Affirmed in Part, Reversed in Part, and Memorandum Opinion filed May 11 , 202 3
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00300

- CV

KUDELA & WEINHEIMER, L.P.; SMALLWOOD, REYNOLDS, STEWART, STEWART & ASSOCIATES, INC.; AND ROBINSON & COMPA N Y LANDSCA P E AR CHITECT URE, INC. , Ap pellant s V. JUAN DE DIOS ARRIAGA, SUNI ARRIAGA, JUAN ARRIAGA, AND HERICK ARRIAGA , Appellee s
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 i n terl ocutory appeal conce rns 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 A rriaga, a n d He rick Ar riaga (the “ A rriagas ” ) , sued a ppellants,2 Kudela & Weinheimer, L.P. ( “ Kudela, ” landscape architects ) ; Smallwo od, Reynolds, Stewart, Stewart, & Associates, Inc. ( “ Smallwood, ” architects) ; and Robinson Company Landscape Architecture, Inc

. ( “ Robins o n , ” landsca pe architects ) ; among other defendants, for personal injury damag es. Section 150.002(a) of the Texas Civil Practice and Remedies Code requires in such lawsuit s that the plaintiffs file with the ir petition a certifi cate of merit affida v it from a thir d

- party who holds th e same professional license or registration as the defendant

. Ea ch of the appellants filed a motion to dismiss asserting the A rriagas f ailed
to timely file a prop er certificate of merit in this case and did not qualify fo r an exten s ion of the fi ling 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 b ecause they a re l a n dscape a r chit ects and th e third party who prepared the affidavit is an architect. The t rial court denied each of the motions , and this interlocutory appeal ensued. Holding that the Arriagas qualified for an extension and therefore the certificate of m erit was file d time ly and that the certificate of merit affidavit was

su fficient a s to Smallwo od but not as to Kudela and Robinson, w e affirm in part and reverse i n part. Governing Law
We review a trial court ’ s ruling on a section 150.002 motion to d ismiss under an abu s e of d iscretion standard. LJA Eng ’ g Inc. v. Santos , 652 S.W.3d 916, 9 19 (Tex. App.

— Housto n [14th Dist.] 2022 , no pet. ) . To the extent our analysis in this case requires us to interpret a governing statute, such review is de nov o. S ee i d

. A s mentioned, s ec t ion 1 50.002 mandates the filing of certificate s of me rit in certain t ypes of cases aga inst certain design profes sionals. It provides in relevant3 part as follows: § 150.002. Certificate of Merit (a) In any action or arbitration proc eed i n g for da mages arisi n g out of the provision of professional services by a licen sed o r regi stered profession al, a claimant shall be required to file with the complaint an affidavit of a third

- party licensed architect, licensed professional engineer, reg ist e r ed lands cape archit e ct, o r registered professional land surveyor who: (1) is c ompet ent to testify; (2) hol ds the same professional license or registration as the defendant; and (3) practices in the area of practice of the defendant and offers testimon y b a s ed on the person ’ s: (A) k nowledge; (B) skill; (C) experience; (D) education; (E) training ; and (F) practic e. (b) The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other acti on, e rror, or omission o f the licensed or registered professional in providing the professiona l service, includ ing any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each su c h claim. The third

- p a rty l icensed architect, licensed professional engineer, registered la ndscape architect , o r registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, en gin e e ring, or surveying. (c) T he contemporaneous filing requirement of Subsection ( a) shall4 no t apply to any ca se in which t he period of limitation will expire within 10 days of the date of filing and, because of such time constraints, a claimant has alleg ed t h at an affidavit of a thir d

- party licensed ar chitect, licensed professional eng ineer, regi stered 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 co m p laint to supplement the p leadings with the a ffidavit. The trial court may, on motion, aft er hearing and fo r good cause, extend such time as it shall determine justice requires.

. . . (e) A claimant ’ s f ailure to file the affidavit in accordance with th is
s e ction shall result i n dis missal of the compl aint against the defendant. This dismissal ma y be with prejudi ce. Tex. Civ. Prac. & Rem. § 150.002. Procedural History The Arriagas allege that Juan D e Dios Arriaga was working as a valet a t the Sky H ouse Ri ver O aks high rise a part m ents on March 3, 2019, w hen he attempted to retrieve a set of keys fr om a storm drain in the center of a driveway connecting the ap artment garage to the roadway and a pickup truck ran over him causing serious in juries

. O n January 2 9, 2 0 21, the Arriagas su e d Sky House, the driver o f the truck, and several design professionals allegedly involv ed in the des ign and construction of the driv eway

. In their original petition, the Arriagas did not name any of the appellants in this appeal as def e n dants , but the Arri a gas d id attach a certifi cate of merit by li censed professional engine er Moises Cruz, who alleg ed that fau lty design of the driveway was a cause of the accident and Juan D e D i os ’ s injuries

. On February 26, 2021, the Arriagas request ed t h at the trial court s horte n the
t ime allotted for the original d efendant s to answer Rule 1 94 Requests for Disclosures , which w as granted on Ma rc h 4. On March 10, 2021, the day before th e applicable two

- year statute of limitations was to expire, the Arr iag a s filed their5 Third A mende d Petition adding appellants as defend ants. See generally Tex. C iv. Prac. & Rem. Code § 16.003(a) (provid ing two

- year statu te of limitations for torts resulting in personal injuries)

. In their Third Amended Petition, the Arriagas d id

no t allege that, becau se of time constraints, certificate s of mer it by a licensed architect and a registered landscape architec t could not be prepa red , and they did not request any extension in order to file such certificates. Instead, the Arriagas
at t a ched a new affid avi t by C ruz , which added allegations against the ne w defendants , even though Cruz is a n engineer and not an archi tect or lan dscape

ar chitect. On April 5, 2021, Smallwood filed a motion to dismiss based on the lack of a proper certificate o f mer it. On April 7 , the Arriagas then filed their Fourth Am ended Pe tition attaching a certifi cate of merit by architect Paul Davi s, making similar al legations to those previously raised by Cruz and , indeed, at times just adopting Cruz ’ s allegations

. At t h at ti me, the Arriag a s als o filed a separate document asserting that they had been unable to pr ovide a c ertificate of meri t by a licensed architect earlier d ue to the quickly running lim itations period. Lat er that same day, the Arriagas filed their Fifth A m ended Petition and a n ame nded notice of late

- filed certificate of merit containing substantial ly similar a llegations . Kudel a and Robinson subsequently filed motions to dismiss, and the trial court denied a ll three motions to dismiss. We will begin our an a l ysis by discussing t he ti meliness 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 Cer tificate
A ppell ants first arg u e tha t the trial court erred in denying their motions to dismiss because t he Arriagas (1) failed to file a certificate of merit by a licensed6 architect or registered lands cape architect before the runni ng of the statute of limitations a nd (2 ) failed to as s ert p rior to the running of the statute that , because of time constraints, a certificate of merit by a licensed archite ct or registered landscape architect could not be pr epared . The Arriaga s concede t hat they did not file a proper c e r tific ate of me rit be f ore t he running of limitations

. They assert, however, that t hey qualified for the automatic 30

- day extension for filin g a certificate of merit

— set forth in sectio n 150.00 2(c)

— because they file d their T hird Amended Petition within ten d ays o f the running o f limi tations and filed a separate document within the 30

- day extension pe riod asserting that they had been unable to p rovide a certificate of merit by a licensed architec t earlier due to the quickly
ap proaching limitations dea d line

. A p pella nts , on the oth e r han d, 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 . Ba s ed on governing precedent, we agree with the Arriag as

. As an i n terme diate 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. deni e d ) ; Ab dullatif v. Cho u dhri , 561 S.W.3d 590, 623 (Tex. App.

— Houston [14th Dist.] 2018 , pet. deni ed ) ; Hebert v. Hopkins , 395 S.W.3d 884, 902 n.16 (Tex. App.

— Austin 2013 , no pet. ) . I n Epco Holdings, Inc. v. Chi

. Bridge & Iron Co. , a majority of a panel of t h is c ourt con cluded tha t s ection 150.002 d id not require a plaint iff ’ s allegation under subsec tion (c) to be made in the first petition nam ing a particular design professional as a party but instead was sati sfied so long as the subsection (c) allegation w a s mad e w ithin the thirt y - d ay extension period. 352 S.W.3d 265, 26 9 (Te x. App.

— Houston [14th Di st.] 2011, pet. dism’d) (c iting Nangi a 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 ) lac k

- of

- time allegati o n within the 30

- day extensi on period after having fil ed their lawsuit a gainst appellants shortly before the running of limitations. Barring contrary direction from the Texas Supreme Court, we are bound to follow our precedent in E p c o
. Se e Mits chke v. Borr o me o LLC , 645 S.W.3d 251 , 256

– 57 (Tex. 2022). Subsequent to our decision in Epco , the Texas Supreme Court in Cr o sstex Energy Services, L.P. v. Pro Plus, Inc. , describ ed th e first sentence of sub section (c) as providing “ an except ion to the contemporaneous f i li n g requirement, made available when a plaintiff both files within ten days of the end of the limitations
pe r iod and alleges that the late filing prevented the pre parat ion of a certificate of merit. ” 430 S.W.3d 384, 390 (Tex. 2014) (emphasis in original)

. T h e issue in Crosstex concerned whether a plaintiff who fil ed suit outside the final ten days of the limitat i ons period might receive a “ good cause ” extension as s et fo rth in the final sentence of subsection (c)

. In holding that “ [a] plaintiff who files s ui t outside the t en
- day window, as Crosstex did, cannot claim protection of the good cause exception , ” the co u rt further explained that [ T] he “good cause ” exception in s ubsection (c) does not stand alone, but rather is contingent upon a plaintiff: (1) fil i ng within ten days of the expiration of the limitations period; and (2) alleging that such time constraints p r evented the preparation of an affidavit. A plaintiff
s atisf ying these requirements “shall” receive an extension of thirty days; upon motion, a tr i al court may, for good cause, extend this thirty day period as justice requires. A plaintiff who files suit o u tside the ten

- day window, as Crosstex did, cannot clai m pro tection of the good cause exception.
Id . at 391.
A few of our sister courts have inter p re t ed this la nguage from Crosstex as indicating that a subsection (c) , lack

- of

- time allegation filed after th e running of limitations, as occurred here and in Epco , woul d no t entitle the plaintiff to the 30

-8 day extension under that section even though the pl a intiff ’ s lawsuit had been filed withi n ten days before expiration of limitations. See , e.g. , Barron, Stark & Swift Consulting Eng ’ rs, LP v. First Baptist Church, Vido r , 551 S.W.3d 320, 323 (Tex. App.

— Beaumont 2018 , no pet. ) (disregarding Epco and Nangi a i n light of Cros stex ) ; Emerald Waco Invs., Ltd. v. Petree , No. 05

- 15

- 00863

- CV, 2016 WL 4010056, at *4 (Tex. A pp.

— Dallas July 25, 2016 , no pet. ) (mem. op.) (same)

. For

s everal reasons, w e decli ne to join these court ’ s conclusion regarding the preceden ti al va l ue of Crosstex

. To begin with, the is sue in Crosstex was not whether the lack

- of

- time allegation had to be made prior to the running o f limitations or whether it coul d be made within the 30

- day extension period so long as the lawsuit was filed within t h e t en
- day period before the running of limitations. As s tated, t he issue in Crosstex

was whether a plaintiff w ho files suit outside the t en
- day window can claim
pro tecti on of the good cause exception

. 430 S.W.3d at 391. Moreover, t he Crosstex
court ma d e n o o v ert reference to or ruling regarding whether a plaintiff who files suit within the ten

- day period before l i mitations runs has to also make their lack

of

- time all egati on before limitations runs in order to be entitled to the 30

- day extension . The court e ss e ntial ly just restated the requirements of subsection (c) for the 30

- da y extension , i.e., that the lawsuit be fil e d within ten days of limitations running and the plain tiff must make a lack

- of

- time allegation

. See id

. The court did not explicitly state t hat the a llegati on need be made before limitations e xpires

. The Crosstex court certainly did not expressly o verrule Epco or Nangia ; indeed, neither case is even cited in Cross tex

. For these reasons, we conc lude Crosstex did not overrule our prior opinion i n Epco

. A ccordingly, we are bound to continue to follow our precedent and hold that the Arriaga s ’ lac k

- of

- time alle g ation was not untimely. See Chase Home , 309 S.W.3d at 630

. We therefore overrule appellant ’ s9 issues to the extent that they contain this ar g ument

. 1 Landscape Architects Next, we turn t o Kudela and Robinson ’ s argument that the trial court erred in denying t heir motions to dismiss bec ause the Arriagas never fil ed a certificate of merit affidavit by a regist ered landscape architect

. The Arri agas do not d eny that Kudela and Robinson are lan dscape architecture firms that provided landscape architecture services to the SkyHouse River Oaks building project or that th ey

we re requi red to present a certificate of merit affidavit regarding these defendan t s

. See g enerally C arter & 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 ‘ l icens ed or registered professional ’ practices must be supported by a certificate of m e rit if t he action arises out of the firm ’ s provision of professional services. ” ) (citing Tex. Civ. Prac. & Rem. § § 1 50.00 1(1

- c ), 150.002(a) )

. The Arriagas instead urge us

— as t hey did the trial court

— to “ ignore landscape architecture as a subspecialty ” of a rchitect ure or design professionals and instead focus on the fact that the affidavits they did provide spoke broadl y regarding deficient conduct by “ design professionals. ” We agree with Kudela and Robinson that the Arriagas were require d to file an affida v it by a re gistered landscape architect and failed to do so. As set forth above, section 1 50.002 requires that in la w suits such as this against certain design profe ssional s , th e plaintiff s must file an affidavit by an affiant who “ holds the same profession a l licens e or registration as the defendant

. ” Tex. Civ. Prac. & Rem. § 150.002(a) (2)

. The two affidavits the Arriaga s filed in

1 We further not e that the circumstances in the prese nt case are readily disti nguishable from those we encountered in Tex as S outhern Univ ersity v. Kirksey Architects, Inc. , where the plaintiff failed to e v er make a subsection (c) lack

- of

- time allegation and thus was n ot entitled to a 30

- day extension

. 5 77 S

. W.3d 570, 577 (Tex. App.

— Houston [14th Dist.] 2019 , no p et. )

.10 this case were by a licensed professional en ginee r (Cruz) and a licensed architect (Davis). The Arri agas did not file a n affidavi t by a re gistered lands cape architect as

was required by the statute to support their claims against Kudela and Robi n son. The statute is u nambiguous on this point and clea rly r equires an affidavit by an affiant who “ holds the s ame professional license or r e gistrati on as the defendant

. ” See Kayne Anderson Cap. Advisors, L.P. v. Hill & Frank, Inc. , 570 S.W.3d 884 , 886

– 87 ( Tex. App.

— Houst on [1st Dist.] 2018 , no pet. ) ( explaini ng th at the section 150.002 requirements that an affiant be competent to testify and b e “knowl edgeable in the area of practice of the defendant ” are separate from , in addition to, and cannot take the p l ace of the requirement the affiant hold “ the same prof essio nal license or registration as the defendant ” ) ; Jen nings, Hackler & Partners, In c . v. N. Tex

. Mun. Water Dist. , 471 S.W.3d 577, 583 (Tex. App.

— Dallas 2015 , pet. denied ) ( “ Th [e] statute unambiguous l y provides that a certificate of merit must be authore d by someone holding the same professional licens e or

re gistration as the defendant. ” )

. Becau se the Arriagas failed to provide a certificate of merit affidavit by a registered landscape architect, t he trial court erred in denying Kudela and Robinson ’ s mot ions to dismiss. We therefore sus tain Kudela and Robinso n ’ s issues

. 2

2 The Arriagas attempt to anal ogize the section 150.002 r equirement s to th ose contained i n Civil P ractice and Remedies Code C hapter 74 regarding expert r eports in medical malpractice
cases , appa rently analogizin g “ design professionals ” as a whole to physicians as a whole , and arguing that the affidavits by Cruz and Davis were sufficient becaus e the cla ims in this ca se fall within the basic understandings o f design professionals as a group . A s Kud ela points out, however, unlike section 150.002, which clearly requires a n affidavit from someone holding the same prof essional licens e or registration as the d efendant , Chapter 74 “ focuses not on the defendant doct or ’ s area of expertise, but on the c ondit ion 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, re ference to chapter 74 is not app l icable to the clear language in section 150.002.11 Adequacy of Affi d

avit
Las tly, we turn to Smallwood ’ s argument s regarding the ge neral adequacy of Davis ’ s qualifications and opinions as set out in his certificate of merit affidavit and a ttach ed documents

. As relevant to Smallwood ’ s arguments and as set out above, s ection 150.002( b ) requires that (1) the affiant “ practice s in the area of practice of the defendant ” and (2) the affidavit specifically set forth for each theory of recovery “ th e neg ligence, if any, or other action, error, or omission

. . . claimed
to ex ist a nd t he factu al basis for each such claim. ” Tex. Civ. Prac. & Rem. § 150.00 2(a) (3), (b).
S mallwood first contends that i t is apparent fro m Davis ’ s affidavit and curriculum vi tae t hat while he may be a licensed architect in Texas, he is not actively engaged in t he pract ice of architecture

. Sma llwood correctly notes that the only explicit comment s Davis makes in his affidavi t a bout his career or practice is where he states , “dur ing m y architectural career I have worked on multiple projects

acros s the count r y with civil en gineers. Those projects included the design of high

volume parking garages, driveways, roadways, and entry / exit intersections. ” Smallwood then asserts that Dav is ’ s CV indicates he has not practiced as an architect since 200 7 when he w as an archite c t on a p roject at the Vale ro Aruba Refinery

. Smallwood apparently chose this entry on Davis ’ s CV as the last time h e practiced as an architect because it is the most rec ent e ntry that Davis labeled as

“ architect ” (tec hnically , “ Sr. Project Manager, Master Planner and Archite ct ” ). A s Smallwood emphasizes , Davis listed his more recent positions on projects variously as “ Sr. Project/Program Manager , ” “ Area Program Manager , ” “ Sr. Program/Cons truction Manager , ” and “ Sr. Project/Construction Manager

. ” Smallwood c oncludes that “ [t] here is no indication that he has been the architect of record on a construction project,

. . . r esponsible for signing and sealing a set of12 drawings t o con struct a building,

. . . responsible for signing and sealing a set of drawings re l ated to a driveway, or any other practice of architecture. ” Smallwood does not o ffer a citation for its apparent r e strictive definition of the practice of architecture a nd do es not discuss the detailed descripti ons Davis provided on his CV for each listed project and position.
Fo r purposes of s ection 1 50.002 , the “ practice o f architectur e ” has the meaning assigned to i t by section 1051.001 of the Occupations Code. Tex. Ci v. Pr ac. & Rem. § 150.00 1(2); Tex. Occ. Code § 1051.001 (7) . Section 1051.001 defines t h e practi ce of architecture br oadly to include a service or creative work applying the art and science o f developi n g design concepts, planning for functional relationshi ps an d intended uses, and establishing the form, appearance, aesthetics, and construct i on detai ls for the constructi on, enlargement, or alteration of a building or environs intended for human use or oc c upancy, the proper application of which requires educa tion, training, and experience in those matters. The term includes: (A) establishing a n d docume nting the form, aesth etics, materials, and construction technology for a building, group of buil dings, or e nvirons intended to be constructed or altered; (B) pre parin g, or supervising and controlling the preparation of, the architectural plans and specific ations that include a ll integrated building systems and construction details, unless otherwise p ermitted
u n der Section 1051.606(a)(4); (C) observing the construc tion, modification, or alteration of work to evaluate conformance with architectural p l ans and specifications descri bed in Paragraph (B) for any building, group of buildings, or environs requ iring an a r chitect; (D) programming for construction projects, in cludi ng identification of economic, legal, and natural constraints and determination o f the sco pe and spatial relati onship of functional elements;13 (E) recommending and overseeing appropriate constructi o n project delivery systems; (F) consulting, investigat ing, and analyzing the design, form, aesthetics, materials, and construction technolog y used fo r the construction, e nlargement, or alteration of a building or environs and providing expert op inion and t estimony as necessary; (G) research to expand the know ledge base of the profession of architecture, including publishing or presenting findi n gs in pr ofessional forums; an d (H) teaching, administering, and developing pedagogical theory in academi c settings offering architectural education.
Tex. Occ. Code § 105 1.001 (7). T o paraphrase our sister court, “ the umbrella of
pr acticing architecture cas t s a wide shadow. ” Whitaker v. R2M Eng ’ g, LLC , 603 S.W.3d 530, 538 (Tex. App.

— Amarillo 2020 , pet. denied ) (discussi n g the

“ practice of engineering ” under section 150.002)

. In discussing the various building and renovation projects on which he served as a p r oject , p rogram , o r c o n s t r u c t i o n manager, Davis states in his CV that, among other duties, he provided “ project pla n ning, management, design and construction expert ise ” ; “ mana g [ed] construction project renovations and upgrades ” ; and “ managed all profession a l design and construction contrac ts, architects, engineers, con sultants, and contractors and in

- house staff of pro j ect and construction staff , ” and his duties “ included plann ing, design review, coordination, procurement and construction management

. ” These supervis ory or project
manageme nt duties fall within the statutory definition of the practice of architecture. See Tex. Occ. Code § 1051.001 (7) ; Thompson Hancock Witte & Asso cs. v. Brazos Presbyteria n Homes, Inc. , No. 14

- 20

- 00827

- CV, 2022 WL 1010256, at * 1 n.2, 3

– 4 (Tex. App.

— Housto n [14th Dist.] Apr. 5, 2022 , no pet. ) ( mem. op. ) (holding affiant was actively engaged i n the practice of architecture14 where he s tated he had worke d as “ an architect, design

- build construction company manager, developer, and pro j ect mana ger in the professi on since 1968 ” ) ; Studio E Architecture & Interiors, Inc. v. Lehmberg , No. 04

- 19

- 00026

- C V , 2019 WL 3229194, at *3

– 4 (Tex. App.

— San Antonio Apr. 17, 2019 , pet. denied ) (mem. op.) ( holding project manager functions fell within ambi t of sect ion 1051.001(7) ); C

arter & Burgess , 355 S.W.3d at 809 ( same ).
Smallwood further challenges the sufficiency of Davis ’s allegations in his affidavit, arguing he fa ils t o state with specificity what negligence, act , error, or omission Smallw ood purpo r tedly di d that caused the Arriagas ’ damages or to provide any factual basis to support his vague and conclusory st a tements

. See Tex. Civ. Prac. & Rem. §§ 150.00 2 (b)

. Sma llwoo d also criticizes Davis ’ s adoption of Cruz ’ s statements and concl usions in his af f

idavit w ithout, Smallwood insists , explaining how those statements a nd concl usions apply to architects rather than engineers. According to Smallwood, “ Davis’ [sic] affid avit is effectively a recitation of Cruz’ [sic] affidavit without providing any uniq ue analys is into the basis of the claims against an architect or landscape architect. ”
We do not read Davis ’ s affidav i t as being as limited as Smallwood suggests. Although Davis d id attach a cop y of Cruz ’ s affidavit to his own affidavit and did adopt many of Cruz ’ s s tatements and conclusions, Davis explained that he did so because “ [w] hile Mr. Cruz is an engineer, his op i nions fully apply to these Defendant Architects and I adopt all of those opinions specific to ‘ Design Professionals ’

— they apply equally to t h e Defend ant Architec ts. ” Davis further asserted that “ [d ] esign of large structures like this high

- rise residential building require architects and engineers to work toge ther to solve these exact issues of public a n d pedestrian safety. A n d the criticisms o u tlined i n the Cruz Certificate of Merit apply equally to the Defendant Architects. ” But Davis did not simply adopt15 Cruz ’ s assertions , Davis also explained that “ [w] hen d esign ing those a reas , in which pedestrians and vehicles will necessarily intersect , [ i

. e., ‘ hig h

- volume parking garages, driveways, roadways, and entry/exit intersections , ’ ] design professionals like a r chitects and architectural firms have a duty to priori tize the safety of pedestrians [, which] necessarily means including the kinds of basic safety f

eatures outlined in Mr. Cruz ’ s certifi cate of merit. ” More specifically, Davis emphasized and quoted Cruz ’ s statement that the “ design l a cked markings, l ighting and s ignage that controlled traffic speed, tra ffic flow, alerted driver and pedestrian s of haza rds, [and] distinguished pedestrian egress and walkways

. ” D avis indicated that a prudent architect “ should have recognized the unfavorable traffic control plan ” and m ade the required safety improvements listed in Cruz ’ s affidavit . Davis concluded t hat “ [b] ecause no markers, warnings, signage, speed humps or bumps, or lane dividers were present on the day of th e accident, or at any time prior to the accident, it is cl ea r the Defendant Architects failed their duties in desi gn ” and

“ because these fail u res conc ern pedestrian safety it is foreseeable that a pedestrian like Mr. Arriaga may be injured as a result of t h ose failures. ” Turning to Cruz ’ s affidavit as adopted and applied to architects by Davis , we can see that Cruz made de tailed observations re g arding t he 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 drivew ay [w ere] negligent for failing to implement a traffic control plan ” that took into ac c ount t ra ffic volume , speed , direction, and flow ; d riveway width ; t urning radius for small, medium and large vehicl e s ; t wo
- wa y traffic ; l ine of sight and visual obstructi ons a round corners ; and l ighting conditions

. Cruz further asserted that [t] hese Design Professi onals failed to use ordinary care and reasonable judgement in the design of the driveway by not implementi n g a design that protected the public by distinguishing16 trav el lanes in a relatively narrow driveway with entry and exi ts to a municipal stre e t that s erved two entries to a multi

- level garage with ground parking along the rear of the building that also ser v ices commercial loading and unloading within the same drive way. Cruz highlighted th at given “ the unfavorable traffic and driving conditions

a long the driveway ”

— i.e ., expected traffic volume around a high

- rise residential building, the narrow two

- way drive w ay connecting entry and exi ts from a multi

story garag e wit h outside parking , obstructed views for drivers going around the building , and pe d estrian access to the driveway

— the design needed to “ [c] ontrol the turning of vehicles around the building which c r eated a blind spot , ” “ [p rotect ] the public walkway and pede strian cross walk between the main building and the
garage , ” and “ [d] istinguish an d separat e the traffic flow to reduce the potential for collisions.” He further asserted it was “ necessary to have m inimal traffic control measures like barri ers, signs a nd ma rkings to guide visiting pedestrians, residents, visiting drivers and resident dr i vers usi ng the driveway and sidewalks.” Absent the se “ minimum traffic controls, ” Cruz alleg ed the design “ failed t o slow down traffic that was entering the driveway, fai led t o separate the traffic into lanes, failed to warn drivers of blind spots [, and] f a iled to warn drivers and pedestrians of hazards. ” Cruz concluded that the “ Design Professionals [ ’ ] fail[ure] t o pe r form their services in a good and workmanlike manner .

. . was a producing cause of Plaintiff ’ s damages

. ” In sum, Davis ’ s own assertions and incorpor ation of Cr uz ’ s allegations in his affidavit were sufficient to meet the requirements of section 150.00 2 (b )

. Accordingly, the trial court did not err in denying Small wood ’ s motion to dismiss and we overrule Smallwoo d ’ s sole appellate issue.
Conclu s ion
Beca use we hold that the Arriagas timely provided a n adequate certificate of17 m erit affidavit as to Smallwood b u t failed to do so in regard to Kudela and Robinson , w e a f f

i r m t h e t r i a l c o u r t ’ s denial of S m a l l w o o d ’ s m o t i o n t o d i s m i s s ,
r e v e r s e t h e trial c o urt ’ s de nial of Kudela and Ro b inson ’ s motions to dismiss , and instruct the trial court to dismiss t he Ar riagas ’ claims against Kudela and Robinson

.

/s/ Frances Bourliot Justi ce

Panel consists of Chief J u stice Ch ristopher and Justice s Bourliot and Spain.