Full Opinion (html_with_citations)

                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00153-CV

GEOTEL ENGINEERING, INC.,
                                                             Appellant
v.

PATRICK P. HYDE AND LISA SMITH,
                                                             Appellees



                            From the 18th District Court
                              Johnson County, Texas
                            Trial Court No. C200800283


                          MEMORANDUM OPINION


       In this interlocutory appeal, Geotel Engineering, Inc. complains that the trial

court erred in denying its motion to dismiss the claims filed by Patrick P. Hyde and Lisa

Smith against Geotel because of their failure to file a certificate of merit as required by

section 150.002 of the Civil Practice and Remedies Code. We agree and will reverse and

remand.

       Hyde and Smith (collectively “Hyde”) contracted with Raintree Homes, Inc. to

construct a residence on their property.         Raintree engaged Geotel to provide
geotechnical engineering services for the project. After moving into the home, Hyde

filed suit against Raintree and Geotel, alleging a number of “significant structural

problems.” Hyde asserted claims against Geotel for breach of contract and breach of

implied warranties of construction and merchantability. Factually, Hyde alleged that

Geotel failed to: (1) “properly monitor, or monitor at all,” the “footing excavation,

proofrolling, site and subgrade preparation, subgrade stab[i]lization and pavement

construction”; (2) “perform any density tests”; or (3) provide any reports other than its

initial report.

        Geotel filed a motion to dismiss the claims against it, asserting that dismissal was

required because Hyde failed to file a certificate of merit as required by section 150.002.

The trial court denied the motion. Geotel asserts in its sole issue that the trial court

erred in denying the motion to dismiss.

        The 2005 version of section 150.002 applies to Hyde’s suit. Subsection (a) of the

statute provided:

                In any action or arbitration proceeding for damages arising out of
        the provision of professional services by a design professional, the
        plaintiff shall be required to file with the complaint an affidavit of a third-
        party licensed architect or licensed professional engineer competent to
        testify, holding the same professional license as, and practicing in the
        same area as the defendant, which affidavit shall set forth specifically at
        least one negligent act, error, or omission claimed to exist and the factual
        basis for each such claim. The third-party professional engineer or
        licensed architect shall be licensed in this state and actively engaged in the
        practice of architecture or engineering.

Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2,
2005 Tex. Gen. Laws 369
, 370 (amended

2009) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a), (b) (Vernon



Geotel Eng’g, Inc. v. Hyde                                                                Page 2
Supp. 2010)). Subsection (d) required dismissal if the plaintiff failed to file a certificate

of merit. Id. (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e) (Vernon

Supp. 2010)).

        The 2005 statute defined a “design professional” as “a licensed architect, licensed

professional engineer, or any firm in which such licensed professional practices,

including but not limited to a corporation, professional corporation, limited liability

corporation, partnership, limited liability partnership, sole proprietorship, joint venture,

or any other business entity.” Id. (current version at TEX. CIV. PRAC. & REM. CODE ANN.

§ 150.001(1) (Vernon Supp. 2010)).

        Hyde did not file a certificate of merit. He contends, however, that none was

required because: (1) the claims against Geotel include not only the corporation but also

its non-professional employees; (2) he has not asserted that Geotel committed any

negligent act, error, or omission; (3) no allegation of a negligent act, error, or omission is

required to prove breach of contract or warranty; and (4) his claims against Geotel are

not “recast claims for professional negligence.”

        Geotel’s report recommended that the foundation work be monitored by “a

qualified engineering technician.” Hyde notes that an engineering technician is not a

“design engineer” as defined by section 150.001. However, Hyde’s claims are against

Geotel, not its employees, and the term “design engineer” includes any firm in which a

licensed professional engineer practices. Id.; see also Utica Lloyd’s of Tex. v. Sitech Eng’g

Corp.,
38 S.W.3d 260, 264
 (Tex. App.—Texarkana 2001, no pet.) (services performed by




Geotel Eng’g, Inc. v. Hyde                                                              Page 3
“engineering and non-engineering personnel” were excluded professional services in

insurance coverage dispute).

        We recently held that we will disregard the label a plaintiff attaches to a

particular claim and determine whether the underlying complaint alleges an injury

caused by a breach of the duty owed to the plaintiff as a result of the defendant’s

engagement as a professional to determine whether a certificate of merit is required.

See Ustanik v. Nortex Found. Designs, Inc.,
320 S.W.3d 409, 417
 (Tex. App.—Waco 2010,

pet. denied).

        Regarding Geotel, the first amended petition alleges that the structural problems

were caused by Geotel’s failure to properly monitor the foundation work, perform any

density tests, and furnish additional reports.     Regardless of how these claims are

labeled, they are claims of professional negligence that require a certificate of merit,

which Hyde failed to file.
Id.
 Accordingly, we sustain Geotel’s sole issue.

        We reverse the trial court’s order denying Geotel’s motion to dismiss and

remand the case for further proceedings.



                                                       REX D. DAVIS
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed December 29, 2010
[CV06]




Geotel Eng’g, Inc. v. Hyde                                                         Page 4