Affirmed and Opinion Filed March 13, 2024

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-23-00219-CV

SUPERIOR INDUSTRIES, INC., Appellant

V.

GARRETT KALLUS, Appellee

On Appeal from the 116th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-22-03261

MEMORANDUM OPINION

Before Justices Goldstein, Garcia, and Miskel

Opinion by Justice Miskel

In this interlocutory appeal, appellant Superior Industries, Inc. (“Superior”) 

appeals the trial court’s order denying Superior’s motion to dismiss for failure of 

appellee Garrett Kallus to file a certificate of merit with his original petition,

pursuant to chapter 150 of the Texas Civil Practice and Remedies Code. Kallus filed 

suit against Superior and other defendants to recover damages for personal injuries 

sustained while repairing a piece of industrial conveyer equipment manufactured by 

Superior. We conclude that Superior has not shown that the trial court abused its 

discretion in denying its motion to dismiss and we affirm the order.
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I. FACTUAL AND PROCEDURAL BACKGROUND

In April 2021, Kallus was injured while repairing the hydraulic radial system 

of a portable telescopic radial stacking conveyer used to build stockpiles (a 

“telestacker”) at the Arcosa Crushed Concrete – McKinney Recycle Yard. Superior

manufactured the telestacker, which was owned by Arcosa, Inc., another defendant 

that is not a party to this appeal. Kallus worked for McCourt Equipment, Inc., 

Superior’s distributor.

On the date of the incident, Kallus was asked to perform troubleshooting and 

maintenance work on the telestacker located at the recycling plant in McKinney, 

Texas. He contacted a customer service representative employed by Superior to 

discuss the repair work and asserts that he followed the customer representative’s 

instructions. Kallus alleges that the representative failed to warn him of the dangers 

associated with the machine’s braking system. This braking system allegedly failed

while Kallus was working on the telestacker. The machine began rolling and ran 

over Kallus’s right leg, causing injuries that required multiple surgeries. 

In March 2022, Kallus filed his original petition against Superior and another 

defendant for claims arising from his injuries, and he amended his petition that June 

to join additional parties. He did not file a certificate of merit with either petition. 

In addition to negligence and gross negligence claims against Superior and the other 

defendants, Kallus asserts that Superior manufactured, designed, distributed, or sold 

the telestacker with design, manufacturing, or marketing defects that rendered the 
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telestacker unreasonably dangerous and caused Kallus’s injuries. More specifically, 

Kallus makes the following product liability and negligence claims against Superior

(summarized):

 Superior knew or should have known that there was an unreasonable risk 

in the intended or reasonably foreseeable use of the telestacker and failed 

to adequately warn Kallus of the risks or instruct Kallus how to avoid the 

dangers;

 Superior knew of safer alternative designs that were available and feasible 

at the time of production and that would have prevented or significantly 

reduced such risks;

 Superior manufactured the telestacker and deviated in the quality of 

construction, plan, materials, warnings or specifications;

 Superior is liable under strict product liability theories and expressly 

represented that its telestacker and component parts were safe to use, but 

knew or should have known that the telestacker and its parts were defective 

and dangerous and could not safely be used for the intended purposes, and 

placed them in the stream of commerce in conscious disregard of public 

safety and without adequate warning of the defects and without informing 

the public of the defects;

 Superior had a duty to Kallus to design, manufacture, market, distribute, 

maintain, lease or sell the telestacker in a reasonable manner and to ensure 

that the telestacker was free from defect; Superior breached these duties;

and its conduct caused Kallus’s injuries and damages.

 Superior engaged in negligent conduct, including the conduct described 

above as well as failing to exercise reasonable care in hiring, training or 

supervising its customer representative, and is vicariously liable for its 

employees and agents; and

 Superior’s conduct was grossly negligent.

Nine months later, in January 2023, Superior filed its motion to dismiss 

Kallus’s claims against Superior with prejudice, arguing that Kallus failed to file a 
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certificate of authority pursuant to chapter 150 of the Texas Civil Practices and 

Remedies Code—applicable to certain lawsuits asserting claims against specified 

licensed or registered professionals. See TEX. CIV. PRAC. & REM. CODE ANN.

§150.002. After a hearing, the trial judge denied Superior’s motion. This appeal 

ensued.

II. STANDARD OF REVIEW

An order denying a motion to dismiss under chapter 150 of the Civil Practice 

and Remedies Code is appealable as an interlocutory order. TEX.CIV. PRAC. & REM.

CODE ANN. § 150.002(f). We review a trial court’s order on a motion to dismiss 

under this statute for an abuse of discretion. Lina T. Ramey & Assocs., Inc. v. 

Comeaux, No. 05-23-00562-CV, 2023 WL 8183272, at *3 (Tex. App.—Dallas Nov. 

27, 2023, no pet.) (mem. op.). A trial court abuses its discretion when it acts in an 

unreasonable and arbitrary manner without reference to any guiding rules or 

principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011); Comeaux, 2023 

WL 8183272, at *3. 

“[T]he party that complains of abuse of discretion has the burden to bring 

forth a record showing such abuse.” TDIndus. Inc. v. My Three Sons, Ltd., No. 05-

13-00861, 2014 WL 1022453, at *2 (Tex. App.—Dallas Feb. 14, 2014, no pet.) 

(mem. op.) (quoting Simon v. York Crane & Rigging Co. Inc., 739 S.W.2d 793, 795 

(Tex. 1987)); see also FAI Eng’rs, Inc. v. Logan, No. 02-20-00255-CV, 2020 WL 

7252315, at *4 (Tex. App.—Fort Worth Dec. 10, 2020, no pet.) (mem. op.) (stating 
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that the defendant engineering firm had the burden of proof on its motion to dismiss 

to demonstrate it met the requisites of Section 150.002(a) of the certificate-of-merit 

statute).

We construe statutory language de novo. Pedernal Energy, LLC v. Bruington 

Eng’g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017). A reviewing court’s goal is to 

determine and give effect to the legislature’s intent. Id. A reviewing court looks to 

and relies on the plain meaning of a statute’s words as expressing legislative intent 

unless a different meaning is supplied, is apparent from the context, or the plain 

meaning of the words leads to absurd or nonsensical results. Id. Courts construe

statutes so that no part is surplusage, but so that each word has meaning. Id. 

Once we construe the statute, we determine whether the trial court abused its 

discretion in applying the statute to the facts. Comeaux, 2023 WL 8183272, at *3. 

In applying the abuse of discretion standard, reviewing courts defer to the trial court's 

factual determinations; a reviewing court does not engage in its own factual review, 

but decides whether the record supports the trial court's resolution of factual matters. 

State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633–34 (Tex. 2000) (citing 

Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997)); In re Marriage of Spalding, 

No. 05-19-00484-CV, 2021 WL 4057567, at *3 (Tex. App.—Dallas Sept. 3, 2021, 

no pet.) (mem. op.).
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III. APPLICABLE LAW – CERTIFICATES OF MERIT IN SUITS AGAINST LICENSED 

PROFESSIONAL ENGINEERS

Chapter 150 of the Texas Civil Practices and Remedies Code requires the 

filing of an affidavit known as a certificate of merit in certain lawsuits involving 

claims against specified licensed or registered professionals. TEX. CIV. PRAC. &

REM. CODE ANN. § 150.001–.002. 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

and are not frivolous. Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421, 425

(Tex. App.—Dallas 2012, no pet.); Jennings, Hackler & Partners, Inc. v. N. Tex. 

Mun. Water Dist., 471 S.W.3d 577, 581 (Tex. App.—Dallas 2015, pet. denied). 

Section 150.002 of the statute, “Certificate of Merit,” provides that: 

(a) In any action . . . 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 professional engineer . . . .” 

(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 . . . .

(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. CODE ANN. § 150.002(a), (b), and (e). 
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The threshold questions in determining whether §150.002 applies are 

(1) whether the defendant is a covered “licensed or registered professional” and 

(2) whether the claimant’s damages arose out of the provision of professional 

services by such a professional. See Jennings, 471 S.W.3d at 581.

Chapter 150 defines a “licensed or registered professional” to include “a

licensed professional engineer . . . or any firm in which such licensed or registered 

professional practices,” including a corporation. TEX. CIV. PRAC. & REM. CODE 

ANN. § 150.001(1–c). 

In determining whether claims arise out of the provision of professional 

services by a licensed professional engineer, courts review the substance of a 

claimant’s pleadings. Comeaux, 2023 WL 8183272, at *4. A claim arises out of the 

provision of professional services if the substance of the pleadings implicates a 

professional’s education, training, and experience in applying special knowledge or 

judgment. Id.; Jennings, 471 S.W.3d at 581. “The question is not whether the 

alleged mal-acts themselves constituted the provision of professional services, but 

whether the claims arise out of the provision of professional services.” Jennings,

471 S.W.3d at 581. The certificate-of-merit statute applies to any action arising out 

of the provision of professional services by a licensed or registered professional, 

“regardless of the legal theory.” Melden & Hunt, Inc. v. E. Rio Hondo Water Supply 

Corp., 520 S.W.3d 887, 894 (Tex. 2017)
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Courts also look to the definition of “practice of engineering” in the Texas 

Occupations Code when conducting this analysis. Comeaux, 2023 WL 8183272, at 

*4; Jacobs Eng’g Group, Inc. v. Elsey, 502 S.W.3d 460, 464 (Tex. App.—Houston 

[14th] Dist. 2016, no pet.); see TEX. CIV. PRAC. & REM. CODE ANN. § 150.001(3) 

(“‘Practice of engineering’ has the meaning assigned by Section 1001.003, 

Occupations Code.”). The Texas Occupations Code defines “practice of 

engineering” as “the performance of or an offer or attempt to perform any public or 

private service or creative work, the adequate performance of which requires 

engineering education, training, and experience in applying special knowledge or 

judgment of the mathematical, physical, or engineering sciences to that service or 

creative work.” TEX. OCC. CODE §1001.003(b). Among other things, this definition 

specifically includes: 

(8) engineering for preparation of an operating or maintenance manual;

. . .

(10) a service, design, analysis, or other work performed for a public or 

private entity in connection with a utility, structure, building, machine, 

equipment, process, system, work, project, or industrial or consumer 

product or equipment of a mechanical, electrical, electronic, chemical, 

hydraulic, pneumatic, geotechnical, or thermal nature;

TEX. OCC. CODE ANN. §1001.003(c)(8), (10).

When § 150.002 of the Texas Civil Practice and Remedies Code applies, it 

requires the plaintiff to obtain an affidavit from a third-party expert attesting to the 

defendant’s professional errors or omissions and the factual basis for the claims.
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Melden & Hunt, 520 S.W.3d at 896; See TEX. CIV. PRAC. & REM. CODE 

ANN. § 150.002. This certificate of merit must be filed with the initiation of a 

lawsuit against the licensed professional. Melden & Hunt, 520 S.W.3d at 890; TEX.

CIV. PRAC. & REM. CODE ANN. §§ 150.001(1-b), 150.002(a). The trial court then 

decides “whether the expert’s affidavit sufficiently demonstrates that the complaint 

is not frivolous.” Melden & Hunt, 520 S.W.3d at 896. If required, a claimant’s 

failure to file a necessary certificate of merit with its complaint must result in the 

dismissal of the complaint, and this dismissal “may” be with prejudice. See id. at 

889; TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e).

IV. SUPERIOR DID NOT SHOW THAT THE TRIAL COURT ABUSED ITS 

DISCRETION IN DETERMINING THAT THE CERTIFICATE OF MERIT STATUTE DID 

NOT APPLY

In one issue on appeal, Superior asserts that the trial court abused its discretion 

in denying Superior’s motion to dismiss under this statute. Superior argues that 

Kallus was required to file a certificate of merit with his petition because (1) Superior 

is a licensed or registered professional as defined in the statute, and (2) Kallus’s 

claims against Superior arise out of Superior’s provision of professional services as

a licensed or registered professional. 

Kallus attached exhibits to its response to Superior’s motion to dismiss in 

support of his contention that a certificate of merit was not required in this case. The 

trial judge sustained Superior’s objections to the exhibits. In response to Kallus’s

reference to certain discovery in its brief, Superior argues that discovery conducted
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in this case should have no bearing on the resolution of the issues presented in this 

appeal because the certificate of merit must be filed with the petition prior to 

discovery. We do not rely on any discovery in reaching our conclusion. 

A. The trial court could have concluded that Superior did not prove that 

it was a licensed or registered professional.

As a threshold issue, Superior has the burden to demonstrate that it is a 

“licensed or registered professional” as defined in the certificate-of-merit statute. 

See, e.g., TDIndus., 2014 WL 1022453, at *2; Simon, 739 S.W.2d at 795; FAI 

Eng’rs, 2020 WL 7252315, at *4. The definition of “licensed or registered 

professional” in the statute includes licensed professional engineers and “any firm 

in which such licensed or registered professional practices, including but not limited 

to a corporation. . . .” TEX.CIV. PRAC. & REM.CODE ANN. § 150.001(1–c). Superior 

argues that it meets this definition because it is a corporation that employs licensed 

professional engineers. Superior’s motion to dismiss included a January 2023 

affidavit of its Director of Engineering at Superior (the Director), who attested as 

follows:

2. By virtue of my duties and responsibilities as of my role as 

Director of Engineering, I am familiar with the work Superior performs 

and the skill sets of the individuals it employs.

3. Superior engineers, manufactures, sells, and supports dry bulk 

handling equipment and components. In connection with its work, 

Superior [employs] licensed professional engineers. 

4. Currently, Superior employs the following licensed professional 

engineers:
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a. Lafe Grimm (MN License No. 55973);

b. Paul Schmidgall (MN License No. 55444);

c. Travis Thooft (MN License No. 56611); and

d. Austin Schmidgall (MN License No. 54819, CO license 

 No. PE.0056654, AZ License No. 70475).

5. Superior manufactured telestacker-swing axle model no. 

36x150 TSSA, serial no. 1655767 (the “Telestacker”) in March 

2020. At that time Superior employed the following licensed 

engineers:

a. Lafe Grimm (MN License No. 55973);

b. Paul Schmidgall (MN License No. 55444);

c. Travis Thooft (MN License No. 56611); 

d. Austin Schmidgall (MN License No. 54819, CO license 

 No. PE.0056654, AZ License No. 70475);

e. Kent Olson (MN. License No. 57155); and

f. Jarrod Felton (MN License No. 47088, TX License No. 

140968, IA License No. P26350, NV License No. 

022971, PA License No. PEO79589, also currently or

previously licensed in SD,WI, MD, KS, and MO).

The affidavit contains no additional attestations. 

Superior argues that it met its burden to demonstrate that it is a licensed or 

registered professional based on this affidavit and that the trial court abused its 

discretion to the extent it did not so find. We disagree. The statutory definition 

requires not simply that the firm employ the licensed engineers but that they 

“practice” within that firm. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.001(1–

c). The Director states only that he is familiar with the employees’ skill sets and that 

Superior employs these engineers “[i]n connection with its work.” The affidavit 

does not provide the employees’ job descriptions or job titles (other than the 

Director’s) or otherwise provide evidence that their jobs at Superior involve the 
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practice of engineering. An employee may hold an engineering license yet not 

practice engineering in his role at a corporation, just as a person may maintain a law 

license even if his current job does not involve practicing law. The trial court was 

within its discretion to weigh Superior’s evidence and conclude that Superior failed 

to carry its burden to prove that it was a licensed professional engineering firm under 

the statute. 

In its reply to its motion to dismiss, Superior also states that it has multiple

patents related to the telestacker and its components that were obtained through the 

licensed professional engineers employed by Superior. These patents are not 

attested to in the Director’s affidavit nor attached as exhibits thereto. No evidence 

of the content of the patents is provided—the reply lists only the title of a patent, a 

patent number, a year, and an employee’s name.

1

 The trial court was within its 

discretion to find that Superior’s list of employees and list of past patents did not 

connect Superior to the practice of professional services by a licensed professional 

engineer. In other words, in weighing Superior’s evidence, the trial court could have 

found that the list failed to prove that Superior was a firm in which these individuals 

were licensed professionals who practiced engineering at the time of the occurrence 

 

1 The footnote in Superior’s reply to its motion to dismiss in support of this arguments states: “See e. 

g., P. Schmidgall, et al, Portable Radial Stacking Conveyer, Patent No. 5,833,043 (Nov. 10, 1998), P. 

Schmidgal et. al, Portable Telescoping Radial Stacking Conveyor, Patent No. US 6,360,876 B1 (Mar. 26, 

2002); L. Grimm, et. al, Radial Conveyer Undercarriage Apparatus Systems and Methods, Patent No. US 

10,829,308 B2 (Nov. 10, 2020) and A. Schmidgall, et al, Road-Portable Conveyor Apparatus Systems and 

Methods, Patent No. US 10,919,704 B2 (Feb. 16, 2021).” 
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at issue. See FAI Eng’rs, 2020 WL 7252315, at *3. Superior asks us to find that the 

trial court acted arbitrarily or unreasonably, without reference to any guiding rules 

and principles, but we defer to the trial court’s determination of how to weigh 

Superior’s evidence. See $217,590.00 in U.S. Currency, 18 S.W.3d at 633–34; In re 

Marriage of Spalding, 2021 WL 4057567, at *3. 

Superior argues that its Director’s affidavit is competent evidence that 

Superior is a licensed or registered professional for purposes of the statute. Superior 

asserts that “Texas courts have repeatedly held that an affidavit, like the affidavit 

Superior provided, standing alone, is sufficient to support [this] finding (emphasis 

in original).” However, the affidavits in the cases Superior cites were accompanied 

by additional evidence or otherwise provided more direct attestations than Superior’s 

affidavit that licensed professionals practiced engineering for the firms. See, e.g.,

AMEC Foster Wheeler USA Corp. v. Goats, No. 09-18-00477-CV, 2019 WL 

3949466, at *6 (Tex. App.—Beaumont Aug. 22, 2019, no pet.) (mem. op.)

(providing affidavit testimony that defendant firm had employed licensed 

professional engineers for decades along with a certification showing it was 

registered in Texas to offer and perform engineering services as well as a roster from 

the Texas Board of Professional Engineers of its employees); Cimarron Eng’g, LLC 

v. Miramar Petroleum, Inc., No. 13-14-00163-CV, 2014 WL 2937012, at *1–2 (Tex. 

App.—Corpus Christi–Edinburg June 26, 2014, no pet.) (mem. op.) (defendant 

engineering firm provided affidavit of the owner, president, and employee of the 
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firm attesting he had been a licensed engineer in Texas since 1990 and had practiced 

as an engineer continually since that time); UOP, L.L.C. v. Kozak, No. 01-08-00896-

CV, 2010 WL 2026037, at *1 (Tex. App.—Houston [1st Dist] May 20, 2010, no 

pet.) (mem. op.) (affidavit included evidence that the defendant firm employed

licensed professional engineers who provided engineering services for refineries and 

generated refinery process designs in a case alleging that the defendant acted as the 

engineering design service provider and contractor during construction of a 

refinery). Kallus argues that most certificate-of-merit cases involve defendants that 

are professional firms whose primary business is providing engineering services. In 

each of these cases, for example, the business entities provided evidence that they 

were firms engaged in the business of providing professional engineering services

to their customers. In contrast, relating to the claims in this suit, Superior did not 

sell professional engineering services to its customer—it sold a product. 

Superior further asserts that the fact that it is not registered with the Texas 

Board of Professional Engineers is irrelevant for the purposes of determining 

whether it is a licensed or registered professional, because registration does not 

prove whether a licensed or registered professional practices within a firm. In the 

cases Superior cites, courts determined that evidence of a defendant firm’s 

registration with the Texas Board of Professional Engineers, by itself, was 

inadequate to prove that licensed professionals practiced within the firm. See 

TDIndus., 2014 WL 1022453, at *4 (determining that the only purported evidence 
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provided—a printout of the Texas Board of Professional Engineers’ Firm Search 

results page and the government website address of this search page—showed 

nothing respecting the defendant’s asserted status as a licensed or registered 

professional pursuant to Chapter 150); FAI Eng’rs, 2020 WL 7252315, at *3

(determining that the defendant’s nonworking hyperlink to the website of the Texas 

Board of Professional Engineers did not constitute evidence that a licensed or 

registered professional practiced within the firm at the time of the occurrence at 

issue); CH2M Hill Eng’rs, Inc. v. Springer, No. 09-16-00479-CV, 2017 WL 

6210837, at * 3 (Tex. App.—Beaumont Dec. 7, 2017, no pet.) (mem. op.)

(concluding that the defendant failed to meet its burden of proof because, while the 

record contained evidence that the firm was registered with the Texas Board of 

Professional Engineers, the record did not contain any evidence that a licensed or 

registered professional practiced within the defendant firm). We disagree that these 

courts held that registration is irrelevant simply because each defendant’s evidence 

was legally insufficient in those cases to show that a licensed professional practiced 

within the firm. 

Regardless, in the present case, our conclusion does not turn on whether the 

trial court considered that Superior is not registered with the Texas Board of 

Professional Engineers. Superior had the burden to bring forth a record showing that 

it is a “firm in which [a] licensed or registered professional practices” under the 

statute in order to obtain a dismissal for Kallus’s failure to file a certificate of merit. 
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The trial court did not abuse its discretion in concluding that Superior is a 

manufacturer and distributor who has not demonstrated that the few licensed 

engineers that it employed actually practiced engineering, especially related to the 

telestacker at the time of its manufacture. 

We conclude that Superior has not met its burden to show that the trial court 

abused its discretion to the extent it found that Superior did not prove it was a 

licensed or registered professional within the meaning of the certificate-of-merit 

statute.

B. The trial court could have concluded that Superior did not prove that 

Kallus’s claims arose out of Superior’s provision of covered 

professional services.

Even if Superior had adduced legally or factually sufficient evidence to 

require the trial court to find that it met the definition of a licensed or registered 

professional under the certificate-of-merit statute, the certificate requirement only 

applies in an action for damages “arising out of the provision of professional 

services” by such a licensed professional. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 150.002(a). 
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Superior asserts that Kallus conceded at the dismissal hearing that his design 

defect claim implicates the certificate-of-merit requirement. However, Kallus 

argues, and we agree, that Kallus did not concede this point.2 

The parties further disagree as to whether the role of Superior’s unlicensed 

customer representative who provided repair instructions to Kallus impacts the 

applicability of the statute. We need not address this argument. Our conclusion is 

independent of the fact that the customer representative was not a licensed 

professional engineer.

1. Superior’s evidence fails to prove that its licensed 

engineers provided engineering services out of which 

Kallus’s claims arise. 

In its motion to dismiss, Superior argues that Kallus’s claims arise out of 

Superior’s provision of professional engineering services because “they relate to 

Superior’s design and other work related to the design of the subject telestacker 

machine” manufactured by Superior. Superior asserts that it conducted the 

following activities that constitute the practice of engineering under the Texas 

Occupations Code: “‘consultation, investigation, evaluation, analysis . . .,’

‘engineering for preparation of an operating or maintenance manual,’ ‘engineering . 

 

2 At the hearing, Kallus’s attorney explained that, in his experience with asserting the same types of 

negligence and product liability claims against many product manufacturers, he had never been met with a 

motion to dismiss for lack of a certificate of merit. He further opined that, in thinking about the present 

case, the only claim raised “that could potentially even fall under the engineering umbrella that I could see 

would be design defect and so I’m going to set that aside for a moment.” This statement is not a concession 

of the point. Moreover, the trial judge later returned to the product liability design defect claim, and 

Kallus’s counsel reiterated his position that no case law supports Superior’s requested dismissal of the 

claims with prejudice, or even a nonsuit of the design defect claim.
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. . to monitor compliance with drawings or specifications,’ and ‘a service, design, 

analysis, or other work performed for a public or private entity in connection with’ 

the telestacker and its components.” 

The statute applies if the action for damages arises out of the provision of 

professional services by a licensed or registered professional. TEX. CIV. PRAC. &

REM. CODE ANN. §150.002(a). Merely proving that a firm engaged in the practice 

of engineering as defined by the Occupations Code does not imply that it is a licensed 

professional. TDIndus., 2014 WL 1022453, at *4. Similarly, Superior’s assertion

that it engaged in activities listed in the Occupations Code does not prove that 

Kallus’s claims arose out of the provision of professional services by a licensed 

professional engineer. As discussed above, the Director’s affidavit merely states 

that Superior employs the named engineers “[i]n connection with its work.” He does 

not state that any of them actually practice engineering in their jobs at Superior or 

that any provided professional engineering services with respect to the telestacker 

and its braking system at the relevant times. See, e.g., FAI Eng’rs, 2020 WL 

7252315, at *3. 

In its reply to its motion to dismiss, Superior also argued that the listed patents 

demonstrate that Kallus’s claims “directly implicate the work performed by the 

licensed professional engineers that patented the machine.” A list of purported 

patents of varying age with no evidence explaining the relevance of the patents to 

the components of the telestacker at issue in this case fails to demonstrate that the 
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trial court abused its discretion in finding that Superior did not prove that Kallus’s 

claims arose from the provision of professional engineering services by licensed 

professional engineers at Superior.

In its reply brief on appeal, Superior further asserts that “whether Superior 

actually provided professional services in connection with its design, manufacturing, 

marketing, service, and analysis of the telestacker is irrelevant to the determination 

of whether section 150.002(a) required [Kallus’s] complaint to be dismissed as

against Superior.” We reject Superior’s argument that whether Superior actually 

provided professional engineering services relating to the telestacker is irrelevant 

under the statute. In fact, when a certificate of merit is required, the affidavit of the 

third-party professional must set forth, for each theory of recovery, the actions, 

errors or omissions “of the licensed or registered professional in providing the 

professional service.” See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(b). In 

other words, the statute requires the plaintiff to show, for each claim, how the 

licensed professional engineer erred in the professional engineering services that 

were provided. In construing statutes, “we endeavor to read statutes contextually to 

give effect to every word, clause, and sentence.” Melden & Hunt, 520 S.W.3d at 893. 

The certificate of merit is required when professional services were provided, and 

the claims arise out of the professional services provided by the licensed 

professional. To hold otherwise would eliminate the statute’s requirement of a link 
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between the professional services provided, the claimant’s causes of action, and the 

claimed damages that arose from the provision of professional services. 

The pleadings in this case allege product liability and negligence claims 

relating to the defective design, marketing, and manufacture of unsafe equipment by 

a manufacturer. We conclude that the trial court could have determined that Superior 

did not meet its burden to prove that Kallus’s product liability and manufacturer 

negligence claims arose out of the provision of professional engineering services by 

licensed professional engineers at Superior. 

2. Superior’s cases involving product liability or other claims 

are distinguishable. 

Superior cites a few cases where plaintiffs filed certificates of merit in support 

of product liability and related negligence or other claims. However, the defendants 

in the cases Superior cites were professional engineering firms rather than product 

manufacturers, or were licensed, professional engineering firms that also 

manufactured products. See T & T Eng’g Servs., Inc. v. Danks, No. 01-21-00139-

CV, 2022 WL 3588718, at *1 (Tex. App.—Houston [1st Dist.] Aug. 23, 2022, pet.

denied) (mem. op.) (holding plaintiff’s certificate of merit complied with statutory 

requirements in a strict product liability and negligence case against professional, 

licensed engineering firm that allegedly designed, fabricated or manufactured a 

defective oil rig); AMEC, 2020 WL 3579567, at *1 (evaluating whether a certificate 

of merit was required in a case alleging product liability, negligence, and breach of 

implied warranty of merchantability claims against licensed professional 
–21–

engineering firm relating to its engineering design and technology of a filter system

at a refinery).

In AMEC, one of the primary cases Superior cites, the plaintiffs sued an

engineering firm alleging design, manufacturing, and marketing defect claims, 

negligence claims, and breach of implied warranty of merchantability for injuries

caused by hot steam that sprayed from a sour water pump system. AMEC, 2019 WL 

3949466, at *1. The engineering firm was registered in Texas to offer and perform 

engineering services and had a contract to perform engineering work at the plant. 

Id. at *2, 6. The Houston court determined that a certificate of merit was required 

because the plaintiffs’ claims arose out of the provision of professional engineering 

services based on their contention that the engineering firm was “negligent in the 

design, manufacture, and marketing of the sour water pump (‘system’)” and the 

allegation that plaintiffs “relied on [the engineering firm’s] skill and judgment to 

furnish a suitable system that was fit for the ordinary purpose for which it was used 

(emphasis in original).” Id. at *4. The court concluded, “If the cause of action is 

based on a breach of the standard of care by a professional engineering company, 

then the claim ‘arose out of the provision of professional [engineering] services[,]’ 

without regard to how it is labeled.” Id. AMEC is distinguishable from the present 

case not only because it involved a registered, professional engineering firm, but 
–22–

also because the plaintiff expressly alleged a breach of a professional engineering 

standard of care.3

Under Superior’s broad reading of the statute, a claimant would be required 

to obtain a certificate of merit to initiate, for example, a design defect claim against 

any product manufacturer that is not in the business of providing engineering 

services but that employs even one licensed professional. Claimants would be 

expected to ascertain, without discovery, whether a defendant company employs a 

licensed engineer. As a result, claimants would have to err on the side of obtaining 

and filing a certificate of merit with every complaint alleging any design defect or 

other claim against a company that might employ an engineer, or risk dismissal of a 

meritorious claim based on a procedural defect. Superior has not cited, and we have 

not found, any Texas authority supporting that interpretation. Cf. TIC N. Cent. Dall. 

3, L.L.C., 463 S.W.3d at 80 n.5 (holding that claims against an architecture firm were 

not based on actions of the firm relating to the practice of architecture, and noting 

the overall purpose of the statute to deter meritless claims and the problem with a 

 

3

In the present case, Kallus does not assert professional negligence claims or similar claims 

invoking a heightened professional duty of care. Although we do not conclude that a professional standard 

of care necessarily must be pleaded in order for the certificate-of-merit statute to apply, we note that in 

certain cases courts have held the statute inapplicable where the plaintiff’s claims did not implicate a higher 

standard of professional care. See TIC N. Cent. Dall. 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 79 

(Tex. App.—Dallas 2014, pet. denied) (concluding that claims against architecture firm did not arise out of 

its provision of professional services and that the plaintiff did not allege that the architecture firm “should 

be subject to a higher standard of care because of its professional expertise or otherwise base its claims on 

any violation of professional standards.”); Jacobs, 502 S.W.3d at 465 (concluding that a certificate of merit 

was not required because the plaintiffs’ allegations of negligence and gross negligence invoked the duties 

arising from the employment relationship, “not from any professional relationship giving rise to a 

heightened duty of care owed by a professional engineer”). 
–23–

broad reading of the statute that “could forever bar a plaintiff’s suit even if the 

plaintiff was not aware of, and had no reason to be aware of, the defendant’s 

professional expertise”).

We conclude that Superior has not shown that it was unreasonable or arbitrary 

for the trial court to determine that Superior did not meet its burden to prove that 

Kallus’s claims arose out of Superior’s provision of professional engineering 

services by a licensed professional engineer under the certificate-of-merit statute. 

V. Conclusion

Superior has failed to demonstrate that the trial court acted in an unreasonable 

or arbitrary manner without reference to any guiding rules or principles when it 

applied the certificate-of-merit statute to the facts in this case. Consequently, the 

trial court did not abuse its discretion in denying Superior’s motion to dismiss. We 

affirm the trial court’s judgment.

230219f.p05

/Emily Miskel/

EMILY MISKEL

JUSTICE
–24–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

SUPERIOR INDUSTRIES, INC., 

Appellant

No. 05-23-00219-CV V.

GARRETT KALLUS, Appellee

On Appeal from the 116th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-22-03261.

Opinion delivered by Justice Miskel. 

Justices Goldstein and Garcia 

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED.

It is ORDERED that appellee GARRETT KALLUS recover his costs of this 

appeal from appellant SUPERIOR INDUSTRIES, INC.

Judgment entered this 13th day of March, 2024.