Opinion filed September 10, 2026
In The
Eleventh Court of Appeals
No. 11-25-00129-CV
THE ISLAMIC ASSOCIATION OF THE COLONY AND AHL
BUILDERS, LLC, Appellants
V.
CARR CONSULTING, INC., Appellee
On Appeal from the 477th District Court
Denton County, Texas
Trial Court Cause No. 25-2725-477
M E M O R A N D U M O P I N I O N1
Appellants, The Islamic Association of The Colony (the Association) and
AHL Builders, LLC (AHL), sued Appellee, Carr Consulting, Inc., alleging faulty
1
Pursuant to Misc. Docket Order No. 25-9016 issued by the Texas Supreme Court on April 2, 2025, this appeal was transferred to us from the Second Court of Appeals. Therefore, as the transferee court, we must decide the issues raised in this appeal in accordance with the precedent of the Second Court of Appeals if its precedent conflicts with ours. See TEX. R. APP. P. 41.3.
design and construction of a retaining wall on property that they were developing. In three issues, the Association and AHL challenge the trial court’s: (1) dismissal of their breach-of-contract claim because of their purported failure to file a valid certificate of merit under Chapter 150 of the Civil Practice and Remedies Code;
(2) dismissal of this claim was with prejudice; and (3) grant of summary judgment on their claims for negligence, breach of express or implied warranty, and request for attorney’s fees.
We conclude that the trial court (1) abused its discretion when it dismissed the
Association’s and AHL’s breach-of-contract claim because, as we discuss below,
their certificate of merit was timely filed, valid, and sufficient, but (2) properly granted summary judgment on the Association’s and AHL’s other claims.
Accordingly, we affirm in part, and we reverse and remand in part.
I. Background
This dispute arose from the Association’s construction project to build a new
mosque on its property. The Association’s general contractor, AHL, engaged Carr
Consulting, and its principal, John P. Carr, a professional engineer, as the project engineer who would be responsible for the design of a parking lot for the mosque, supported by a retaining wall. On October 17, 2021, some months after its
completion, the retaining wall failed. During a rainstorm, the retaining wall shifted, and, without its support, the parking lot collapsed. The Association and AHL
thereafter sued Carr Consulting and other involved parties for breach of contract, breach of warranty, and negligence, and sought damages between $900,000 and
$1.8 million; they also requested attorney’s fees.
Carr Consulting filed special exceptions and moved to dismiss the
Association’s and AHL’s original petition on the basis that they failed to timely file a certificate of merit pursuant to Section 150.002 of the Civil Practice and Remedies
2
Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (West Supp. 2025). The
Association and AHL then filed a certificate of merit and a response and
supplemental response to Carr Consulting’s motion. After a hearing, the trial court granted Carr Consulting’s motion and dismissed without prejudice all causes of
action that the Association and AHL had asserted against Carr Consulting.
The Association and AHL refiled their petition in the original trial court cause
number (23-3331-211), but the district clerk rejected the filing. The clerk informed them that, based on these circumstances, they must file a new lawsuit. On January 18, 2024, the Association and AHL filed their original petition under a new trial court cause number (24-0557-211) and attached with it the affidavit of a
professional engineer, Glenn W. Campbell, as their certificate of merit.
Carr Consulting again moved to dismiss the suit for lack of a valid certificate
of merit. The Association and AHL responded and, after another hearing, the trial court granted Carr Consulting’s motion and signed a final judgment dismissing with prejudice all causes of action asserted against Carr Consulting by the Association and AHL.
The Association and AHL filed a motion to reform the trial court’s final
judgment and a motion for new trial. After a hearing, the trial court signed an order that partially reformed its judgment, which excluded the Association’s and AHL’s
causes of action for negligence and breach of warranty but retained the dismissal with prejudice for their breach-of-contract cause of action; their motion for new trial was also denied. The revived claims were then consolidated with the original trial court cause number (23-3331-211) that involved the Association’s and AHL’s
claims against the other parties.
Carr Consulting moved for traditional summary judgment on the negligence
and breach-of-warranty claims, arguing that the negligence claim was barred by
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limitations and the claims for breach of express or implied warranty were not
actionable; it also moved for attorney’s fees. The trial court granted the motion. Carr Consulting then moved to sever these claims from the remaining claims
asserted against the other parties, and the Association and AHL again moved to
reform the judgment and for a new trial. The trial court granted Carr Consulting’s motion to sever and denied the Association’s and AHL’s motions. The severed
claims were assigned a new trial court cause number (25-2725-477). It is from the severed action that this appeal originates.
II. Standards of Review
We review a trial court’s order that dismisses a plaintiff’s suit for failure to
file a certificate of merit in accordance with Section 150.002 for an abuse of
discretion. Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d
887, 889, 891 (Tex. 2017). A trial court abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992);
Pipkins v. LaBiche Architectural Grp., Inc., 661 S.W.3d 842, 848 (Tex. App.—
Beaumont 2022, pet. denied). To the extent our analysis necessitates the construction of Chapter 150, our review is de novo. Jaster-Quintanilla & Assocs., Inc. v. Prouty, 549 S.W.3d 183, 188 (Tex. App.—Austin 2018, no pet.) (citing
Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487, 493 (Tex. 2017)).
A trial court’s grant of summary judgment is reviewed de novo. Fort Worth
Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 837 (Tex. 2018). To prevail under the traditional summary judgment standard, the movant has the burden to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter
4
of law. TEX. R. CIV. P. 166a(c); 2 ConocoPhillips Co. v. Koopmann, 547 S.W.3d
858, 865 (Tex. 2018). If the movant meets its summary judgment burden, the burden shifts to the nonmovant to raise a genuine issue of material fact that would preclude the grant of summary judgment. Amedisys, Inc. v. Kingwood Home Health Care,
LLC, 437 S.W.3d 507, 510–11 (Tex. 2014).
To determine if a genuine issue of material fact exists, we review the evidence
in the light most favorable to the nonmovant, and we indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. KMS Retail Rowlett,
LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019). We credit evidence
favorable to the nonmovant if reasonable jurors could do so, and we disregard
contrary evidence unless reasonable jurors could not. Samson Expl., LLC v. T.S.
Reed Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could differ in their conclusions considering all the summary judgment evidence presented.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
III. Analysis
A. Certificate of Merit
In its first and second issues, the Association and AHL argue that the trial
court abused its discretion when it dismissed their breach-of-contract claim with prejudice because the certificate of merit they filed is timely, valid, and sufficient. Carr Consulting contends that (1) the Association and AHL failed to file a proper
2
We note that the supreme court has revised Rule 166a. Although the “rewrite is not intended to substantively change the law,” it has resulted in a renumbering of the rule’s provisions. See Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). The amendments to this rule only apply to motions for summary judgment filed on or after March 1, 2026. Because Carr Consulting’s traditional motion for summary judgment in this case was filed prior to that date, we refer to the rule in effect at the time it was filed. See id.
5
and timely certificate of merit, and (2) their late-filed certificate failed to meet the requirements of Section 150.002.
“[I]n any action . . . for damages arising out of the provision of professional
services by a licensed or registered professional,” Section 150.002(a) requires a plaintiff to file “with the complaint an affidavit of a third-party . . . licensed professional engineer . . . who . . . holds the same professional license . . . as the defendant.” CIV. PRAC. & REM. § 150.002(a); see Melden, 520 S.W.3d at 890 (A
certificate of merit must accompany the initiation of a suit against a named
professional.). The purpose of a certificate of merit is “‘to provide a basis for the trial court to determine merely that the [claimant’s] claims are not frivolous’ so the claimant may ‘proceed in the ordinary course to the next stages of litigation.’” Halff Assocs., Inc. v. Jacob & Martin, LLC, No. 02-24-00439-CV, 2025 WL 1536392, at
*3 (Tex. App.—Fort Worth May 29, 2025, pet. denied) (mem. op.) (quoting CBM
Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 346 (Tex. App.—Houston
[1st Dist.] 2013, pet. denied)).
The certificate of merit must be filed with the first-filed pleading that asserts the relevant claim(s) against an engineering professional. See CIV. PRAC. & REM.
§§ 150.001(1-b), 150.002(a). “The trial court then determines whether the expert’s affidavit sufficiently demonstrates that the plaintiff’s complaint is not frivolous.” Melden, 520 S.W.3d at 896; see LaLonde v. Gosnell, 593 S.W.3d 212, 216 (Tex.
2019) (“The certificate-of-merit requirement is a substantive hurdle that helps ensure frivolous claims are expeditiously discharged.”). If a certificate of merit is not filed in such instances, the complaint filed against the engineering professional must be dismissed. CIV. PRAC. & REM. § 150.002(e). Such a dismissal is a sanction “to deter meritless claims and bring them quickly to an end.” CTL/Thompson Tex., LLC v.
Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex. 2013).
6
Carr Consulting contends that when the Association and AHL refiled their
suit against it after the original suit was dismissed without prejudice, the Association and AHL again failed to properly file the certificate of merit in accordance with the requirements of Section 150.002. First, when the Association and AHL refiled their petition in trial court cause number 23-3331-211, they did not attach or
contemporaneously file with it a certificate of merit. The Association and AHL refer to the certificate of merit that they previously filed but ultimately assert that any issues were resolved when they filed their new suit, as explained below.
According to Carr Consulting, after the district clerk rejected this refiling, the Association and AHL filed the exact same petition, with the same cause number;
however, the district clerk struck that cause number and appended a new one: 24-0557-211. The Association and AHL explain that they submitted the filing fee to
the district clerk for the new suit and that the clerk subsequently treated the petition they had already filed as the petition for cause number 24-0557-211 by striking the old cause number and appending the new one. However, the certificate of merit was attached to their petition when the Association and AHL paid the filing fee and the district clerk appended the new cause number to it.
It is important to note that the plain and unambiguous language of Chapter
150 requires that a plaintiff file a certificate of merit “with the complaint,” and Texas courts have uniformly construed this “contemporaneous filing requirement” to mean that the plaintiff must file the certificate of merit with the “first-filed petition.” CIV. PRAC. & REM. § 150.002; Studio E. Architecture & Interiors, Inc. v. Lehmberg,
No. 24-0286, 2026 WL 1500909, at *2 (Tex. May 29, 2026) (quoting TIC N. Cent.
Dall. 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 76 (Tex. App.—Dallas 2014, pet. denied)).
7
Equally important to our analysis is the effect of a dismissal without
prejudice—it places the parties in the same position they were in before the trial court’s jurisdiction was invoked, just as if the suit had never been brought. Studio E., 2026 WL 1500909, at *3; Envirobusiness, 463 S.W.3d at 77. Courts have also
held in this context that, after a dismissal without prejudice becomes effective, “when a plaintiff files a new action and includes a certificate of merit with the firstfiled petition in that [new] action, the plaintiff has complied with the plain language of the statute.” CTL/Thompson Texas, LLC v. Starwood Homeowner’s Ass’n, Inc.,
461 S.W.3d 627, 630–31 (Tex. App.—Fort Worth 2015, pet. denied) (emphasis
added) (quoting Envirobusiness, 463 S.W.3d at 77); see also Studio E., 2026 WL
1500909, at *3 (Relying on Rule 63 of the Texas Rules of Civil Procedure and
holding, “[W]here, as here, the plaintiff has asserted claims against other defendants that have not been dismissed, she need not file a new suit to assert claims subject to Section 150.002 that were previously dismissed without prejudice. Rather, in this circumstance, the plaintiff can amend her petition to assert the dismissed claims and append the certificate of merit [to it].” (emphasis added)).3
Accordingly, we conclude that, because the Association’s and AHL’s original
suit was dismissed without prejudice, they resurrected and contemporaneously and
timely filed the required certificate of merit with their first-filed pleading in their refiled suit (trial court cause number 24-0557-211) and thus satisfied the
contemporaneous filing requirements of the statute. See CTL/Thompson, 461
3
This case presents some of the typical procedural inefficiencies, highlighted by Justice Hawkins’s concurrence in Studio E., that arise in Section 150.002 cases. See Studio E., 2026 WL 1500909, at *7 (critiquing the “hoop-jumping” of refiling claims dismissed under Section 150.002 in an entirely new action, which will proceed along a parallel track only to be possibly consolidated with the original action later, all while incurring additional costs for overlapping litigation and running the risk of incompatible results (Hawkins, J., concurring)).
8
S.W.3d at 630–31, Envirobusiness, 463 S.W.3d at 77; see also CIV. PRAC. & REM.
§§ 150.001(1-b), 150.002(a); Studio E., 2026 WL 1500909, at *3. 4
We next turn to the substance of the certificate of merit that the Association
and AHL filed. Section 150.002(b) requires the following:
The affidavit 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.
CIV. PRAC. & REM. § 150.002(b).
The Association and AHL assert that their certificate of merit sets forth the
professional engineering errors or omissions needed to provide a “factual basis” for each asserted cause of action, including breach of contract, and that there is no requirement that the certificate state specific contractual default mechanics because “[c]ontract law is not a professional engineer’s area of competence.” In response, Carr Consulting argues that the certificate of merit was inadequate as to the breach4
Section 150.002(c) provides that the contemporaneous filing requirement shall not apply to any case in which the limitations period expires within 10 days of the date of filing, and, because of such time constraints, a claimant has alleged that a certificate of merit cannot be timely filed. CIV. PRAC. & REM. § 150.002(c). In such cases, the claimant has 30 days after the filing of its first petition to supplement that pleading with a certificate of merit, and the trial court may, on motion and after a hearing and for good cause, extend such time to file a certificate as it shall determine that justice requires. Id. The Association and AHL made no apparent attempt to invoke Section 150.002(c), and do not mention or advance a subsection (c) argument in their appellate brief. See Moore v. Stanley Spurling & Hamilton, Inc., 735 S.W.3d 887, 891 (Tex. App.—Houston [14th Dist.] 2026, pet. granted) (holding that claimants are not required to make the extension allegations required by subsection (c) contemporaneously with the firstfiled pleading); but see Melden & Hunt, Inc. v. Cantu, No. 13-25-00266-CV, 2026 WL 1593645, at *3 (Tex. App.—Corpus Christi–Edinburg June 4, 2026, no pet. h.) (holding that, to invoke subsection (c), a claimant must explicitly assert the extension allegations and that an assertion in the claimant’s original petition that a certificate of merit is “forthcoming” is insufficient). In Moore, the supreme court granted review on June 19 to address, among other things, (1) whether a claimant must make the requisite extension allegation in its first-filed pleading, and (2) whether a later-filed certificate of merit may cure a failure to do so. See Petition for Review at 11, Stanley Spurling & Hamilton, Inc. v. Moore, No. 26-0307 (Tex. Mar. 31, 2026).
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of-contract claim because Campbell, the affiant, did not identify any contract that existed between the parties or include any contract in the list of documents that he reviewed to formulate and provide his opinions; therefore, the certificate of merit did not provide any factual basis for a breach-of-contract claim because it lacked the operative facts of the existence of a contract and its terms. Carr Consulting further asserts that the terms of the contract on which the Association and AHL relied
removed any responsibility for Carr Consulting to obtain a geological study, which it alleges was the only factual basis asserted against it in the certificate of merit.
We agree with the Association and AHL. Section 150.002 only requires that
the certificate of merit set forth the “factual basis” of the claims asserted against a professional engineer, not the legal basis of the engineer’s alleged contractual
breach. Melden, 520 S.W.3d at 896. Further, the certificate is not required to address the elements of the asserted theories or causes of action. Id. Whether Carr
Consulting’s theory—that the terms of the parties’ contract eliminated the
responsibility for the errors and omissions identified in the certificate of merit—will prevail is a legal question that requires an analysis of the agreement’s terms, an undertaking that is beyond the scope of the certificate of merit. See M-E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 506–07 (Tex. App.—Austin 2012, pet.
denied) (“We cannot conclude that the Legislature intended to require affiants with expertise in such fields as engineering or architecture to opine regarding such farafield subjects as contract construction or agency.”); see also Melden, 520 S.W.3d at 895 n.5, 896 (abrogating cases that dismissed a breach-of-contract claim because the certificate of merit did not discuss the existence of a contract or its breach).
The purpose of a certificate of merit under Chapter 150 is not to short-circuit
the normal legal process; instead, it is to ensure that claims asserted against certain engineering professionals are not frivolous when those claims concern allegations
10
of the professional’s errors or omissions, which require a professional eye to
evaluate. See Halff Assocs., 2025 WL 1536392, at *3. The supreme court clarified
that the statute’s “core focus on errors and omissions in professional services is not altered by the first portion of subsection (b), which requires a certificate to provide these facts ‘for each theory of recovery for which damages are sought.’” Melden,
520 S.W.3d at 895 (quoting M-E Eng’rs, 365 S.W.3d at 506). Rather, the effect of
this phrase is “to emphasize that the certificate must identify and verify the existence of any professional errors or omissions that are elements or operative facts under any legal theory.” Id. (quoting M-E Eng’rs, 365 S.W.3d at 505–06) (emphasis
added).
The threshold for compliance with the certificate-of-merit requirement is low.
Halff Assocs., 2025 WL 1536392, at *3. As noted by the supreme court, “Chapter
150 requires only that a similarly licensed professional, knowledgeable of the
defendant’s area of practice, provide a sworn written statement certifying that the defendant’s professional actions or omissions were negligent or otherwise erroneous and the factual basis for such claims.” Melden, 520 S.W.3d at 897 (emphasis added). The certificate of merit filed by the Association and AHL did just that.
In the certificate of merit, Campbell described the parameters and site
constraints of the retaining wall and then provided his professional opinions:
• Campbell explained that, according to post-failure reports, after the retaining
wall failed and the parking lot collapsed, GeoScience Engineering and
Testing, Inc. (the geotechnical firm hired by AHL) drilled a boring hole
fourteen feet deep to dry material within the collapsed area of soil and “Mr.
Carr stated that a gray shale material was found that he did not know was
present initially. He added that he would have designed the wall with piers
embedded into the gray shale layer if he had known.” However, a
supplemental geotechnical letter had previously disclosed that the underlying
gray shale layer was in fact present at the location of the wall.
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• Campbell stated that “whether or not Mr. Carr knew about the presence of the
shale layer prior to the design of the retaining wall, it is a reasonable
expectation that he had a duty to understand that for a clay site with the steep
slopes, embankments and a creek such as this would make it necessary to
commission a geotechnical engineering firm to perform a global stability
analysis.” No global stability analysis was commissioned or performed.
• Campbell determined that a portion of the wall moved thirteen horizontal feet
down the slope “toward the creek, ‘riding’ atop an unstable mass of earth
characterized in the geotechnical engineering field as a global stability
failure.” According to a post-failure report, “the slope stability analyses
indicate[d] that the pre-failure wall geometry resulted in factors of safety of
less than 1.0, indicating the installation of such a wall/slope geometry would
be near or in failure mode based on the input parameters. This analysis agrees
with the present site condition and the critical nature of the wall/slope as it
exists presently without the aid of a significant lateral restraint or pier system.”
• Campbell also opined that the engineering and design plans for the retaining
wall prepared by Carr Consulting “did not meet the standard of care for
professional engineers” and failed to meet “minimum industry standards for
retaining walls with the design parameters and constraints presented by this
site adjacent to a creek with unstable in situ clay material located atop a stable
gray shale substratum.”
We conclude that the certificate of merit in this case sets forth the factual basis of the Association’s and AHL’s breach-of-contract claim. See Melden, 520 S.W.3d
at 896. Because the certificate of merit was timely filed, valid, and sufficient, the trial court abused its discretion when it granted Carr Consulting’s motion and
dismissed the Association’s and AHL’s breach-of-contract claim on the basis that
they failed to file a certificate of merit in compliance with the requirements of Section 150.002. See Pipkins, 661 S.W.3d at 848.
Accordingly, we sustain the Association’s and AHL’s first issue. Because of
our disposition, we need not reach their second issue. See TEX. R. APP. P. 47.1.
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B. Summary Judgment
In their third issue, the Association and AHL contend that the trial court erred
when it granted summary judgment on their claims for negligence, breach of express or implied warranty, and attorney’s fees. Carr Consulting argues that the trial court did not err because (1) the negligence claim was barred by limitations, (2) no implied warranty exists under these facts, and (3) any error related to the breach of express warranty or attorney’s fees claims was waived.
1. Limitations Bars the Negligence Claim
A defendant moving for traditional summary judgment on a limitations
defense must establish “(1) when the cause of action accrued, and (2) that the
plaintiff brought its suit later than the applicable number of years thereafter.” Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 670 S.W.3d 622, 626 (Tex. 2023) (quoting Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021)).
The retaining wall failed on October 17, 2021. The Association and AHL
initially filed suit against Carr Consulting in April 2023, but the trial court dismissed all their claims without prejudice for failure to file a certificate of merit. See Envirobusiness, 463 S.W.3d at 77 (noting that the effect of a dismissal without
prejudice is to place the parties in the position that they were in before the trial court’s jurisdiction was invoked, just as if the suit had never been brought); see also Studio E., 2026 WL 1500909, at *3. The operative suit from which this appeal
originates was filed on January 18, 2024. Although the parties agree that the
applicable limitations period for the negligence claim is two years, they disagree as to whether the discovery rule saved this claim from a limitations bar. See CIV.
PRAC. & REM. § 16.003(a) (West 2017). It does not.
“The discovery rule is a ‘narrow exception’ to the legal injury rule that ‘defers accrual of a cause of action until the plaintiff knew or, exercising reasonable
13
diligence, should have known of the facts giving rise to the cause of action.’”
Marcus & Millichap Real Estate Inv. Servs. of Nevada, Inc. v. Triex Texas Holdings, LLC, 659 S.W.3d 456, 461 (Tex. 2023) (quoting Berry v. Berry, 646 S.W.3d 516,
524 (Tex. 2022)). It applies when the nature of the injury is inherently
undiscoverable and the evidence of injury is objectively verifiable. Estate of Ewers, 695 S.W.3d 603, 620 (Tex. App.—Houston [1st Dist.] 2024, no pet.) (op. on reh’g)
(citing Archer v. Tregellas, 566 S.W.3d 281, 290 (Tex. 2018)). An injury is
inherently undiscoverable if it is unlikely to be discovered within the limitations period despite reasonable diligence. Marcus, 659 S.W.3d at 461. Because this
determination is made on a categorical rather than a case-specific basis, “inherent undiscoverability” is a question of law. Ewers, 695 S.W.3d at 620 (citing Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006)); Marcus, 659 S.W.3d at 461.
When the discovery rule applies, the statute of limitations does not commence
“until the plaintiff knew or in the exercise of reasonable diligence should have
known of the wrongful act and resulting injury,” but neither does it “linger until a claimant learns of actual causes and possible cures.” Marcus, 659 S.W.3d at 461
(first quoting S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996); and then quoting PPG
Indus., Inc. v. JMB/Hous. Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 93 (Tex.
2004)). “Nor does it defer accrual until the plaintiff knows the specific nature of each wrongful act that may have caused the injury, or the exact identity of the
wrongdoer.” Id. (internal quotation marks and citations omitted).
A legal injury, like the one alleged here, which flows from the advice or design
services of a professional engineer is inherently undiscoverable because ordinary laypersons are unable to detect any latent deficiencies in the professional’s design or services. See Kizer v. Meyer, Lytton, Alen & Whitaker, Inc., 228 S.W.3d 384, 389 (Tex. App.—Austin 2007, no pet.) (citing Thomson v. Espey Huston & Assocs. Inc.,
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899 S.W.2d 415, 423 (Tex. App.—Austin 1995, no writ)). But when that negligence
or error manifests itself in a manner that would cause a reasonable person to inquire, which ultimately leads to the discovery of the concealed or latent injury, the
limitations period then begins to run. Id. (citing Bayou Bend Towers Council of CoOwners v. Manhattan Constr. Co., 866 S.W.2d 740, 742 (Tex. App.—Houston [14th
Dist.] 1993, writ denied)). Thus, when the retaining wall catastrophically failed on October 17, 2021, the Association and AHL knew or in the exercise of reasonable
diligence should have known of their claimed injury, and limitations commenced on that date. See Marcus, 659 S.W.3d at 461.
Although the Association and AHL contend that they did not ascertain Carr
Consulting’s potential fault until April 25, 2022, the discovery rule does not save them here. Marcus, 659 S.W.3d at 461. Therefore, we conclude that the applicable
limitations period commenced on October 17, 2021, and that the Association’s and
AHL’s negligence claim was barred by limitations when they filed the subject suit more than two years later, on January 18, 2024. See Levinson, 670 S.W.3d at 626;
see also CIV. PRAC. & REM. § 16.003(a).
2. No Implied Warranty Exists on These Facts
The Association and AHL also contend that Carr Consulting had a common
law implied duty to warrant and provide its design of the retaining wall in a good and workmanlike manner. Carr Consulting responds, and we agree, that no such
implied warranty exists in these circumstances.
“Texas law does not recognize a cause of action for breach of an implied
warranty of professional services.” Hogue v. Propath Lab’y, Inc., 192 S.W.3d 641, 646 (Tex. App.—Fort Worth 2006, pet. denied) (citing Murphy v. Campbell, 964
S.W.2d 265, 268 (Tex. 1997)); see Dennis v. Allison, 698 S.W.2d 94, 96 (Tex. 1985); but see White Budd Van Ness P’ship v. Major-Gladys Drive Joint Venture, 798
15
S.W.2d 805, 812–14 (Tex. App.—Beaumont 1990, writ dism’d) (holding that the
implied warranty of good and workmanlike services can apply to architectural
services in an action under Texas Deceptive Trade Practices-Consumer Protection
Act). The supreme court’s rationale for this determination is that if a plaintiff can obtain full redress by asserting another claim—as here, negligence or breach of
contract—there is no need to assert an additional remedy based on an implied
warranty theory. See Rocky Mountain Helicopters, Inc. v. Lubbock Cnty. Hosp.
Dist., 987 S.W.2d 50, 52–53 (Tex. 1998) (holding that an implied warranty for good and workmanlike performance of services may arise under the common law when
public policy mandates, but public policy does not justify imposing such an implied warranty in the absence of a demonstrated, compelling need, which does not exist
when other remedies are available); Murphy, 964 S.W.2d at 269; see also
LAN/STV v. Martin K. Eby Constr. Co., 435 S.W.3d 234, 244 n.42 (Tex. 2014)
(noting that negligence claims are explicitly available against professionals under Murphy and Chapter 150).
3. The Association’s and AHL’s Remaining Claim
In addition to the foregoing claims, the trial court granted summary judgment
in favor of Carr Consulting on the Association’s and AHL’s breach-of-expresswarranty claim. However, the Association and AHL do not challenge the summary
judgment ruling on this claim. If the appellant fails to challenge each ground on which summary judgment could have been granted, we must uphold the summary
judgment on the unchallenged ground. Haynes v. DOH Oil Co., 647 S.W.3d 793,
799 (Tex. App.—Eastland 2022, no pet.); see also TEX. R. APP. P. 38.1(f), (i);
Espinoza v. Montague Cnty. Appraisal Dist., No. 02-25-00633-CV, 2026 WL
2130244, at *2–3 (Tex. App.—Fort Worth July 23, 2026, no pet. h.) (mem. op.)
(briefing waiver).
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We have reviewed the evidence in the light most favorable to the Association
and AHL, as the nonmovants, and we conclude that Carr Consulting conclusively
established that there is no genuine issue of material fact regarding the negligence and breach-of-implied-warranty claims that it challenged in its traditional summary judgment, and that it is entitled to judgment on these claims as a matter of law. TEX. R. CIV. P. 166a(c); Koopmann, 547 S.W.3d at 865. Moreover, the Association
and AHL did not carry their burden to raise a genuine issue of material fact that would preclude the grant of summary judgment in favor of Carr Consulting on those claims. Amedisys, 437 S.W.3d at 510–11. Therefore, the trial court did not err when it granted Carr Consulting’s motion for summary judgment on those claims.
Accordingly, we overrule the Association’s and AHL’s third issue.
IV. This Court’s Ruling
We reverse the judgment of the trial court with respect to its dismissal of the
Association’s and AHL’s breach-of-contract claim and the related attorney’s fees
that they prayed for, and we remand those matters to the trial court for further
proceedings consistent with this opinion. We affirm the judgment of the trial court in all other respects.
W. STACY TROTTER
JUSTICE
September 10, 2026
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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