Full Opinion

Reversed and Remanded and Memorandum Opinion filed September 29, 2026 In The Fifteenth Court of Appeals NO. 15-25-00178-CV PGAL, INC., Appellant V. IAN MIRAMON AND CAROLINE MIRAMON, Appellees On Appeal from the 250th District Court Travis County, Texas Trial Court Cause No. D-1-GN-25-001130 MEMORANDUM OPINION Appellees Ian Miramon and Caroline Miramon sued appellant PGAL, Inc. (“PGAL”) for alleged injuries Mr. Miramon sustained after being struck by a blade of an industrial-sized ceiling fan at a fire station. The Miramons allege that PGAL was negligent and grossly negligent, breaching its duty of care to the Miramons, and that such negligence caused Mr. Miramon’s injuries. As required by law in such matters, the Miramons attached a certificate of merit to their petition attesting to the negligence of PGAL and other parties. In response, PGAL filed a motion to dismiss, attaching evidence, arguing that the Miramons’ claims should be dismissed with prejudice because the certificate’s affiant holds a different professional license than PGAL. The Miramons objected to the evidence attached to the motion. The trial court sustained the Miramons’ objection and denied the motion to dismiss. PGAL thereafter filed this interlocutory appeal. Because we hold that the trial court abused its discretion in excluding PGAL’s evidence, we reverse and remand. BACKGROUND In June 2023, Ian Miramon was working as a fireman at Austin Fire Station 51. While performing an inspection of a fire truck at the station, Mr. Miramon allegedly was struck in the head by a blade of an industrial-sized ceiling fan, which knocked him off the fire truck to the concrete floor below, causing him to sustain several severe injuries. The Miramons then sued PGAL and several other entities, alleging that they were all negligent and grossly negligent for, among other acts, their design, construction, and inspection of the ceiling fan and the fire station. The Miramons attached a certificate of merit by Shane M. Darville, a licensed engineer, to their petition, in which Mr. Darville attested that the conduct of PGAL and several other engineering firms as related to the ceiling fan and fire station breached their duty of care and that such breaches led to Mr. Miramon’s injuries. PGAL filed a motion to dismiss the Miramons’ negligence claims with prejudice on the grounds that Mr. Derville is unqualified to testify because he is licensed as an engineer when PGAL only provided architectural services. PGAL attached to the motion as evidence an affidavit of Christopher Ruebush, an architect and a principal at PGAL, and a contract between PGAL and J.E. Dunn Construction Company (“J.E. Dunn”) involving the design and construction of Austin Fire Station 51. Mr. Ruebush in his affidavit attested that PGAL provided architectural services, and the contract with J.E. Dunn designated PGAL as the architect and listed 2 architectural services it was obligated to provide. The Miramons objected to this evidence in their response to the motion to dismiss. The trial court in two orders sustained the Miramons’ objection and denied PGAL’s motion to dismiss. PGAL filed this interlocutory appeal in the Third Court of Appeals. The Supreme Court of Texas subsequently ordered the Third Court to transfer this case to our Court for docket equalization. Tex. Gov’t Code § 73.001(a). STANDARD OF REVIEW Texas Civil Practice and Remedies Code Section 150.002(a) requires a claimant in any action for damages arising out of the provision of professional services by a licensed or registered professional to file a certificate of merit with the complaint. See Tex. Civ. Prac. & Rem. Code § 150.002(a); LaLonde v. Gosnell, 593 S.W.3d 212, 220 (Tex. 2019) (stating that statute gives licensed professionals the right to “a professional certification that any complaint about their services has merit before any litigation may be undertaken at all”). The attesting professional must “hold[] the same professional license or registration as the defendant” and must “practice[] in the area of practice of the defendant . . . .” Tex. Civ. Prac. & Rem. Code § 150.002(a)(2)–(3). The certificate of merit 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. Id. § 150.002(b). The expert is not required to address the elements of the plaintiff’s asserted theories or causes of action. Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 896 (Tex. 2017); CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 346 (Tex. App.—Houston [1st Dist.] 2013, pet. 3 denied) (stating that plaintiff is not required to marshal his evidence at the certificate of merit stage of litigation). Instead, the plaintiff must “get an affidavit from a third- party expert attesting to the defendant’s professional errors or omissions and their factual basis.” Melden, 520 S.W.3d at 896. The trial court must then determine whether the certificate of merit sufficiently demonstrates that the plaintiff’s complaint is not frivolous. Id.; CBM Eng’rs, 403 S.W.3d at 346 (stating that function of certificate of merit “is to provide a basis for the trial court to determine merely that the plaintiff’s claims are not frivolous” and thus plaintiff may “proceed in the ordinary course to the next stages of litigation”). The claimant’s failure to file a certificate of merit in accordance with Section 150.002 “shall result in dismissal of the complaint against the defendant.” Tex. Civ. Prac. & Rem. Code § 150.002(e). “Absent a properly filed certificate of merit, professionals have the right to avoid litigation entirely.” LaLonde, 593 S.W.3d at 220. “An order granting or denying a motion to dismiss for failure to file a certificate of merit is immediately appealable.” CBM Eng’rs, 403 S.W.3d at 342 (citing Tex. Civ. Prac. & Rem. Code § 150.002(f)). Typically, we review a trial court’s ruling denying a motion to dismiss for failure to file a certificate of merit for an abuse of discretion. Kayne Anderson Cap. Advisors, L.P. v. Hill & Frank, Inc., 570 S.W.3d 884, 885 (Tex. App.—Houston [1st Dist.] 2018, no pet.). “A trial court does not abuse its discretion simply because an appellate court would decide a discretionary matter differently in a similar circumstance.” Gessner Eng’g, LLC v. St. Paraskevi Greek Orthodox Monastery, Inc., 507 S.W.3d 865, 867 (Tex. App.— Houston [1st Dist.] 2016, pet. denied). An abuse of discretion does not occur if some evidence of substantive and probative character supports the trial court’s decision. Id. 4 We also review a trial court’s exclusion of evidence for abuse of discretion. JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018). “If a trial court abuses its discretion and erroneously excludes evidence, then the question is whether the error ‘probably caused the rendition of an improper judgment.’” Id. (quoting Tex. R. App. P. 61.1(a)); Tex. R. App. P. 44.1. This standard “does not require the complaining party ‘to prove that ‘but for’ the exclusion of evidence, a different judgment would necessarily have resulted” but rather that if wrongfully excluded evidence was “‘crucial to a key issue,’ then the error was likely harmful—that is, it probably caused the rendition of an improper judgment—unless the evidence was cumulative or the rest of the evidence was so one-sided that the error likely made no difference in the judgment.” Id. (quoting State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009)). To the extent the resolution of the appeal turns on questions of statutory interpretation, we review such questions de novo. Studio E. Architecture & Interiors, Inc. v. Lehmberg, No. 24-0286, 2026 WL 1500909, at *2 (Tex. May 29, 2026). “Under this circumstance, we first determine the statute’s proper construction under a de novo standard, then determine if the trial court abused its discretion in applying the statute.” Hardy v. Matter, 350 S.W.3d 329, 331 (Tex. App.—San Antonio 2011, pet. dism’d). ANALYSIS In two issues raised on appeal, PGAL argues that the trial court abused its discretion by sustaining the Miramons’ objection to the evidence PGAL attached to its motion to dismiss and by denying PGAL’s motion. PGAL argues that the Miramons were required to provide a certificate of merit by a person with the same professional license as PGAL under Section 150.002. PGAL asserts here that means the Miramons were required to provide a certificate by a licensed architect because 5 PGAL only provided architectural services. As the Miramons’ certificate was provided by Mr. Darville, a licensed engineer, the certificate failed to meet Section 150.002’s requirements. PGAL also argues that the trial court abused its discretion by excluding evidence it had attached to its motion to dismiss demonstrating that the services PGAL provided were architectural in nature. The Miramons respond that in determining the kind of services at issue, courts are only permitted to look at the petition and the definition of the “practice of engineering” in the Texas Occupations Code. From these two sources, the Miramons argue PGAL provided engineering services and so Mr. Darville as a licensed engineer was qualified to provide the certificate of merit at issue. The Miramons also respond that the trial court properly struck the evidence attached to PGAL’s motion to dismiss because it went beyond the petition and the Occupations Code. We hold that the trial court abused its discretion in sustaining the Miramons’ objection to the evidence attached to PGAL’s motion to dismiss, which resulted in harmful error. Section 150.002(a) requires the certificate of merit be provided by a third- party expert who “holds the same professional license or registration as the defendant” and “practices in the area of practice of the defendant . . . .” Tex. Civ. Prac. & Rem. Code § 150.002(a). Under Third Court of Appeals precedent, which we are bound by for purposes of this docket-equalization transfer case 1, “area of practice” means “the practice area at issue in the litigation.” Janis Smith Consulting, LLC v. Rosenberg, No. 03-23-00370-CV, 2024 WL 4750757, at *2 (Tex. App.— Austin Nov. 6, 2024, pet. denied) (mem. op.). In determining what the “practice area 1 As this case was transferred to us from the Third Court of Appeals by the Texas Supreme Court for docket equalization purposes, we must abide by the Third Court’s precedent. Mitschke v. Borromeo, 645 S.W.3d 251, 254 (Tex. 2022) (“A transferee court that receives an appeal [for docket equalization purposes] ‘must decide the case in accordance with the precedent of the transferor court under principles of stare decisis . . . .’” (quoting Tex. R. App. P. 41.3)). 6 at issue in the litigation” was in Janis, the Third Court inquired into what kind of services were provided. Id. at *2–3 (“In sum, this litigation involves a feasibility determination regarding the relocation of a residential boat dock and whether [the plaintiff’s] preferred design and location were consistent with permitting requirements. That is, notwithstanding [the defendant’s] advanced subspecialty . . . the practice area at issue here involves civil-engineering design and permitting services.”). The parties’ dispute in this appeal concerns whether architectural or engineering services are at issue in this litigation. The trial court abused its discretion by excluding the evidence attached to PGAL’s motion to dismiss because under Third Court precedent, “[w]e determine the practice area at issue in the litigation by reviewing the petition and other relevant documents in the record.” Id. at *2 (emphasis added). In reaching its determination as to what constituted the practice area at issue, the Court in Janis considered documents outside the plaintiff’s petition, such as the petition in the defendant’s countersuit and a deposition by the plaintiff’s expert. Id. at *3. The Court also cited an opinion by the First Court of Appeals, T & T Engineering Services, Inc. v. Danks, No. 01-21-00139-CV, 2022 WL 3588718 (Tex. App.—Houston [1st Dist.] Aug. 23, 2022, pet. denied) (mem. op.), in support of its consideration of relevant documents in the record. Id. In T & T Engineering, the First Court noted that “other courts, including this Court, have reviewed the plaintiff’s petition and other documents in the record—such as contractual obligations, procurement documents, deposition testimony, and affidavits—to ascertain the practice area at issue in the litigation.” 2022 WL 3588718, at *4 (emphasis added). PGAL’s contract with J.E. Dunn and Mr. Ruebush’s affidavit are “relevant documents in the record” insofar as they constitute evidence as to what the “practice area at issue in the litigation” may be. Accordingly, the trial court should have considered them. Janis, 2024 WL 4750757, 7 at *2–3. This error was harmful because the excluded evidence is “crucial to a key issue,”—determining the practice area at issue in the litigation. JBS Carriers, 564 S.W.3d at 836. Whether Mr. Darville was qualified to provide the certificate of merit in this case will depend on whether the practice area at issue is engineering or architectural services. The excluded evidence is not “cumulative,” as it is the only evidence PGAL provided. Id. And the rest of the evidence in the record is not “so one-sided that the error likely made no difference in the judgment.” Id. The Miramons argue that Janis is inapplicable because that case concerned a challenge to the qualifications of the author to a certificate of merit on the grounds that the author did not practice in the same area of practice of the engineer defendant. In contrast, the Miramons claim here that PGAL does not challenge Mr. Darville’s qualifications. But PGAL does challenge Mr. Darville’s qualifications—not as an engineer, but as an architect. Both in its motion to dismiss in the trial court and in its briefing before this Court, PGAL argues that Mr. Darville was not qualified to provide the certificate of merit because the services at issue are architectural services and Mr. Darville is not an architect. Whether Mr. Darville is qualified to provide the certificate will depend on whether the services at issue in this litigation are engineering or architectural. The Miramons also argue that relevant case law states that in determining “whether a claimant’s claims arise out of the provision of professional engineering or architectural services” under Section 150.002, the trial court can only consider the allegations in Miramons’ petition and the definitions of the “practice of engineering” and the “practice of architecture” in the Texas Occupations Code. The cases the 8 Miramons cite from the Third Court in support of their argument 2 involved differing circumstances not applicable here. See Tucker Eng’g, Inc. v. Temperley, No. 03-21- 00565-CV, 2022 WL 17684036 (Tex. App.—Austin Dec. 15, 2022, no pet.) (mem. op.); Marquez v. Calvo, No. 03-18-00597-CV, 2019 WL 2998584 (Tex. App.— Austin July 10, 2019, no pet.) (mem. op.). In both cases, at issue was the applicability of Section 150.002 and whether the plaintiffs were required to provide a certificate of merit in the first place. Tucker, 2022 WL 17684036, at *4–5; Marquez, 2019 WL 2998584 at *1–2. The Third Court focused on whether the plaintiffs’ petitions complained of the “provision of professional services” under Section 150.002(a). Tucker, 2022 WL 17684036, at *4–5; Marquez, 2019 WL 2998584, at *1–2. In Tucker, the Third Court held that the plaintiff’s petition alleged claims arising out of the provision of engineering services, requiring the plaintiff to provide a certificate. Tucker, 2022 WL 17684036, at *7. In Marquez, the Third Court held that the petition did not complain of the provision of any professional services and so a certificate was not required. Marquez, 2019 WL 2998584 at *2. Neither of these cases involved an inquiry under Section 150.002(a)(3) as to what the “practice area of the defendant” is, which is the issue here and that which the Third Court in Janis addressed. Janis, 2024 WL 4750757, at *2. Moreover, nothing in Tucker or Marquez forecloses the consideration of record documents outside the petition. The Third Court in Janis also did not bar consideration of the petition—the court reviewed both the petition and other relevant record documents. Id. at *2–3. Whether the Miramons’ claims arise out of the provision of engineering or architectural services is ultimately a matter of what “the practice area at issue in the litigation” is. Id. at *2. And as shown above, the Third Court’s precedent is clear 2 The Miramons cite to cases from other courts of appeals but because we must adhere to the Third Court’s precedent in this appeal, we do not consider them. Mitschke, 645 S.W.3d at 254. 9 that “[w]e determine the practice area at issue in the litigation by reviewing the petition and other relevant documents in the record.” Id. at *2. The proper remedy for a trial court’s abuse of discretion in improperly excluding evidence is to reverse and remand the case back to the trial court. See Diamond Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539, 552 (Tex. 2018) (“[T]he video should not have been excluded under Rule 403 [of the Texas Rules of Evidence], and doing so was harmful error. We reverse and remand for a new trial.”); JBS Carriers, 564 S.W.3d at 841, 843 (reversing the trial court’s judgment and remanding claims against one of the defendants because the trial court excluded evidence that “likely would have affected the jury’s allocation of responsibility to both [the defendant at issue] and [the plaintiff], at a minimum”). As this disposition resolves the appeal, we do not reach the merits of PGAL’s motion to dismiss and whether the practice area at issue in this litigation is engineering or architectural services. We sustain PGAL’s issue on the trial court’s exclusion of evidence. CONCLUSION We reverse the trial court’s order excluding the evidence attached to PGAL’s motion to dismiss and the trial court’s order denying PGAL’s motion to dismiss. We remand the case back to the trial court for further proceedings in accordance with this opinion. /s/ April Farris April Farris Justice Panel consists of Chief Justice Brister and Justices Field and Farris. 10