OPINION
Appellees Esmeralda Chaves Santos, Individually, and as personal representative of the Estate of Manuel Molina, decedent, and for the use and benefit of the wrongful death beneficiaries of Manuel Molina; Daniel Molina; and Nancy Molina filed suit against appellant LJA Engineering, Inc. alleging that LJA Engineerings negligence and gross negligence caused the death of Manuel Molina. LJA Engineering moved to dismiss appellees’ lawsuit against it because appellees did not attach a certificate of merit to their complaint first alleging claims against LJA Engineering. See Tex. Civ. Prac. & Rem. Code § 150.002 (mandating dismissal of claim for damages arising out of the provision of professional engineering services if a claimant fails to file with the complaint a certificate of merit prepared by a licensed professional engineer). The trial court denied LJA Engineerings motion and LJA Engineering filed this interlocutory appeal challenging the trial courts order. Concluding that the trial court erred when it denied LJA Engineerings motion to dismiss for failure to file a certificate of merit, we reverse the trial courts order and remand to the trial court for further proceedings.
Background
As its name implies, LJA Engineering provides professional engineering services. LJA Engineering contracted with the City of Sour Lake to provide engineering services for a sanitary sewer rehabilitation project. LJA Engineering agreed to, among other things, (1) provide “preliminary design activities” to establish the “appropriate design criteria” for the project, (2) design and prepare the construction plans and specifications for the project, and (3) provide “inspection services to adequately observe the construction activity.” In addition, the contract between LJA Engineering and Sour Lake provided that LJA Engineering would “serve as [Sour Lakes] professional representative for the Services, and may make recommendations to [Sour Lake] concerning actions relating to [Sour Lakes] contractors, but LJA [Engineering] specifically disclaim[ed] any authority to direct or supervise the means, methods, techniques, safety activities, personnel, compliance, sequences, or procedures of construction selected by [Sour Lakes] contractors.”
Manuel Molina was employed by Kellen Environmental. Molina and other Kellen Environmental employees were working on the Sour Lake sewer rehabilitation project on which LJA Engineering provided engineering services. The workers opened a manhole cover and one worker fell into the sewer pipe. Molina jumped down into the pipe to help his fellow worker. As a result, Molina was exposed to lethal amounts of a poisonous gas present in the sewer pipe. Appellees are Molinas surviving spouse and heirs. They filed suit against LJA Engineering asserting negligence and gross negligence claims. Among other allegations, appellees alleged that LJA Engineering failed to (1) provide warning of the existence of the poisonous gas, (2) properly inspect and oversee the work, and (3) properly supervise those whose work they had the right to control.
After filing an answer, LJA Engineering filed a Chapter 150 motion to dismiss appellees’ claims because appellees did not attach a certificate of merit to their petition first naming LJA Engineering as a defendant. See Tex. Civ. Prac. & Rem. Code § 150.002 (establishing certificate of merit requirement). Appellees responded to LJA Engineerings motion to dismiss arguing that Chapter 150 did not apply to their claims against LJA Engineering. The trial court denied LJA Engineerings motion and this interlocutory appeal followed.
Analysis
LJA Engineering raises a single issue challenging the trial courts denial of its Chapter 150 motion to dismiss. LJA Engineering argues that the trial court erred when it denied the motion to dismiss because appellees’ petition alleged claims that required appellees to include a certificate of merit addressing their claims against LJA Engineering.
I. Standard of review
This is an interlocutory appeal from the trial courts denial of LJA Engineerings motion to dismiss filed pursuant to Chapter 150 of the Texas Civil Practice and Remedies Code. A plaintiff suing for damages “arising out of the provision of professional services by a licensed or registered professional” must file a certificate of merit with the complaint. Tex. Civ. Prac. & Rem. Code § 150.002(a). We ordinarily review a trial courts order on a Chapter 150 motion to dismiss for an abuse of discretion. Jacobs Engineering Group, Inc. v. Elsey, 502 S.W.3d 460, 463 (Tex. App.—Houston [14th Dist.] 2016, no pet.). However, when, like here, the relevant facts are not disputed, the issue on appeal becomes the proper construction of specific statutory provisions and application of those provisions to the undisputed facts of the case. This presents a question of law that we review de novo. See LaLonde v. Gosnell, 593 S.W.3d 212, 220 (Tex. 2019) (“Deference must be afforded to the trial courts disposition of disputed facts, but when there are none, as here, our review is entirely de novo.”).
This appeal also requires us to review the trial courts interpretation and application of various statutes. Statutory interpretation presents a question of law subject to de novo review. Bracey v. City of Killeen, 417 S.W.3d 94, 103 (Tex. App.—Austin 2013, no pet.). Our primary objective in statutory construction is to give effect to the legislatures intent. Id. We first look to the statutes text to determine the legislatures intent. Id. When the statutory text is clear, it is determinative of the legislatures intent. Id. at 104. In that situation, we give the statute its plain meaning without resorting to rules of construction or extrinsic aids. Id. Only when a statute is susceptible to more than one reasonable interpretation does a court look beyond its language for assistance in determining legislative intent. Id. We view statutory terms in context, giving them full effect. Id. at 103. We presume that every word of a statute was used for a purpose, and every omitted word was purposefully not chosen. Texas Law Shield LLP v. Crowley, 513 S.W.3d 582, 588 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). In determining the plain meaning of a statute, we construe the language according to the rules of grammar and common usage. Id. “As a general principle, we eschew constructions of a statute that render any statutory language meaningless or superfluous.” City of Dallas v. TCI West End, Inc., 463 S.W.3d 53, 57 (Tex. 2015). When construing statutes, “we are bound to apply the statutory definition in deciding the question before us.” Nelson v. Union Equity Co-op. Exch., 548 S.W.2d 352, 355 (Tex. 1977).
II. The trial court erred when it denied LJA Engineerings motion to dismiss.
Here, it is not disputed that LJA Engineering is a licensed professional engineering company. It is also undisputed that LJA Engineering assigned a licensed professional engineer employee to the Sour Lake sewer rehabilitation project. In addition, it is undisputed that Molina was an employee of Kellen Environmental, not LJA Engineering. Finally, it is undisputed that appellees did not attach a certificate of merit to their petition first alleging claims against LJA Engineering. Because a plaintiff suing for damages arising out of the provision of professional services by a licensed or registered professional engineer must file a certificate of merit with the complaint, we must determine whether appellees’ claims against LJA Engineering arise out of the provision of engineering services. See Jacobs Engg Grp., Inc., 502 S.W.3d at 463 (citing Tex. Civ. Prac. & Rem. Code § 150.002(a)). We conclude they do.
A certificate of merit must address each theory of recovery for which damages are sought. Dunham Engg, Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 793 (Tex. App.—Houston [14th Dist.] 2013, no pet.). When determining whether a plaintiffs claims arise out of the provision of professional engineering services within the meaning of section 150.002, we look to the definition of the practice of engineering in the Texas Occupations Code and the allegations against the engineer. Id.; see TDIndustries, Inc. v. Citicorp N. Am., Inc., 378 S.W.3d 1, 6 (Tex. App.—Fort Worth 2011, no pet.) (concluding “that the proper approach when determining whether a certificate of merit is required is to look solely at the pleadings to determine the nature of the claim and not at discovery between the parties”).
The “practice of engineering” means “the performance of or an offer or attempt to perform any public or private service or creative work, the adequate performance of which requires engineering education, training, and experience in applying special knowledge or judgment of the mathematical, physical, or engineering sciences to that service or creative work.” Jacobs Engg Grp., Inc., 502 S.W.3d at 464 (quoting Tex. Occ. Code § 1001.003(b)). The practice of engineering includes, among other things, (1) “consultation, investigation, evaluation, analysis, planning, [and] engineering for program management;” (2) “design, conceptual design, or conceptual design coordination of engineering works or systems;” (3) “engineering for review of the construction or installation of engineered works to monitor compliance with drawings or specifications;” and (4) “a service, design, analysis, or other work performed for a public or private entity in connection with a utility, structure, building, machine, equipment, process, system, work, project, or industrial or consumer product or equipment of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature.” Tex. Occ. Code § 1001.003(c).
Appellees alleged that LJA Engineering was negligent and grossly negligent because it failed to (1) “maintain a safe work environment for workers;” (2) “ensure that workers operated in a reasonably safe manner;” (3) “provide warning of poisonous or hazardous chemicals/gases;” (4) “properly inspect and oversee the work;” (5) “address known hazards and risks;” (6) “utilize reasonable means of protecting workers;” (7) “ensure the sewers were clear before starting work;” (8) “implement and/or enforce adequate safety protocols and procedures;” and (9) “properly supervise those whose work they had a right to control.” To determine whether these claims arise out of the provision of professional engineering services, we look to the substance of the plaintiffs pleadings. Jennings, Hackler & Partners, Inc. v. North Tex. Mun. Water Dist., 471 S.W.3d 577, 581 (Tex. App.—Dallas 2015, pet. denied). In making that determination, the “question is not whether the alleged mal-acts themselves constitute the provision of professional [engineering] services, but whether the claims arise out of the provision of professional [engineering] services.” Id.; see also Dunham Engg, Inc., 404 S.W.3d at 793 (“[T]he issue is not whether the alleged tortious acts constituted the provision of professional services, but rather whether the tort claims arise out of the provision of professional services.”). Claims arise out of the provision of professional engineering services if they implicate the engineers education, training, and experience in applying special knowledge or judgment. TDIndustries, Inc., 378 S.W.3d at 5. We conclude that each of appellees’ allegations implicates LJA Engineerings and its licensed professional engineer employees education, training, and experience in applying special knowledge or judgment to the performance of LJA Engineerings contractual obligations to Sour Lake.
1
See Tex. Occ. Code § 1001.003(c)(2), (3), (7), (9), (10), and (12); Cimarron Engg., LLC v. Miramar Petroleum, Inc., No. 13-14-00163-CV, 2014 WL 2937012, at *5 (Tex. App.—Corpus Christi June 26, 2014, pet. denied) (mem. op.) (concluding plaintiff was required to file a certificate of merit because its breach of contract and negligent supervision claims against engineering company related to a well blowout arose from the practice of engineering). As a result, we conclude that each of appellees’ allegations arose out of the provision of professional engineering services and appellees were required to file a certificate of merit with their petition first naming LJA Engineering as a defendant. See TDIndustries, Inc., 378 S.W.3d at 6 (holding plaintiffs negligence claim implicated defendants engineering education, training, and experience, because plaintiff premised claim on defendants alleged engineering expertise in the installation, inspection, and testing of complex equipment).
Appellees’ reliance on this Courts Jacobs Engineering Group, Inc. opinion does not change this result. 502 S.W.3d at 465. In Jacobs Engineering Group, Inc., another panel of this Court held that the plaintiffs there were not required to file a Chapter 150 certificate of merit because their claims did not arise out of Jacobs Engineerings provision of engineering services but instead arose out of the duties an employer owes its employees. Id. In Jacobs Engineering Group, Inc., it was undisputed that the decedent had been an employee of Jacobs Engineering and the plaintiffs alleged Jacobs Engineering had violated duties owed to the decedent as a Jacobs Engineering employee. Id. at 468. In the present case, it is undisputed that Molina was not an employee of LJA Engineering but was instead employed by another entity, Kellen Environmental. We therefore conclude that Jacobs Engineering Group, Inc. is distinguishable on its facts and does not control the outcome here.
Because appellees were required to file a Chapter 150 certificate of merit and they did not, we hold that the trial court erred when it denied LJA Engineerings Chapter 150 motion to dismiss. We sustain LJA Engineerings issue on appeal.
Conclusion
Having sustained LJA Engineerings issue on appeal, we reverse the trial courts order and remand the case to the trial court to determine whether the dismissal should be with or without prejudice. See Tex. Civ. Prac. & Rem. Code § 150.002(e) (providing that dismissal is required but “may” be with prejudice); Pedernal Energy, LLC v. Bruington Engineering, Ltd., 536 S.W.3d 487, 496 (Tex. 2017) (stating in a case where no certificate of merit was filed that the decision whether to dismiss a case with or without prejudice is within the trial courts discretion).
DISSENTING OPINION
The majoritys opinion fails to acknowledge or address Appellants failures to (1) introduce any evidence, (2) meet its burden of persuasion, and (3) establish that Appellees’ injuries arose out of the provision of professional services by a licensed or registered professional. Therefore, I dissent.
Appellant argues (and the majority accepts) that the trial court erred when it denied Appellants motion to dismiss because Appellees’ claim arises out of the provision of professional services. This question is dispositive based on Texas Civil Practice and Remedies Code section 150.002, which requires an affidavit of merit in “any action ․ for damages arising out of the provision of professional services by a licensed or registered professional.”
1
Despite this unambiguous statute, the majoritys analysis summarily ignores the phrase “arising out of.” Instead, it simply concludes Appellees’ injuries must have arisen from Appellants provision of professional services that were associated with the relevant injuries (i.e., “design[ing] the project, prepar[ing] the construction plans and specifications, and then inspect[ing] the work to ensure that the work complied with LJA Engineerings design plans”). Therefore, the majoritys opinion fails to address the question presented.
The phrase “arising out of” is not new to American jurisprudence. See Crosby v. Huston, 1 Tex. 203, 230 (1846); Hite v. Fairfax, 8 Va. 42, 68 (1786). Together, these words constitute a widely known juridical phrase of art.
2
Although “ ‘arise out of’ means that there is simply a ‘causal connection or relation,’ ”
3
this means “that there is but for causation, though not necessarily direct or proximate causation.”
4
The test for but-for causation (commonly known as cause-in-fact) “is whether the act or omission was a substantial factor in causing the injury ‘without which the harm would not have occurred.’ ”
5
“The but-for causation standard is significantly more difficult to prove than prima facie causation.”
6
Cause-in-fact/but-for causation cannot be established “by mere conjecture, guess, or speculation.”
7
Basic principles of Texas law have (until now) dictated that the party seeking affirmative relief bears the burden of persuasion. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019); Saba Zi Expl., L.P. v. Vaughn, 448 S.W.3d 123, 129 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Russell v. City of Bryan, 919 S.W.2d 698, 704 (Tex. App.—Houston [14th Dist.] 1996, writ denied); see also Matter of Approximately $80,600.00, 537 S.W.3d 207, 211 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Here, Appellant sought affirmative relief via its motion to dismiss. Therefore, it had the burden to persuade the trial court that its provision of professional services was the cause-in-fact of Appellees’ injuries. Under the circumstances, this standard “is significantly more difficult to prove than prima facie causation,”
8
yet Appellant failed to “prove” anything; in fact, Appellant failed to introduce even a single piece of evidence. The majoritys conclusion that the trial court reversibly erred when there is not even a scintilla of evidence in the record capable of supporting its conclusion is incomprehensible, particularly given that the Legislature knows how to create broad conditions precedent to otherwise viable lawsuits when it intends to do so. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a) (“In a suit involving a health care liability claim against a physician for injury to or death of a patient ․”) (emphasis added).
Based on the majoritys decision to ignore the statutory phrase “arising out of” while violating fundamental principles concerning a moving partys burden of persuasion, I respectfully dissent.
FOOTNOTES
1
. Under its contract with Sour Lake, LJA Engineering agreed that it would design the project, prepare the construction plans and specifications, and then inspect the work to ensure that the work complied with LJA Engineerings design plans. Each of these contractual obligations fits within the statutory definition of the practice of engineering. See Tex. Occ. Code § 1001.003(c).
1
. Tex. Civ. Prac. & Rem. Code Ann. § 150.002.
2
. See generally Lancer Ins. Co. v. Garcia Holiday Tours, 345 S.W.3d 50, 54-55 (Tex. 2011) (collecting a sample of authorities).
3
. Utica Natl Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex. 2004) (citing Mid-Century Ins. Co. of Tex. v. Lindsey, 997 S.W.2d 153, 156 (Tex. 1999)).
4
. Id. (citing McCarthy Bros. Co. v. Contl Lloyds Ins. Co., 7 S.W.3d 725, 730 (Tex. App.—Austin 1999, no pet.); Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451, 454 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)).
5
. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) (per curiam); Ginn v. Pierce, 595 S.W.3d 762, 767 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (citing Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 222-23 (Tex. 2010)); see also Pediatrics Cool Care v. Thompson, 649 S.W.3d 152,158 (Tex. 2022) (“A defendants negligence is the cause-in-fact of a plaintiffs injury if ‘(1) the negligence was a substantial factor in causing the injury, and (2) without the act or omission, the harm would not have occurred.’ ”) (quoting Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018)).
6
. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 782 (Tex. 2018) (citing Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007)); Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332, 343 (Tex. 2014).
7
. Powell v. Grijalva, No. 14-19-00080-CV, 2020 WL 4097274, at *2 (Tex. App.—Houston [14th Dist.] July 21, 2020, no pet.) (mem. op.) (citing IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004)).
8
. Bostic, 439 S.W.3d at 343.
Jerry Zimmerer, Justice
(Hassan, J., dissenting).