Encotech Engineering Consultants, Inc. v. Ian Miramon and Caroline Miramon
CourtTexas Court of Appeals, 15th District
Date FiledSeptember 29, 2026
Docket15-25-00173-CV
StatusPublished
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Full Opinion
Reversed and Remanded and Memorandum Opinion filed September 29, 2026
In The
Fifteenth Court of Appeals
NO. 15-25-00173-CV
ENCOTECH ENGINEERING CONSULTANTS, 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 Encotech
Engineering Consultants, Inc. (“Encotech”) 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 Encotech 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 original petition attesting to the negligence of Encotech and other
parties. In response, Encotech filed a motion to dismiss arguing that the Miramons’
claims should be dismissed with prejudice because the certificate of merit is
deficient. The trial court denied the motion, and Encotech filed this interlocutory
appeal. Because we hold the certificate of merit is deficient, we reverse and remand
to the trial court to determine whether the Miramons’ claims against Encotech in
their original petition should be dismissed with or without prejudice.
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 was
allegedly struck in the head by a blade of an industrial-sized ceiling fan, which
knocked him off the fire truck to the concrete ground below, causing him to sustain
several severe injuries. The Miramons then sued Encotech and several other entities,
alleging 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, P.E. to their petition,
in which Mr. Darville attested that the conduct of Encotech 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.
Encotech filed a motion to dismiss the Miramons’ negligence claims with
prejudice on the grounds that the certificate of merit was deficient. 1 Encotech argued
that Mr. Darville was not qualified to testify because he did not practice engineering
1
The Miramons have since filed amended petitions, which each have their own certificates
of merit, but the motion to dismiss was directed at the adequacy of the certificate in the original
petition. Both parties in their briefing before this Court agree that only the language in the initial
certificate is at issue. Accordingly, we do not assess the adequacy of the certificates of merit in the
amended petitions.
2
and that the certificate itself failed to allege any negligence as to Encotech
specifically, instead making impermissible collective assertions of negligence as to
Encotech and the other engineering firms. The trial court denied Encotech’s motion
and Encotech 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
claimant2 in any action for damages arising out of the provision of professional
services by a licensed or registered engineer to file a certificate of merit with the
complaint.3 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 engineers right
to “a professional certification that any complaint about their services has merit
before any litigation may be undertaken at all”). 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.
Tex. Civ. Prac. & Rem. Code § 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
2
“Claimant” is defined to include “a plaintiff . . . seeking recovery for damages,
contribution, or indemnification.” Tex. Civ. Prac. & Rem. Code § 150.001(1-a).
3
“‘Complaint’ means any petition or other pleading which, for the first time, raises a claim
against a licensed or registered professional for damages arising out of the provision of
professional services by the licensed or registered professional.” Id.§ 150.001(1-b).
3
Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 346 (Tex. App.—Houston
[1st Dist.] 2013, pet. 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
abuses its discretion by acting arbitrarily or unreasonably, without reference to
guiding rules or principles. CBM Eng’rs, 403 S.W.3d at 342. “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
4
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.
We view the certificate of merit in the light most favorable to the trial court’s
ruling. Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728, 737 (Tex. App.—
Texarkana 2010, pet. dism’d w.o.j.). 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).
ANALYSIS
In its single appellate issue, Encotech argues that the trial court abused its
discretion in denying Encotech’s motion to dismiss the Miramons’ claims because
the certificate of merit attached to the Miramons’ original petition is deficient.
Encotech contends that the certificate is deficient because Mr. Darville does not
satisfy the expert qualification requirements to testify under Texas Civil Practice &
Remedies Code Section 150.002.
Encotech also argues that Mr. Darville in the certificate fails to identify the
specific conduct that Encotech engaged in that led to Mr. Miramon’s injuries, instead
making collective assertions of negligence against Encotech and other engineering
firms. The Miramons respond that Mr. Darville meets the expert qualification
requirements to testify and that he did not make impermissible collective assertions
of negligence. We agree with Encotech that Mr. Darville made impermissible
collective assertions of negligence.4
The expert completing the certificate of merit must “attest[ ] to the defendant’s
4
Because this disposition resolves the case, we do not reach whether Mr. Darville met the
expert qualifications under Section 150.002.
5
professional errors or omissions and their factual basis.” Melden, 520 S.W.3d at 896.
Section 150.002(b) “does not allow for collective assertions of negligence” in the
certificate. Robert Navarro & Assocs. Eng’g, Inc. v. Flowers Baking Co. of El Paso,
LLC, 389 S.W.3d 475, 482 (Tex. App.—El Paso 2012, no pet.). Instead, the
certificate must specifically address “the conduct of the professional who provided
the service at issue,” and the certificate must “identify each defendant and that
defendant’s specific conduct.” Fluor Enters., Inc. v. Maricelli, No. 09-19-00121-
CV, 2020 WL 2070257, at *5 (Tex. App.—Beaumont Apr. 30, 2020, pet. denied)
(mem. op.). In a case involving more than one defendant, which is the case here, the
court must be able to “determine which acts or omissions should be ascribed to
which company,” or the certificate of merit should opine that “both companies were
involved in all aspects of the work.” Macina, Bose, Copeland & Assocs. v. Yanez,
No. 05-17-00180-CV, 2017 WL 4837691, at *6 (Tex. App.—Dallas Oct. 26, 2017,
pet. dism’d) (mem. op.).
Here, the certificate neither identifies which acts or omissions are ascribed to
Encotech nor attests that the named engineering firms were involved in all aspects
of the work. Mr. Darville in the certificate attests that Mr. Miramon “fell from the
top of an apparatus (called Quint 51 by [the Austin Fire Department]) after being
struck by a ceiling fan blade.” Mr. Darville testified that Encotech and several other
engineering firms—referred to as “[t]he relevant party(ies)”—“failed to exercise
reasonable care as well as meet the standard of care for licensed engineers” and that
such “breaches causally contributed to the incident involving Mr. Miramon.”
Specifically, Mr. Darville attests:
As licensed engineers, the relevant party(ies) failed to design [Austin
Fire Department] Station 51 in a safe condition (specifically regarding
placement of the subject ceiling fan), failed to install the ceiling fan at
issue in a safe manner and location, failed to construct [Austin Fire
Department] Station 51 in a safe manner (specifically regarding
6
placement of the subject ceiling fan), failed to adequately inspect
[Austin Fire Department] Station 51 for dangerous/hazardous
conditions, failed to adequately warn of any such dangerous/hazardous
conditions, failed to remedy and/or retrofit any dangerous/hazardous
conditions that they created/discovered, and/or violated applicable
government regulations, laws, rules and/or industry standards.
Mr. Darville only refers to the engineering firms collectively as “relevant
party(ies)”—nowhere in the certificate does he refer to the “specific conduct” of any
individual firm. Maricelli, 2020 WL 2070257, at *5. Moreover, Mr. Darville does
not attest that the engineering firms were involved “in all aspects of the work” with
regard to the conduct at issue pertaining to the ceiling fan or the fire station generally.
Macina, 2017 WL 4837691, at *6. Accordingly, Mr. Darville’s testimony amounts
to collective assertions of negligence against Encotech and the other engineering
firms, rendering the certificate of merit deficient.
The Miramons object that the certificate of merit is adequate because it attests
that the named engineering firms “were involved in all aspects of the work.” Id. This
is not so, however. The certificate only attests that “[t]he following engineering firms
are known or reasonably believed to have worked upon the design and/or
construction of Fire Station 51 for the City of Austin” before listing out the
engineering firms. This language does not attest that the firms worked on all aspects
of designing and constructing all parts of Fire Station 51, only that the firms worked
on it in some capacity. It is possible that some firms only designed the station but
did not construct it or that some worked on designing and constructing only certain
parts of the station.5 Our sister courts of appeals have also held that certificates using
5
The Miramons also argue that their original petition alleges the engineering firms were
involved in all aspects of the work. Assuming without deciding that we can look outside the
certificate of merit to make this determination, this argument falters for the same reasons it does
so for the certificate of merit. The petition, like the certificate, refers to Encotech and the other
defendants throughout only collectively when describing any acts or omissions and fails to allege
that the defendants were involved in all aspects of the work as relates to Fire Station 51 or any
7
such general language did not amount to attesting that multiple defendants were
involved in all aspects of the work. See, e.g., Macina, 2017 WL 4837691, at *5
(holding the certificate did not attest multiple companies were involved in all aspects
of the work where the certificate attested that “Defendant Architectural Firms
designed the retaining wall and guardrail system along the western property line of
the Westinghouse Pointe residential complex.”); In re Channelview Flooding Litig.,
No. 01-22-00946-CV, 2024 WL 5249085, at *10, *13 (Tex. App.—Houston [1st
Dist.] Dec. 31, 2024, pet. denied) (mem. op.) (holding same where the certificate
attested that defendant companies “[f]ail[ed] to adequately or appropriately design
the pipeline at issue” without any attribution to a particular defendant).
The Miramons also argue that the certificate of merit is adequate because
Encotech has admitted that it was involved in the work attested to in the certificate.
Specifically, Encotech in its motion to dismiss before the trial court stated that it
“provided mechanical, electrical and plumbing engineering services for [Fire Station
51].” 6 The First Court of Appeals has held that defendants’ statements admitting
specific involvement in the work at issue, whether in briefing or evidence before the
trial court, can be considered in determining the adequacy of certificates of merit.
Bratton v. Pastor, Behling & Wheeler, L.L.C., No. 01-23-00015-CV, 2024 WL
1662391, at *8 (Tex. App.—Houston [1st Dist.] Apr. 18, 2024, pet. denied) (mem.
op.) (“[Defendant] argues that Dr. Bedient’s assertions of collective negligence
prevents it from knowing what specific errors, actions, or omissions Dr. Bedient
attributes to [defendant], as opposed to [another party]. But [defendant’s] motion to
dismiss and its appellate briefing suggest otherwise.”); T & T Eng’g Servs., Inc. v.
particular part of the station.
6
Encotech in its appellant’s brief before this Court also states that “it provided [mechanical,
electrical, and plumbing] engineering design services for [Fire Station 51].”
8
Danks, No. 01-21-00139-CV, 2022 WL 3588718, at *8–9 (Tex. App.—Houston [1st
Dist.] Aug. 23, 2022, pet. denied) (mem. op.) (holding admissions in the record by
a defendant that it designed the drilling rig and derrick board at issue supported the
certificate of merit being adequate despite the certificate itself making collective
assertions of negligence).
Assuming without deciding we can look outside the certificate of merit in
assessing the adequacy of the certificate of merit, Bratton and T & T Engineering
are inapplicable here. In both cases, the defendant admitted to specific conduct that
was connected to the injury. In T & T Engineering, at issue was an allegedly
defective derrick board and drilling rig, which caused the plaintiff’s injury. 2022 WL
3588718, at *1. The First Court acknowledged that the certificate of merit made
collective assertions of negligence against both T&T Engineering and another
company as to acts and omissions relating to the derrick board and drilling rig. Id. at
*8. But the Court noted that T&T Engineering admitted in its motion to dismiss and
in affidavits that it had designed the rig and the derrick board. Id. at *9. The Court
held that “T&T Engineering therefore unequivocally acknowledged in the record
before the trial court that it designed the drilling rig and the derrick board at issue in
this case” and that the certificate was adequate because it attested to the defective
designs of the derrick board and drilling rig as bases for negligent conduct. Id. at *9–
10.
In Bratton, plaintiffs alleged they suffered physical injuries because of “the
exposure to creosote and toxic chemicals used, stored, managed, and improperly
dumped” at the Union Pacific’s Englewood Rail Yard. Bratton, 2024 WL 1662391,
at *2. Plaintiffs alleged that Union Pacific’s two consulting geologists Pastor,
Behling & Wheeler, LLC (“PBW”) and Environmental Resources Management
Southwest, Inc. (“ERM”) were negligent in, among other things, “fail[ing] to
9
properly test, remediate, and/or warn of the real risks of creosote exposure to the
residents of” plaintiffs’ nearby neighborhoods. Id. The certificate of merit in that
case focused on ERM and PBW’s services as related to a creosote wood treatment
plant (the “Facility”) on Union Pacific’s railyard. Id. The First Court determined the
certificate did not make collective allegations of negligence in the first instance
because it specified the conduct of each defendant, “mak[ing] a distinction between
the work performed by ERM and PBW both by discussing and attaching documents
created by each defendant and referring to each defendant separately.” Id. at *8.
Notwithstanding that point, the First Court proceeded to examine the record and
noted how, in their motions to dismiss, both ERM and PBW acknowledged specific
engineering services they provided at the Facility, such as preparation and
refinement of a conceptual site model, evaluation of exposure pathways, and
designing remedial action. Id. at *9–10. The First Court held that these services were
the subject of the acts and omissions identified in the certificate of merit, thus making
the certificate adequate. Id. at *10. 7
Unlike in T & T Engineering and Bratton, Encotech’s statement in its motion
to dismiss that it “provided mechanical, electrical and plumbing engineering services
for [Fire Station 51]” does not identify specific conduct by Encotech that relates to
the injury at issue. The underlying injury concerns a ceiling fan that struck Mr.
7
The Miramons also argue that Bratton distinguished T & T Engineering when it held that
“ERM and PBW both acknowledge in their motions to dismiss that they were responsible for one
or more aspects of the remediation project” addressed and criticized in the certificate of merit.
Bratton, 2024 WL 1662391, at *10. However, Bratton does not distinguish T & T Engineering on
this ground but affirms it. The First Court in both Bratton and T & T Engineering looked to briefing
and evidence in the record to identify the specific conduct individuals admitted to engaging in as
related to the assertions of negligence in the certificates. Id. at *8–10; T & T Eng’g, 2022 WL
3588718 at *8–10. And in both cases the First Court held that said admissions contributed to the
certificates being adequate. Bratton, 2024 WL 1662391, at *10; T & T Eng’g, 2022 WL 3588718
at *9–10. Indeed, Bratton acknowledged that T & T Engineering was “binding” and “on point”
and cited T & T Engineering as the basis of its holding. Bratton, 2024 WL 1662391, at *9–10.
10
Miramon. Mr. Darville’s certificate attests that “Mr. Miramon fell from the top of
an apparatus (called Quint 51 by [the Austin Fire Department]) after being struck by
a ceiling fan blade” and that “[t]he placement of the subject fan was problematic and
hazardous in that it did not have sufficient clearance above the top of the apparatus.”
Mr. Darville continues that “the relevant part(ies) must take into consideration the
presence of the apparatus . . . and must therefore design and install the fan at
sufficient clearance for [Austin Fire Department] personnel to safely and properly
perform their required maintenance and inspections of the apparatus.” Mr. Darville
concludes that “had the subject fan been installed with safe clearances, the subject
incident would not have occurred.”
Encotech’s admission does not identify what, if any, mechanical, electrical
and plumbing engineering services Encotech provided in relation to the ceiling fan
or apparatus at issue, only referencing Fire Station 51 generally. 8 It is possible that
Encotech did not provide services related to the ceiling fan or Quint 51, only
servicing other areas of Fire Station 51. This lack of specificity is contrasted by the
8
We note that the certificate of merit, apart from attesting to deficiencies in Fire Station
51 as relates to the “placement of the subject ceiling fan,” also attests to errors and omissions
relating to the fire station generally. The certificate states the relevant parties “failed to adequately
inspect AFD Station 51 for dangerous/hazardous conditions, failed to adequately warn of any such
dangerous/hazardous conditions, failed to remedy and/or retrofit any dangerous/hazardous
conditions that they created/discovered, and/or violated applicable government regulations, laws,
rules and/or industry standards.” But the certificate fails to provide a “factual basis” for these
asserted errors and omissions, as required by Section 150.002(b). Jaster-Quintanilla & Assocs,
Inc. v. Prouty, 549 S.W.3d 183, 191 (Tex. App.—Austin 2018, no pet.) (“[T]he ‘factual basis’
required is merely that which underlies the asserted professional error or omission to which the
affiant attests . . . .”); Melden, 520 S.W.3d at 896 (“[Section 150.002(b)] . . . obligates the plaintiff
to get an affidavit from a third-party expert attesting to the defendant’s professional errors or
omissions and their factual basis.”). The certificate does not attest as to what dangerous and
hazardous conditions in Fire Station 51 existed apart from those related to the ceiling fan and Quint
51 and how those conditions pertain to Mr. Miramon’s injury. Likewise, the certificate does not
specify any government regulations or laws that were violated. To the extent the certificate could
be interpreted as specifying violated industry standards, it only does so in relation to the ceiling
fan and Quint 51 and not to the fire station generally.
11
admissions made in T & T Engineering and Bratton. T & T Eng’g, 2022 WL
3588718, at *9 (holding that T&T Engineering admitted to designing the allegedly
defective rig and the derrick board at issue); Bratton, 2024 WL 1662391, at *10
(holding that ERM and PBW’s acknowledgments of specific engineering services
they provided were the subject of the alleged negligence attested to in the certificate
of merit).
Finally, the Miramons contend that their certificate of merit was adequate
because the trial court could have reasonably concluded that the certificate made
specific attestations about Encotech, its role in “the project,” and its errors and
omissions sufficient to determine that the Miramons’ complaint is not frivolous. In
support of their position, the Miramons cite several opinions where courts of appeals
have held that certificates of merit were adequate in the face of arguments that the
plaintiffs were making collective assertions of negligence. These opinions, however,
all involve distinguishable circumstances not present in this matter.
Three of the opinions involved instances where the certificate specified the
conduct of the individual defendant at issue. These opinions involve the same set of
facts: three companies—EDI International, PC (“EDI”), Henderson Rogers
Structural Engineers, LLC (“Henderson”), and Ryan Engineering, Inc. (“Ryan
Engineering”)—were sued on negligence grounds for the faulty design and
installation of a glass curtain wall system in a residential condominium building.
EDI Int’l, PC v. Mond Homeowners Ass’ns, Inc., No. 14-23-00958-CV, 2025 WL
798073, at *1 (Tex. App.—Houston [14th Dist.] Mar. 13, 2025, no pet.) (mem. op.);
Henderson Rogers Structural Eng’rs, LLC v. Mond Homeowners Ass’n, Inc., No.
14-24-00043-CV, 2025 WL 798081, at *1 (Tex. App.—Houston [14th Dist.] Mar.
13, 2025, no pet.) (mem. op.); Ryan Eng’g, Inc. v. Mond Homeowners Ass’n, Inc.,
No. 14-23-00960-CV, 2025 WL 798075, at *1 (Tex. App.—Houston [14th Dist.]
12
Mar. 13, 2025, no pet.) (mem. op.). These three defendants filed motions to dismiss
the plaintiff’s claims arguing that the certificate of merit was deficient for making
collective assertions of negligence. EDI Int’l, 2025 WL 798073, at *1; Henderson,
2025 WL 798081, at *1; Ryan Eng’g, 2025 WL 798075, at *1. The trial court denied
these motions and the defendants each filed interlocutory appeals. EDI Int’l, 2025
WL 798073, at *1; Henderson, 2025 WL 798081, at *1; Ryan Eng’g, 2025 WL
798075, at *1.
In EDI International and Henderson, the Court held that the certificate did not
make collective assertions of negligence because it specified that the two defendants
at issue, EDI and Henderson, negligently reviewed a window curtain wall system
design by the third defendant, Ryan Engineering, and failed to properly oversee
Ryan Engineering. EDI International, 2025 WL 798073, at *2; Henderson, 2025
WL 798081, at *3. In Ryan Engineering, the Court held that the certificate did not
make collective assertions because it specified Ryan Engineering negligently drafted
the designs of a window curtain wall system and failed to properly coordinate and
review the design with EDI. Ryan Eng’g, 2025 WL 798075, at *3.
The remaining two cases involved unique circumstances not applicable here.
One of these cases, AMEC Foster Wheeler USA Corporation v. Maricelli, concerned
an allegedly defective fines removal system at a coker unit in an oil refinery, which
“unexpectedly rotated and struck” a plaintiff. No. 09-19-00122-CV, 2020 WL
3579567 at *1 (Tex. App. – Beaumont July 2, 2020, no pet.) (mem. op.). The coker
unit was built on an expansion of the refinery called the Deep Conversion Project.
Id. The certificate attested that the coker unit was defectively designed, specifying
defendant Fluor Corporation (“Fluor”) as providing front-end engineering, design,
and construction for the Deep Conversion Project and the defendant at issue, AMEC
Foster Wheeler USA Corporation (“Foster Wheeler”) as the technology licensee of
13
the project. Id. at *1–2. The certificate’s conclusion section identifies these two
parties and thereafter attests that “[t]he firms associated with the engineering and
design of the Coker at [the refinery] failed to identify the piping hazard and such
failure was a proximate cause of [a plaintiff’s] incident.” Id. at *2. Foster Wheeler
argued that the phrase “the firms” was an impermissible collective assertion of
negligence. Id. at *5.
The Court rejected this argument because the certificate separately identified
Foster Wheeler as the Deep Conversion Project licensee and Fluor as the engineering
firm who designed the coker “and that they both ‘failed to identify the piping hazard
and such failure was a proximate cause of [a plaintiff’s] incident.’” Id. at *7. The
Court concluded that, given these circumstances, “[t]he trial court could have
reasonably concluded that the original certificate of merit makes specific averments
about Foster Wheeler, its role in the project, and its errors or omissions, and that it
provided enough detail from which the trial court could determine Plaintiffs’
complaint is not frivolous.” Id. Here, the Miramons’ certificate does not make
“specific averments” about Encotech. The certificate only refers to all of the
engineering firms collectively and does not specify what role Encotech played in the
construction, design, or maintenance of the ceiling fan and Quint 51.
The other case, Resource Planning Associates, LLC v. Sea Scout Base
Galveston & Point Glass, LLC, involved construction defects in a property
development project. No. 01-19-00965-CV, 2021 WL 1375797, at *1 (Tex. App.—
Houston [1st Dist.] Apr. 13, 2021, pet. denied) (mem. op.). The certificate of merit
there attested that the portions of the plans in the construction documents were “not
correct from a technical perspective” and that each architectural sheet had the seal
of two architects associated with the defendants at issue—Resource Planning
14
Associates, LLC, Robert A. Randall 9, and Randall-Porterfield Architects, Inc.
(collectively, “RPA”) and Dan Shipley Architect, Inc. (“Shipley”). Id. at *11–12.
The affiant testified he was “not aware of the division of responsibilities between
the two Architects” and thereafter attributed errors and omissions in the construction
documents to both architects. Id. at *16. The Court noted RPA and Shipley did not
identify any specific portions of the documents each had prepared. Id. RPA and
Shipley argued that the certificate’s failure to segregate allegations between them
constituted impermissible collective assertions of negligence. Id. at *15.
The Court rejected this argument, holding that the certificate’s affiant attested
that the architects “were involved in all aspects of the work and in the errors and
omissions he outlined” and that “there are numerous alleged acts and omissions with
respect to the design drawings, and [the affiant] specified in his affidavit that both
RPA and Shipley sealed the documents.” Id. at *17. As to the sealing of the
documents, the Court noted that per administrative rule “[u]pon sealing, engineers
take full professional responsibility for that work.” Id. (quoting Navarro, 389
S.W.3d at 480). Neither of these conditions are met here. As discussed above, the
Miramons’ certificate of merit does not attest that Encotech and the other named
engineering firms were involved in all aspects of the work. And the rule that
engineers take full responsibility for their work upon sealing documents is
inapplicable because there are no sealed documents at issue here.
We sustain Encotech’s issue.
CONCLUSION
We hold the trial court abused its discretion in denying Encotech’s motion to
9
Mr. Randall was the architect who affixed his seal on behalf of the RPA defendants. Res.
Plan., 2021 WL 1375797, at *11–12.
15
dismiss the Miramons’ original petition. We agree the certificate here is deficient in
failing to address each claim against Encotech individually and in failing to attest
that the named engineering firms were involved in “all aspects of the work.” But as
the Texas Supreme Court recently held, that does not prevent the Miramons from
filing an amended petition and a compliant certificate should the trial court dismiss
their original petition without prejudice as the statute allows. See Tex. Civ. Prac. &
Rem. Code § 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”);
Lehmberg, 2026 WL 1500909, at *3–4 (holding plaintiff could file an amended
petition and certificate of merit to assert claims dismissed without prejudice, as the
amended petition “functionally became the first petition” in the case that remained
pending). Since the trial court has not yet addressed that issue, we reverse the trial
court’s order and remand for further proceedings consistent with this opinion. 10
/s/ April Farris
April Farris
Justice
Panel consists of Chief Justice Brister and Justices Field and Farris.
10
The Miramons in their briefing have noted a potential limitations issue should the trial
court dismiss their claims against Encotech without prejudice. As that issue is not before us today,
we do not address it. Lehmberg, 2026 WL 1500909, at *5 (“[W]hether [plaintiff’s] amended
petition relates back or is time-barred is not before us, and we therefore reserve the question for
the trial court, should [defendant] plead and press a limitations defense on remand.”).
16