Affirmed in Part, Reversed in Part, and Memorandum Opinion filed May 11, 

2023.

In The

Fourteenth Court of Appeals

NO. 14-21-00300-CV

KUDELA & WEINHEIMER, L.P.; SMALLWOOD, REYNOLDS, 

STEWART, STEWART & ASSOCIATES, INC.; AND ROBINSON & 

COMPANY LANDSCAPE ARCHITECTURE, INC., Appellants

V.

JUAN DE DIOS ARRIAGA, SUNI ARRIAGA, JUAN ARRIAGA, AND 

HERICK ARRIAGA, Appellees

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2021-05887

M E M O R A N D U M O P I N I O N

This interlocutory appeal concerns the procedures required in a lawsuit for 

damages arising out of the provision of professional services by a licensed or

registered architect or landscape architect. Appellees, Juan de Dios Arriaga, Suni 

Arriaga, Juan Arriaga, and Herick Arriaga (the “Arriagas”), sued appellants, 
2

Kudela & Weinheimer, L.P. (“Kudela,” landscape architects); Smallwood, 

Reynolds, Stewart, Stewart, & Associates, Inc. (“Smallwood,” architects); and 

Robinson Company Landscape Architecture, Inc. (“Robinson,” landscape 

architects); among other defendants, for personal injury damages. Section 

150.002(a) of the Texas Civil Practice and Remedies Code requires in such 

lawsuits that the plaintiffs file with their petition a certificate of merit affidavit 

from a third-party who holds the same professional license or registration as the 

defendant.

Each of the appellants filed a motion to dismiss asserting the Arriagas failed 

to timely file a proper certificate of merit in this case and did not qualify for an 

extension of the filing deadline contained in section 150.002(c). Appellants 

contended that the affidavit the Arriagas filed was generally deficient, and Kudela 

and Robinson also argued that the affidavit was insufficient as to them because 

they are landscape architects and the third party who prepared the affidavit is an 

architect. The trial court denied each of the motions, and this interlocutory appeal 

ensued. Holding that the Arriagas qualified for an extension and therefore the 

certificate of merit was filed timely and that the certificate of merit affidavit was 

sufficient as to Smallwood but not as to Kudela and Robinson, we affirm in part 

and reverse in part.

Governing Law

We review a trial court’s ruling on a section 150.002 motion to dismiss 

under an abuse of discretion standard. LJA Eng’g Inc. v. Santos, 652 S.W.3d 916, 

919 (Tex. App.—Houston [14th Dist.] 2022, no pet.). To the extent our analysis in 

this case requires us to interpret a governing statute, such review is de novo. See id.

As mentioned, section 150.002 mandates the filing of certificates of merit in 

certain types of cases against certain design professionals. It provides in relevant 
3

part as follows:

§ 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, a claimant 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) practices 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 contemporaneous filing requirement of Subsection (a) shall 
4

not apply to any case in which the period of limitation will expire 

within 10 days of the date of filing and, because of such time 

constraints, a claimant has alleged that an affidavit of a third-party 

licensed architect, licensed professional engineer, registered landscape 

architect, or registered professional land surveyor could not be 

prepared. In such cases, the claimant shall have 30 days after the filing 

of the complaint to supplement the pleadings with the affidavit. The 

trial court may, on motion, after hearing and for good cause, extend 

such time as it shall determine justice requires. . . .

(e) A claimant’s failure to file the affidavit in accordance with this 

section shall result in dismissal of the complaint against the defendant. 

This dismissal may be with prejudice.

Tex. Civ. Prac. & Rem. § 150.002.

Procedural History

The Arriagas allege that Juan De Dios Arriaga was working as a valet at the 

SkyHouse River Oaks high rise apartments on March 3, 2019, when he attempted 

to retrieve a set of keys from a storm drain in the center of a driveway connecting 

the apartment garage to the roadway and a pickup truck ran over him causing 

serious injuries. On January 29, 2021, the Arriagas sued SkyHouse, the driver of 

the truck, and several design professionals allegedly involved in the design and 

construction of the driveway. In their original petition, the Arriagas did not name

any of the appellants in this appeal as defendants, but the Arriagas did attach a 

certificate of merit by licensed professional engineer Moises Cruz, who alleged

that faulty design of the driveway was a cause of the accident and Juan De Dios’s 

injuries.

On February 26, 2021, the Arriagas requested that the trial court shorten the 

time allotted for the original defendants to answer Rule 194 Requests for 

Disclosures, which was granted on March 4. On March 10, 2021, the day before 

the applicable two-year statute of limitations was to expire, the Arriagas filed their 
5

Third Amended Petition adding appellants as defendants. See generally Tex. Civ. 

Prac. & Rem. Code § 16.003(a) (providing two-year statute of limitations for torts 

resulting in personal injuries). In their Third Amended Petition, the Arriagas did 

not allege that, because of time constraints, certificates of merit by a licensed 

architect and a registered landscape architect could not be prepared, and they did 

not request any extension in order to file such certificates. Instead, the Arriagas 

attached a new affidavit by Cruz, which added allegations against the new 

defendants, even though Cruz is an engineer and not an architect or landscape 

architect.

On April 5, 2021, Smallwood filed a motion to dismiss based on the lack of 

a proper certificate of merit. On April 7, the Arriagas then filed their Fourth 

Amended Petition attaching a certificate of merit by architect Paul Davis, making 

similar allegations to those previously raised by Cruz and, indeed, at times just 

adopting Cruz’s allegations. At that time, the Arriagas also filed a separate 

document asserting that they had been unable to provide a certificate of merit by a 

licensed architect earlier due to the quickly running limitations period. Later that 

same day, the Arriagas filed their Fifth Amended Petition and an amended notice 

of late-filed certificate of merit containing substantially similar allegations. Kudela 

and Robinson subsequently filed motions to dismiss, and the trial court denied all 

three motions to dismiss. We will begin our analysis by discussing the timeliness 

of the certificate of merit before turning to whether it was sufficient in regards to 

the landscape architects Kudela and Robinson, and whether it was generally 

sufficient under section 150.002.

Timeliness of Certificate

Appellants first argue that the trial court erred in denying their motions to 

dismiss because the Arriagas (1) failed to file a certificate of merit by a licensed 
6

architect or registered landscape architect before the running of the statute of 

limitations and (2) failed to assert prior to the running of the statute that, because 

of time constraints, a certificate of merit by a licensed architect or registered 

landscape architect could not be prepared. The Arriagas concede that they did not 

file a proper certificate of merit before the running of limitations. They assert, 

however, that they qualified for the automatic 30-day extension for filing a 

certificate of merit—set forth in section 150.002(c)—because they filed their Third 

Amended Petition within ten days of the running of limitations and filed a separate 

document within the 30-day extension period asserting that they had been unable 

to provide a certificate of merit by a licensed architect earlier due to the quickly 

approaching limitations deadline. Appellants, on the other hand, assert that the 

Arriagas needed to have filed their lack-of-time allegation prior to the running of 

the statute in order to be entitled to the 30-day extension. Based on governing 

precedent, we agree with the Arriagas.

As an intermediate appellate court in Texas, we are bound to follow 

precedent set by the Texas Supreme Court as well as our own prior precedent. See, 

e.g., Apache Corp. v. Castex Offshore, Inc., 626 S.W.3d 371, 384 (Tex. App.—

Houston [14th Dist.] 2021, pet. denied); Abdullatif v. Choudhri, 561 S.W.3d 590, 

623 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); Hebert v. Hopkins, 395 

S.W.3d 884, 902 n.16 (Tex. App.—Austin 2013, no pet.). In Epco Holdings, Inc. v. 

Chi. Bridge & Iron Co., a majority of a panel of this court concluded that section 

150.002 did not require a plaintiff’s allegation under subsection (c) to be made in 

the first petition naming a particular design professional as a party but instead was 

satisfied so long as the subsection (c) allegation was made within the thirty-day

extension period. 352 S.W.3d 265, 269 (Tex. App.—Houston [14th Dist.] 2011, 

pet. dism’d) (citing Nangia v. Taylor, 338 S.W.3d 768, 772 (Tex. App.—
7

Beaumont 2011, no pet.)). Here, as in Epco, the Arriagas made their subsection (c) 

lack-of-time allegation within the 30-day extension period after having filed their 

lawsuit against appellants shortly before the running of limitations. Barring 

contrary direction from the Texas Supreme Court, we are bound to follow our 

precedent in Epco. See Mitschke v. Borromeo LLC, 645 S.W.3d 251, 256–57 (Tex. 

2022).Subsequent to our decision in Epco, the Texas Supreme Court in Crosstex 

Energy Services, L.P. v. Pro Plus, Inc., described the first sentence of subsection 

(c) as providing “an exception to the contemporaneous filing requirement, made 

available when a plaintiff both files within ten days of the end of the limitations 

period and alleges that the late filing prevented the preparation of a certificate of 

merit.” 430 S.W.3d 384, 390 (Tex. 2014) (emphasis in original). The issue in 

Crosstex concerned whether a plaintiff who filed suit outside the final ten days of 

the limitations period might receive a “good cause” extension as set forth in the 

final sentence of subsection (c). In holding that “[a] plaintiff who files suit outside 

the ten-day window, as Crosstex did, cannot claim protection of the good cause 

exception,” the court further explained that

[T]he “good cause” exception in subsection (c) does not stand alone, 

but rather is contingent upon a plaintiff: (1) filing within ten days of 

the expiration of the limitations period; and (2) alleging that such time 

constraints prevented the preparation of an affidavit. A plaintiff 

satisfying these requirements “shall” receive an extension of thirty 

days; upon motion, a trial court may, for good cause, extend this thirty

day period as justice requires. A plaintiff who files suit outside the 

ten-day window, as Crosstex did, cannot claim protection of the good 

cause exception.

Id. at 391.

A few of our sister courts have interpreted this language from Crosstex as 

indicating that a subsection (c), lack-of-time allegation filed after the running of 

limitations, as occurred here and in Epco, would not entitle the plaintiff to the 30-
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day extension under that section even though the plaintiff’s lawsuit had been filed 

within ten days before expiration of limitations. See, e.g., Barron, Stark & Swift 

Consulting Eng’rs, LP v. First Baptist Church, Vidor, 551 S.W.3d 320, 323 (Tex. 

App.—Beaumont 2018, no pet.) (disregarding Epco and Nangia in light of 

Crosstex); Emerald Waco Invs., Ltd. v. Petree, No. 05-15-00863-CV, 2016 WL 

4010056, at *4 (Tex. App.—Dallas July 25, 2016, no pet.) (mem. op.) (same). For 

several reasons, we decline to join these court’s conclusion regarding the 

precedential value of Crosstex.

To begin with, the issue in Crosstex was not whether the lack-of-time 

allegation had to be made prior to the running of limitations or whether it could be 

made within the 30-day extension period so long as the lawsuit was filed within the 

ten-day period before the running of limitations. As stated, the issue in Crosstex

was whether a plaintiff who files suit outside the ten-day window can claim 

protection of the good cause exception. 430 S.W.3d at 391. Moreover, the Crosstex

court made no overt reference to or ruling regarding whether a plaintiff who files 

suit within the ten-day period before limitations runs has to also make their lackof-time allegation before limitations runs in order to be entitled to the 30-day 

extension. The court essentially just restated the requirements of subsection (c) for 

the 30-day extension, i.e., that the lawsuit be filed within ten days of limitations 

running and the plaintiff must make a lack-of-time allegation. See id. The court did 

not explicitly state that the allegation need be made before limitations expires. The 

Crosstex court certainly did not expressly overrule Epco or Nangia; indeed, neither 

case is even cited in Crosstex. For these reasons, we conclude Crosstex did not 

overrule our prior opinion in Epco. Accordingly, we are bound to continue to 

follow our precedent and hold that the Arriagas’ lack-of-time allegation was not 

untimely. See Chase Home, 309 S.W.3d at 630. We therefore overrule appellant’s 
9

issues to the extent that they contain this argument.

1

Landscape Architects

Next, we turn to Kudela and Robinson’s argument that the trial court erred 

in denying their motions to dismiss because the Arriagas never filed a certificate of 

merit affidavit by a registered landscape architect. The Arriagas do not deny that 

Kudela and Robinson are landscape architecture firms that provided landscape

architecture services to the SkyHouse River Oaks building project or that they 

were required to present a certificate of merit affidavit regarding these defendants. 

See generally Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804, 809 (Tex. 

App.—Houston [1st Dist.] 2011, no pet.) (“An action for damages against a firm in 

which a ‘licensed or registered professional’ practices must be supported by a 

certificate of merit if the action arises out of the firm’s provision of professional 

services.”) (citing Tex. Civ. Prac. & Rem. §§ 150.001(1-c), 150.002(a)). The 

Arriagas instead urge us—as they did the trial court—to “ignore landscape 

architecture as a subspecialty” of architecture or design professionals and instead 

focus on the fact that the affidavits they did provide spoke broadly regarding 

deficient conduct by “design professionals.” We agree with Kudela and Robinson 

that the Arriagas were required to file an affidavit by a registered landscape 

architect and failed to do so.

As set forth above, section 150.002 requires that in lawsuits such as this 

against certain design professionals, the plaintiffs must file an affidavit by an 

affiant who “holds the same professional license or registration as the defendant.” 

Tex. Civ. Prac. & Rem. § 150.002(a)(2). The two affidavits the Arriagas filed in 

1 We further note that the circumstances in the present case are readily distinguishable 

from those we encountered in Texas Southern University v. Kirksey Architects, Inc., where the 

plaintiff failed to ever make a subsection (c) lack-of-time allegation and thus was not entitled to a 

30-day extension. 577 S.W.3d 570, 577 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
10

this case were by a licensed professional engineer (Cruz) and a licensed architect 

(Davis). The Arriagas did not file an affidavit by a registered landscape architect as 

was required by the statute to support their claims against Kudela and Robinson.

The statute is unambiguous on this point and clearly requires an affidavit by an 

affiant who “holds the same professional license or registration as the defendant.” 

See Kayne Anderson Cap. Advisors, L.P. v. Hill & Frank, Inc., 570 S.W.3d 884, 

886–87 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (explaining that the section 

150.002 requirements that an affiant be competent to testify and be 

“knowledgeable in the area of practice of the defendant” are separate from, in 

addition to, and cannot take the place of the requirement the affiant hold “the same 

professional license or registration as the defendant”); Jennings, Hackler & 

Partners, Inc. v. N. Tex. Mun. Water Dist., 471 S.W.3d 577, 583 (Tex. App.—

Dallas 2015, pet. denied) (“Th[e] statute unambiguously provides that a certificate 

of merit must be authored by someone holding the same professional license or 

registration as the defendant.”).

Because the Arriagas failed to provide a certificate of merit affidavit by a 

registered landscape architect, the trial court erred in denying Kudela and 

Robinson’s motions to dismiss. We therefore sustain Kudela and Robinson’s 

issues.

2

2 The Arriagas attempt to analogize the section 150.002 requirements to those contained 

in Civil Practice and Remedies Code Chapter 74 regarding expert reports in medical malpractice

cases, apparently analogizing “design professionals” as a whole to physicians as a whole, and 

arguing that the affidavits by Cruz and Davis were sufficient because the claims in this case fall 

within the basic understandings of design professionals as a group. As Kudela points out, 

however, unlike section 150.002, which clearly requires an affidavit from someone holding the 

same professional license or registration as the defendant, Chapter 74 “focuses not on the 

defendant doctor’s area of expertise, but on the condition involved in the claim.” Rittger v. 

Danos, 332 S.W.3d 550, 558 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Blan v. Ali, 

7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). Accordingly, reference to 

chapter 74 is not applicable to the clear language in section 150.002.
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Adequacy of Affidavit

Lastly, we turn to Smallwood’s arguments regarding the general adequacy of 

Davis’s qualifications and opinions as set out in his certificate of merit affidavit

and attached documents. As relevant to Smallwood’s arguments and as set out 

above, section 150.002(b) requires that (1) the affiant “practices in the area of 

practice of the defendant” and (2) the affidavit specifically set forth for each theory 

of recovery “the negligence, if any, or other action, error, or omission . . . claimed 

to exist and the factual basis for each such claim.” Tex. Civ. Prac. & Rem. §

150.002(a)(3), (b).

Smallwood first contends that it is apparent from Davis’s affidavit and 

curriculum vitae that while he may be a licensed architect in Texas, he is not 

actively engaged in the practice of architecture. Smallwood correctly notes that the 

only explicit comments Davis makes in his affidavit about his career or practice is 

where he states, “during my architectural career I have worked on multiple projects 

across the country with civil engineers. Those projects included the design of highvolume parking garages, driveways, roadways, and entry/exit intersections.”

Smallwood then asserts that Davis’s CV indicates he has not practiced as an 

architect since 2007 when he was an architect on a project at the Valero Aruba 

Refinery. Smallwood apparently chose this entry on Davis’s CV as the last time he 

practiced as an architect because it is the most recent entry that Davis labeled as 

“architect” (technically, “Sr. Project Manager, Master Planner and Architect”). As 

Smallwood emphasizes, Davis listed his more recent positions on projects 

variously as “Sr. Project/Program Manager,” “Area Program Manager,” “Sr. 

Program/Construction Manager,” and “Sr. Project/Construction Manager.”

Smallwood concludes that “[t]here is no indication that he has been the architect of 

record on a construction project, . . . responsible for signing and sealing a set of 
12

drawings to construct a building, . . . responsible for signing and sealing a set of 

drawings related to a driveway, or any other practice of architecture.” Smallwood 

does not offer a citation for its apparent restrictive definition of the practice of 

architecture and does not discuss the detailed descriptions Davis provided on his

CV for each listed project and position.

For purposes of section 150.002, the “practice of architecture” has the 

meaning assigned to it by section 1051.001 of the Occupations Code. Tex. Civ.

Prac. & Rem. § 150.001(2); Tex. Occ. Code § 1051.001(7). Section 1051.001 

defines the practice of architecture broadly to include 

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, 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. The term includes:

(A) establishing and documenting the form, aesthetics, 

materials, and construction technology for a building, group of 

buildings, or environs intended to be constructed or altered;

(B) preparing, or supervising and controlling the preparation of, 

the architectural plans and specifications that include all integrated 

building systems and construction details, unless otherwise permitted 

under Section 1051.606(a)(4);

(C) observing the construction, modification, or alteration of 

work to evaluate conformance with architectural plans and 

specifications described in Paragraph (B) for any building, group of 

buildings, or environs requiring an architect;

(D) programming for construction projects, including 

identification of economic, legal, and natural constraints and 

determination of the scope and spatial relationship of functional 

elements;
13

(E) recommending and overseeing appropriate construction 

project delivery systems;

(F) consulting, investigating, and analyzing the design, form, 

aesthetics, materials, and construction technology used for the 

construction, enlargement, or alteration of a building or environs and 

providing expert opinion and testimony as necessary;

(G) research to expand the knowledge base of the profession of 

architecture, including publishing or presenting findings in 

professional forums; and

(H) teaching, administering, and developing pedagogical theory 

in academic settings offering architectural education.

Tex. Occ. Code § 1051.001(7). To paraphrase our sister court, “the umbrella of 

practicing architecture casts a wide shadow.” Whitaker v. R2M Eng’g, LLC, 603 

S.W.3d 530, 538 (Tex. App.—Amarillo 2020, pet. denied) (discussing the 

“practice of engineering” under section 150.002).

In discussing the various building and renovation projects on which he 

served as a project, program, or construction manager, Davis states in his CV that, 

among other duties, he provided “project planning, management, design and 

construction expertise”; “manag[ed] construction project renovations and 

upgrades”; and “managed all professional design and construction contracts, 

architects, engineers, consultants, and contractors and in-house staff of project and 

construction staff,” and his duties “included planning, design review, coordination,

procurement and construction management.” These supervisory or project 

management duties fall within the statutory definition of the practice of 

architecture. See Tex. Occ. Code § 1051.001(7); Thompson Hancock Witte &

Assocs. v. Brazos Presbyterian Homes, Inc., No. 14-20-00827-CV, 2022 WL 

1010256, at *1 n.2, 3–4 (Tex. App.—Houston [14th Dist.] Apr. 5, 2022, no pet.)

(mem. op.) (holding affiant was actively engaged in the practice of architecture 
14

where he stated he had worked as “an architect, design-build construction company 

manager, developer, and project manager in the profession since 1968”); Studio E 

Architecture & Interiors, Inc. v. Lehmberg, No. 04-19-00026-CV, 2019 WL 

3229194, at *3–4 (Tex. App.—San Antonio Apr. 17, 2019, pet. denied) (mem. op.) 

(holding project manager functions fell within ambit of section 1051.001(7)); 

Carter & Burgess, 355 S.W.3d at 809 (same).

Smallwood further challenges the sufficiency of Davis’s allegations in his 

affidavit, arguing he fails to state with specificity what negligence, act, error, or 

omission Smallwood purportedly did that caused the Arriagas’ damages or to 

provide any factual basis to support his vague and conclusory statements. See Tex. 

Civ. Prac. & Rem. §§ 150.002(b). Smallwood also criticizes Davis’s adoption of 

Cruz’s statements and conclusions in his affidavit without, Smallwood insists, 

explaining how those statements and conclusions apply to architects rather than

engineers. According to Smallwood, “Davis’ [sic] affidavit is effectively a 

recitation of Cruz’ [sic] affidavit without providing any unique analysis into the 

basis of the claims against an architect or landscape architect.”

We do not read Davis’s affidavit as being as limited as Smallwood suggests. 

Although Davis did attach a copy of Cruz’s affidavit to his own affidavit and did 

adopt many of Cruz’s statements and conclusions, Davis explained that he did so 

because “[w]hile Mr. Cruz is an engineer, his opinions fully apply to these 

Defendant Architects and I adopt all of those opinions specific to ‘Design 

Professionals’—they apply equally to the Defendant Architects.” Davis further 

asserted that “[d]esign of large structures like this high-rise residential building 

require architects and engineers to work together to solve these exact issues of 

public and pedestrian safety. And the criticisms outlined in the Cruz Certificate of 

Merit apply equally to the Defendant Architects.” But Davis did not simply adopt
15

Cruz’s assertions, Davis also explained that “[w]hen designing those areas, in 

which pedestrians and vehicles will necessarily intersect, [i.e., ‘high-volume 

parking garages, driveways, roadways, and entry/exit intersections,’] design 

professionals like architects and architectural firms have a duty to prioritize the 

safety of pedestrians[, which] necessarily means including the kinds of basic safety 

features outlined in Mr. Cruz’s certificate of merit.” More specifically, Davis 

emphasized and quoted Cruz’s statement that the “design lacked markings, lighting 

and signage that controlled traffic speed, traffic flow, alerted driver and pedestrians

of hazards, [and] distinguished pedestrian egress and walkways.” Davis indicated 

that a prudent architect “should have recognized the unfavorable traffic control 

plan” and made the required safety improvements listed in Cruz’s affidavit. Davis 

concluded that “[b]ecause no markers, warnings, signage, speed humps or bumps, 

or lane dividers were present on the day of the accident, or at any time prior to the

accident, it is clear the Defendant Architects failed their duties in design” and 

“because these failures concern pedestrian safety it is foreseeable that a pedestrian

like Mr. Arriaga may be injured as a result of those failures.”

Turning to Cruz’s affidavit as adopted and applied to architects by Davis, we 

can see that Cruz made detailed observations regarding the accident that led to the 

filing of this lawsuit and then opined that the “architects and engineers that

participated in the design plan for the subject driveway [were] negligent for failing

to implement a traffic control plan” that took into account traffic volume, speed, 

direction, and flow; driveway width; turning radius for small, medium and large 

vehicles; two-way traffic; line of sight and visual obstructions around corners; and

lighting conditions. Cruz further asserted that

[t]hese Design Professionals failed to use ordinary care and

reasonable judgement in the design of the driveway by not 

implementing a design that protected the public by distinguishing
16

travel lanes in a relatively narrow driveway with entry and exits to a 

municipal street that served two entries to a multi-level garage with 

ground parking along the rear of the building that also services 

commercial loading and unloading within the same driveway.

Cruz highlighted that given “the unfavorable traffic and driving conditions 

along the driveway”—i.e., expected traffic volume around a high-rise residential 

building, the narrow two-way driveway connecting entry and exits from a multistory garage with outside parking, obstructed views for drivers going around the 

building, and pedestrian access to the driveway—the design needed to “[c]ontrol 

the turning of vehicles around the building which created a blind spot,” “[protect]

the public walkway and pedestrian crosswalk between the main building and the 

garage,” and “[d]istinguish and separate the traffic flow to reduce the potential for 

collisions.” He further asserted it was “necessary to have minimal traffic control 

measures like barriers, signs and markings to guide visiting pedestrians, residents, 

visiting drivers and resident drivers using the driveway and sidewalks.” Absent 

these “minimum traffic controls,” Cruz alleged the design “failed to slow down 

traffic that was entering the driveway, failed to separate the traffic into lanes, failed 

to warn drivers of blind spots[, and] failed to warn drivers and pedestrians of 

hazards.” Cruz concluded that the “Design Professionals[’] fail[ure] to perform 

their services in a good and workmanlike manner . . . was a producing cause of 

Plaintiff’s damages.”

In sum, Davis’s own assertions and incorporation of Cruz’s allegations in his 

affidavit were sufficient to meet the requirements of section 150.002(b). 

Accordingly, the trial court did not err in denying Smallwood’s motion to dismiss 

and we overrule Smallwood’s sole appellate issue.

Conclusion

Because we hold that the Arriagas timely provided an adequate certificate of 
17

merit affidavit as to Smallwood but failed to do so in regard to Kudela and 

Robinson, we affirm the trial court’s denial of Smallwood’s motion to dismiss,

reverse the trial court’s denial of Kudela and Robinson’s motions to dismiss, and 

instruct the trial court to dismiss the Arriagas’ claims against Kudela and 

Robinson.

/s/ Frances Bourliot

Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.