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Texas Court Of Appeals Holds That Aggregate Analysis Does Constitute The Practice Of Engineering

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 amount.

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.

On Appeal, the Court upheld the dismissal, holding that Apex and Braun “performed a service which required engineering education, training, and experience in applying special knowledge or judgment of the mathematical, physical or engineering sciences to that service.”  The Court found that Wagner’s suit for damages arose out of professional services rendered by Apex’s and Braun’s engineer, a licensed professional engineer working for a registered engineering firm.”  The Court noted the engineer was not merely an employee involved in erecting, constructing, enlarging, altering, repairing, rehabilitating or maintaining an improvement to real property in accordance with another engineer’s plans, and therefore the Certificate of Merit was required.