TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00700-CV
Quintero Engineering, LLC, Appellant
v.
Amy Hendy; Sean Hendy; and Alethium Development, LLC d/b/a Alethium Homes,
Appellees
FROM THE 169TH DISTRICT COURT OF BELL COUNTY
NO. 23DCV339842, THE HONORABLE CARI L. STARRITT-BURNETT, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Quintero Engineering, LLC, defendant in the court below, appeals the
district court’s order denying its motion to dismiss the claims asserted against it by appellees
Amy Hendy and Sean Hendy, plaintiffs in the court below, and the cross-claim asserted against it
by appellee and co-defendant Alethium Development, LLC d/b/a Alethium Homes. The motion
to dismiss was based on Chapter 150 of the Civil Practice and Remedies Code, which requires
that a sworn “certificate of merit” accompany a complaint in any case “arising out of the
provision of professional services by a licensed or registered professional” named in the statute.
See Tex. Civ. Prac. & Rem. Code§ 150.002(a). In two issues on appeal, Quintero argues that the
district court erred in denying its motion to dismiss because (1) appellees failed to attach a
certificate of merit to their first-filed complaint and (2) the failure could not be cured by later
attaching a certificate of merit to an amended pleading. We agree with Quintero and will reverse
the district court’s order denying the motion to dismiss and remand the case to the district court.
BACKGROUND
According to the allegations in their petition, the Hendys owned property adjacent
to a housing development in Temple called “The Landing at Heritage Oaks.” The development,
which was built by Alethium, contained a retention pond that was designed, engineered, and / or
constructed by Quintero. The Hendys alleged that “[o]n or about July 12, 2021, after a
rainstorm,” their “land became flooded with water” from the retention pond and that since that
time, water from the retention pond had flooded their property on multiple occasions, “causing
extensive damage to their home, its foundation, land erosion, and foliage damage.” The Hendys
sued Alethium and Quintero for private nuisance, alleging that the flooding resulted in
substantial interference with the use and enjoyment of their property. The Hendys later filed a
first amended petition, a second amended petition, and a third amended petition. Meanwhile,
Alethium filed a cross-claim against Quintero for contribution.
Quintero filed a motion to dismiss the claims brought against it, arguing that
neither the Hendys nor Alethium had filed a certificate of merit regarding their claims against
Quintero. According to Quintero, the claims arose out of Quintero’s provision of professional
engineering services, which it argued brought the claims “squarely within the ambit of Texas’
certificate-of-merit statute.” Attached to Quintero’s motion was an affidavit by Pedro Quintero,
P.E., who averred the following:
I am a licensed professional engineer in the State of Texas (PE #111656) and have
been so licensed for over ten (10) years. I am a principal in Quintero
Engineering, LLC (“Quintero Engineering”), which is a firm that is registered
with the Texas Board of Professional Engineers and Land Surveyors as an
engineering firm (TBPELS Firm No. 14709) and as a Land Surveying firm
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(TBPELS Firm No. 10194110). Quintero Engineering employs licensed
professional engineers and registered land surveyors to provide engineering and
surveying services to its clients. Quintero Engineering maintains its principal
office in Killeen, Bell County, Texas. Quintero Engineering is, thus, engaged in
the practice of engineering and surveying in Texas.
Plaintiffs in the above matter have alleged that Quintero Engineering was
somehow responsible for off-site flooding from a subdivision project known
locally as The Landing at Heritage Oaks, which is located on West FM 93 near its
intersection with Boutwell Lane East, Temple, Texas (the “Project”). Plaintiffs
allege drainage from the Project caused damage to their property . . . .
Quintero Engineering was engaged by Alethium Development, LLC, to provide
professional land surveying and civil engineering services for the civil design and
staking of the Project. Specifically, the services that Quintero Engineering has
provided with respect to the Project relate to the site civil engineering, including
the design of a retention pond, the preparation of a plat, including related
surveying work, and construction inspection services, including preparation of
Site Observation Reports to monitor compliance with drawings. A true and
correct copy of the agreement between Quintero Engineering and Alethium
Development, LLC, signed on March 1, 2019 and March 2, 2019, respectively,
with additional services approved on August 16, 2019 (the “Contract”), is
attached hereto as Exhibit A-1. Pursuant to the Contract, and only to the
Contract, Quintero Engineering provided professional land surveying and civil
engineering services on the Project.
Those land surveying and engineering services were the only services that
Quintero Engineering provided for the Project. Quintero Engineering never
owned or possessed the land on which the Project was constructed, nor has
Quintero Engineering ever maintained the Project premises. The services
provided by Quintero Engineering for the Project were performed by or under the
direction of registered professional land surveyors and licensed engineers at
Quintero Engineering. Other than the professional land surveying and
engineering design work as set out above, Quintero Engineering has not
performed any other services for the Project. Quintero Engineering did not
perform any construction work nor has Quintero Engineering performed any
maintenance work for the Project.
Also attached to the motion were copies of the agreement between Quintero and Alethium and
Quintero’s proposal for the services it was to provide Alethium.
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Both the Hendys and Alethium filed responses in opposition to the motion to
dismiss. The Hendys argued that Quintero’s affidavit was insufficient to show that the
certificate-of-merit requirement was applicable to their claims. Alethium argued that because it
was not the plaintiff in the case, it was not required to file a certificate of merit.
The district court held a hearing on the motion, at the conclusion of which it took
the matter under advisement. Later that day, the district court made the following entry on its
docket sheet: “DENIED for now—will reconsider within 60 days if certificate of merit not
filed.” Approximately 60 days later, the Hendys filed their fourth amended petition, attaching
for the first time a certificate of merit. Alethium took no similar action on its cross-claim.
Quintero later filed a motion to enter judgment, requesting that the district court
either grant or deny the motion to dismiss with a written order. The district court held a hearing
on the motion and later signed its order denying the motion to dismiss. This interlocutory appeal
followed. See Tex. Civ. Prac. & Rem. Code § 150.002(f) (“An order granting or denying a
motion for dismissal is immediately appealable as an interlocutory order.”).
STANDARD OF REVIEW
We review a trial court’s ruling on a Section 150.002 motion to dismiss for abuse
of discretion. Jaster-Quintanilla & Assocs. v. Prouty, 549 S.W.3d 183, 187 (Tex. App.—Austin
2018, no pet.) (citing Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 520 S.W.3d
887, 889, 891 (Tex. 2017)). A trial court abuses its discretion when it acts without regard to any
guiding rules or principles or fails to correctly analyze or apply the law. Id. at 187-88.
To the extent that our resolution requires statutory construction, we apply a
de novo standard of review. Id. at 188. “The polestar of statutory construction is legislative
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intent, which we determine from the enacted language.” In re Texas Educ. Agency, 619 S.W.3d
679, 687 (Tex. 2021). “In doing so, we construe the Legislature’s chosen words and phrases
within the context and framework of the statute as a whole, not in isolation.” Id. “We apply the
plain meaning of statutory language unless (1) the Legislature has prescribed definitions, (2) the
words have acquired a technical or particular meaning, (3) a contrary intention is apparent from
the context, or (4) a plain-meaning construction leads to nonsensical or absurd results.” Id. “We
presume the Legislature knows the law and drafts statutes with care, choosing each word for a
purpose and purposefully omitting all other words.” Id. at 687-88.
DISCUSSION
Governing law
Section 150.002 of the Texas Civil Practice and Remedies Code requires a
claimant seeking damages against a licensed or registered professional to file a certificate of
merit with their complaint. Tex. Civ. Prac. & Rem. Code § 150.002(a). The certificate of merit
is an affidavit by a similarly licensed or registered professional “certifying the defendant’s
professional actions or omissions were negligent or otherwise erroneous and the factual basis for
such claims.” Melden & Hunt, Inc., 520 S.W.3d at 897; see Tex. Civ. Prac. & Rem. Code
§ 150.002(b). “Section 150.002 gives certain professionals, including licensed engineers, the
right to a professional certification that any complaint about their services has merit before any
litigation may be undertaken at all.” LaLonde v. Gosnell, 593 S.W.3d 212, 220 (Tex. 2019).
Accordingly, a claimant’s failure to file a certificate of merit in accordance with Section 150.002
“shall result in dismissal of the complaint against the defendant.” Tex. Civ. Prac. & Rem. Code
§ 150.002(e). “The right to dismissal under section 150.002 is clear and unequivocal.”
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LaLonde, 593 S.W.3d at 225 (Tex. 2019). “But dismissal for noncompliance with the
certificate-of-merit requirement may be with or without prejudice, a matter within the trial
court’s discretion.” Id.
Appellees were required to file a certificate of merit
In its first issue, Quintero argues that the Hendys were required to file a certificate
of merit with their petition and Alethium was required to file a certificate of merit with its
cross-claim. The Hendys assert in response that they were not required to file a certificate of
merit because Quintero failed to “demonstrate that it is a ‘licensed or registered professional’ as
defined in the certificate-of-merit statute” and failed to “provide competent evidence to support
its claim that Appellant provided professional services in relation to the Project.” Alethium has
not filed an appellee’s brief, but it argued in the court below that it was not required to file a
certificate of merit because it was not the plaintiff in the case.
We first address the Hendys’ argument that Quintero failed to establish the
applicability of the certificate-of-merit requirement. The certificate-of-merit requirement applies
“in any action or arbitration proceeding for damages arising out of the provision of professional
services by a licensed or registered professional.” Tex. Civ. Prac. & Rem. Code § 150.002(a).
The statute defines “licensed or registered professional” to include a “licensed professional
engineer” or “any firm in which such licensed or registered professional practices.” Id.
§ 150.001(1-c).
“To determine whether claims ‘aris[e] out of the provision of professional
[engineering] services’ within the meaning of Section 150.002(a), we look to the definition of the
practice of engineering in the Texas Occupations Code.” TDIndustries, Inc. v. Rivera,
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339 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The Texas Occupations
Code defines the “practice of engineering” as
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.
Tex. Occ. Code § 1001.003(b). This definition includes: “design, conceptual design, or
conceptual design coordination of engineering works or systems”; “development or optimization
of plans and specifications for engineering works or systems”; “planning the use or alteration of
land or water or the design or analysis of works or systems for the use or alteration of land or
water”; “engineering for construction, alteration, or repair of real property”; and “any other
professional service necessary for the planning, progress, or completion of an engineering
service.” Id. § 1001.003(b)(2), (3), (4), (7), (12).
Here, the Hendys alleged in their petition that their property became flooded with
water that originated from a retention pond located in Alethium’s development, “causing
extensive damage to their home, its foundation, land erosion, and foliage damage.” They further
alleged that Alethium hired Quintero “to design, engineer, and/or construct a retention pond” in
the development; that Alethium “intentionally and knowingly had a 3.15 acre lot located in [the]
subdivision surveyed to be a drainage tract”; that Quintero “intentionally and knowingly
surveyed the 3.15 acre lot, and subsequently drafted, created, and/or proposed a plat identifying
the 3.15 acre lot as a drainage tract”; that the defendants “had reasonable knowledge during the
surveying, creation, and/or construction of the retention pond that it would flood nearby
properties and/or subdivisions during periods of rainfall”; and that the defendants “had
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reasonable knowledge that all retention pond building materials manufactured and/or natural,
used in engineering, creating and/or constructing of the subdivision would become debris
expelling out during periods of rainfall.” These allegations establish that the Hendys’ claims
against Quintero are for damages arising out of the provision of professional engineering
services, specifically services related to the design, engineering, and construction of a retention
pond within the development. See Jennings, Hackler & Partners, Inc. v. North Tex. Mun. Water
Dist., 471 S.W.3d 577, 581 (Tex. App.—Dallas 2015, pet. denied).
Nevertheless, the Hendys contend that they were not required to file a certificate
of merit because Quintero failed to demonstrate that it is a ‘licensed or registered professional’ as
defined in the certificate-of-merit statute” and failed to “provide competent evidence to support
its claim that [Quintero] provided professional services in relation to” the development.
We disagree.
As summarized above, Quintero provided an affidavit in which Pedro Quintero, a
principal in the firm, averred that Quintero Engineering “is a firm that is registered with the
Texas Board of Professional Engineers and Land Surveyors as an engineering firm,” that it
“employs licensed professional engineers and registered land surveyors to provide engineering
and surveying services to its clients,” and that it is engaged in the practice of engineering and
surveying in Texas.” Pedro further averred that Quintero “was engaged by Alethium
Development, LLC, to provide professional land surveying and civil engineering services for the
civil design and staking of the” development and that those services “relate to the site civil
engineering, including the design of a retention pond, the preparation of a plat, including related
surveying work, and construction inspection services, including preparation of Site Observation
Reports to monitor compliance with drawings.” Quintero also attached a copy of its “short form
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agreement between owner and engineer for professional services,” which identified Alethium as
the owner and Quintero as the engineer. The agreement referenced a project proposal describing
“the proposed Engineer’s services,” which was also attached. The proposal was “to provide
professional civil engineering services” for the subdivision, and it included a summary of the
services Quintero would provide Alethium, including “preparing pre-development and
post-development drainage design, layouts, and a drainage report.” This evidence establishes
that Quintero is a firm in which licensed professional engineers practice and that it provided
professional engineering services in relation to the development project that was the subject of
the Hendys’ claims against Quintero. 1 Accordingly, the Hendys were required to attach a
certificate of merit to their petition, and the district court abused its discretion in
concluding otherwise.
1 As support for their contention that Quintero failed to establish that a certificate of merit was required, the Hendys rely on two unpublished opinions from the Dallas Court of Appeals, Superior Indus. vs. Kallus, No. 05-23-00219-CV at * l, 2024 WL 1089473 (Tex. App.—Dallas March 13, 2024, no pet.) (mem. op.) and TD Indus. Inc. v. My Three Sons, Ltd., No. 05-13-00861, 2014 WL 1022453 (Tex. App.—Dallas Feb. 14, 2014, no pet.) (mem. op.). Both cases are distinguishable. In Kallus, the defendant provided a list of the licensed professional engineers that it employed without describing how the engineers were engaged in the practice of engineering, particularly in relation to the product that was the subject of the lawsuit. 2024 WL 1089473, at *4-7. Here, in contrast, Quintero provided evidence that the firm “was engaged by Alethium Development, LLC, to provide professional land surveying and civil engineering services for the civil design and staking” of the development and described the engineering services that it provided to Alethium. In My Three Sons, the only evidence provided by the engineering firm was a printout of the Texas Board of Professional Engineers’ Firm Search results page and the website address of that page. 2014 WL 1022453, at *4. The firm’s evidence “show[ed] nothing respecting TDI’s asserted status as a licensed or registered professional pursuant to Chapter 150.” Id. Here, Quintero provided evidence that it was “registered with the Texas Board of Professional Engineers and Land Surveyors as an engineering firm (TBPELS Firm No. 14709),” that it “employs licensed professional engineers and registered land surveyors to provide engineering and surveying services to its clients,” and that it provided those services to Alethium relating to the development that was the subject of the lawsuit. In sum, Quintero provided evidence about the engineering services that the firm provided to Alethium and how those services related to the subject matter of the lawsuit, while the engineering firms in Kallus and My Three Sons failed to provide any such evidence.
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As for Alethium’s contention in the court below that it was not required to file a
certificate of merit because it is not the plaintiff in the case, that is no longer the law. Before
2019, the certificate-of-merit requirement expressly applied only to “plaintiffs.” See Act of
May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992 (amended 2019)
(current version at Tex. Civ. Prac. & Rem. Code § 150.002(a)). As a result, the Texas Supreme
Court held that “the certificate-of-merit requirement in section 150.002 of the Civil Practice and
Remedies Code applies to ‘the plaintiff’ who initiates an action for damages arising out of the
provision of professional services by a licensed or registered professional, and does not apply to
a defendant or third-party defendant who asserts such claims.” Jaster v. Comet II Constr., Inc.,
438 S.W.3d 556, 571 (Tex. 2014). The Legislature was dissatisfied with this result, and in 2019
it amended the statute, replacing “plaintiff” with “claimant,” so that any claimant is required to
file a certificate of merit in an action against a licensed or registered professional. See Act of
May 23, 2019, 86th Leg., R.S., ch. 661, § 2, 2019 Tex. Gen. Laws 1917, 1918 (codified at Tex.
Civ. Prac. & Rem. Code § 150.002(a)). Additionally, the statute defines “claimant” as “a party,
including a plaintiff or third-party plaintiff, seeking recovery for damages, contribution, or
indemnification,” Tex. Civ. Prac. & Rem. Code § 150.001(1-a), and a “complaint” as “any
petition or other pleading which, for the first time, raises a claim against a licensed or registered
professional for damages arising out of the provision of professional services by the licensed or
registered professional,” id. § 150.001(1-b) (emphasis added).
Here, Alethium filed a cross-claim seeking recovery from Quintero for
contribution based upon the Hendys’ claims against Quintero for its provision of professional
engineering services. Thus, Alethium is a claimant for purposes of Section 150.002, and it was
also required to file a certificate of merit. See Thompson Hancock Witte & Assocs., Inc.
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v. Stanley Spurling & Hamilton, Inc., 650 S.W.3d 741, 746-47 (Tex. App.—Houston [14th Dist.]
2022, no pet.) (“We conclude that when the Legislature amended the . . . statute to change
‘plaintiff’ to ‘claimant’ it intended to impose the certificate of merit filing requirement on any
party asserting a claim against a licensed professional covered by the statute.”). The district
court abused its discretion in concluding otherwise.
We sustain Quintero’s first issue.
The certificate of merit must be attached to the first-filed petition
The Hendys attached a certificate of merit to their fourth amended petition. In its
second issue, Quintero argues that this did not cure the Hendys’ failure to attach a certificate of
merit to their first-filed petition and thus that the district court was required to dismiss their
claims against Quintero. 2 We agree.
The Texas Supreme Court has held that the “failure to file a certificate of merit
with the original petition cannot be cured by amendment.” Crosstex Energy Servs., L.P. v. Pro
Plus, Inc., 430 S.W.3d 384, 395 (Tex. 2014); see also Studio E. Architecture & Interiors, Inc.
v. Lehmberg, 741 S.W.3d 67, 72 (Tex. 2026) (“[Plaintiff] did not attach a certificate of merit to
her original petition, so Section 150.002 required dismissal of ‘the complaint against the
defendant,’ i.e., dismissal of her claims against [defendant].” (citing Tex. Civ. Prac. & Rem.
Code § 150.002(e)); LaLonde, 593 S.W.3d at 220 (“By enabling defendants to quickly jettison
meritless lawsuits, the certificate-of-merit requirement saves parties the expense of protracted
litigation.”); Pedernal Energy, LLC v. Bruington Eng’g, Ltd., 536 S.W.3d 487, 494 (Tex. 2017)
(“[S]ection 150.002 requires dismissal if the plaintiff fails to file an affidavit contemporaneously
2 We note that in their appellees’ brief, the Hendys do not address this issue.
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with the complaint.”). Intermediate appellate courts have held similarly. See, e.g., TRW Eng’rs,
Inc. v. Hussion St. Bldgs., LLC, 608 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.] 2020, no
pet.) (concluding that trial court erred in denying motion to dismiss when plaintiff failed to attach
certificate of merit to its first-filed petition and explaining that “[t]he protections of section
150.002—enforced by a requirement that a plaintiff file an affidavit meeting specific
requirements at the time it files its action—are not mere technicalities” and that “a section
150.002(e) dismissal ‘is a sanction . . . to deter meritless claims and bring them quickly to an
end’” (quoting Pedernal Energy, 536 S.W.3d at 494)); Barron, Stark & Swift Consulting Eng’rs,
LP v. First Baptist Church, Vidor, 551 S.W.3d 320, 322 (Tex. App.—Beaumont 2018, no pet.)
(“Courts have consistently interpreted [Section 150.002] as requiring plaintiffs to file a
certificate of merit with a ‘first-filed petition’ as to the defendants in which a section 150.002
claim applies.”); Hydrotech Eng’g Inc. v. OMP Dev., LLC, 438 S.W.3d 895, 901-03 (Tex.
App.—Dallas 2014, pet. denied) (following Texas Supreme Court’s holding in Crosstex and
concluding that trial court erred in denying motion to dismiss because certificate of merit was not
timely filed and “the amended pleading did not remedy the failure to comply with the
contemporaneous filing requirement mandated by the statute”); Sharp Eng’g v. Luis, 321 S.W.3d
748, 752 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“We hold that section 150.002
requires a plaintiff to file a certificate of merit with the first-filed complaint asserting a
negligence claim against a professional.”); see also Carlson, Brigance & Doering, Inc.
v. Compton, No. 03-19-00954-CV, 2020 WL 7233612, at *4 (Tex. App.—Austin Dec. 8, 2020,
pet. denied) (mem. op.) (stating in dicta that “we agree that a plaintiff must file a certificate with
the first petition asserting claims subject to Chapter 150”). Following this precedent, we
conclude that the Hendys were required to file their certificate of merit with their first-filed
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petition and that because they failed to do so, the district court was required to grant Quintero’s
motion to dismiss.
We sustain Quintero’s second issue.
CONCLUSION
We reverse the district court’s order denying Quintero’s motion to dismiss and we
remand the case to the district court. In Quintero’s motion to enter judgment, it stated that in an
earlier letter to the court, it requested that the court sign an order granting its motion to dismiss
without prejudice. This is a matter within the discretion of the trial court. LaLonde, 593 S.W.3d
at 225. Accordingly, we 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); see also
Pedernal Energy, 536 S.W.3d at 494-96 (discussing factors trial courts can consider in
determining whether to dismiss with or without prejudice).
Gisela D. Triana, Justice
Before Justices Triana, Theofanis, and Crump
Reversed and Remanded
Filed: October 22, 2026
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