COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROBERT NAVARRO & ASSOCIATES

ENGINEERING, INC. and

BATH ENGINEERING 

CORPORATION,

 Appellants,

v.

FLOWERS BAKING CO. OF EL PASO, 

LLC.,

 Appellee. 

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No. 08-10-00236-CV

Appeal from

448th District Court

of El Paso County, Texas

(TC # 2009-5126)

O P I N I O N

This is an interlocutory appeal from an order denying motions to dismiss claims under 

Chapter 150 of the Texas Civil Practice and Remedies Code. These statutes govern suits filed 

against certain licensed professionals, including engineers and their firms. See

TEX.CIV.PRAC.& REM.CODE ANN. §§ 150.001-.002 (West 2011). All of Appellants’

arguments concern the adequacy of the sworn certificate of merit. For the reasons that follow, 

we reverse and remand. 

FACTUAL SUMMARY

On December 21 2009, Flowers Baking Co. of El Paso, L.L.C. filed a single petition 

asserting claims against Robert Navarro & Associates Engineering, Inc. and Bath Engineering 

Corporation (collectively Appellants). According to Flowers’ petition, the underlying suit arose 

out of the construction of a new warehouse at their facility (the Project). Flowers hired Navarro

to provide “the architectural, civil engineering, structural, mechanical, and electrical design and 
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construction documents, including the drawings and specifications” (the “Project Documents”). 

Flowers also alleged that certain Project Documents were to be prepared and provided by Bath. 

In short, Appellants were to identify and provide for water and sewage connections to the 

warehouse. Although the design and construction documents provided to Flowers reflected 

existing and accessible water and sewage lines adjacent to the warehouse:

[A]t a point in time when the Project was virtually complete, it was discovered 

that such design and construction documents were incorrect. There were in fact 

no existing and accessible water and sewage lines [in the area adjacent to the 

warehouse].

Flowers further alleged that as a result “of the foregoing defect and error in the Project design,” it 

incurred serious and unexpected costs in identifying and implementing an alternative plan. 

Based on these allegations, Flowers urged causes of action for professional negligence and 

breach of contract against Navarro, as well as a cause of action for negligent misrepresentation 

against Bath. Specifically, Flowers’ petition stated: 

CAUSES OF ACTION

Professional Negligence

. . .

13. Navarro failed in the following respects to exercise the degree of care and 

competence that an engineer of ordinary knowledge and skill would have 

exercised under the same or similar facts and circumstances: 

 in failing to determine, in both an accurate and timely manner before 

work on the Project commenced, that there were in fact no existing 

and accessible water and sewage lines in West Mills;

 in representing in its design and construction documents for the Project 

that there were existing and accessible water and sewage lines in West 

Mills, when in fact there was not.

. . .

Breach of Contract
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. . .

17. Navarro ... has in the following respects materially and substantially 

breached the agreement by and between Flowers and Navarro in connection with 

the Project: 

 in failing to determine, in both an accurate and timely manner before 

work on the Project commenced, that there were in fact no existing 

and accessible water and sewage lines in West Mills;

 in representing in its design and construction documents for the Project 

that there were existing and accessible water and sewage lines in West 

Mills, when in fact there was not.

. . .

Negligent Misrepresentation

. . .

20. In the course of Bath’s business and work on the Project, a transaction in 

which Bath had a pecuniary interest, Bath supplied information to the effect, and 

represented, that there were existing and accessible water and sewage lines in 

West Mills, when in fact there was not. Bath intended or knew or should have 

known that Flowers would receive and justifiably rely upon the foregoing 

information and representation. Bath failed to exercise reasonable care or 

competence in obtaining and communicating the foregoing information and 

representation, and Flowers did in fact justifiably rely thereon to its damage and 

detriment. 

As required by Chapter 150 of the Texas Civil Practice and Remedies Code, Flowers attached a 

sworn certificate of merit from Gerald Spencer, a licensed professional engineer. 

Navarro and Bath filed motions to dismiss, complaining that Spencer’s certificate of 

merit failed to satisfy the statutory requirements. The district court denied the motions. 

Navarro’s first issue and Bath’s second issue are parallel complaints that Spencer’s certificate of 

merit fails to clearly and unequivocally attribute the alleged act, error, omission to a particular 

defendant. Because these issues are dispositive, we need not address the remainder. 

STANDARD OF REVIEW

We review a trial court’s denial of a motion to dismiss under Section 150.002 for an 
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abuse of discretion. JNY, L.P. v. Raba-Kistner Consultants, Inc., 311 S.W.3d 584, 585-86 

(Tex.App.--El Paso 2010, no pet.); M-E Engineers, Inc. v. City of Temple, 365 S.W.3d 497, 500

(Tex.App.--Austin, pet. denied); Garza v. Carmona, No. 13-11-00077-CV, 2012 WL 1134014, 

at *3 (Tex.App.--Corpus Christi April 5, 2012, no pet. h.); Sharp Eng’g v. Luis, 321 S.W.3d 748, 

752 (Tex.App.--Houston [14th Dist.] 2010, no pet.); Benchmark Eng’g Corp. v. Sam Houston 

Race Park, 316 S.W.3d 41, 44 (Tex.App.--Houston [14th Dist .] 2010, pet. dism’d by agr.); 

Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496 (Tex.App.--Corpus 

Christi 2009, no pet.). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or 

without reference to any guiding rules and principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 

48, 52 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 

(Tex.1985). Merely because a trial court may decide a matter within its discretion in a different 

manner than an appellate court does not demonstrate an abuse of discretion. Palladian Bldg. 

Co., Inc. v. Nortex Foundation Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.--Fort Worth 2005, 

no pet.).

We review questions of statutory construction de novo. State v. Shumake, 199 S.W.3d 

279, 284 (Tex. 2006); Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.--Houston [14th 

Dist.] 2008, pet. denied), citing City of San Antonio v. Boerne, 111 S.W.3d 22, 25 (Tex. 2003). 

Once we determine the statute’s proper construction, we must then decide whether the trial court 

abused its discretion in applying the statute. Palladian, 165 S.W.3d at 436. A trial court has “no 

‘discretion’ in determining what the law is or applying the law to the facts.” Walker v. Packer, 

827 S.W.2d 833, 840 (Tex. 1992). Accordingly, a trial court abuses its discretion if it 

misinterprets or misapplies the law. Perry Homes v. Cull, 258 S.W.3d 580, 598 n. 102 (Tex. 

2008); Walker 827 S.W.2d at 840.
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CHAPTER 150 AND STATUTORY CONSTRUCTION 

Chapter 150 addresses suits brought against “licensed or registered professionals.” See

generally TEX.CIV.PRAC.&REM.CODE ANN. §§ 150.001-.002 (West 2011). Specifically, 

Section 150.002, requires, in relevant part:

1

(a) In any action or arbitration proceeding for damages arising out of the 

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

plaintiff shall be required to file with the complaint an affidavit of a third-party 

licensed architect, licensed professional engineer, registered landscape architect, 

or registered professional land surveyor who:

(1) is competent to testify;

(2) holds the same professional license or registration as the defendant; 

and 

(3) is knowledgeable in the area of practice of the defendant and offers 

testimony based on the person’s:

(A) knowledge;

(B) skill;

(C) experience;

(D) education;

(E) training; and

(F) practice.

(b) The affidavit shall set forth specifically for each theory of recovery for 

which damages are sought, the negligence, if any, or other action, error, or 

omission of the licensed or registered professional in providing the professional 

service, including any error or omission in providing advice, judgment, opinion, 

or a similar professional skill claimed to exist and the factual basis for each such 

claim. The third-party licensed architect, licensed professional engineer, 

registered landscape architect, or registered professional land surveyor shall be 

licensed or registered in this state and actively engaged in the practice of 

 

1

 This suit was filed in December 2010. Accordingly, the version of Chapter 150, as amended in 2009, governs the

suit. See Act of May 27, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 TEX.GEN.LAWS 369, 370, amended by Act of 

June 19, 2009, 81st Leg., R.S., ch. 789, §§ 2-4, 2009 TEX.GEN.LAWS 1991, 1992 (codified at 

Tex.Civ.Prac.&Rem.Code Ann. § 150.002).
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architecture, engineering, or surveying.

. . .

(e) The plaintiff’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. [Emphasis added].

The statute thus requires that the affidavit must address each theory of recovery and 

identify the negligence or omission of the licensed professional.

In construing statutes, our primary objective is to give effect to the Legislature’s intent. 

Shumake, 199 S.W.3d at 284; Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 

628, 635 (Tex. 2010); Nangia v. Taylor, 338 S.W.3d 768, 770 (Tex.App.--Beaumont 2011, no 

pet), citing Galbraith Eng’g Consultants, Inc., v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). 

“We seek that intent first and foremost in the statutory text.” See M-E Engineers, Inc., 365

S.W.3d at 500, citing Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006)(internal 

quotations omitted). In doing so, we consider the words in context, not in isolation, and we rely 

on the plain meaning of the text unless a different meaning is supplied by legislative definition or 

is apparent from context, or unless such a construction leads to absurd results. See State v. 

Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 

(Tex. 2008); see also TEX.GOV’T CODE ANN. § 311.011 (West 2005)(“Words and phrases 

shall be read in context and construed according to the rules of grammar and common usage,”

but “[w]ords and phrases that have acquired a technical or particular meaning, whether by 

legislative definition or otherwise, shall be construed accordingly.”). 

We presume that the Legislature was aware of the background law and acted with 

reference to it. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990). We 

further presume that every word of a statute is used for a purpose, and that every word excluded 
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from a statute was excluded purposefully. See Texas Lottery Comm’n v. First State Bank of 

DeQueen, 325 S.W.3d at 628, 635 (Tex. 2010); Shook v. Walden, 304 S.W.3d 910, 917 

(Tex.App.--Austin 2010, no pet.).

FAILURE TO ATTRIBUTE CONDUCT TO EACH DEFENDANT

We begin our analysis by addressing Appellants’ assertions that Flowers failed to provide 

a certificate of merit attributing actions, errors, or omissions to each engineering defendant. 

Flowers filed a single certificate of merit, sworn to by Gerald Spencer, P.E. The affidavit 

establishes the duty of a professional engineer. An engineer’s liability is tied to the sealing of 

engineering documents both generally and under the alleged facts of the case. Tying liability to 

the sealing of engineering documents is statutory. “Upon sealing, engineers take full 

professional responsibility for that work.” TEX.ADMIN.CODE § 137.33(b). Spencer then 

opined as to the standard of care and breach thereof:

5. Included among the construction drawings is one drawing identified as 

Drawing Sheet No. MO. 1, which drawing is also labeled ‘Plumbing Site Plan’.

Drawing Sheet No. MO. 1 indicates a 4” water line and a 4” sewer line located in 

the public street ROW identified as Mills Street on this Drawing Sheet MO. 1. 

Drawing Sheet MO. 1 was certified and sealed, as the drawing was required by 

Texas law to [be] prepared under the direction of and certified by a professional 

engineer licensed to practice in the State of Texas.

6. It is my understanding from Plaintiff’s Original Petition filed in the Lawsuit 

that there are in fact no water and sewer lines located at West Mills Street in 

El Paso County, Texas.

7. In my opinion, the failure to confirm the actual location and existence of the 

water and sewer lines that are indicated on Drawing Sheet No. MO. 1 constitutes 

professional negligence or a failure to exercise the degree of care and competence 

that an engineer of ordinary skill and knowledge would have been or expected to 

be provided to the public. Therefore, it is my opinion that the failure to 

confirm the actual location and existence of the water and sewer lines that 

are indicated on Drawing Sheet No. MO. 1 constitutes professional 

negligence by Robert Navarro and Associates Engineering, Inc. and/or Bath 

Engineering Corporation. An engineer’s certification of construction drawings 

represents a certification by the engineer that the information contained in the 

drawings is correct, and that the drawings are proper for the underlying 
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construction project. At a minimum, I would expect a reasonable engineer to 

actually check with the City of El Paso or other appropriate governmental 

authority in El Paso to confirm that the water and sewer lines that are shown on 

Drawing Sheet No. MO. 1 actually exist. Additionally, I would expect a 

reasonable engineer to confirm that the water and sewer lines shown on Drawing 

Sheet No. MO. 1 are actually sufficient for the construction job. Third, 1 would 

expect a reasonable engineer to perform a site inspection of the property in order 

to determine whether there were any manholes, water valves, and fire hydrants or 

other evidence that would reflect the location of underground water and sewer 

lines. The failure to do these things prior to certifying (stamping) the 

construction drawings as approved would, in my opinion, constitute a breach 

or violation of the standard of care normally expected of engineers. 

[Emphasis added].

The affidavit does not specify who certified and sealed Drawing Sheet MO. 1, but Flowers 

affirmatively states in its brief that Bath sealed the drawing showing water and sewer lines. 

Appellants focus heavily on Spencer’s use of the phrase “and/or” when discussing the 

alleged “negligence . . . action, error, or omission” of the two defendants. They contend that the 

statute requires a direct and unequivocal statement by the affiant that attributes a specific act, 

error, or omission to each defendant. By contrast, Flowers argues that the certificate need not 

specifically connect the alleged “negligence . . . actions, errors, or omissions to a particular 

defendant or theory of recovery.” In support, Flowers relies upon two cases from the Beaumont 

Court of Appeals: Nangia, 338 S.W.3d at 773 and Criterium-Farrell Eng’rs v. Owens, 248 

S.W.3d 395, 399 (Tex.App.--Beaumont 2008, no pet.). Neither case addresses whether Section 

150.002 requires a certificate of merit tying tortious conduct to a specific defendant. In fact, 

neither case deals with the issue of multiple defendants. Instead, both deal with the specificity 

requirements regarding each theory of recovery under an older version of the statute. See 

Nangia, 338 S.W.3d at 773 (finding that “The focus of the certificate of merit is on the alleged 

error or omission and the facts that support the claim,” and that, as long as the certificate sets 

forth the alleged negligence, actions, errors, and omissions and the factual basis for each such 
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claim, the purpose of Chapter 150 is met); Criterium-Farrell, 248 S.W.3d at 399 (noting that the 

purpose of the certificate of merit requirement is to inform the defendant of the specific conduct 

called into question and to provide a basis for the trial court to conclude that the plaintiffs claims 

have merit and holding that a certificate of merit was not defective merely because it did not 

expressly connect the stated actions, errors, and omissions to the negligence cause of action). 

While Flowers concedes these cases do not discuss situations involving multiple defendants, he 

persists in suggesting “it would seem logically to follow that it is not necessary [for] the 

certificate of merit to expressly connect the alleged acts, errors, and omissions to a particular 

defendant . . . .” We do not write so broadly.

Flowers also relies heavily on Howe-Baker Engineers, Ltd v. Enterprise Products 

Operating, LLC, No. 01-09-01087-CV, 2011 WL 1660715, *1 (Tex. App.--Houston [1st Dist.] 

Apr. 29, 2011, no pet.)(mem. op.). There, the two named defendants, Howe-Baker and CB & I, 

were alleged to be alter-egos. In that circumstance, the Houston Court of Appeals held that the 

statute did not require the supporting affidavit to attribute a particular act or omission to a 

defendant whose alleged liability was entirely vicarious of the alleged liability of another 

defendant as to which the affidavit did satisfy the statute. Howe-Baker, 2011 WL 1660715, at *

6. Flowers alleged neither vicarious liability nor alter ego which it flatly concedes in its briefing. 

Similar claims emerged in M-E Engineers, Inc. v. City of Temple, 365 S.W.3d 497

(Tex.App.--Austin 2012, pet. denied). There, the City hired a general contractor and an architect 

to assist in the construction of a new police headquarters. Id. at 499. The architect then 

contracted with M-E to provide mechanical, electrical, and plumbing engineering services for the 

project. Id. M-E provided its services on the project through Allen Y. Tochihara, a licensed 

professional engineer and “M-E principal.” Id. Subsequently, the City filed a negligence and 
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breach of contract claim against the general contractor, the architect, M-E, and Tochihara 

because the newly built police headquarters had problems with its HVAC system. Id. In 

accordance with Section 150.002, the City attached a sworn certificate of merit from a licensed 

professional engineer, Bill M. Long. Id. Long attested to the HVAC design and construction 

deficiencies and opined that “these errors and omissions were caused by a lack of supervision 

and enforcement of the contract documents by the Engineer, which constitutes negligence in the 

practice of engineering.” [Emphasis added]. Id. Long defined and identified “the Engineer” as 

Tochihara, but he did not explicitly mention M-E, Tochihara’s firm. Id. Tochihara and M-E 

filed motions to dismiss. Id. Prior to the hearing, the City amended its pleadings to include: (1) 

negligence by Tochihara and (2) vicarious liability of M-E for Tochihara’s negligence by virtue 

of Tochihara’s status as the company’s employee, agent, and principal. Id. The trial court 

denied the motion to dismiss. Id. On appeal, the parties argued in part that Long’s certificate 

was inadequate to support claims against M-E because it only explicitly referred to Tochihara 

“the Engineer” and not to M-E. Id. at 499-500, 505. Noting the claims for vicarious liability, the 

Court of Appeals affirmed. However, in doing so, the Court provided the following analysis: 

[T]he certificate-of-merit requirement is similar to the expert-report requirement 

under chapter 74 of the civil practice and remedies code--regardless of the legal 

theory or theories on which the plaintiff relies in seeking damages, he or she must 

file an expert report if the claim is predicated on facts characteristic of a ‘health 

care liability claim.’

Id. at 506. We turn now to the theories of recovery pled and the allegations of negligence against 

each defendant. As might be expected, the parties view the record differently. Bath was sued for 

negligent misrepresentation. Navarro contends that it was sued for professional negligence and 

breach of contract “as though NAVARRO had made the determinations and representations 

involved in BATH’S drawing.” Flowers’ pleadings specifically allege “Navarro was to provide 
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Flowers with the architectural, civil engineering, structural, mechanical, and electrical design and 

construction documents . . . with respect to a new warehouse . . . . Certain Project Documents 

were to be prepared and provided by Bath.” This differs a bit from the brief in which Flowers

suggests that it was Navarro alone that had contracted to provide the Project Documents. In any 

event, a single omission is the basis for all causes of action -- the Project Documents incorrectly 

show the location of water and sewer lines.

If Bath sealed the Project Documents, it may bear liability for negligence. But Bath was 

sued for negligent misrepresentation, a totally separate tort requiring different elements of proof. 

See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 

1999); Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984). If Navarro did not seal the 

drawing, it may or may not bear liability for breach of contract or negligence. One cannot 

ascertain the nuanced distinctions based upon Spencer’s affidavit. We thus agree with 

Appellants that the statutory language does not allow for collective assertions of negligence:

It cannot be presumed that anytime two defendants are accused of similar conduct that 

valid claims exist against both of them -- if such claims indeed exist, the expert must 

actually say so, and do so in the form of positive averments made under oath.

We sustain Navarro’s Issue One and Bath’s Issue Two. We reverse and remand to the 

trial court for a determination of whether the dismissal of Flowers’ claims shall be with or 

without prejudice. See TEX.CIV.PRAC.&REM.CODE ANN. § 150.002(e)(providing that a 

dismissal based on a plaintiff’s failure to file a certificate of merit in accordance with the statute 

“may be with prejudice.”)

September 26, 2012 _______________________________________________

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.