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In Ronald R. Wagner & Co.,
LP v. Apex Geoscience Inc. and Braun Intertec Corporation, 2018 WL 4344713
(Tex. Ct. App., Sept. 18, 2018), the Texas Court of Appeals held that
preparation of an aggregate analysis report was not exempt from the Texas Engineering
Practice Act. Ronald R. Wagner &
Co., LP (“Wagner”), a contractor specializing in the application of pavement
sealer and pavement surface treatment, bid a road project for the Texas
Department of Transportation (“TXDOT”).
Wagner received quotes for materials for the project from Advantage
Asphalt of Lubbock, LLC (“Advantage”) and Advanced Pavement Maintenance, Ltd.
(“Advanced”), which offered to supply Wagner with B-4 Aggregate. Apex Geoscience, Inc. (“Apex”), who was
acquired by Braun Intertec Corporation (“Braun”), issued an Aggregate Analysis
Report finding the B-4 aggregates met the TXDOT specifications for the project.
Wagner allegedly relied on the
analysis and accepted the quotes from Advantage and Advanced based on the
Apex/Braun findings. After commencement
of the project and after only a fraction of the aggregate had been provided, TXDOT
independently determined the aggregate was not suitable. When Advantage and Advanced could not produce
qualified aggregate, Wagner was forced to obtain aggregate from other suppliers
at a much higher cost, meaning the work could not be completed for the bid
Wagner filed suit against Apex
and Braun for the allegedly deficient Aggregate Analysis Report that caused the
project costs to exceed the bid price. Apex
and Braun filed a Motion to Dismiss on the basis Wagner failed to file a
Certificate of Merit with its lawsuit, as required by Texas law.
Section 150.002(a) of the Texas
Civil Practice and Remedies Code provides that in an action for damages
arising out of the provision of professional services by a licensed or
registered professional, “the plaintiff 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 surveyor…” The same code
section mandates dismissal if the plaintiff fails to file such a certificate.
Wagner argued the Certificate of
Merit was not required because Apex and Braun were not engaged in the “practice
of engineering” when they analyzed the aggregate and issued the report. The
trial court disagreed and dismissed Wagner’s claims against Apex and Braun.