SE Texas Record

Saturday, September 21, 2019

Appeals court reverses denial to dismiss case against engineers

State Court

By Charmaine Little | Sep 9, 2019


Justice Hollis Horton

BEAUMONT -- After plaintiffs failed to issue a certificate of merit in their first amended complaint, the Texas Ninth District Court of Appeals reversed Aug. 22 an order that denied the defendants’ motion to dismiss.

AMEC Foster Wheeler USA Corporation filed the appeal following the Jefferson County District Court's ruling. Foster complained that Kevin Goats and his wife Lori Goats, along with Afshin Farshad, did not file proof that Forest Wheeler offers professional engineering services in their first complaint (failing to comply with Chapter 150 of the Texas Civil Practice and Remedies Code) and said the denial to dismiss should be reversed. Fortunately for Foster, the appeals court agreed.

It pointed out that following Foster’s motion to dismiss, the appellees changed their complaint “purportedly to omit any specific allegation against that company arising from the provision of any engineering services, effectively nonsuiting such claims,” according to the opinion. It added that the Texas Supreme Court also previously determined that a plaintiff’s nonsuit does not “render moot” a defendant’s motion to dismiss via section 150.002 of the regulation, and that the clause to dismiss the case with prejudice is a rule detailed in the chapter. In addition, a motion for sanctions is a form of affirmative relief that can survive a nonsuit if the suit makes a sanction null and void. Considering this, the appeals court said the lower court should not have determined that the motion to dismiss was moot.

The appeals court also determined that a certificate of merit has to be issued with the first-filed complaints, if the lawsuit is against a licensed or registered engineer that provided a professional service. Although the appellees alleged they did not have to file the certificate since Foster didn’t provide engineering services on the particular device in question, the appeals court had a different take. “If appellees were unaware of Foster Wheeler’s role in the system at issue, logically they would be unable to articulate allegations of professional error or omissions against Foster,” the appeals court noted.

Foster also displayed a certification to prove that it is registered in Texas to “offer and perform engineering services,” with a list of companies on the Texas Board of Professional Engineers list. Foster has been a well-known company that has hired professional engineers for quite some time.

Considering these arguments, the appeals court reversed the denial that dismissed the case.

Kevin Goats and Farshad worked as Total operators but on June 21, 2015, they tried to empty a plugged trainer on the sour water pump system, but were sprayed with hot steam instead. 

The Goats and Farshad sued for damages, alleging the device was defective. They named Foster Wheeler in as a defendant in their second complaint. Foster filed a motion to dismiss with prejudice, stating that the appellees never displayed that Foster Wheeler “is a company that provides professional engineering services,” according to the opinion. Using this argument, Foster Wheeler said the appellees did not follow the regulation of Chapter 150 of the Texas Civil Practice and Remedies Code. It asked the lower court to dismiss the case, but that court denied it. Still, the appeals court agreed with Foster Wheeler and reversed the denial.

Justice Charles Kreger ruled on the case. Justices Hollis Horton and Leanne Johnson concurred.

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