electronic mail to the following: VIA CERTIFIED MAIL/RRR #7011 0470 0003 6120 4567; and VIA EMAIL (beberstein@ewlawyers.com; awitherite@ewlawyers.com; sgreco@ewlawyers.com; zburd@ewlawyers.com) Brian A. Eberstein Amy K. Witherite Shelly T. Greco Zachary R. Burd Eberstein & Witherite, LLP 3100 Monticello Avenue, Suite 500 Dallas, TX 75205 ATTORNEYS FOR BUCK ZION VIA CERTIFIED MAIL/RRR #7011 0470 0003 6120 4567; and VIA EMAIL (twilson@thompsoncoe.com) George N. Wilson, III Thompson, Coe, Cousins & Irons, L.L.P. Plaza of the Americas 700 N. Pearl Street, 25 th Floor Dallas, TX 75201 ATTORNEYS FOR ONE ARTS PLAZA CONDOMINIUM ASSOCIATION, INC. AND BILLINGSLEY PROPERTY SERVICES, INC. ATTORNEYS FOR APPELLANT/ DEFENDANT MORRISON SEIFERT MURPHY, INC. 37

APPENDIX TO APPELLANT S BRIEF Order Denying Defendant Morrison Seifert Murphy, Inc. s Motion to Dismiss (CR:190)... Tab A Certificate of Merit by James R. Drebelbis, AIA, P.E. Pursuant to Tex. Civ. Prac. & Rem. Code 150.002, with Exhibit A, Curriculum Vitae (CR:66-75)... Tab B Affidavit of Lionel Morrison in Support of Morrison Seifert Murphy, Inc. s Motion to Dismiss with Exhibit 1-A, AIA Document B171 ID-2003: Standard Form of Agreement Between Owner and Architect for Architectural Interior Design Services (CR:117-137)... Tab C Affidavit of James R. Drebelbis, AIA, P.E. (CR:171-172)... Tab D Civil Practice and Remedies Code 150.001,.002 (West 2011)... Tab E 1361588

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