Is an aggregate analysis a professional service that triggers the application of a certificate of merit requirement? Ronald R. Wagner & Co. LP v. Apex Geoscience Inc. Texas Court of Appeals (2018), by Hugh Anderson

Summary: Wagner was the construction contractor on a paving project. The Texas DOT (TXDOT) specifications required the contractor to provide aggregate meeting stated characteristics. During the bidding phase, Wagner had relied on a report, issued by a senior engineer at Apex Geoscience, that found that proposed aggregate from the Wilson Pit met the specification. Later, Wagner learned that, in the opinion of the TXDOT engineers, the Wilson aggregate did not meet the state specification, and as a result Wagner had to obtain aggregate from a more expensive source. Wagner sued Apex, alleging breach of contract, fraudulent inducement, negligence, negligent misrepresentation, gross negligence, and breach of implied warranty. Wagner did not file a certificate of merit with its lawsuit.

The Texas certificate of merit statute requires that in an action for damages arising out of the provision of professional services, the plaintiff must file an affidavit from a licensed design professional making a threshold case that the claim has merit. Wagner argued that the Apex employee’s aggregate analysis was not within the scope of the practice of engineering because of an exemption in the licensing statute for employees who are engaged in construction or repair of improvements to real property. The trial court disagreed, and dismissed Wagner’s lawsuit because of the lack of a certificate of merit. Wagner appealed.

Decision: The Court of Appeals affirmed the dismissal of Wagner’s claim against Apex Geoscience, based on Wagner’s failure to file a certificate of merit. The appellate court held that the statutes regarding the practice of engineering, and specifically the limited exemption that Wagner had cited, were clear and unambiguous. The exemption is for non-engineers who work for engineering firms, providing construction-related services pursuant to drawings and specifications requiring an engineer’s seal. By contrast, the allegedly faulty Apex services were performed by a licensed engineer, and consisted of analysis that required engineering education, training, and experience and the application of special knowledge of mathematical, physical, or engineering sciences. The fact that the engineer was an employee of his firm did not diminish his status as an engineer conducting an engineering—not construction—analysis.

Comments: The contractor’s lawsuit was dismissed without prejudice. The published decision does not indicate whether there was any barrier to Wagner refiling the lawsuit, with the required certificate of merit. One such barrier that sometimes is present is the expiration of a statute of limitations or similar deadline for advancing the claim.

The court here appeared to conclude that it was obvious that conducting the aggregate analysis was a professional service, and the fact that the analysis was conducted by a licensed engineer certainly supported that conclusion. However, there is a spectrum of technical services in testing and inspection—not all services on the spectrum are necessarily professional services for purposes of claims and certificates of merit.