Opinion issued April 11, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00421-CV

———————————

PELCO CONSTRUCTION, INC., Appellant

V.

DANNENBAUM ENGINEERING CORPORATION, DANNENBAUM 

ENGINEERING COMPANY–HOUSTON, LLC, STEVEN LLOYD 

MCGARRAUGH, ALAN D. HIRSHMAN, KURT AMUNDSON, AND 

AMUNDSON CONSULTING, INC., Appellees

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Case No. 26356

O P I N I O N

Pelco Construction, Inc. appeals the trial court’s granting of two motions 

that dismissed Pelco Construction’s claims against Dannenbaum Engineering 
2

Corporation, Dannenbaum Engineering Company–Houston, LLC, Steven Lloyd 

McGarraugh, Alan D. Hirshman, Kurt Amundson, and Amundson Consulting, Inc. 

The dismissals were all based on Pelco Construction’s failure to file a certificate of 

merit along with its petition. In one issue, Pelco Construction argues that the trial 

court erred by dismissing its claims against appellees because a certificate of merit 

was not required for the claims it brought.

We affirm, in part, and reverse and remand, in part.

Background

The Oak Island Volunteer Fire Department’s fire station was destroyed by 

Hurricane Ike in 2008. Chambers County sought funding from the Federal 

Emergency Management Agency (“FEMA”) to reconstruct the fire station.

Chambers County entered into a master services agreement (“MSA”) with 

Dannenbaum Engineering Company–Houston, LLC to oversee the design and 

reconstruction of the fire station. Alan Hirshman, a licensed engineer, and Steven 

McGarraugh, a licensed architect, provided their services to Dannenbaum 

Engineering Company–Houston, LLC through another company: Dannenbaum 

Engineering Corporation. The parties draw no distinction between the two 

Dannenbaum companies in their briefs and nothing in our analysis requires a 

differentiation. Accordingly, for the purposes of this appeal, we will treat the two 

companies as a single entity, “Dannenbaum Engineering.”
3

According to the terms of the MSA, the services provided by Dannenbaum 

Engineering were divided into two phases. The first phase consisted of assessment 

and design of the fire station. The second phase consisted of oversight of the

construction of the fire station. The MSA provided, “Phase II shall not commence 

until the permanent repair project has been approved and funds have been provided 

by FEMA.”

As it neared the second phase of the MSA, Dannenbaum Engineering 

entered into a Staff Support Agreement with Amundson Consulting, Inc. Under 

the contract, Amundson Consulting provided the services of Kurt Amundson. 

Amundson worked as an emergency management consultant. He had “28 years[’] 

experience in assisting local governments [with] obtain[ing FEMA] Public 

Assistance Grants to complete projects to repair damages sustained from natural 

disasters.” His work involved overseeing the bidding process and, when the bid 

was awarded to Pelco Construction, monitoring Pelco Construction’s “progress in 

constructing the Project to ensure that Pelco constructed the Project according to 

the contract terms, conditions, and specifications.” As provided in the contract, 

Amundson worked “under the supervision, direction and control of” Dannenbaum 

Engineering. For all of his work, Amundson reported to Hirshman.

Pelco Construction was one of the businesses that submitted a sealed bid to 

construct the fire station. Before submitting a bid, Pelco Construction met with 
4

representatives of Chambers County, Hirshman, and Amundson in a pre-bid 

conference. At the conference, Hirshman “discussed the construction plans and 

specifications for the reconstruction” of the fire station. Pelco Construction alleges 

that Hirshman and Amundson, among others, told it that FEMA funding for the 

fire station project had been approved.

Chambers County ultimately awarded the construction contract to Pelco 

Construction. One provision of Pelco Construction’s contract required Chambers 

County, 

at the written request of [Pelco Construction], prior to commencement 

of the Work and thereafter, [to] furnish [Pelco Construction] 

reasonable evidence that financial arrangements have been made to 

fulfill [Chamber County’s] obligations under the Contract. Furnishing 

of such evidence shall be a condition precedent to commencement or 

continuation of the Work. After such evidence has been furnished, 

the Owner shall not materially vary such financial arrangements 

without prior notice to [Pelco Construction].

The parties dispute whether, at the time that Pelco Construction was 

awarded the contract, FEMA had approved the construction for reimbursement. 

Regardless, around the time that Chambers County began accepting bids on the 

contract, Amundson was working to obtain approval of an amendment with FEMA 

for increased costs. One of the reasons asserted for increased cost construction 

was “the building design had to be changed to meet new [Americans with 

Disabilities Act (‘ADA’)] requirements. The new ADA requirements required that 
5

there be an ADA ramp inside the building not just on the outside of the building.” 

Adding the interior ramp would require increasing the size of the building.

At least by June 15, 2010, FEMA had determined that the interior ramp was 

not required under the law and, accordingly, “the request for an increase in 

building size for the interior ADA ramp is not eligible for FEMA funding.” 

Nevertheless, on July 8, Chambers County and appellees provided Pelco 

Construction with a construction plan, which included the interior ramp. The plan 

was stamped “approved for construction.” Dannenbaum told Pelco Construction to 

begin construction, and Pelco Construction began work on July 14 even though 

FEMA had not approved the final plan or funding for the interior ramp.

Over the next four months, as Pelco Construction continued work on the fire 

station, Chambers County and appellees continued to communicate with FEMA to 

obtain approval for the interior ramp and the corresponding increase in size of the 

building. At some point in September 2010, Chambers County informed FEMA 

that redesigning the building to remove the interior ramp was not possible because 

construction had already begun and a redesign would require a costly stop to the 

project.

On October 28, 2010, Amundson contacted Michael Ramirez, a project 

manager for Pelco Construction, and told him to stop construction. The parties 

dispute whether Amundson stated that the order to stop working came from 
6

FEMA. Nevertheless, Pelco Construction stopped work while Chambers County 

continued to seek approval on the interior ramp from FEMA.

On November 17, 2010, FEMA gave tentative approval to constructing the 

firehouse with the interior ramp. On December 7, Hirshman, on behalf of 

Dannenbaum Engineering, instructed Pelco Construction to resume construction of 

the firehouse. Instead, on December 14, Pelco Construction sent Chambers 

County a notice of termination of the contract.

Pelco Construction filed suit against Chambers County on April 8, 2011. On 

November 3, 2011, Pelco Construction filed an amended petition, adding 

Dannenbaum Engineering, McGarraugh, Hirshman, and Amundson to the suit. 

Pelco Construction asserted a claim of fraudulent misrepresentation against 

Dannenbaum Engineering, McGarraugh, Hirshman, and Amundson. The thrust of 

the claim was that Dannenbaum Engineering, McGarraugh, Hirshman, and 

Amundson had misrepresented that FEMA had approved the construction plans 

given to Pelco Construction and that Pelco Construction was injured by the order 

to stop work on the construction.

In March 2012, Dannenbaum Engineering, McGarraugh, and Hirshman filed 

a motion to dismiss on the basis that Pelco Construction was required to file a 

certificate of merit along with the petition that brought them into the suit. They 
7

argued that, because Pelco Construction had failed to file the certificate of merit 

along with the petition, the claims against them must be dismissed with prejudice.

Pelco Construction filed its last amended petition on April 5th. This petition 

added Amundson Consulting as a defendant, including it in Pelco Construction’s 

claim for fraudulent inducement. The same day, Pelco Construction filed its 

response to the motion to dismiss. Pelco Construction argued that it was not 

required to file a certificate of merit for the fraudulent misrepresentation claims 

against Dannenbaum Engineering, McGarraugh, and Hirshman. The trial court 

disagreed and dismissed with prejudice Pelco Construction’s claims against them.

A short time later, Amundson and Amundson Consulting also filed a motion 

to dismiss based on the same argument that Pelco Construction had failed to 

include a certificate of merit along with the petitions that brought them into the 

suit. Pelco Construction responded, again arguing that it was not required to file a 

certificate of merit for the claims it brought. The trial court granted Amundson and 

Amundson Consulting’s motion as well and dismissed Pelco Constructions claims 

against them with prejudice. Pelco Construction timely appealed the dismissal 

orders.
8

Certificate of Merit

In its sole issue on appeal, Pelco Construction argues that the trial court 

abused its discretion by dismissing its claims against appellees because a certificate 

of merit was not required for the claims it brought.

A. Standard of Review

An order granting or denying a motion to dismiss for failure to file a 

certificate of merit is immediately appealable. See TEX. CIV. PRAC. & REM. CODE

ANN. § 150.002(f) (Vernon 2011). We review a trial court’s ruling on a motion to 

dismiss for an abuse of discretion. Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 

804, 808 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its 

discretion when it acts arbitrarily or unreasonably, without reference to any 

guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 

S.W.2d 238, 241–42 (Tex. 1985). To the extent we are required to interpret a 

statute, that aspect of our review is performed de novo. See TDIndustries, Inc. v. 

Rivera, 339 S.W.3d 749, 752 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

B. Analysis

A plaintiff is required to file a certificate of merit in “any action or 

arbitration proceeding for damages arising out of the provision of professional 

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

ANN. § 150.002(a). In this context, a “licensed or registered professional” includes 
9

“a licensed architect, licensed professional engineer . . . or any firm in which such 

licensed or registered professional practices . . . .” Id. § 150.001(1) (Vernon 2011). 

If a plaintiff’s claim for damages implicates the special knowledge and training of 

an architect, it is a claim for damages arising out of the provision of professional 

services. See Sardari, 355 S.W.3d at 809.

When required, the certificate of merit must be filed with the first-filed 

complaint asserting the relevant claim against a professional. See TEX. CIV. PRAC.

& REM. CODE ANN. § 150.002(a); Pakal Enters., Inc. v. Lesak Enters. LLC, 369 

S.W.3d 224, 228 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). Failure to 

file a certificate of merit in such instances requires dismissal of the complaint 

against the defendant. TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e). 

Pelco Construction did not file a certificate of merit along with its first-filed 

complaints of fraud against appellees. Accordingly, we must review Pelco 

Construction’s petition to determine whether its claims of fraudulent 

misrepresentation required a certificate of merit. In performing this review, we 

consider the live pleading on file when the trial court considered the motion. 

TDIndustries, 339 S.W.3d at 753.

The relevant portion of Pelco Construction’s live pleading asserts the 

following:

88. Defendants McGarraugh and Hirshman, in their capacities as a 

registered architect and registered professional engineer and as 
10

representatives of Dannenbaum, and Amundson, in his capacity as a 

Florida professional emergency manager and as a representative of 

Dannenbaum, and all collectively as the construction managers 

appointed by Chambers County for the [fire station] project, made 

representations to Pelco in regard to the [fire station].

89. McGarraugh and Hirshman, through the construction plans 

stamped with their official seals, signatures and date of signing, 

indicated to Plaintiff that said documents were to be used for the 

construction of the [fire station].

90. As construction manager for [the fire station], Defendants then 

later directed Pelco to begin construction on the [fire station]. . . . By 

doing so, Defendants represented to Pelco that the [fire station] 

project was approved for funding by FEMA.

91. This was not true; the improved project had yet to be approved 

by FEMA which Defendants had direct knowledge of. Relying on the 

representations made by Defendants, Pelco began construction of the 

[fire station].

92. A few months [later], on or about October 28, 2010, following 

commencement of construction on the [fire station], Pelco received a 

telephone call from Amundson, . . . who stated that FEMA required 

the work on the [fire station] be stopped because Dannenbaum had not 

gotten approval of the construction plans from FEMA. Dannenbaum 

further evidenced this in written correspondence dated October 28, 

2010 stating:

“The ceasing of the construction operations is required 

while required administrative paper work for the 

construction of the project is reviewed and approved by 

FEMA. Once the required paper work has been 

approved, we will inform you so that you may resume 

your construction of the project.”

93. Relying on Dannenbaum’s statements regarding FEMA’s 

requirement that work be stopped, Pelco immediately ceased 

construction on the [fire station].
11

94. At no time did Chambers County or Defendants indicate to 

Pelco that the construction plans were not yet wholly approved by 

FEMA. Without FEMA approval, funding was not obtained as told to 

Pelco at the pre-bid conference. At no time did Chambers County or

Defendants indicate to Pelco that if FEMA funding was lost that 

Chambers County was going to fund the reconstruction of the [fire 

station] itself.

95. . . . . After forty days, Dannenbaum sent correspondence stating 

Pelco was to remobilize and continue construction.

96. Pelco then sent Chambers County and Defendants notice of 

termination . . . based upon the misrepresentations Defendants made 

to Pelco regarding FEMA requiring the work stoppage while 

reviewing and approving paper work Defendants, as Chambers 

County’s construction manager, failed to gain approval on prior to 

construction.

1. Dannenbaum Engineering, McGarraugh, and Hirshman

It is undisputed by the parties that McGarraugh is a licensed architect and 

that Hirshman is a licensed engineer. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 150.002(a) (requiring a certificate of merit to be filed in appropriate 

circumstances when the claim is against a licensed or registered professional); see 

also TEX. CIV. PRAC. & REM. CODE ANN. § 150.001(1) (including licensed 

architects and engineers as licensed professionals). It is also undisputed that 

Dannenbaum Engineering is the firm in which McGarraugh and Hirshman 

practice. See id. § 150.001(1) (including firm in which licensed professionals 

practice as licensed professional). The remaining question, then, is whether the 
12

claims Pelco Construction brought against them arose “out of the provision of 

professional services.” Id. § 150.002(a).

In the start of its section asserting fraudulent misrepresentation against 

appellees, Pelco Construction explicitly recognized that McGarraugh and 

Hirshman “made representations to Pelco in regard to the” fire station “in their 

capacities as a registered architect and registered professional engineer and as 

representatives of Dannenbaum.” Moreover, all of the misrepresentations that 

Pelco Construction alleged that McGarraugh, Hirshman, and Dannenbaum 

Engineering made were made in the context of their participation in the redesign 

and construction of the fire station.

Pelco Construction argues that its claims of fraudulent misrepresentation did 

not require a certificate of merit because its claims concern misrepresentations 

regarding FEMA-approved funding and such misrepresentations are unrelated to 

the provision of professional services. We hold that this argument is based on too 

narrow of a reading of the statute.

In 2009, the Legislature amended section 150.002. Act of May 27, 2009, 

81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992 (codified at TEX.

CIV. PRAC. & REM. CODE ANN. § 150.002). A legislative bill analysis explains that 

one purpose of the change was to make it clear that the statute was meant to 

encompass far more than negligence. House Comm. on Judiciary & Civil 
13

Jurisprudence, Bill Analysis, Tex. S.B. 1201, 81st Leg., R.S. (2009). “[D]espite 

clear language in the statute and the fact that it was specifically amended to 

broaden it in 2005,” Texas courts had continued to construe the requirement for 

filing a certificate of merit to apply only to claims for negligence. Id. Further 

amendments were added to clarify that the requirement to file a certificate of merit 

broadened “from ‘negligence’ actions to ‘any action arising out of the provisions 

of professional services.’” Id. 

Contrary to Pelco Construction’s assertion, section 150.002 does not require 

the specific acts creating the claim for the tort also constitute the provision of 

professional services. Instead, the acts creating the claim must “aris[e] out of the 

provision of professional services.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 150.002(a); see also TDIndustries, 339 S.W.3d at 754 (holding claim arises out 

of the provision of professional services if claim implicates the professional’s 

education, training, and experience in applying special knowledge or judgment). 

The Fort Worth Court of Appeals reached a similar conclusion in Capital 

One, N.A. v. Carter & Burgess, Inc., 344 S.W.3d 477 (Tex. App.—Fort Worth 

2011, no pet.). In that case, New America Georgetown, LLC was contractually 

obligated to bring water, sanitary sewer, and storm sewer lines to the boundary of 

certain property. Id. at 479. The contract required obtaining five easements. Id. 

Although it obtained only four, New America represented to Carter & Burgess that 
14

it had obtained all five. Id. Carter & Burgess informed the plaintiff that all five 

easements had been obtained. Id. The plaintiff later brought suit against New 

America and Carter & Burgess on this misrepresentation. Id. Carter & Burgess 

sought a motion to dismiss based on the plaintiff’s failure to file a certificate of 

merit. Id. 

One of the plaintiff’s arguments on appeal was that discussions about a land 

easement, its procurement, and its recording in the real property records “do not 

arise out of the provision of [Carter & Burgess’s] professional services.” Id. at 

480. The court noted that the plaintiff’s architect had contracted with Carter & 

Burgess to “provide professional engineering services in connection with” the 

development of the land. Id. at 480–81. The express language of the contract 

acknowledged the use of professional engineering and surveying services. Id. at 

481. The court held that 

the only reason that [the plaintiff] would have to rely upon [Carter & 

Burgess’s employee’s] alleged false representations . . . was because 

the statements were made as part of [Carter & Burgess’s] performing 

a professional service necessary for the planning, progress, or 

completion of [its] engineering services—an activity that expressly 

constitutes “the practice of engineering.”

Id. 

The same reasoning applies here. The alleged misrepresentations were made 

during a pre-bid conference where Hirshman and Amundson explained the project 

to Pelco Construction and during Dannenbaum Engineering’s oversight of Pelco 
15

Construction’s construction of the fire station according to Dannenbaum 

Engineering’s specifications. The matter of funding from FEMA also required 

Dannenbaum Engineering to communicate with FEMA to explain why the interior 

ramp was needed and how that affected the design and construction of the fire 

station. Pelco Construction does not claim that these acts do not constitute the 

provision of professional services. Accordingly, the alleged misrepresentations 

arose out of the provision of professional services.

Pelco Construction relies on a number of cases for its argument that it did 

not have to file a certificate of merit. See M–E Engineers, Inc. v. City of Temple, 

365 S.W.3d 497, 499 (Tex. App.—Austin 2012, pet. denied); Howe–Baker Eng’rs, 

Ltd. v. Enter. Prods. Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, at 

*1 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (mem. op.); TDIndustries, 339 

S.W.3d at 754–55; Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 

102, 107–08 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Gomez v. STFG, Inc., 

No. 04-07-00223-CV, 2007 WL 2846419, at *3 (Tex. App.—San Antonio 2007, 

no pet.) (mem. op.). These cases are not in conflict with our holding.

In M–E Engineers, the City of Temple sued an engineer and his firm, 

alleging negligence and breach of contract. 365 S.W.3d at 499. The City of 

Temple included a certificate of merit with its petition, and the trial court denied 

the motion to dismiss. Id. On appeal, the engineer and his firm argued that the 
16

certificate of merit was deficient because it failed to explain specifically how they 

had breached the contract. Id. at 505. The court of appeal explained that the 

affidavit in the certificate of merit was not required to “satisfy each element of any 

legal theory or claim on which the plaintiff intends to rely.” Id. Instead, the 

affidavit “must identify and verify the existence of any professional errors or 

omissions that are elements or operative facts under any legal theory on which the 

plaintiff intends to rely to recover damages.” Id. at 506. Accordingly, the court 

held that “the Legislature [did not intend] to require affiants with expertise in such 

fields as engineering or architecture to opine regarding such far-afield subjects as 

contract construction or agency.” Id. at 507.

The most obvious distinction with this case is that no certificate of merit was 

filed here. More importantly, simply because any affiant for Pelco Construction 

would not have been required to explain how Pelco Construction meets every 

element for its fraudulent inducement claim does not mean that a certificate of 

merit was not required.

In Howe–Baker, the plaintiffs joined one defendant ten months after suit had 

been filed. 2011 WL 1660715, at *1. The only claim against that defendant was 

tortious interference with existing contract. Id. at *6. Specifically, the plaintiff 

alleged that that defendant tortiously interfered with the other defendant’s contracts 

“by transferring personnel from [the first defendant] to other assignments that were 
17

more lucrative for” the joined-defendant. Id. We held a certificate of merit was 

not required for this claim because the joined-defendant’s “alleged decisions about 

the assignment of its employees . . . do[] not arise out of the provision of 

professional services.” Id. 

In Howe-Baker, there was no indication that the joined-defendant was 

providing professional services. See id. Accordingly, there were no professional 

services from which the alleged tort could have arisen. Here, the alleged 

fraudulent misrepresentations arose directly from the professional services that 

McGarraugh, Hirshman, and Dannenbaum Engineering were providing.

Similarly, in TDIndustries, there was no indication that the defendant’s 

operation of a freight elevator arose from the provision of professional services. 

339 S.W.3d at 754–55. The defendant was a licensed professional engineering 

firm and provided management services to the City of Houston for a convention 

center. Id. at 751. The plaintiff was injured when a freight elevator door closed 

and struck him in the head while he was pushing a trash cart into the elevator. Id. 

The elevator was operated by an employee of the defendant, but the employee did 

not hold any professional engineering license. Id. at 754–55.

While the defendant was a licensed professional engineering firm, there is 

no indication that its operation of the freight elevator arose from the provision of 

professional services. Id. In reaching this holding, we clarified that we did “not 
18

take the position that operation of a freight elevator could never implicate an 

engineer’s specialized knowledge or judgment; there is simply a reasonable basis 

for the trial court to determine that the circumstances pled by [the plaintiff] do not 

implicate such knowledge or judgment.” Id. at 755.

Curtis & Windham is part of a line of cases following the 2005 amendment 

of section 150.002 holding that, despite the changes to it, the statute required a 

certificate of merit for only negligence claims. 315 S.W.3d at 107–08. 

Accordingly, we held that the plaintiff’s “claims for damages for breach of 

fiduciary duty, fraud, deceptive trade practices, unjust enrichment, and the filing of 

a frivolous lawsuit . . . and their request for a declaratory judgment do not 

implicate a negligent act, error, or omission.” Id. at 108. As we have already 

recognized, however, the statute was amended in 2009 to make clear that the 

statute applied to more than just negligence claims. See Act of May 27, 2009, 81st 

Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992; House Comm. on 

Judiciary & Civil Jurisprudence, Bill Analysis, Tex. S.B. 1201, 81st Leg., R.S. 

(2009).

Similarly, Gomez also interpreted the 2005 amendment and held that the 

statute did not apply to claims other than negligence. 2007 WL 2846419, at *3. 

Accordingly, it has also been abrogated by statute.
19

We hold that Pelco Construction was required to file a certificate of merit 

along with its first-filed petition asserting claims of fraudulent inducement against 

McGarraugh, Hirshman, and Dannenbaum Engineering. We overrule Pelco 

Construction’s sole issue as it applies to them.

2. Amundson and Amundson Consulting

Section 150.002 requires a certificate of merit to be filed with any applicable 

claim brought against a “licensed or registered professional.” TEX. CIV. PRAC. &

REM. CODE ANN. § 150.002(a). “‘Licensed or registered professional’ means a 

licensed architect, licensed professional engineer, . . . or any firm in which such 

licensed or registered professional practices.” Id. § 150.001(1). The term does not 

include, however, third-party contractors with the firm. See id. 

Amundson Consulting had a contract with Dannenbaum Engineering to 

provide support personnel. Amundson was the only person identified as support 

personnel under the contract. While the contract provided that Amundson would 

work under the supervision, direction and control of Dannenbaum Engineering, 

Amundson remained an employee of Amundson Consulting. Pelco Construction 

argues that because Amundson and Amundson Consulting were not employees of 

Dannenbaum Engineering, they have no basis to claim any right to a certificate of 

merit afforded to Dannenbaum Engineering. We agree.
20

Amundson and Amundson Consulting acknowledge that they do not fit 

within the definition of “licensed or registered professionals.” They rely on two 

cases to assert that Pelco Construction was required to file a certificate of merit for 

its claims against them.

In Capital One, the contract at issue required obtaining five easements. 344 

S.W.3d at 479. Although it obtained only four, New America represented to Carter 

& Burgess that it had obtained all five. Id. Carter & Burgess—through its agent 

Chris Weigand—informed the plaintiff that all five easements had been obtained. 

Id. The plaintiff later brought suit against New America and Carter & Burgess—

but not Weigand—on this misrepresentation. Id. 

On appeal, the plaintiff argued that it did not have to file a certificate of 

merit because Weigand was not a licensed or registered professional. Id. at 481. 

Weigand was an unlicensed intern. Id. The court noted, however, that the plaintiff 

sued Carter & Burgess, not Weigand. Id. It held that the plaintiff could not 

circumvent the requirements of filing a certificate of merit by alleging that the firm 

was liable for the negligence committed by an unlicensed employee in the course 

and scope of carrying out the firm’s provision of professional services. See id. 

Similarly, in Sardari, the plaintiff sued Carter & Burgess without filing a 

certificate of merit. 355 S.W.3d at 807, 808. On appeal, the plaintiff argued she 

did not have to file a certificate of merit because “her claim arose from the actions 
21

or omissions of [Carter & Burgess’s] ‘project manager’ who was not a licensed 

professional.” Id. at 811. Relying on Capital One, we held that “the use of an 

unlicensed employee in the course of providing professional services does not 

eliminate the certificate of merit requirement applicable when the plaintiff seeks to 

impose liability on a professional architecture or engineering firm.” Id. (emphasis 

added).

These cases have no application to the present case. Pelco Construction is 

asserting a claim directly against Amundson and Amundson Consulting. It is not 

trying, in this instance, to hold another party liable for Amundson’s or Amundson 

Consulting’s actions.

We hold that Pelco Construction was not required to file a certificate of 

merit along with its claims against Amundson and Amundson Consulting. We 

sustain Pelco Construction’s sole issue as it applies to them.
22

Conclusion

We affirm the trial court’s order dismissing Pelco Construction’s claims 

against McGarraugh, Hirshman, and Dannenbaum Engineering. We reverse the 

trial court’s order dismissing Pelco Construction’s claims against Amundson and 

Amundson Consulting. We remand for further proceedings.

Laura Carter Higley

Justice 

Panel consists of Chief Justice Radack and Justices Higley and Brown.