Encotech Engineering Consultants, Inc. v. Ian Miramon and Caroline Miramon

ACCEPTED
15-25-00173-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
11/19/2025 12:26 PM
NO. 15-25-00173-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
In the Fifteenth District Court of Appeals at Austin, Texas
15th COURT OF APPEALS
AUSTIN, TEXAS
11/19/2025 12:26:41 PM
Encotech Consulting Engineers, Inc. CHRISTOPHER A. PRINE
Appellant, Clerk

v.

Ian Miramon and Caroline Miramon,
Appellees.

Appeal from the 250th District Court, Travis County, Texas
The Hon. Laurie Eiserloh, Presiding Judge
Trial Court Cause No. D-1-GN-25-001130

BRIEF OF APPELLANT ENCOTECH CONSULTING ENGINEERS, INC.

M. BRANDON WADDELL (SBN: 24042106)
bwaddell@wslawpc.com
MICHELLE KOLEDI CONNER (SBN: 24072189)
mconner@wslawpc.com
NICHOLAS J. SCOTT (SBN: 24093965)
nscott@wslawpc.com
WADDELL SERAFINO GEARY
RECHNER JENEVEIN, P.C.
1717 Main Street, 25th Floor
Dallas, Texas 75201
(214) 979-7400 – Telephone
(214) 979-7402 – Facsimile
ATTORNEYS FOR APPELLANT
ENCOTECH CONSULTING ENGINEERS, INC.

ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL

Appellant Encotech Consulting Engineers, Inc.

Counsel: M. BRANDON WADDELL
bwaddell@wslawpc.com
MICHELLE KOLEDI CONNER
mconner@wslawpc.com
NICHOLAS J. SCOTT
nscott@wslawpc.com
WADDELL SERAFINO GEARY RECHNER
JENEVEIN, P.C.
1717 Main Street, 25th Floor
Dallas, Texas 75201
(214) 979-7400 – Telephone
(214) 979-7402 – Facsimile

Appellees Ian Miramon and Caroline Miramon

Counsel JOHN C. RAMSEY RICK FREEMAN
john@ramseylawpc.com rick@rickfreemanlaw.com
K. GRACE HOOTEN RICK FREEMAN, P.C.
grace@ramseylawpc.com 3660 Stoneridge Road, B-102
RAMSEY LAW GROUP Austin, Texas 78746
Woodway Tower (512) 477-6111 (Telephone)
6363 Woodway Drive, Suite 500 (512) 473-2131 (Facsimile)
Houston, Texas 77057
(713) 489-7577 (Telephone)
(888) 858-1457 (Facsimile)

VINCENT L. MARABLE III
tripp@paulwebbpc.com
PAUL WEBB, P.C.
Woodway Tower
221 N. Houston Street
Wharton, Texas 77488
(979) 532-5331 (Telephone)
(979) 532-2902 (Facsimile)

i
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ..................................................... I
TABLE OF CONTENTS ...................................................................................II
TABLE OF AUTHORITIES ........................................................................... III
STATEMENT REGARDING ORAL ARGUMENT .................................... VI
ISSUE PRESENTED ...........................................................................................2
STATEMENT OF THE CASE ...........................................................................3
STATEMENT OF FACTS ..................................................................................4
SUMMARY OF ARGUMENT......................................................................9
ARGUMENT....................................................................................................10
I. SECTION 150.002 MANDATES DISMISSAL DUE TO THE MIRAMONS’
FAILURE TO FILE A CERTIFICATE OF MERIT THAT SATISFIED THE
REQUIREMENTS OF THE STATUTE .......................................................10
A. Standard of Review .................................................................. 10
B. It is Undisputed that the Miramons were Required to File
the Mandatory Certificate of Merit with Their First-Filed
Petition Against Encotech. ...................................................... 11
C. The Miramons Failed to File a Certificate of Merit that
Satisfied the Requirements of the Section 150.002. .............. 12
i. Mr. Darville’s Collective Assertions of Negligence do
not Satisfy the Requirements of Section 150.002(b). .. 13
ii. The Holdings in T&T Engineering and Bratton
Require that the Miramons’ Claims against Encotech
be Dismissed. .................................................................. 16
iii. Mr. Darville does not Satisfy the Expert Qualification
Requirements of Sections 150.002(a) and (b). ............. 23
CONCLUSION AND PRAYER .......................................................................28
CERTIFICATE OF COMPLIANCE ..............................................................30
CERTIFICATE OF SERVICE ........................................................................30
APPENDIX A ...................................................................................................... A
APPENDIX B ...................................................................................................... B

ii
TABLE OF AUTHORITIES

Cases
AMEC Foster Wheeler USA Corp. v. Goats, No. 09-18-00477-CV, 2019 WL
3949466 (Tex. App.—Beaumont 2019, no pet.) ........................................10, 12
AMEC Foster Wheeler USA Corporation v. Maricelli, 2020 WL 3579567 (Tex.
App.—Beaumont 2020 no pet.) (mem. op.) .....................................................18
Barron, Stark & Swift Consulting Eng’rs, LP v. First Baptist Church, Vidor, 551
S.W.3d 320 (Tex. App.—Beaumont 2018, no pet.) .......................10, 21, 22, 23

Bratton v. Pastor, Behling & Wheeler, L.L.C., 2024 WL 1662391 (Tex. App.—
Houston [1st] 2024, review denied (Dec. 6, 2024) ...........................................20

Capital One v. Carter & Burgess, Inc., 344 S.W.3d 477 (Tex. App.—Fort Worth
2011, no pet.) ....................................................................................................10
Certain Underwriters at Lloyd’s of London Subscribing to Pol’y No.
NAJL05000016-H87 v. Mayse & Assocs., Inc., 635 S.W.3d 276 (Tex. App.—
Corpus Christi-Edinburg 2021, pet. denied) ....................................................25

Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014) ....12

DHM Design v. Morzak, 2015 WL 3823942 (Tex. App.—Dallas 2015, pet.
denied) ..............................................................................................................14
Fluor Enters., Inc. v. Maricelli, 2020 WL 2070257 (Tex. App.—Beaumont
2020, pet. denied) .............................................................................................14

James Deaver Servs. V. Mafrige, 2022 WL 4137305 (Tex. App.—Houston [1st
Dist.] 2022) .......................................................................................................15

Janis Smith Consulting, LLC v. Rosenberg, 2024 WL 4750757 (Tex. App.—
Austin 2024), pet. denied......................................................................26, 27, 28

LaLonde v. Gosnell, 593 S.W.3d 212 (Tex. 2019) ..............................................12
Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487 (Tex.
2017) .................................................................................................................25

iii
LJA Eng’g Inc. v. Santos, 652 S.W.3d 916 (Tex. App.—Houston [14th Dist.]
2022, no pet.) ....................................................................................................10

Macina, Bose, Copeland & Assocs. v. Yanez, 2017 WL 4837691 (Tex. App.—
Dallas 2017, pet. dism’d)......................................................................13, 14, 15

M-E Eng'rs, Inc. v. City of Temple, 365 S.W.3d 497 (Tex. App.—Austin 2012,
pet. denied) .......................................................................................................28

Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887
(Tex. 2017) .................................................................................................13, 25

Pedernal Energy, LLC v. Bruington Architecting, Ltd., 536 S.W.3d 487 (Tex.
2017) .................................................................................................................12

Pipkins v. LaBiche Architectural Grp., Inc., 661 S.W.3d 842 (Tex. App.—
Beaumont 2022) ...............................................................................................10
Res. Planning Assocs., LLC v. Se Scout Base Galveston & Point Glass, LLC,
2021 WL 1375797 (Tex. App.—Houston [1st Dist.] 2021, pet. denied) (mem.
op.) ..............................................................................................................14, 17

Robert Navarro & Assocs. Eng’g., Inc. v Flowers Baking Co. of El Paso, LLC,
389 S.W.3d 475 (Tex. App.—El Paso 2012, no pet) .......................................13

T&T Engineering Services, Inc. v. Danks, 2022 WL 3588718 (Tex. App.—
Houston [1st Dist] 2022) .......................................................................... passim
Statutes

Texas Civil Practice and Remedies Code § 150.001(1-c) ...................................12

Texas Civil Practice and Remedies Code § 150.002(a) .............................. passim

Texas Civil Practice and Remedies Code § 150.002(b) .............................. passim

Texas Civil Practice and Remedies Code § 150.002(c) ........................................3

Texas Civil Practice and Remedies Code § 150.002(e) ........................3, 9, 12, 29

iv
ABBREVIATIONS AND TERMS

“CR” will refer to the 1 Volume Clerk’s Record, filed October 10, 2025.

“RR” will refer to the Reporter’s Record, filed October 3, 2025.

“Appellant” or “Encotech” will refer to Appellant Encotech Consulting
Engineers, Inc.

“Appellees” or the “Miramons” will refer to Appellees Ian Miramon and Caroline
Miramon, collectively.

“Mr. Miramon” will refer to Appellee Ian Miramon, individually.

v
STATEMENT REGARDING ORAL ARGUMENT

Encotech does not request oral argument as it does not believe oral

argument will assist the Court in its decisional process in this appeal. The issues,

which involve the mandatory requirements of Texas Civil Practice & Remedies

Code §§ 150.002(a) and (b), are straightforward and can be adequately presented

in the briefs and record.

vi
NO. 15-25-00173-CV

In the Fifteenth District Court of Appeals at Austin, Texas

Encotech Consulting Engineers, Inc.
Appellant,

v.

Ian Miramon and Caroline Miramon,
Appellees.

Appeal from the 250th District Court, Travis County, Texas
The Hon. Laurie Eiserloh, Presiding Judge
Trial Court Cause No. D-1-GN-25-001130

BRIEF OF APPELLANT ENCOTECH CONSULTING ENGINEERS, INC.

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW, Appellant Encotech, and files this, its Appellant Brief.

1
ISSUE PRESENTED

1. Did the trial court abuse its discretion in denying Encotech’s Motion to
Dismiss filed pursuant to Texas Civil Practice and Remedies Code §
150.002(e) when the Certificate of Merit submitted by the Miramons failed
to satisfy the mandatory requirements of Texas Civil Practice and Remedies
Code §§ 150.002(a) and (b)?

2
STATEMENT OF THE CASE

Nature of the Case: Lawsuit filed by the Miramons claiming injuries
resulting from the negligence and gross negligence
of multiple defendants, including an initial global
allegation that five different defendants failed to
perform professional engineering services consistent
with the applicable standard of care. 1

Course of Proceedings: On February 12, 2025, the Miramons filed their
Original Petition—its first-filed pleading against
Encotech. The Miramons’ pleading failed to
incorporate a Certificate of Merit that complied with
the mandatory requirements of Texas Civil Practice
and Remedies Code § 150.002. 2,3 Instead, the
Miramons submitted a Certificate making collective
assertions of negligence against five (5) parties,
made by a consulting engineer not actively engaged
in the practice of MEP engineering design services.4
On August 11, 2025, Encotech moved for dismissal
pursuant to Texas Civil Practice and Remedies Code
§ 150.002(e), due to the Miramons failure to comply
with § 150,002(b).5 The Miramons’ response was
filed on August 21, 2025, and the Motion was heard
by the trial court on August 26, 2025.6
Trial Court Disposition: On September 10, 2025, the trial court entered its
Order denying Encotech’s Motion to Dismiss. 7

1
CR at 12, 56, 100.
2
See generally, CR at 9-52.
3
A copy of the full-text of Texas Civil Practice and Remedies Code § 150.002 is attached at
Appendix Tab B.
4
See, e.g., CR at 144-51. The Miramons have resubmitted the same Certificate multiple times
since commencing their suit, removing three (3) parties and adding four (4) additional parties,
without any change to the collective assertions of negligence. See, e.g. CR 48-55, 70-78, and 95-
103.
5
CR at 239-75.
6
CR at 281-313.
7
CR at 363. A copy of the Order is attached at Appendix Tab A.
3
STATEMENT OF FACTS

1. Background.

The Miramons’ claims arise out of alleged injuries sustained by the Miramons

in connection with the design and construction of the Austin Fire Station located at

5410 US-290, Austin, Texas 78749 (the “Project”). 8 According to the Miramons,

on June 17, 2023, Mr. Miramon was working at the Project, which was not his usual

fire station.9 Further, the Miramons allege that Mr. Miramon was struck by a blade

of an industrial-sized ceiling fan while performing an inspection of a fire truck at the

Project, which knocked him off the top of the fire truck to the ground below.10 The

Miramons contend Mr. Miramon suffered personal injuries as a result of this

incident.11

The Miramons’ Original Petition named six (6) defendants, including

Encotech, and asserted collective allegations that the defendants breached their duty

of ordinary care to the Miramons through negligent design, installation,

construction, inspection, and other acts discovered that are deemed negligent and/or

grossly negligent.12 The Miramons attached a Certificate of Merit of Shane M.

Darville, P.E. to their Original Petition. 13

8
CR at 9, 239.
9
CR at 9.
10
Id.
11
CR at 9-10.
12
CR at 10-12.
13
CR at 11 and 18-24.
4
2. Mr. Darville’s Deficient Certificate of Merit.

In Mr. Darville’s Certificate of Merit, he includes a list of five (5) engineering

firms, including Encotech, that he contends “are known or reasonably believed to

have worked upon the design and/or construction of [the Project],” which,

throughout the remainder of the Certificate, “are collectively referred to as ‘The

relevant party(ies).’”14 Mr. Darville makes at least the following assertions regarding

the relevant parties:

- “the relevant parties must take into consideration the presence of the
apparatus in the bay, as well as the knowledge of its utility and required
maintenance, and must therefore design and install the fan at sufficient
clearance for Austin Fire Department personnel to safely and properly
perform their required maintenance and inspections of the apparatus.”15

- “As licensed engineers, the relevant parties failed to design [the
Project] in a safe condition (specifically regarding placement of the
subject ceiling fan), failed to install the ceiling fan at issue in a safe
manner and location, failed to construct [the Project] in a safe manner
(specifically regarding placement of the subject ceiling fan), failed to
adequately inspect [the Project] for dangerous/hazardous conditions,
failed to adequately warn of any such dangerous/hazardous conditions,
failed to remedy and/or retrofit any dangerous/hazardous conditions
that they created/discovered, and/or violated applicable government
regulations, laws, rules and/or industry standards.”16

- “the relevant parties failed to exercise reasonable care as well as meet
the standard of care for licensed engineers for the reasons articulated
herein where work was performed by a licensed engineer.” 17

14
CR at 19.
15
Id. (emphasis added).
16
CR at 20. (emphasis added).
17
Id. (emphasis added).
5
Mr. Darville’s Certificate of Merit does not identify which “relevant party”

was responsible for performing any of these alleged duties or which allegedly failed

to do so.18 Moreover, Mr. Darville’s Certificate of Merit provides no distinction

between any of the “relevant parties,” including, but not limited, to what scopes and

services each allegedly performed or the purported specific act(s), error(s), or

omission(s) of each related to each of the Miramons’ theories of recovery for

damages. 19

Mr. Darville’s curriculum vitae, attached to his Certificate of Merit, provides

no detail indicating he is actively engaged in the practice of engineering, nor that he

is actively engaged in the practice of providing mechanical, electrical, and plumbing

(“MEP”) engineering design services.20 Instead, Mr. Darville’s curriculum vitae

details that his experience is instead in failure analysis and litigation support. 21

Since filing their Original Petition, the Miramons have amended their

pleading three times and named eighteen (18) distinct defendants.22 The Miramons

have also filed a new Certificate of Merit with each amended petition, listing an

additional four (4) engineering firms subsumed into the same collective referred to

18
CR at 18-24
19
Id.
20
CR 21-24
21
Id.
22
CR 35-47, 56-69, 81-94.
6
as “The relevant party(ies).”23 In each new Certificate of Merit, Mr. Darville made

no substantive changes to his collective assertions of negligence. 24

3. Encotech’s Motion to Dismiss

Encotech filed a Motion to Dismiss with Prejudice (the “Motion to Dismiss”)

the Miramons’ claims against them because the Miramons’ Certificate of Merit

failed to satisfy the mandatory requirements of Section 150.002.25 The Motion to

Dismiss argued that the Certificate of Merit was deficient because 1) Mr. Darville

was not actively engaged in the practice of engineering; 2) failed to specify

Encotech’s act(s), error(s), and omission(s) and the factual basis for same, instead

making collective assertions of negligence; and 3) failed to identify which party(ies)

failed to exercise reasonable care and failed to meet the standard of care for a

licensed engineer. 26

In the Miramons’ response, they claimed that Encotech’s arguments regarding

1) Mr. Darville’s insufficient qualifications; and 2) collective assertions of

negligence that failed to identify any specific acts or omissions of Encotech were

without merit.27

23
CR 48-55, 70-78, 95-103.
24
Id.
25
CR 239-75.
26
Id.
27
See, generally, CR 281-313.
7
After an oral hearing on Encotech’s Motion to Dismiss, the trial court entered

an order denying the Motion.28 Encotech timely filed its Notice of Interlocutory

Appeal as to the trial court’s order and this appeal followed.29

28
See App’x Tab A; see also CR at 363.
29
CR 370-71.
8
SUMMARY OF ARGUMENT

The trial court abused its discretion in denying Encotech’s Motion to Dismiss

pursuant to Texas Civil Practice and Remedies Code § 150.002.

Section 150.002(e) mandates dismissal of the Miramons’ claims against

Encotech because the Miramons failed to file a Certificate of Merit that satisfied the

requirements of Section 150.002. Instead, the Miramons filed a Certificate of Merit

prepared by Shane M. Darville, P.E., which lumped all defendants together and

stated collective assertions of negligence that failed to identify any specific act(s),

error(s), or omissions of Encotech, as required to comply with Section 150.002(b).

Additionally, Mr. Darville lacked sufficient qualifications to satisfy the requirements

of Section 150.002(a) and (b). Each of these distinct issues results in a Certificate of

Merit that does not comply with the mandatory requirements of Section 150.002.

The trial court lacked discretion to deny Encotech’s Motion to Dismiss as

Section 150.002(e) mandates dismissal for the failure to file a Certificate of Merit

compliant with all requirements of Section 150.002.

Encotech requests that the Court reverse and render judgment dismissing the

Miramons’ claims against Encotech as mandated by Texas Civil Practice and

Remedies Code § 150.002(e), with a remand for the trial court to determine whether

the dismissal is with or without prejudice.

9
ARGUMENT

Section 150.002 Mandates Dismissal Due to the Miramons’ Failure to File a
Certificate of Merit that Satisfied the Requirements of the Statute

Issue Presented (Restated):

Did the trial court abuse its discretion in denying Encotech’s Motion to
Dismiss filed pursuant to Texas Civil Practice and Remedies Code §
150.002(e) when the Certificate of Merit submitted by the Miramons failed
to satisfy the mandatory requirements of Texas Civil Practice and Remedies
Code §§ 150.002(a) and (b)?

A. Standard of Review

A court reviews the denial of a motion to dismiss pursuant to Texas Civil

Practice and Remedies Code § 150.002 for an abuse of discretion. 30 “If a trial court

acts arbitrarily or unreasonably, without reference to any guiding rules or principles,

it constitutes an abuse of discretion.”31 “A court [also] abuses its discretion if it fails

to analyze or apply the law correctly.”32 Application of the law to undisputed facts

is a question of law that the Court reviews de novo.33

30
Pipkins v. LaBiche Architectural Grp., Inc., 661 S.W.3d 842, 849 (Tex. App.—Beaumont 2022);
AMEC Foster Wheeler USA Corp. v. Goats, No. 09-18-00477-CV, 2019 WL 3949466, at *2 (Tex.
App.—Beaumont 2019, no pet.); Barron, Stark & Swift Consulting Eng’rs, LP v. First Baptist
Church, Vidor, 551 S.W.3d 320, 322 (Tex. App.—Beaumont 2018, no pet.) (citing Capital One v.
Carter & Burgess, Inc., 344 S.W.3d 477, 479 (Tex. App.—Fort Worth 2011, no pet.)).
31
Pipkins, 661 S.W.3d at 849.
32
AMEC, 2019 WL 3949466, at *2.
33
E.g., LJA Eng’g Inc. v. Santos, 652 S.W.3d 916, 919 (Tex. App.—Houston [14th Dist.] 2022,
no pet.).
10
B. It is Undisputed that the Miramons were Required to File the
Mandatory Certificate of Merit with Their First-Filed Petition
Against Encotech.
There is no dispute that Chapter 150 of the Texas Civil Practice and Remedies

Code is applicable to the Miramons’ claims against Encotech. Pursuant to Section

150.002:

(a) …in any action or arbitration proceeding for damages arising
out of the provision of professional services by a licensed or
registered professional, a claimant shall be required to file with
the complaint an affidavit of a third-party…licensed
professional engineer…who:
(1) is competent to testify;
(2) holds the same professional license…as the defendant;
and
(3) practices in the area of practice of the defendant and
offers testimony based on the person's:
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
(F) practice.”

(b) 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…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. The…licensed professional engineer…shall be
licensed… in this state and actively engaged in the practice of
…engineering….

11
(e) A claimant's failure to file the affidavit in accordance with
this section shall result in dismissal of the complaint against the
defendant. This dismissal may be with prejudice.34

The affidavit—commonly referred to as “Certificate of Merit”—must be filed with

the first petition filed against the licensed professional engineer. 35 The term

“licensed or registered professional” includes licensed professional engineers and

firms in which licensed professional engineers practice. 36 It is undisputed that

Encotech is a professional engineering firm and that it provided MEP engineering

design services for the Project. 37

C. The Miramons Failed to File a Certificate of Merit that Satisfied
the Requirements of the Section 150.002.

The Certificate of Merit of Shane M. Darville, P.E., filed by the Miramons

with their first-filed petition against Encotech, does not satisfy the requirements of

Section 150.002. First, Mr. Darville’s Certificate of Merit lumped all of the

defendants together and stated collective assertion of negligence that failed to

identify the specific act(s), error(s), and omission(s) of Encotech and their factual

34
Tex. Civ. Prac. and Rem. Code § 150.002(a), (b), and (e) (emphasis added).
35
See, e.g., Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 395 (Tex. 2014);
LaLonde v. Gosnell, 593 S.W.3d 212, 218 (Tex. 2019) (describing the Certificate of Merit
requirement as “mandatory”); AMEC, 2019 WL 3949466, at *3 (Certificate of Merit must be filed
with “the first-filed complaint”); Pedernal Energy, LLC v. Bruington Architecting, Ltd., 536
S.W.3d 487, 494 (Tex. 2017) (“section 150.002 requires dismissal if the plaintiff fails to file an
affidavit contemporaneously with the complaint”).
36
Tex. Civ. Prac. and Rem. Code § 150.001(1-c).
37
CR at 241.
12
basis, as required by Section 150.002(b). Second, Mr. Darville lacked sufficient

qualifications to satisfy the requirements of Sections 150.002(a) and (b).

Each of these distinct issues results in a Certificate of Merit that does not

comply with the requirements of Section 150.002, and thus, the trial court was

required to dismiss the Miramons’ suit against Encotech. The trial court abused its

discretion when it denied Encotech’s Motion to Dismiss.

i. Mr. Darville’s Collective Assertions of Negligence do not
Satisfy the Requirements of Section 150.002(b).

Section 150.002(b) requires the third-party licensed engineer completing a

certificate of merit to “attest to the defendant’s professional errors or omissions and

their factual basis.”38 The certificate of merit:

“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…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.”39
Section 150.002(b) does not allow for “collective assertions of negligence” to

satisfy the certificate of merit requirements.40 Instead of collective assertions of

negligence, the certificate of merit must specifically address “the conduct of the

38
See Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 896 (Tex. 2017).
39
Tex. Civ. Prac. and Rem. Code § 150.002(b) (emphasis added).
40
See T&T Engineering Services, Inc. v. Danks, 2022 WL 3588718, at *7 (Tex. App.—Houston
[1st Dist] 2022); see also Robert Navarro & Assocs. Eng’g., Inc. v Flowers Baking Co. of El Paso,
LLC, 389 S.W.3d 475, 482 (Tex. App.—El Paso 2012, no pet); Macina, Bose, Copeland & Assocs.
v. Yanez, 2017 WL 4837691, at *7-8 (Tex. App.—Dallas 2017, pet. dism’d).
13
professional who provided the service at issue, and the certificate must identify each

defendant and that defendant’s specific conduct.”41 Dismissal is appropriate where

claims are asserted against a collective group of defendants and a Certificate of Merit

fails to distinguish between the acts, errors, and omissions of each defendant. 42

Texas appellate courts have further held that it “cannot be presumed that

anytime two defendants are accused of similar conduct that valid claims exist against

both of them—if such claims indeed exist, the expert must actually say so.” 43 In

cases involving multiple defendants, the court must be able to “determine which acts

or omissions should be ascribed to which company, or the certificate of merit should

opine that both companies were involved in all aspects of the work.”44 When a

certificate of merit “lumps defendants together” and lists the allegations without any

attribution to a particular defendant or even identifying the various scopes of services

at issue, and otherwise makes no statement that all defendants were involved in all

aspects of the work, the certificate of merit is determined to be deficient. 45

41
See Fluor Enters., Inc. v. Maricelli, 2020 WL 2070257, at *5 (Tex. App.—Beaumont 2020, pet.
denied) (emphasis added); see also DHM Design v. Morzak, 2015 WL 3823942, at *3 (Tex.
App.—Dallas 2015, pet. denied) (plain language of statute requires the Certificate of Merit to
speak to the conduct of the professional who provided the service at issue in the theory of
recovery)(emphasis added).
42
See T&T, 2022 WL 3588718, at *7.
43
See Macina, 2017 WL 4837691, at *6 (emphasis added); see also Res. Planning Assocs., LLC
v. Se Scout Base Galveston & Point Glass, LLC, 2021 WL 1375797, at *16-17 (Tex. App.—
Houston [1st Dist.] 2021, pet. denied) (mem. op.).
44
See Macina, 2017 WL 4837691, at *6 (emphasis added).
45
See James Deaver Servs. V. Mafrige, 2022 WL 4137305 (Tex. App.—Houston [1st Dist.] 2022).
14
Here, Mr. Darville begins his assertions by listing a collective group of five

(5) engineering firms, including Encotech, that he contends “are known or

reasonably believed to have worked upon the design and/or construction of [the

Project].” 46 Mr. Darville immediately lumps these defendants together, which “are

collectively referred to as “The relevant party(ies)” throughout the remainder of his

Certificate of Merit.47 Despite lumping the “relevant parties” together into a group,

Mr. Darville makes no contention that all of the “relevant parties” were involved in

all aspects of the professional services or work at issue, nor does he make any effort

to differentiate or identify which acts or omission should be ascribed to each of the

“relevant parties.” A certificate of merit making collective assertions of negligence

as discussed above fails to satisfy the requirements of Section 150.002(b).48

Therefore, the trial court abused its discretion in denying Encotech’s Motion

to Dismiss the Miramons’ claims against Encotech.

46
CR at 19.
47
CR at 18-24.
48
Interestingly, Mr. Darville has subsequently updated his Certificate of Merit twice in conjunction
with the Miramons’ amended pleadings, continuing to make the same collective assertions of
negligence while adding and removing various engineering firms from his collective reference to
“The relevant party(ies). While subsequent Certificates of Merit prepared by Mr. Darville do not
supplant the Certificate of Merit attached to the Miramons’ first-filed petition, the simple fact that
Mr. Darville relies upon the exact same fact narrative against nine (9) different engineering firms,
some of which have now been removed by this action without any change to his collective
assertions of negligence gives greater credence to the requirements of Section 150.002(b) that are
entirely ignored in Mr. Darville’s Certificate of Merit(s). See, e.g. CR 18-24, 48-55, 70-78, and
95-103.
15
ii. The Holdings in T&T Engineering and Bratton Require that
the Miramons’ Claims against Encotech be Dismissed.
The Miramons contend that various holdings require a different result when

considering the issue of “collective assertions of negligence.” However, each

supports dismissal of the Miramons’ claims against Encotech. First, the T&T

Engineering matter, which involved injuries suffered by a plaintiff while working

on a drilling rig that was allegedly designed, fabricated, or manufactured by

defendants T&T Engineering Services, Inc. (“T&T Engineering”) and Basic

Equipment.49 The plaintiff was injured while operating drilling pipes on the derrick

board of the rig.50 T&T Engineering moved to dismiss the plaintiff’s claims on the

basis that plaintiff’s certificate of merit did not comply with the requirements of

Section 150.002.51 In particular, T&T Engineering argued that the plaintiff’s

certificate of merit “did not establish a factual basis for each claim asserted against

it,” but rather, “was ‘conclusory in its allegations all the while failing to identify

which actions were committed by which defendant.’” 52 The trial court denied T&T

Engineering’s motion to dismiss.53

On appeal, the Court of Appeals acknowledged that, despite there being

multiple defendants in the case, “the certificate of merit did not specifically state the

49
T&T Engineering, 2022 WL 3588718.
50
Id., at *1.
51
Id., at *2.
52
Id.
53
Id.
16
alleged negligence of T&T Engineering as opposed to that of Basic Equipment,” and

that it “also did not expressly state that both T&T Engineering and Basic Equipment

were involved in all aspects of the work performed.” 54,55 As a result, “[t]here

was…no way for the trial court to determine, based on the certificate of merit, ‘which

acts or omissions should be ascribed to which company.’” 56,57

However, the Court of Appeals determined that a post-hearing brief filed by

T&T Engineering disrupted this analysis. 58 In the post-hearing brief T&T

Engineering expressly acknowledged that it had fabricated and designed the rig and

54
Id., at *8.
55
The Miramons also cite to Res. Planning Assocs., 2021 WL 1375797, in their response to
Encotech’s Motion to Dismiss. However, as noted by the Miramons, in that matter the certificate
of merit included an express statement that the expert was unaware of the division of
responsibilities between two architectural firms named as defendants, and that the expert indicated
that each of the architectural firms “were involved in all aspects of the work and in the errors and
omissions he outlined.” See CR 303-04. This opinion is irrelevant here, as Mr. Darville’s
Certificate of Merit includes neither of those statements. See CR 18-24.
56
Id., at *8.
57
The Miramons also cite to AMEC Foster Wheeler USA Corporation v. Maricelli, 2020 WL
3579567 (Tex. App.—Beaumont 2020 no pet.) (mem. op.) in their response to Encotech’s Motion
to Dismiss. However, as made clear in the Miramons nearly full page excerpt from that holding,
the expert that prepared the certificate of merit at issue in Maricelli specially identified the
engineering roles of the engineering defendants—Foster Wheeler (technology licensee) and Fluor
(front-end engineering and design and construction)—and states that each were involved in the
engineering and design and “failed to identify the piping hazard.” See CR 302-03. This opinion is
irrelevant here, As Mr. Darville’s Certificate of Merit does not identify the engineering roles of
any of the five (5) engineering firms (or of the four (4) additional firms later added without any
adjustment to his collective assertions), and does not identify how any of “The relevant party(ies)”
were involved in designing the location, placement, and/or installation of the subject ceiling fan at
issue. See CR 18-24.
58
Id., at *9.
17
derrick board at issue and attached its signed schematics for the derrick board where

the injury occurred, which was the subject of the certificate of merit in question.59

As a result, the Court of Appeals determined that T&T Engineering had

“unequivocally acknowledged in the record before the trial court that it had designed

the drilling rig and the derrick board at issue in [the] case.”60 Relying upon this

unique procedural circumstance and affirmative evidence presented by T&T

Engineering, the Court determined that the certificate of merit provided a sufficient

basis for its conclusion. 61

The result in T&T Engineering requires dismissal under the circumstances of

this matter. Like the certificate of merit prepared in T&T Engineering, Mr. Darville’s

Certificate of Merit asserts collective allegations that do not specifically state, or

even attempt to state, the alleged negligence of Encotech as opposed to that of any

of the other four (4) engineering firms lumped into Mr. Darville’s “relevant parties”

collective. 62 Likewise, Mr. Darville did not expressly state that both Encotech and

each of the other four (4) engineering firms were involved in all aspects of the work

performed.63 And importantly, unlike the unique procedural circumstances of the

post-hearing brief in T&T Engineering, Encotech has made no submission of any

59
Id.
60
Id.
61
Id., at *9-10.
62
CR 18-24.
63
Id.
18
kind, whether before, during, or following the hearing on Encotech’s Motion to

Dismiss, that it designed the location, placement, and/or installation of the subject

ceiling fan at issue in this matter and which is the subject of Mr. Darville’s

Certificate of Merit. 64

Therefore, consistent with the Court of Appeals’ determination in T&T

Engineering, “[t]here was…no way for the trial court [hearing Encotech’s Motion

to Dismiss] to determine, based on the certificate of merit, ‘which acts or omissions

should be ascribed to which company.’”65 Thus, Mr. Darville’s Certificate of Merit

failed to satisfy the requirements of Section 150.002(b).

Second, the Miramons reference Bratton, which likewise supports dismissal

of the Miramons’ claims against Encotech. 66 As evident from the Miramons’ direct

excerpt of over one-and-a-half pages of the opinion into the body of their response

to Encotech’s Motion to Dismiss, the Bratton decision relied heavily upon the

holding in T&T Engineering. 67 In Bratton, the plaintiffs suffered injuries resulting

from alleged exposure to chemicals stored at a railyard.68 Plaintiffs sued multiple

parties, including Pastor, Behling & Wheeler (“PBW”) and Environmental

Resources Management Southwest Inc. (“ERM”), who were alleged to be

64
See, e.g., CR 239-75, 354-58; RR 31:1-12.
65
T&T Engineering, 2022 WL 3588718, at *8.
66
Bratton v. Pastor, Behling & Wheeler, L.L.C., 2024 WL 1662391 (Tex. App.—Houston [1st]
2024, review denied (Dec. 6, 2024).
67
CR 298-300.
68
Id., at *2.
19
“consulting geologists” for the railyard that ”failed to properly test, remediate,

and/or warn of the real risks of creosote exposure.”69 ERM and PBW moved to

dismiss the plaintiffs’ certificate of merit on several bases, including because it

“made collective assertions of negligence by ERM and PBW, rather than separating

the errors and omissions attributable to ERM from those attributable to PBW.”70

After hearing, the trial court granted PWB and ERM’s motions to dismiss.71

On appeal, the Court of Appeals reversed and remanded, specifically relying

upon its earlier opinion in T&T Engineering.72 The Court of Appeal explained that,

in T&T Engineering, the certificate of merit at issue had:

grouped both defendants together and attributed the alleged
failures in the design and installation of the derrick board to both
defendants without stating which defendant was responsible for
which acts or omissions, or if they were both responsible for all
acts and omissions. There was, therefore, no way for the trial
court to determine, based on the face of the certificate of merit,
“which acts or omissions should be ascribed to which
company.”

We noted, however, that “T&T Engineering [had] unequivocally
acknowledged in the record before the trial court that it [had]
designed the drilling rig and the derrick board” the plaintiff's
expert opined was defective, and that the certificate of merit
identified the “alleged flaw[s] in the design of the drilling rig.”73

69
Id.
70
Id., at *4.
71
Id.
72
Id., at *9.
73
Id. (internal citations omitted).
20
Thus, as a direct result of T&T Engineering’s statements in its post-hearing brief at

the trial court level, the Court of Appeals had determined the certificate of merit to

be sufficient under Section 150.002(b).74

The Court of Appeals applied this same rubric to ERM and PBW, each of

which had included extensive allegations regarding their specific scopes of services

for the railyard in their respective motions to dismiss.75 For example, ERM described

that it “was regularly engaged in the practice of environmental engineering and was

required to exercise its employees’ engineering education, training, and experience

to perform tasks necessary” to the permit for the railway, including, specifically: 76

- “sampling, analysis, and delineation of specified constituents of
concern;“ 77
- “analysis related to the conceptual site model;” 78
- “evaluation of exposure pathways or lack thereof;” 79
- “design of remedial action;” 80
- “and the like. 81

Similarly, PWB’s motion to dismiss detailed its specific engineering services for the

railway, including performance of studies using software similar to those identified

74
Id. (citing T&T Engineering, 2022 WL 3588718, at *10).
75
Id.
76
Id.
77
Id.
78
Id.
79
Id.
80
Id.
81
Id.
21
in the certificate of merit, and other engineering tasks it argued were contrary to the

assertions made in the certificate of merit, including: 82

- frequent updates as hydrogeologic data became available; 83
- detailed investigations of the railyard; 84
- reporting of results to TCEQ;85
- collecting DNAPL samples to evaluate characteristics of the
NAPL at the railyard; 86 and
- reporting of comprehensive NAPL investigation that it had
conduced at the railyard.87

PWB argued that this extensive information was available for review when the

plaintiffs’ certificate of merit was prepared.88 As a result of ERM and PBW’s

extensive descriptions of their engineering services relative to the plaintiffs’

certificate of merit, just as in T&T Engineering, the Court of Appeals determined

that “the record reflect[ed that] ERM and PBW both acknowledge[d] in their

motions to dismiss that they were responsible for one or more aspects of the

remediation project” actually addressed and criticized in the certificate of merit. 89

Much like the holding in T&T Engineering, the holding in Bratton requires

dismissal under the circumstances of this matter. As previously stated, and as is clear

in the record, there is no dispute that Encotech provided MEP engineering design

82
Id., at *10.
83
Id.
84
Id.
85
Id.
86
Id.
87
Id.
88
Id.
89
Id.
22
services for the Project.90 However, nothing in the record alleges that Encotech

designed the location, placement, and/or installation of the subject ceiling fan at

issue in this matter that is the subject of Mr. Darville’s Certificate of Merit. 91 In stark

contrast to ERM and PBW’s extensive additions to the record in Bratton, the record

here does not reflect that Encotech had any responsibility for any of the allegations

made in Mr. Darville’s collective assertions of negligence against five (5)

engineering firms (and later, four (4) additional engineering firms without any

adjustment to the substance of his global assertions). 92

Given Mr. Darville’s Certificate of Merit provided no way for the trial court

to determine what, if any, of the acts or omissions discussed therein should be

ascribed to Encotech, the Certificate of Merit failed to satisfy the requirements of

Section 150.002(b).

Therefore, the trial court abused its discretion in denying Encotech’s Motion

to Dismiss the Miramons’ claims against Encotech.

iii. Mr. Darville does not Satisfy the Expert Qualification
Requirements of Sections 150.002(a) and (b).
This Court need not look beyond Mr. Darville’s collective assertions of

negligence to determine his Certificate of Merit fails to satisfy the express

requirements of Section 150.002(b). However, a separate but similarly dispositive

90
CR at 241.
91
See, e.g., CR 239-75, 354-58, RR 31:1-12.
92
See CR 18-24, 48-55, 70-78, and 95-103.
23
issue is that Mr. Darville’s fails to satisfy the expert qualifications requirements of

Sections 150.002(a) and (b).

Sections 150.002(a) and (b) require that the third-party licensed engineer

completing a certificate of merit “practice in the area of practice of the defendant”

and that they be “actively engaged in the practice of …engineering.”93 The Supreme

Court of Texas has concluded that “area of practice” as used in the statute does not

mean “the defendant’s general area of practice,” rather, it is “construe[d]…as the

practice area at issue in the litigation.”94 The Supreme Court of Texas found

“consideration of the ‘practice area at issue’ necessary.” 95

Here, there is no dispute that Encotech’s area of practice is MEP engineering

design services. 96 Mr. Darville’s curriculum vitae, attached to his Certificate of

Merit, demonstrates that he is not actively engaged in the practice of MEP

engineering design services.97 Rather, Mr. Darville’s stated experience instead lies

in “mechanical system and equipment failure analysis,” “[MEP] related losses,” and

“mechanical systems analysis.”98 Nowhere in Mr. Darville’s curriculum vitae does

93
See Melden, 520 S.W.3d at, 890.
94
Certain Underwriters at Lloyd’s of London Subscribing to Pol’y No. NAJL05000016-H87 v.
Mayse & Assocs., Inc., 635 S.W.3d 276, 289 (Tex. App.—Corpus Christi-Edinburg 2021, pet.
denied) (citing Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487, 494 (Tex.
2017).
95
Id.
96
CR at 241.
97
CR 21-24.
98
Id.
24
he indicate any experience in original MEP engineering design services or signing

and sealing MEP plans for fire stations or commercial structures which are

substantially similar to the Project. 99 Mr. Darville’s lack of experience and any active

engagement in the practice of MEP engineering design services—the only practice

area at issue with respect to Encotech—fails to satisfy the requirements of Section

150.002(a) and (b).

The Miramons’ diversion into a “subspecialty” argument is misplaced and

irrelevant to Mr. Darville’s failure to satisfy the expert qualifications requirements

of Sections 150.002(a) and (b). 100 The Miramons rely upon Janice Smith Consulting

for this position, which has no bearing on the issues before this Court. 101 In Janis

Smith Consulting, the dispute involved the “feasibility of relocating [a] residential

boat dock on Lake Austin consistent with the applicable permitting requirements.”

Janice Smith Consulting and Janice Smith (collectively, “Smith”) moved to dismiss,

arguing that the expert preparing the certificate of merit at issue lacked experience

in “the relevant area of specialization,” specifically “the construction and

maintenance of boat docks and bulkheads in Lake Austin, or attached to the banks

of Lake Austin.” 102 Smith characterized this specialization as a “narrow and very

99
Id.
100
See, e.g., CR 295-97.
101
Janis Smith Consulting, LLC v. Rosenberg, 2024 WL 4750757, at *1 (Tex. App.—Austin
2024), pet. denied.
102
Id. (emphasis added).
25
specialized area of practice” that required understanding of “the City of Austin’s

and Army Corps of Engineers’ regulations for Lake Austin shoreline projects, the

‘constructability of proposed designs,’” “and the ‘regulatory reviewers’ pattern of

enforcement of regulations, in addition to ‘a working knowledge” in the

specialization. 103 After hearing, the trial court denied Smith’s motion.104

On appeal, the Court of Appeals considered that, despite Smith’s argument

that she practiced in a “unique” subspecialty, the record reflected that both her and

the expert preparing the certificate of merit at issue were civil engineers, and

importantly, that the expert’s resume demonstrated that he had “over 20 years of

experience in municipal and city engineering services, including planning, design,

and permit review, and involving water and wastewater services.” 105 The record of

the matter also contained additional information from the expert indicating his

“experience working on boat docks,” “in hydrology,” and in “reviewing residential

permits.”106 The Court of Appeals determined that the practice area at issue was

civil-engineering design and permitting services, and that, “[o]n this record,” it was

reasonable for the trial court to find that Smith and the expert practiced in the same

area of practice for purposes of Section 150.002(a).107

103
Id.
104
Id.
105
Id., at *3.
106
Id.
107
Id. (emphasis added).
26
Here, Encotech’s contention is not that Mr. Darville does not practice in the

same type of unique or narrow subspecialty as Encotech. 108 Rather, the issue is that

Mr. Darville’s curriculum vitae, attached to his Certificate of Merit, demonstrates

that he simply does not practice and is not actively engaged in MEP engineering

design services, which is the only practice area at issue in this matter with respect to

Encotech.109 Unlike the expert in Janice Smith Consulting, who had extensive

experience directly relevant to the practice area at issue—civil-engineering design

and permitting services—Mr. Darville has no experience in MEP engineering

design services. 110 Instead, Mr. Darville’s experience is in “mechanical system and

equipment failure analysis” and “[MEP] related losses,” neither of which involve or

are equitable to original MEP engineering design services. 111,112

Therefore, the trial court abused its discretion in denying Encotech’s Motion

to Dismiss the Miramons’ claims against Encotech.

108
CR 355; RR 30:8-17.
109
CR 21-24, 241.
110
Id.
111
CR 21-24.
112
The Miramons also cite to M-E Eng'rs, Inc. v. City of Temple, 365 S.W.3d 497, 503 (Tex.
App.—Austin 2012, pet. denied) in their response to Encotech’s Motion to Dismiss. However,
there is no indication that the expert that prepared the certificate of merit at issue in M-e Eng’rs
attached a copy of his curriculum vitae and instead relied only upon his sworn statements as to his
experience. This is wholly unlike Mr. Darville’s Certificate of Merit, which attached Mr. Darville’s
curriculum vitae and established his lack of experience in the practice area at issue in this matter.
See CR 21-24.
27
CONCLUSION AND PRAYER

For the reasons discussed hereinabove, in particular given the Miramons

failure to file a Certificate of Merit that satisfied Section 150.002 with its first-filed

petition against Encotech, Section 150.002(e) mandates dismissal of the Miramons’

claims against Encotech. Mr. Darville’s Certificate of Merit was non-compliant for

at least the following two reasons, each of which is sufficient on its own to require

dismissal: 1) the Certificate of Merit relied on collective assertions of negligence

that failed to identify the specific act(s), error(s), and omission(s) of Encotech and

their factual basis, as required by Section 150.002(b); and 2) Mr. Darville lacked

sufficient qualifications to satisfy the requirements of Sections 150.002(a) and (b).

Thus, Encotech requests that the Court reverse and render a judgment

dismissing the Miramons’ claims against Encotech, with a remand for the trial court

to determine whether the dismissal is with or without prejudice. Encotech further

requests all other relief to which it is entitled to receive.

28
Respectfully submitted,

BY: /S/ M. BRANDON WADDELL
M. BRANDON WADDELL (SBN: 24042106)
bwaddell@wslawpc.com
MICHELLE K. CONNER (SBN: 24072189)
mconner@wslawpc.com
NICHOLAS J. SCOTT (SBN: 24093965)
nscott@wslawpc.com
WADDELL SERAFINO GEARY
RECHNER JENEVEIN, P.C.
1717 Main Street, 25th Floor
Dallas, Texas 75201
(214) 979-7400 – Telephone
(214) 979-7402 – Facsimile

ATTORNEYS FOR APPELLANT
ENCOTECH CONSULTING ENGINEERS,
INC.

29
CERTIFICATE OF COMPLIANCE

The Brief was prepared using Microsoft Word with 14-point type for text, 12-
point type for footnotes, and Times New Roman font. Relying on the word count
function in that software, I certify that this Brief contains 5,692 words, not counting
the sections excluded by Texas Rule of Appellate Procedure 9.4(i)(1).

/S/ NICHOLAS J. SCOTT
NICHOLAS J. SCOTT

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing document has
been sent to all appellate counsel on November 19, 2025, in accordance with the
Texas Rule of Appellate Procedure, via the Court’s electronic case manager.

/S/ NICHOLAS J. SCOTT
NICHOLAS J. SCOTT

30
APPENDIX A

A
09/10/2025 03:19:30 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-25-001130
CAUSE NO. D-1-GN-25-001130

IAN MIRAMON AND § IN THE DISTRICT COURT OF
CAROLINE MIRAMON, §
Plaintiffs, §
§
VS. § TRAVIS COUNTY TEXAS
§
ENCOTECH ENGINEERING §
CONSULTANTS, INC., J. E. DUNN §
CONSTRUCTION COMPANY, PGAL, §
INC., HARDESTY & HANOVER, LLC, §
HEAT TRANSFER SOLUTIONS, INC. §
D/B/A HTS TEXAS, P.E. STRUCTURAL §
CONSULTANTS, INC., BECKETT §
ELECTRICAL SERVICES, LLC, PAGE §
SOUTHERLAND PAGE, INC. A/K/A §
PAGE SOUTHERLAND PAGE AE, INC., §
PAGE SOUTHERLAND PAGE, L.L.P., §
PAGE SOUTHERLAND PAGE §
ENGINEERS, P.C., PAGE §
SOUTHERLAND PAGE, L.P., G4C §
ENTERPRISES, LLC, HAYNES-EAGLIN- §
WATERS, LLC, KEENAN, HOPKINS, §
SCHMIDT AND STOWELL §
CONTRACTORS, INC. §
Defendants. § 250TH JUDICIAL DISTRICT

ORDER DENYING DEFENDANT ENCOTECH ENGINEERING CONSULTANTS,
INC.’S MOTION TO DISMISS WITH PREJUDICE

On August 26, 2025, Came on for consideration Defendant Encotech Engineering Consultants, Inc.’s

Motion to Dismiss with Prejudice, and the Court having considered the motion and

Plaintiffs’ response has determined the motion should be denied.

IT IS ORDERED, ADJUDGED and DECREED that Defendant Encotech

Engineering Consultants, Inc.’s Motion to Dismiss with Prejudice is denied.

Date: September 10__, 2025
___________ ________________________________
DISTRICT JUDGE PRESIDING
The Honorable Laurie Eiserloh
APPROVED AS TO FORM:

RAMSEY LAW GROUP

John C. Ramsey
State Bar No. 24027762
K. Grace Hooten
State Bar No. 24092980
Woodway Tower
6363 Woodway Drive, Suite 500
Houston, Texas 77057
Telephone: (713) 489-7577
Facsimile: (888) 858-1452
john@ramseylawpc.com
grace@ramseylawpc.com
eservice@ramseylawpc.com

RICK FREEMAN, P.C.
Rick Freeman
State Bar No. 07428800
3660 Stoneridge Road, B-102
Austin, Texas 78746
Telephone: (512) 477-6111
Facsimile: (512) 473-2131
rick@rickfreemanlaw.com

PAUL WEBB, P.C.
Vincent L. Marable III
State Bar No. 12961600
221 N. Houston Street
Wharton, Texas 77488
Telephone: (979) 532-5331
Facsimile: (979) 532-2902
tripp@paulwebbpc.com

ATTORNEYS FOR PLAINTIFFS IAN
MIRAMON AND CAROLINE MIRAMON

2
APPENDIX B

B
§ 150.002. Certificate of Merit, TX CIV PRAC & REM § 150.002

Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 6. Miscellaneous Provisions
Chapter 150. Licensed or Registered Professionals (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 150.002

§ 150.002. Certificate of Merit

Currentness

(a) Except as provided by Subsection (i), in any action or arbitration proceeding for damages arising out of the provision of
professional services by a licensed or registered professional, a claimant shall be required to file with the complaint an affidavit
of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land
surveyor who:

(1) is competent to testify;

(2) holds the same professional license or registration as the defendant; and

(3) practices in the area of practice of the defendant and offers testimony based on the person's:

(A) knowledge;

(B) skill;

(C) experience;

(D) education;

(E) training; and

(F) practice.

(b) 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. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered
professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture,
engineering, or surveying.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 150.002. Certificate of Merit, TX CIV PRAC & REM § 150.002

(c) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will
expire within 10 days of the date of filing and, because of such time constraints, a claimant has alleged that an affidavit of
a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land
surveyor could not be prepared. In such cases, the claimant shall have 30 days after the filing of the complaint to supplement
the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall
determine justice requires.

(d) The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such
affidavit.

(e) A claimant's failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the
defendant. This dismissal may be with prejudice.

(f) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.

(g) This statute shall not be construed to extend any applicable period of limitation or repose.

(h) This statute does not apply to any suit or action for the payment of fees arising out of the provision of professional services.

(i) A third-party plaintiff that is a design-build firm or a design-build team, or an architect, engineer, or other member of a
design-build firm or design-build team, is not required to file an affidavit described by Subsection (a) in connection with filing
a third-party claim or cross-claim against a licensed or registered professional if the action or arbitration proceeding arises out
of a design-build project in which a governmental entity contracts with a single entity to provide both design and construction
services for the construction, expansion, extension, rehabilitation, alteration, or repair of a facility, a building or associated
structure, a civil works project, or a highway project.

Credits
Added by Acts 2003, 78th Leg., ch. 204, § 20.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 189, § 2, eff. May
27, 2005; Acts 2005, 79th Leg., ch. 208, § 2, eff. Sept. 1, 2005; Acts 2009, 81st Leg., ch. 789, § 2, eff. Sept. 1, 2009; Acts 2019,
86th Leg., ch. 661 (S.B. 1928), § 2, eff. June 10, 2019; Acts 2023, 88th Leg., ch. 438 (H.B. 2007), § 1, eff. Sept. 1, 2023.

V. T. C. A., Civil Practice & Remedies Code § 150.002, TX CIV PRAC & REM § 150.002
Current through legislation effective July 1, 2025, of the 2025 Regular Session of the 89th Legislature. Some statute sections
may be more current, but not necessarily complete through the whole Session. See credits for details.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Paula Reynolds on behalf of Nicholas Scott
Bar No. 24093965
preynolds@wslawpc.com
Envelope ID: 108229957
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: Brief of Appellant Encotech Consulting Engineers, Inc.
Status as of 11/19/2025 1:03 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Paula Reynolds preynolds@wslawpc.com 11/19/2025 12:26:41 PM NOT SENT

Brandon Waddell bwaddell@wslawpc.com 11/19/2025 12:26:41 PM NOT SENT

Nicholas Scott nscott@wslawpc.com 11/19/2025 12:26:41 PM NOT SENT

Michelle Connrt mconner@wslawpc.com 11/19/2025 12:26:41 PM NOT SENT

Vincent Marable tripp@paulwebbpc.com 11/19/2025 12:26:41 PM NOT SENT

Rick Freeman rick@rickfreemanlaw.com 11/19/2025 12:26:41 PM NOT SENT

John Ramsey john@ramseylawpc.com 11/19/2025 12:26:41 PM NOT SENT