in Re SAM-Construction Services, LLC ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00363-CV
__________________
IN RE SAM-CONSTRUCTION SERVICES, LLC
__________________________________________________________________
Original Proceeding
163rd District Court of Orange County, Texas
Trial Cause No. B190455-C
__________________________________________________________________
MEMORANDUM OPINION
In a petition for a writ of mandamus, Relator SAM-Construction Services,
LLC (“SAM”) argues that the trial court abused its discretion by disposing of SAM’s
motion to dismiss without addressing the merits of SAM’s motion, which asserted
that the plaintiff failed to attach a certificate of merit pursuant to Chapter 150 of the
Texas Civil Practice and Remedies Code in her first filed pleading against SAM.
SAM argues the trial court’s refusal to rule on the merits of SAM’s motion deprives
SAM of an adequate remedy by appeal. The Real Party in Interest, Maricela Salazar-
Linares, individually and as representative of the Estate of Martin Linares-Segura
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(“Linares”), argues SAM cannot establish it lacks an adequate remedy by appeal
because SAM failed to perfect a timely accelerated appeal. She further argues the
trial court correctly denied SAM’s motion to dismiss because her claims arise out of
errors or omissions in construction, inspection and safety services rather than
professional engineering services. We conditionally grant mandamus relief.
Trial Court Proceedings
In 2019 Linares asserted wrongful death and survival claims against South
Texas Illumination, LLC, Flex Supply, Inc., and Third Coast Services, LLC. She
alleged her husband, Martin Linares-Segura, was electrocuted and killed while
working as a construction employee when a side-boom tractor hoisting a light pole
contacted overhead powerlines. In 2021 Linares amended her petition to add
wrongful death and survival claims against SAM-Construction Services, LLC, SAM
Construction LLC, SAM, LLC and SAM Construction and Investment, Inc. The
pleadings regarding SAM state, in relevant part:
19. At all relevant times, Defendant Sam Construction Services LLC,
Sam Construction LLC, Sam, LLC, and Sam Construction and
Investment (collectively referred to as “SAM”) was hired to inspect the
illumination project being performed by all Defendants. According to
its website, SAM “provide[s] construction services solutions, including
contract administration, construction engineering and inspection,
observation, quality assurance and quality management, and the
development of quality manuals and specifications”-which, upon
information and belief, it was hired to do and/or purported to do in this
accident. SAM, according to its website, “supports clients and
contractors by putting clear processes in place to keep communication
open and maintain project schedules and budgets” and “ensures clients
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receive the foundational data and management support they need to
successfully complete construction work”-which, upon information
and belief, it was hired to do and/or purported to do in this accident.
Moreover, SAM claims it “provides construction teams around the
nation the construction engineering and inspection oversight they need
to keep projects compliant, on time, and on budget. . . . [o]ur program
managers are already familiar with your state and local requirements
. . . [and] work with contractors, consultants, trades, and vendors to
keep communication open, maintain project controls, and set clear
expectations for quality and performance”-which, based upon
information and belief, it was hired to do and/or purported to do in this
accident.
Linares alleged SAM’s negligence caused the fatal incident, as follows:
26. The death of decedent was caused solely and wholly through the
negligence of defendants, in that Defendant, Sam Construction Services
LLC, and its servants, agents, and employees were grossly negligent,
careless, and reckless in that they failed and neglected to properly park
the sideboom tractor or crane, failed and neglected to have the side-
boom tractor or crane under proper control, and failed to obtain or
maintain the necessary licensure, permits or certifications to operate
said side-boom tractor or crane. SAM was further negligent, inter alia,
in the following:
(1) Providing construction services solutions, including contract
administration, construction engineering and inspection, observation,
quality assurance and quality management, and the development of
quality manuals and specifications;
(2) Supporting Defendants, clients and contractors by putting clear
processes in place to keep communication open and maintain project
schedules and budgets and ensuring Defendants and clients receive the
foundational data and management support they need to successfully
complete construction work;
(3) Providing construction teams around the nation the construction
engineering and inspection oversight they need to keep projects
compliant, on time, and on budget and ensuring SAM’s program
managers are already familiar with contractor, municipal, state, and
local requirements and are followed;
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(4) Working with Defendants, contractors, consultants, trades, and
vendors to keep communication open, maintain project controls, and
set clear expectations for quality and performance
(5) Providing adequate training for its employees, subcontractors and
agents in the use of side-boom tractors or cranes;
(6) Providing adequate training for its employees, subcontractors and
agents in working near extremely dangerous high voltage electric
powerlines;
(7) Adequately supervise employees, subcontractors and agents when
working with extremely dangerous equipment;
(8) Warning its employees, subcontractors and agents of the dangers of
working near extremely dangerous equipment;
(9) Warning its employees, subcontractors and agents of the dangers of
working in and around high voltage electric powerlines;
(10) Instructing its employees, subcontractors and agents in the proper
safety procedures when working near extremely dangerous equipment;
(11) Ensuring its employees, subcontractors and agents are properly
licensed to operate side-boom tractors or cranes; and
(12) Preparing and providing safety policies or procedures.
(13) Other acts of omission and/or commission to be specified after an
adequate time for discovery or at the time of trial.
27. The death of decedent was caused solely and wholly through the
gross negligence of defendants, in that Defendant, Sam Construction
Services LLC, negligently hired, retained, supervised, and inspected the
work of South Texas Illumination, LLC and its employees and/or
servants.
Linares also asserted vicarious liability against SAM, alleging:
74. Defendant, SAM-Construction Services LLC, is vicariously liable
for the damages proximately caused to Plaintiff by virtue of the
negligent conduct of its employees or agents.
75. Plaintiff alleges that Defendant, SAM-Construction Services LLC,
had a duty to exercise reasonable care in the training, supervising,
warning, instructing, and in the preparation of safety policies and
procedures, if any existed, for its employees. SAM-Construction
Services LLC, had a non-delegable duty to use ordinary care in
providing a safe workplace, including:
(1) Providing adequate training for its employees, subcontractors and
agents in the use of side-boom tractors or cranes;
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(2) Providing adequate training for its employees, subcontractors and
agents in working near extremely dangerous high voltage electric
powerlines;
(3) Adequately supervise employees, subcontractors and agents when
working with extremely dangerous equipment;
(4) Warning its employees, subcontractors and agents of the dangers of
working near extremely dangerous equipment;
(5) Warning its employees, subcontractors and agents of the dangers of
working in and around high voltage electric powerlines;
(6) Instructing its employees, subcontractors and agents in the proper
safety procedures when working near extremely dangerous equipment;
(7) Ensuring its employees, subcontractors and agents are properly
licensed to operate side-boom tractors or cranes;
(8) Preparing and providing safety policies or procedures; and
(9) Other acts of omission and/or commission to be specified after an
adequate time for discovery or at the time of trial.
76. Plaintiff would show that each and every one of the aforementioned
acts and/or omissions singularly and severally, constituted willful and
wanton negligence on the part of Defendant South Texas Illuminations,
LLC, jointly with Flex Supply, LLC, and Third Coast Services, LLC,
which singularly and severally, was a direct and proximate cause of the
injuries and damages sustained by Plaintiffs.
Linares alleged negligence per se against SAM:
80. SAM-Construction Services LLC, operated or allowed to be
operated a side-boom tractor or crane without proper licensure, and
such acts or omissions were a proximate cause of the damages in
question, including but not limited to the following acts or omissions:
(1) Failing to maintain the Standard Crane and Derrick Signals in
accordance with 29 C.F.R. § 1926.1440(c);
(2) Failing to maintain proper distance from electric power lines in
accordance with 29 C.F.R. § 1926.1440(c);
(3) Failing to notify the electric power line owner with notice in
accordance with 29 C.F.R. § 1926.1440(c).
Linares alleged “SAM-Construction Services LLC, deviated from the standard of
care and proceeded with conscious indifference to the safety and welfare of Plaintiff.
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Defendant committed gross negligence in the acts described above, when objectively
considering the extreme risk, probability, and magnitude of harm to Martin Linares-
Segura.”
SAM and Survey and Mapping, LLC, (“SAM, LLC”) filed a motion to
dismiss pursuant to Chapter 150 of the Texas Civil Practice and Remedies Code.
They alleged Linares’s claims against the two defendants must be dismissed because
both companies were registered professionals within the meaning of Chapter 150 of
the Texas Civil Practice and Remedies Code, Linares’s claims were based on the
provision of professional engineering services, and she did not file a certificate of
merit with her First Amended Petition. They argued Linares’ pleadings raised claims
that involved their allegedly negligent provision of professional engineering
services, which she claimed included:
Providing construction services, solutions, including contract
administration, construction engineering and inspection, observation,
quality assurance and quality management, and the development of
quality manuals and specifications;
Supporting clients and contractors by putting clear processes m
place to keep communication open and maintain project schedules and
budgets and ensuring clients receive the foundational data and
management support they need to successfully complete construction
work;
Providing construction teams around the nation the construction
engineering and inspection oversight they need to keep projects
compliant, on time, and on budget and ensuring SAM’s program
managers are already familiar with contractor, municipal, state and
local requirements; and
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Working with contractors, consultants, trades, and vendors to
keep communication open, maintain project controls, and set clear
expectations for quality and performance.
A Contract of Engineering Services attached to SAM’s motion to dismiss
recites that TxDOT authorized SAM to provide “engineering services generally
described as Construction Engineering Inspection (CEI) services to assist the State
in managing its construction operations before, during, and after the construction of
improvements[.]”
In response to the motion to dismiss, Linares argued SAM’s liability arose,
not from its errors and omissions in providing professional engineering services, but
from failing to provide a safe work environment and failing to warn employees of
the associated dangers of overhead powerlines in the capacity of construction
management services.
In reply, SAM argued the construction management services referred to by
Linares are considered as falling within the practice of engineering as defined by the
Texas Occupations Code. See Tex. Occ. Code Ann. § 1001.0003(b) and (c)(1) (“In
this chapter, ‘practice of engineering’ means 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. (c) The practice of engineering
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includes: (1) consultation, investigation, evaluation, analysis, planning, engineering
for program management, providing an expert engineering opinion or testimony,
engineering for testing or evaluating materials for construction or other engineering
use, and mapping[.]”). SAM further argued that Linares had judicially admitted that
the decedent was an employee of South Texas Illumination, LLC and Flex Supply,
LLC, not SAM. SAM also noted that it signed the TxDOT contract as The Engineer.
SAM concluded in its reply that Linares’s claims against SAM must be dismissed
because Linares failed to file a certificate of merit with her First Amended Petition,
which for the first time raised claims against SAM based on SAM’s provision of
engineering services.
The trial court heard SAM’s motion to dismiss on October 13, 2021. Linares
conceded that SAM did not employ the decedent. She also argued that some of the
services SAM provided have nothing to do with engineering.
On October 14, 2021, SAM filed an objection to Linares’s proposed order
granting in part and denying in part SAM’s motion to dismiss. SAM argued it would
be deprived of the relief it was entitled to under section 150.002(e) of the Civil
Practice and Remedies Code were the trial court to grant the proposed order on the
motion to dismiss without specifying what specific claims the trial court intended to
allow to go forward and what claims the order dismissed.
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On October 14, 2021, the trial court signed an order, which states:
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
Before this Court is Defendant, SAM – Construction Services,
LC’s and Surveying and Mapping, LLC’s Amended Chapter 150
Motion to Dismiss. Having considered the motion, the response, the
reply, the evidence submitted, the record, and the arguments of counsel,
this Court GRANTS IN PART and DENIES IN PART Defendant, SAM
– Construction Services, LLC’s and Surveying and Mapping, LLC’s
Amended Chapter 150 Motion to Dismiss.
1. This Court GRANTS the motion as to arising out of the
provision of professional engineering services or the practice of
engineering; [within the meaning of Tex. Civ. Prac. & Rem. Code §
150.002] but
2. This Court DENIES the motion as to all remaining Plaintiff’s
claims that do not fall within Defendants’ provision of professional
engineering services.
It is SO ORDERED.
On November 3, 2021, Linares filed a notice of non-suit without prejudice as
to all of her claims against SAM and SAM, LLC. 1 The trial court signed the order
granting the nonsuit without prejudice on November 3, 2021.
1On November 1, 2021, it appears that neither Relator nor the Real Party in
Interest were aware the trial court had already signed the order on SAM’s motion to
dismiss. On November 1, 2021, SAM, SAM, LLC, and Linares executed an
agreement to toll statutes of limitation. The agreement states, in part: “A hearing has
been held on the motion to dismiss and a ruling has been made from the bench, but
no order has been signed regarding the motion.” SAM and SAM, LLC “agreed to
forego their right to seek interlocutory appeal on the issue of the grant or denial of
their motion to dismiss during the pendency of this Agreement, but reserve the right
that, in the event the suit is revived against each or both of them, each of the Parties
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On September 16, 2022, Linares brought SAM back into the lawsuit in her
Second Amended Petition. Quoting deposition testimony from the Corporate
Representative of Third Coast Services, Linares alleged no engineering services
were provided by SAM. She alleged, in part:
26. The death of decedent was caused solely and wholly through the
negligence of defendants, in that Defendant Sam-Construction Services
LLC and its servants, agents, and employees were grossly negligent,
careless, and reckless in that they failed and neglected to properly park
the side-boom tractor or crane, failed and neglected to have the side-
boom tractor or crane under proper control, and failed to obtain or
maintain the necessary licensure, permits or certifications to operate
said side-boom tractor or crane. SAM was further negligent, inter alia,
in the following:
(1) Providing construction services solutions, including contract
administration, construction engineering and inspection, observation,
quality assurance and quality management, and the development of
quality manuals and specifications;
(2) Supporting Defendants, clients, and contractors by putting
clear processes in place to keep communication open and maintain
project schedules and budgets and ensuring Defendants and clients
receive the foundational data and management support they need to
successfully complete construction work;
(3) Providing construction teams around the nation the
construction engineering and inspection oversight they need to keep
projects compliant, on time, and on budget and ensuring SAM’s
program managers are already familiar with contractor, municipal,
state, and local requirements and are followed;
have agreed, that SAM-CS and SAM, LLC will be allowed to raise each and every
defense to the Plaintiff’s claims and causes of action in the Lawsuit, including but
not limited to pursuit of interlocutory appeal concerning the grant or denial of their
motion to dismiss.” The agreement specifically preserved any rights, claims, or
defenses under Chapter 150 of the Civil Practice and Remedies Code. Relator
attached the tolling agreement to its motion to stay but omitted it from the mandamus
appendix and record.
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(4) Working with Defendants, contractors, consultants, trades,
and vendors to keep communication open, maintain project controls,
and set clear expectations for quality and performance;
(5) Providing adequate training for its employees, subcontractors
and agents in the use of side-boom tractors or cranes;
(6) Providing adequate training for its employees, subcontractors
and agents in working near extremely dangerous high voltage electric
powerlines;
(7) Adequately supervise employees, subcontractors and agents
when working with extremely dangerous equipment;
(8) Warning its employees, subcontractors and agents of the
dangers of working near extremely dangerous equipment;
(9) Warning its employees, subcontractors, and agents of the
dangers of working in and around high voltage electric powerlines;
(10) Instructing its employees, subcontractors, and agents in the
proper safety procedures when working near extremely dangerous
equipment;
(11) Ensuring its employees, subcontractors, and agents are
properly licensed to operate side-boom tractors or cranes; Preparing
and providing safety policies or procedures; and
(12) Other acts of omission and/or commission to be specified
after an adequate time for discovery or at the time of trial.
27. The death of decedent was caused solely and wholly through the
gross negligence of defendants, in that Defendant Sam-Construction
Services LLC negligently hired, retained, supervised, and inspected the
work of South Texas Illumination, LLC and its employees and/or
servants.
On September 21, 2022, SAM filed a supplemental objection to Linares’s
proposed order on SAM’s motion to dismiss. SAM noted that the trial court, in an
oral bench ruling, had denied the motion to dismiss in toto and that SAM had
requested the trial court to “promptly enter a written order accurately reflecting the
finding of the Court as pronounced on October 13, 2021.”
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The trial court heard SAM’s supplemental objection to Linares’s proposed
order on October 21, 2022. The trial court orally denied SAM’s objection to the
court’s order on the motion to dismiss. During the hearing, no one mentioned the
trial court had already signed Linares’s proposed order the previous year. 2
Mandamus Review
We may grant mandamus relief to correct a trial court’s abuse of discretion
when an appeal is an inadequate remedy. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d
833, 839-40 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when a
trial court’s ruling is arbitrary and unreasonable or is made without regard for
guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am.,
494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). We determine the adequacy of
an appellate remedy by balancing the benefits of mandamus review against the
detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig.
proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
2An email attached to SAM’s motion to stay indicated that on October 27,
2022, the court coordinator stated, “The Judge has not signed [counsel’s] Chapter
150 Motion to Dismiss. It is being returned to your office unsigned. On October 14,
2021, the Judge signed an Order Granting in Part and Denying in Part Defendants’
Motion to Dismiss. You can request a copy of this order from the District Clerk’s
office.” In its motion for temporary relief, Relator states that when Linares filed her
Second Amended Petition “as far as the parties were aware, the trial court had not
yet signed an order on SAM-CS’s Chapter 150 motion to dismiss[.]” Relator did not
include this email in the mandamus appendix and record.
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Linares argues we must deny mandamus relief because SAM could have but
chose not to pursue a timely accelerated appeal of the trial court’s October 14, 2021
Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss. But,
“[a]n appeal cannot be adequate when the court prevents a party from taking it.” In
re Whataburger Restaurants LLC, 645 S.W.3d 188, 193 (Tex. 2022). In
Whataburger, the trial court clerk failed to notify the relator that the trial court signed
an appealable interlocutory order refusing to compel arbitration. Id. Relator filed a
petition for a writ of mandamus after it learned that the trial court signed an order
too late to perfect an appeal under the rules of procedure governing accelerated
appeals and obtained additional time to perfect an appeal. Id. at 194; see Tex. R.
App. P. 4.2, 26.1(a), 26.3; Tex. R. Civ. P. 305a.5. The Supreme Court of Texas held
“the relator has demonstrated that it lacks an adequate appellate remedy because the
clerk’s failure to give notice of the trial court’s order deprived it of that remedy.”
Like the relator in Whataburger, SAM has demonstrated it lacks an adequate remedy
by appeal and it did not sleep on its rights.
A claim for damages asserted against a professional engineer arises out of the
provision of professional services if the claim implicates the engineer’s education,
training, and experience in applying special knowledge or judgment. TDIndustries,
Inc. v. Citicorp N. Am., Inc., 378 S.W.3d 1, 5 (Tex. App.—Fort Worth 2011, no
pet.); see Tex. Occ. Code Ann. § 1001.003(b). In determining the nature of a party’s
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claims for purposes of a Chapter 150 motion to dismiss, we look to the live pleading
on file when the opposing party filed the motion to dismiss. TDIndustries, Inc. v.
Rivera, 339 S.W.3d 749, 753 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Linares asserted a cause of action under the wrongful death and survival
statutes. In her First Amended Petition, Linares identified many acts and omissions
that she alleged caused her husband’s death. In her response to the mandamus
petition, Linares posits that “[i]mplicit in the order is that the court thought some of
Plaintiff’s claims related to SAM’s professional engineering services and some did
not, or otherwise it would have granted the motion outright and dismissed SAM from
the suit.” That is precisely the reason why the trial court’s order lacks the requisite
clarity. By granting the motion in part and denying it in part, the trial court
necessarily determined that at least one act or omission alleged by the plaintiff did
not arise out of the provision of professional services as that term is defined by
section 1001.003 of the Occupations Code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 150.001(3). By failing to specify which of SAM’s allegedly negligent acts were
being dismissed under Chapter 150 because Linares failed to file a certificate of
merit and identifying which claims were not, the trial court prevented SAM from
properly presenting its arguments to challenge those parts of the ruling that denied
SAM’s motion to dismiss. The dilemma facing SAM is not unlike a party seeking to
challenge an order granting a motion for new trial when the trial court fails to set out
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the reasons it has disregarded the jury’s verdict. See In re E.I. duPont de Nemours
and Co., 289 S.W.3d 861, 861-62 (Tex. 2009) (orig. proceeding).
Linares also argues no certificate of merit was required because SAM
provided only construction management services, which she claims do not constitute
the practice of engineering. Her argument underscores rather than alleviates the
concern here: the trial court dismissed something, and we cannot discern what
allegations the trial court has allowed to proceed to trial.
We conclude the trial court abused its discretion by failing to sign a
sufficiently specific order and in doing so, it deprives the relator of an adequate
remedy by appeal. Accordingly, we conditionally grant mandamus relief. We are
confident that the trial court will vacate its order of October 14, 2021, which granted
in part and denied in part SAM’s motion to dismiss. The writ of mandamus shall
issue only in the event the trial court fails to comply. Relators’ motion for temporary
relief is denied as moot.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on December 7, 2022
Opinion Delivered December 22, 2022
Before Golemon, C.J., Horton and Johnson, JJ.
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