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

ACCEPTED
15-25-00173-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
1/8/2026 11:27 AM
NO. 15-25-00173-CV CHRISTOPHER A. PRINE
____________________________________________________________ CLERK
FILED IN
IN THE FIFTEENTH COURT OF APPEALS OF TEXAS
15th COURT OF APPEALS
AUSTIN, TEXAS
AT AUSTIN, TEXAS
1/8/2026 11:27:50 AM
______________________________________________________________
CHRISTOPHER A. PRINE
Clerk
ENCOTECH CONSULTING ENGINEERS, INC.,
Appellant,
v.

IAN MIRAMON AND CAROLINE MIRAMON,
Appellees.
____________________________________________________________

On Interlocutory Appeal From the District Court of
Travis County, Texas, Cause No. D-1-GN-25-001130;
The Honorable Laurie Eiserloh, Presiding Judge
____________________________________________________________

BRIEF OF APPELLEES IAN MIRAMON AND CAROLINE MIRAMON

John C. Ramsey Rick Freeman Vincent L. Marable III
State Bar No. 24027762 RICK FREEMAN, P.C. PAUL WEBB, P.C.
K. Grace Hooten State Bar No. 07428800 State Bar No. 12961600
State Bar No. 24092980 3660 Stoneridge Road 221 N. Houston Street
RAMSEY LAW GROUP B-102 Wharton, Texas 77488
Woodway Tower Austin, Texas 78746 (P): (979) 532-5331
6363 Woodway Drive (P): (512) 477-6111 (F): (979) 532-2902
Suite 500 (F): (512) 473-2131 tripp@paulwebbpc.com
Houston, Texas 77057 rick@freemanlaw.com
(P): (713) 489-7577
(F): (888) 858-1452
john@ramseylawpc.com
grace@ramseylawpc.com
eservice@ramseylawpc.com

ATTORNEYS FOR APPELLEES
IAN MIRAMON AND CAROLINE MIRAMON

ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................ 2

INDEX OF AUTHORITIES ........................................................................ 4

STATEMENT REGARDING ORAL ARGUMENT ...................................... 7

RECORD AND PARTY REFERENCES .................................................... 8

TRANSFER FROM THIRD COURT OF APPEALS .................................. 9

INTRODUCTION AND OVERVIEW ........................................................ 10

RESPONSE TO ENCOTECH’S STATEMENT OF
THE CASE (Responsive to Encotech’s Brief of
Appellant, p. 3)........................................................................................ 11

THE MIRAMONS’ RESPONSE TO ENCOTECH’S
STATEMENT OF FACTS (Responsive to Encotech’s
Brief of Appellant, pp. 4 – 8).................................................................... 12

SUMMARY OF RESPONSIVE ARGUMENTS ........................................ 19

ARGUMENT ........................................................................................... 20

A. INTRODUCTION ........................................................................... 20

B. STANDARDS GOVERNING CHAPTER
150 MOTIONS TO DISMISS (Responsive
to Encotech’s Brief of Appellant, p. 10) .......................................... 22

C. THE MIRAMONS FILED THE MANDATORY
CERTIFICATE OF MERIT WITH THEIR FIRST-
FILED PETITION (Responsive to Encotech’s
Brief of Appellant, pp. 11 – 12) ...................................................... 27

2
D. THE “COLLECTIVE ASSERTIONS OF
NEGLIGENCE” ARGUMENT IS MERITLESS
(Responsive to Encotech’s Brief of Appellant,
pp. 12 – 23) ................................................................................... 27

E. THE EXPERT QUALIFICATION ARGUMENT
MADE BY ENCOTECH IS MERITLESS
(Responsive to Encotech’s Brief of Appellant,
pp. 23 – 27) ................................................................................... 39

CONCLUSION AND PRAYER ................................................................ 46

CERTIFICATE OF COMPLIANCE .......................................................... 48

CERTIFICATE OF SERVICE .................................................................. 49

3
INDEX OF AUTHORITIES

CASES:

AMEC Foster Wheeler USA Corporation v.
Maricelli, No. 09-19-00122-CV, 2022 WL
3579567 (Tex. App. – Beaumont July 2,
2020, no pet.) (mem. op.) .................................................................. 34

Bratton v. Pastor, Behling & Wheeler, L.L.C.,
No. 01-23-00015-CV, 2024 WL 1662391 (Tex.
App. – Houston [1st Dist.] April 18, 2024, pet.
denied) (mem. op.) ..................................................................... passim

Certain Underwriters at Lloyds of London v.
Mayse & Associates, Inc., 635 S.W.3d 276 (Tex.
App. – Corpus Christi – Edinburg 2021, pet.
denied)................................................................................... 11, 21, 41

CTL/Thompson Tex., LLC v. Starwood Homeowner’s
Ass’n, Inc., 390 S.W.3d 299 (Tex. 2013) ............................................ 12

DHM Design v. Morzak, No. 05-15-00103-CV,
2015 WL 3823942 (Tex. App. – Dallas June 19,
2015, pet. denied) (mem. op.) ............................................................ 34

EDI International, PC v. Mond Homeowners
Association, Inc., No. 14-23-00958-CV, 2025
WL 798073 (Tex. App. – Houston [14th Dist.]
Mar. 13, 2025, no pet.) (mem. op.) .............................................. 31, 33

Elness Swenson Graham Architects, Inc. v.
RLJ II-C Austin Air, LP, No. 03-10-00805-CV,
2011 WL 156891 (Tex. App. – Austin Apr. 20,
2011, pet. denied) (mem. op.) ............................................................ 45

4
Halff Associates, Inc. v. Jacob & Martin, LLC,
No. 02-24-00439-CV, 2025 WL 1536392 (Tex.
App. – Fort Worth May 29, 2025, pet. denied)
(mem. op.) ......................................................................................... 22

Henderson Rogers Structural Engineers, LLC
v. Mond Homeowners Association, Inc., No. 14-
24-00043-CV, 2025 WL 798081 (Tex. App. –
Houston [14th Dist.] Mar. 13, 2025, no pet.) (mem.
op.) .............................................................................................. 32, 33

Janis Smith Consulting, LLC v. Rosenberg,
No. 03-23-00370-CV, 2024 WL 4750757 (Tex.
App. – Austin Nov. 6, 2024, pet. denied) (mem.
op.) .................................................................................................... 41

Macina, Bose, Copeland & Assocs., v. Yanez,
No. 05-17-00180-CV, 2017 WL 4837691 (Tex.
App. – Dallas Oct. 26, 2017, pet. dism’d) (mem.
op.) .................................................................................................... 34

M-E Engineers, Inc. v. City of Temple, 365
S.W.3d 497 (Tex. App. – Austin 2012, pet.
denied)......................................................................................... 11, 45

Melden & Hunt, Inc. v. E. Rio Hondo Water
Supply Corp., 520 S.W.3d 887 (Tex. 2017)........................................ 11

Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d
421 (Tex. App. – Dallas 2012, no pet.)............................................... 45

Resource Planning Associates, LLC v. Sea
Scout Base Galveston & Point Glass, LLC,
No. 01-19-00965-CV, 2021 WL 1375797 (Tex.
App. – Houston [1st Dist.] Apr. 13, 2021, pet.
denied) (mem. op.) ................................................................ 22, 27, 36

5
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.) ................................................... 33

Ryan Engineering, Inc. v. Mond Homeowners
Association, Inc., No. 14-23-00960-CV, 2025 WL
798075 (Tex. App. – Houston [14th Dist.] Mar. 13,
2025, no pet.) (mem. op.) ............................................................ 32, 33

T & T Engineering Services, Inc. v. Danks,
No. 01-21-00139-CV, 2022 WL 3588718 (Tex.
App. – Houston [1st Dist.] Aug. 23, 2022, pet.
denied) (mem. op.) ............................................................................ 30

RULES AND STATUTES:

Tex. Civ. Prac. & Rem. Code Chapter 150 ................................. passim

Tex. Civ. Prac. & Rem. Code Section 150.002 .................................. 11

Tex. Civ. Prac. & Rem. Code Section 150.002(e) .............................. 12

Tex. R. App. P. 9.4(i)(1) ..................................................................... 48

Tex. R. App. P. 9.4(i)(2)(B) ................................................................ 48

Tex. R. App. P. 41.3 ............................................................................ 9

6
STATEMENT REGARDING ORAL ARGUMENT

This lawsuit was filed after Appellee Ian Miramon, a City of Austin

Fire Fighter, was catastrophically injured after being struck in the head by

an industrial-sized ceiling fan at Austin Fire Department Station 51. (CR 4 –

25). The incident occurred on June 17, 2023. (CR 9). Suit was filed on

February 12, 2025. (CR 4). While Appellant Encotech says that the issues

in this case are “straightforward,” Brief of Appellant, p. vi, Encotech seeks

dismissal of the Miramons’ claims that are now more than two years old

and would be subject to a statute of limitations defense if refiled. The

Miramons desire to present oral argument to respond to the dispositive

arguments made by Encotech.

7
RECORD AND PARTY REFERENCES

There is a one-volume clerk’s record which is referred to as (“CR

___”) with the page number of the clerk’s record in parentheses.

There is a one-volume reporter’s record which is referred to as (“RR

___”) with the page number of the reporter’s record in parentheses.

Appellant Encotech Consulting Engineers, Inc. is referred to as

“Encotech.”

This appeal transferred to this Court was originally docketed in the

Third Court of Appeals as 03-25-00741-CV.

8
TRANSFER FROM THIRD COURT OF APPEALS

The Supreme Court transferred this appeal from the Third Court of

Appeals to this Court. Texas Rule of Appellate Procedure 41.3 applies.

This Court is bound by the precedent of the Third Court of Appeals to the

extent that it differs from this Court’s precedent.

9
RESPONSE TO ENCOTECH’S STATEMENT OF THE CASE
(Responsive to Encotech’s Brief of Appellant, p. 3)

Encotech makes arguments about amended petitions filed by the

Miramons. See Brief of Appellant, p. 3 & n. 4. Encotech made no such

argument in the trial court. (CR 239 – 275, 354 – 362).

The Miramons filed their Original Petition on February 12, 2025 (CR 4

– 25) and filed amended petitions on May 13, 2025, June 12, 2025, and

June 16, 2025. (CR 35 – 55, 56 – 80, 81 – 105). Encotech filed its motion

to dismiss on August 11, 2025. (CR 239 – 275). The motion to dismiss

refers only to the Miramons’ Original Petition (CR 239) and Encotech

attached as Exhibit “A” to the motion to dismiss the Original Petition. (CR

247 – 273).

10
TO THE HONORABLE FIFTEENTH COURT OF APPEALS:

Appellees Ian Miramon and Caroline Miramon (“the Miramons”) file

this Brief of Appellees responding to the Brief of Appellant of Encotech

Engineering Consultants, Inc. as follows:

INTRODUCTION AND OVERVIEW

This interlocutory appeal challenges the trial court’s denial of

Encotech’s Chapter 150 motion to dismiss. (CR 363 – 364). See Tex. Civ.

Prac. & Rem. Code Section 150.002. The Texas Supreme Court has

observed that “courts of appeals generally reject[] the notion that chapter

150 imposes the same level of scrutiny as that imposed on the admissibility

of expert-opinion testimony for summary-judgment or trial purposes.”

Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887,

890 – 91 (Tex. 2017). The statute “reflects [the] legislative goal of requiring

merely that plaintiffs make a threshold showing that their claims have

merit.” M-E Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 504 (Tex. App.

– Austin 2012, pet. denied). The Chapter 150 determination requires a

careful balance between “dismissing meritless claims” and “not dismissing

meritorious claims merely on a procedural technicality.” Certain

11
Underwriters at Lloyds of London v. Mayse & Associates, Inc., 635 S.W.3d

276, 285 (Tex. App. – Corpus Christi – Edinburg 2021, pet. denied).

The motion to dismiss practice authorized by Tex. Civ. Prac. & Rem.

Code Chapter 150 occurs early in the litigation, before discovery, before

the defendant is required to file an answer, and involves an analysis of the

definition of the practice of engineering in the Texas Occupations Code and

the allegations from the claimant’s petition. The motion to dismiss practice

is not a summary judgment proceeding. “Section 150.002(e) dismissal is a

sanction with the same purpose, to deter meritless claims and bring them

quickly to an end.” CTL/Thompson Tex., LLC v. Starwood Homeowner’s

Ass’n, Inc., 390 S.W.3d 299, 301 (Tex. 2013). Under the Chapter 150

motion to dismiss practice, the Legislature’s goal was to require the

plaintiffs to make a threshold showing that their claims are not frivolous.

The Miramons satisfied this “low bar.” Encotech’s challenge to the trial

court’s order is meritless.

THE MIRAMONS’ RESPONSE TO ENCOTECH’S STATEMENT OF
FACTS (Responsive to Encotech’s Brief of Appellant, pp. 4 – 8)

This lawsuit involves catastrophic injuries suffered by City of Austin

fire fighter Ian Miramon at Austin Fire Department Station 51. (CR 4 – 25).

Mr. Miramon was struck in the head by a blade of an industrial-sized ceiling

12
fan. Id. Appellant Encotech admits that “Encotech provided mechanical,

electrical and plumbing engineering services for the Project. … Here, there

is no dispute that Encotech is a Texas registered professional engineer and

provided professional mechanical, electrical and plumbing engineering

services for the Project made the basis of this lawsuit.” Motion to Dismiss,

pp. 1, 3 ¶¶ 2, 8. (CR 239, 241). See also Brief of Appellant, p. 12. (“It is

undisputed that Encotech is a professional engineering firm and that it

provided MEP engineering design services for the Project.”).

The Miramons’ Original Petition pleads as follows with respect to the

facts of the incident and the injuries suffered by Appellee Ian Miramon:

5.1 On or about June 17th, 2023 (“the date in question”),
Plaintiff Ian Miramon (“Fireman Miramon”) was working as a
fireman for the Austin Fire Department at Austin Fire Station 51
located at 5410 US-290, Austin, TX 78748 (“Subject Property”).
This was not his usual and customary station, as he was filling
in for Station 51 on the day in question.

5.2 Upon information and belief, as Fireman Miramon was
performing an inspection on a fire truck for his shift at the
Subject Property, he was violently stuck in the head by a blade
of an industrial-sized ceiling fan that was installed on the ceiling
of the fire station. The force knocked Fireman Miramon off the
top of the fire truck to the concrete ground below. He lost
consciousness for several minutes and was found by other
firemen on the ground surrounded by a pool of his own blood.

13
Illustration No. 1 – Photograph of Subject Incident Scene.

5.3 As a result of this incident, Fireman Miramon suffered
multiple life-threatening injuries, including but not limited to a
fractured skull with a traumatic brain injury, fractured jaw,
fractured clavicle, multiple broken ribs, compression spinal
injury, collapsed lung, as well as other injuries.

5.4 To this day, Fireman Miramon has suffered and continues
to suffer from his serious, permanent, painful, and debilitating
injuries.

(CR 9 – 10).

The Original Petition pleads a cause of action for negligence and

gross negligence as follows:

14
6.1 Defendants committed actions of omission and
commission, which collectively and severally, constituted
negligence, which were proximate causes of the injuries and
damages to Plaintiffs.

6.2 Defendants owed Plaintiffs a duty of ordinary care and
breached their duties to Plaintiffs by the following:

(a) Failing to design the Subject Property in a safe
condition;

(b) Failing to install the ceiling fan at the Subject
Property in a safe manner and in a safe location;

(c) Failing to construct the Subject Property in a safe
manner;

(d) Failing to inspect the Subject Property for any
dangerous conditions;

(e) Failing to adequately warn of a dangerous and/or
hazardous condition;

(f) Failure to remedy or retrofit a dangerous and/or
hazardous condition that they created;

(g) Violating applicable government regulations, laws,
rules, and industry standards; and

(h) Other acts discovered that are deemed negligent
and/or grossly negligent.

6.3 Defendants’ wrongful acts, errors, omissions, neglect, and
carelessness, as set forth in the preceding paragraphs, were
the proximate cause of Plaintiffs’ injuries and damages.

(CR 11).

15
The Miramons attached a Certificate of Merit of Shane M. Darville,

P.E. to their Original Petition. (CR 18 – 24). Mr. Darville identified the

following Defendants as engineering firms, which included Appellant

Encotech:

The following engineering firms are known or reasonably
believed to have worked upon the design and/or construction of
Fire Station 51 for the City of Austin. Hereafter, these parties
are collectively referred to as “The relevant party(ies)”:

• Encotech Engineering Consultants, Inc. – TX Engineering
Firm No. 1141
• Encotech Engineering Consultants, SA, Inc. – TX
Engineering Firm No. 13366
• Garza EMC, LLC – TX Engineering Firm No. 14629
• JQ+ Tsen, LLC – TX Engineering Firm No. 12778
• PGAL, Inc. – TX Engineering Firm No. 2742

(CR 19).

Mr. Darville’s Certificate included additional factual information about

the incident and injury.

On/about June 17, 2023, Ian Miramon was injured while
working at Fire Station 51 for the Austin Fire Department.
Available evidence, primarily consisting of statements,
photographs, and measurements taken by Austin Fire
Department personnel, indicated that Mr. Miramon fell from the
top of an apparatus (called Quint 51 by AFD) after being struck
by a ceiling fan blade. Analysis of scene photographs and AFD
documents indicates a large ceiling fan was mounted
approximately 32 inches above the top of the apparatus.

16
Post-incident photographs indicate that one blade of the fan
was out of plane with the rest of the blades. Further, the
presence of blood on some of the surfaces at the top of the
apparatus evidences that Mr. Miramon sustained injury prior to
impact with the ground. This available evidence indicates that,
more likely than not, Mr. Miramon was impacted by a fan blade
at/near the top of the apparatus and was subsequently
knocked, or unbalanced and fell, to the floor.

(CR 19).

Mr. Darville discussed the lack of appropriate clearance between the

ceiling fan and the top of the fire-fighting apparatus.

The placement of the subject fan was problematic and
hazardous in that it did not have sufficient clearance above the
top of the apparatus. The apparatus requires regular
maintenance and inspection given its utility, inclusive of
equipment/components at the top of the apparatus. Therefore,
the relevant party(ies) 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 AFD
personnel to safely and properly perform their required
maintenance and inspections of the apparatus.

Failure to take this into consideration presented an
unreasonably hazardous condition. Further, ignoring such
safety considerations, creating a hazard, relying on others to
make your deficiencies safe, and relying on lesser levels of the
hierarchy of controls is unacceptable for a licensed engineer. A
licensed engineer should always try to eliminate a hazard or
hazards by employing the most effective means possible. In
this case, the most effective means would, in accordance with
the hierarchy of controls, be the elimination of the potential
hazard. Thus, had the subject fan been installed with safe
clearances, the subject incident would not have occurred. This

17
was the simplest and most effective means possible and the
one that absolutely eliminates the hazard. Further emphasis to
this point is the reported fact that the fans have since been
raised at AFD Station 51, thereby eliminating this hazard, which
should have occurred from initial construction.

(CR 19).

Mr. Darville explained in detail how there were engineering

deficiencies with respect to placement of the ceiling fan.

Professional engineers are hired for their expertise and owe a
responsibility to “protect the public [such as Mr. Miramon]
health, safety, and welfare.” The relevant party(ies) had a
responsibility to exercise reasonable care in the exercise of
their work in connection with the apparatus bay design and
placement of the subject ceiling fan.

For personnel of the relevant party(ies) related to the designed
location, placement, and/or installation of the subject ceiling fan
who were licensed professional engineering or whose work was
required to be performed by licensed professional engineers,
there was a responsibility to be properly licensed and qualified
as engineers. The purpose of licensing and qualifying
engineers is to “protect the public health, safety, and welfare.”
Tex. Occupations Code 1001.004.

As licensed engineers, the relevant party(ies) failed to design
AFD Station 51 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
AFD Station 51 in a safe manner (specifically regarding
placement of the subject ceiling fan), failed to adequately
inspect AFD Station 51 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,

18
and/or violated applicable government regulations, laws, rule,
and/or industry standards.

Based upon the facts discussed above in this certificate, it is my
opinion that the relevant party(ies) 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. Those breaches causally
contributed to the incident involving Mr. Miramon.

(CR 20).

On pages 6 – 7 of its Brief of Appellant, Encotech repeats the

arguments about the Miramons’ amended petitions and additional

defendants. But, as previously discussed, Encotech challenged the Original

Petition only (CR 239), never references subsequent petitions in its motion

to dismiss, and attaches the Original Petition as an Exhibit. (CR 249 – 273).

SUMMARY OF RESPONSIVE ARGUMENTS

This case involves the placement of an industrial-sized fan in Austin

Fire Station 51 and the injuries that Ian Miramon suffered due to that

placement. In the trial court, Encotech made two “qualification” challenges

to the Miramons’ Certificate of Merit authored by Shane M. Darville, P.E.:

(1) that Darville was not “actively engaged” in the practice of engineering

and (2) that Darville’s only engineering experience is for positions of failure

analysis and litigation support and not the practice of providing mechanical,

19
electrical and plumbing engineering design services. (CR 242). Shane M.

Darville is undisputedly actively engaged in the practice of engineering.

(CR 18 – 24; 264 – 270). His Certificate of Merit states that “I am actively

engaged in the practice of engineering” and states that his engineering

practice includes the placement of machines and safety of same with

regard to human interaction and that he is knowledgeable in the area of

engineering services and machine placement. (CR 18, 264).

Encotech also complained that Darville’s Certificate of Merit made

impermissible “collective assertions of negligence.” (CR 242). Encotech’s

collective assertions of negligence argument has been rejected by Texas

courts in similar Chapter 150 motion to dismiss cases.

ARGUMENT

A. INTRODUCTION

In its 7 page trial court motion to dismiss (CR 239 – 246), Encotech

says that Shane M. Darville’s Certificate of Merit is deficient because

Darville is not actively engaged in the practice of engineering and has no

experience in providing mechanical, electrical and plumbing engineering

design services. (CR 242). Mr. Darville’s Certificate refutes both of these

qualifications challenges made by Encotech:

20
I am a professional engineer licensed in the State of Texas (No.
122773). I am actively engaged in the practice of engineering. I
am employed by McDowell Owens Engineering, Inc. A copy of
my current curriculum vitae is attached hereto as Exhibit 1. My
engineering practice includes forensic engineering and
mechanical engineering, including the placement of machines
and the safety of such with regard to human interaction.
Throughout my career as an engineer, I have evaluated several
hundred matters related to workplace and industrial accidents.
Many of these matters I have worked on involved the improper
placement of a machine and/or its components that caused or
contributed to an injury.

I am knowledgeable in the area of engineering services and
machine placement, including but not limited to the duties and
standard of care for an engineer.

(CR 18, 264).

In Mayse, 635 S.W.3d at 290 – 291, the Court of Appeals rejected the

same “forensic only” argument made by Encotech stating as follows:

Applying our interpretation of § 150.002(a)(3), we conclude
Coffman’s affidavit complies with § 150.002(a)(3) because it
states that he is actively engaged in the “practice of forensic
engineering, which includes various components of structural
engineering[,]” and structural engineering is DCI’s area of
practice. See Tex. Civ. Prac. & Rem. Code Ann. §
150.002(a)(3). While DCI argues that Coffman’s affidavit does
not comply because Coffman is not actively practicing structural
engineering, we disagree as on its face Coffman’s affidavit says
otherwise. Thus, we conclude Coffman's affidavit satisfies §
150.002(a)(3).

We sustain Underwriters’s second issue as it relates to DCI.

21
Encotech’s “collective assertions of negligence” argument has been

repeatedly rejected by Texas courts, where as here, the Defendant was

alleged to be involved in all aspects of the work at issue and where the

Defendant admits to its involvement in the work that is the subject of the

Certificate of Merit. (CR 10 – 11, 19 – 20, 239 – 241). Encotech’s argument

would require that in any situation where the negligent work is not attributed

to a specific defendant, the motion to dismiss must be granted, thereby

ending the suit. This Court should “decline to adopt such an approach.”

Resource Planning Associates, LLC v. Sea Scout Base Galveston and

Point Glass, LLC, No. 01-19-00965-CV, 2021 WL 1375797 at * 16 (Tex.

App. – Houston [1st Dist.] April 13, 2021, pet. denied) (mem. op.).

B. STANDARDS GOVERNING CHAPTER 150 MOTIONS TO DISMISS
(Responsive to Encotech’s Brief of Appellants, p. 10)

Recently, the Fort Worth Court of Appeals discussed Chapter 150

motions to dismiss and certificates of merit in Halff Associates, Inc. v.

Jacob & Martin, LLC, No. 02-24-00439-CV, 2025 WL 1536392 at * 3, 4

(Tex. App. – Fort Worth May 29, 2025, pet. denied) (mem. op.), as follows:

The purpose of a certificate of merit under Section 150.002 “is
to provide a basis for the trial court to determine merely that the
[claimant’s] claims are not frivolous” so the claimant may
“proceed in the ordinary course to the next stages of litigation.”
CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339,

22
346 (Tex. App. – Houston [1st Dist.] 2013, pet. denied) (op. on
reh’g); see T & T Eng’g Servs., Inc. v. Danks, No. 01-21-00139-
CV, 2022 WL 3588718, at * 3 (Tex. App. – Houston [1st Dist.]
Aug. 23, 2022, pet. denied) (mem. op.) (citing CBM Eng’rs, Inc.,
403 S.W.3d at 346). The threshold for compliance with the
certificate-of-merit requirement is low. As noted by the Supreme
Court, “Chapter 150 requires only that a similarly licensed
professional, knowledgeable of the defendant’s area of
practice, provide a sworn written statement certifying that the
defendant’s professional actions or omissions were negligent or
otherwise erroneous and the factual basis for such claims.”
Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520
S.W.3d 887, 897 (Tex. 2017) (emphasis added).

■■■

[T]he bar to surviving a motion to dismiss under Chapter 150 has
been set very low.

The First Court of Appeals recently discussed the Chapter 150

motion to dismiss process, emphasizing that the only purpose of the

certificate of merit is to show that the plaintiff’s claims are not frivolous so

plaintiff may proceed in the ordinary course to the next stages of litigation.

The First Court of Appeals further emphasized that the accuracy of the

opinions in the certificate of merit and the reliability of those opinions are

not pertinent to the sufficiency of the certificate of merit for purposes of

defeating the motion to dismiss.

In Bratton v. Pastor, Behling & Wheeler, L.L.C., No. 01-23-00015-CV,

2024 WL 1662391 at * 4 – 5, 11 – 12 (Tex. App. – Houston [1st Dist.] April

23
18, 2024, pet. denied) (mem. op.), the Court of Appeals, citing to Supreme

Court precedent, first explained as follows:

The certificate of merit need not address the elements of the
plaintiff’s various theories or causes of action. Melden & Hunt,
Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 894
(Tex. 2017). “The statute instead obligates the plaintiff to get an
affidavit from a third-party expert attesting to the defendant’s
professional errors or omissions and their factual basis.” Id. The
trial court then determines whether the certificate sufficiently
demonstrates that the plaintiff’s petition is not frivolous. Id.

The purpose of Section 150.002 is to deter plaintiffs from filing
frivolous claims by identifying and disposing of such claims at
the outset of litigation. See LaLonde v. Gosnell, 593 S.W.3d
212, 216 (Tex. 2019) (“The certificate-of-merit requirement is a
substantive hurdle that helps ensure frivolous claims are
expeditiously discharged.”). The function of a certificate of merit
“is to provide a basis for the trial court to determine merely that
the plaintiff’s claims are not frivolous” and thus the plaintiff may
“proceed in the ordinary course to the next stages of litigation.”
CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339,
346 (Tex. App. – Houston [1st Dist.] 2013, pet. denied).

Id. at * 5.

Continuing, the Court of Appeals cited to Texas Supreme Court and

Third Court of Appeals precedent, explaining as follows:

Section 150.002(b) states that a 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 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

24
Tex. Civ. Prac. & Rem. Code § 150.002(b). But at this
preliminary stage, a plaintiff is not required to marshal its
evidence or provide the full range of information a defendant is
entitled to obtain through formal discovery. See Melden & Hunt,
Inc., 520 S.W.3d at 896 – 97; Dunham Eng’g, Inc. v. Sherwin-
Williams Co., 404 S.W.3d 785, 795 (Tex. App. – Houston [14th
Dist.] 2013, no pet.) (stating “at the certificate-of-merit stage,
before discovery and before other dispositive motions are
available, the plaintiff is not required to fully ‘marshal his
evidence’ ”); CBM Eng’rs, 403 S.W.3d at 346 (“The statute
does not require a plaintiff to marshal his evidence or provide
the full range of information that the defendant is entitled to
obtain through formal discovery.”). Rather, Section 150.002
“reflects a legislative goal of requiring merely that plaintiffs
make a threshold showing that their claims have merit.” M-E
Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 504 (Tex. App.
– Austin 2012, pet. denied).

Id. at * 5.

The Chapter 150 motion to dismiss process occurs before discovery

and before the defendant is required to file an answer. It is not a summary

judgment proceeding and cannot be attacked on factual sufficiency and

legal sufficiency grounds.

The question before the trial court and before us on appeal is
only whether Dr. Bedient’s certificate of merit complied with
Section 150.002(a). The accuracy of Dr. Bedient’s opinions and
the reliability of his foundational materials do not impact the
sufficiency of his certificate of merit under Section 150.002,
which a plaintiff must file at the onset of litigation before any
discovery has occurred. Rather, such arguments, which ERM
and PBW are not foreclosed from making in the future, are
more appropriately raised in a motion for summary judgment or
motion to exclude expert testimony. See CBM Eng’rs, 403

25
S.W.3d at 346 (stating Section 150.002 does not “foreclose the
defendant from later challenging the sufficiency of the plaintiff’s
evidence or the admissibility of an expert’s opinion, such as by
filing a motion to exclude expert testimony or a motion for
summary judgment”)

■■■

Further, as we have explained, the accuracy of Dr. Bedient’s
assertions and the appropriateness of his source material is not
relevant at this initial stage of the litigation and may be raised
later. See generally CBM Eng’rs, 403 S.W.3d at 346 (stating
Section 150.002 does not “foreclose the defendant from later
challenging the sufficiency of the plaintiff’s evidence or the
admissibility of an expert’s opinion, such as by filing a motion to
exclude expert testimony or a motion for summary judgment”);
T & T Eng’g Servs., 2022 WL 3588718, at * 10 (holding
certificate of merit sufficient for purposes of Section 150.002
and stating defendant could challenge sufficiency of plaintiff’s
evidence and admissibility of expert’s opinion later in litigation).

Id. at * 11, 12.

Appellant Encotech is an engineering firm. (CR 19, 265, 239 – 241).

The Miramons have provided a Certificate of Merit from a similarly licensed

professional, knowledgeable of Appellant Encotech’s area of practice,

certifying that Appellant Encotech was negligent and the factual basis for

such claim. (CR 18 – 24, 264 – 270). The Miramons have satisfied the

threshold low bar for Chapter 150 Certificate of Merit compliance. The

motion to dismiss is meritless and the trial court’s ruling should be affirmed.

26
C. THE MIRAMONS FILED THE MANDATORY CERTIFICATE OF
MERIT WITH THEIR FIRST FILED PETITION (Responsive to
Encotech’s Brief of Appellant, pp. 11 – 12)

For some reason, Encotech makes a “no certificate” argument, citing

to cases where the plaintiff failed to file any Certificate of Merit with the first

filed pleading. Here, it is undisputed that the Miramons filed the mandatory

Certificate of Merit with their Original Petition. (CR 18 – 25).

D. THE “COLLECTIVE ASSERTIONS OF NEGLIGENCE”
ARGUMENT IS MERITLESS (Responsive to Encotech’s Brief of
Appellant, pp. 12 – 23)

An engineer may make collective assertions of negligence in a

Certificate of Merit “where it is alleged that the defendants were involved in

all aspects of the work at issue.” Bratton v. Paston, Behling & Wheeler,

L.L.C., 2024 WL 1662391 at * 6, citing, Res. Planning Assocs., LLC v. Sea

Scout Base Galveston & Point Glass, LLC, 2021 WL 1375797 at * 16 – 17.

The Miramons’ pleading makes such allegations as to all of the

professionals. (CR 10 – 11). The Certificate of Merit similarly states. (CR 19

– 20).

In addition, collective allegations are permissible where the defendant

acknowledges or admits its involvement in the work that is the subject of

the Certificate of Merit. Appellant Encotech admits that it “provided

27
mechanical, electrical and plumbing engineering services for the Project. …

Here, there is no dispute that Encotech is a Texas registered professional

engineer, and provided mechanical, electrical and plumbing engineering

services for the Project made the basis of this lawsuit.” Motion to Dismiss,

pp. 1, 3, ¶ ¶ 2, 8. (CR 239 – 241). The same admission is repeated in the

Brief of Appellant at page 12 – “It is undisputed that Encotech is a

professional engineering firm and that it provided MEP engineering design

services for the Project.”

In Bratton, the plaintiffs sued ERM and PBW and the trial court

dismissed the claims based on arguments made by ERM and PBW relying

on “collective allegations of negligence.” The Court of Appeals reversed

and remanded the dismissed claims.

Regardless, we find this Court’s binding opinion in T & T
Engineering Services, Inc. v. Danks, No. 01-21-00139-CV,
2022 WL 3588718 (Tex. App. – Houston [1st Dist.] Aug. 23,
2022, pet. denied) (mem. op.) more on point. In T & T
Engineering Services, the plaintiff was injured while working on
a drilling rig allegedly designed, fabricated, or manufactured by
T&T Engineering and Basic Equipment. Id. at * 1. The plaintiff
sued T&T Engineering and Basic Equipment for strict products
liability and negligence. Id. at * 8. T&T Engineering objected to
the plaintiff’s certificate of merit and moved to dismiss the
plaintiff's claims. Among other things, T&T Engineering argued
the certificate of merit “failed to identify the particular defendant
at fault or the specific conduct by T&T Engineering that
contributed to [the plaintiff’s] injuries.” Id. at * 2. The trial court

28
denied T&T Engineering’s motion to dismiss, and T&T
Engineering appealed. Id.

This Court observed that “the certificate of merit did not
specifically state the alleged negligence of T&T Engineering as
opposed to that of Basic Equipment” or “expressly state that
both T&T Engineering and Basic Equipment were involved in all
aspects of the work performed.” Id. at * 8. We explained the
certificate of merit instead:

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.”

Id. (citing Macina, 2017 WL 4837691, at * 6). 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.” T
& T Eng’g Servs., 2022 WL 3588718, at * 9. We thus held that
the “certificate of merit identifie[d] the alleged error and state[d]
the factual basis for [the expert’s] conclusions” and thus
“provide[d] a basis for the trial court to conclude that [the
plaintiff’s] claims [were] not frivolous.” Id. at * 10.

Bratton, 2024 WL 1662391 at * 9. Here, Encotech “unequivocally

acknowledged in the record” that it provided the engineering services that

Shane Darville stated were defective. (CR 239 – 241).

29
T & T Engineering Services, Inc. v. Danks, discussed above, is one of

the authorities cited and relied upon by Appellant Encotech throughout its

appellate brief for its “collective assertions of negligence” argument. See

also Motion to Dismiss, p. 4, ¶ 11. (CR 242). That decision was clearly

distinguished by the Bratton Court based on a record similar to this case.

The Bratton Court quoted from the Bedient report which made collective

allegations of negligence against Defendants ERM and PBW and rejected

the “collective allegations” argument because “ERM and PBW both

acknowledge in their motions to dismiss that they were responsible for one

or more aspects of the remediation project Dr. Bedient addresses and

criticizes in his certificate of merit.”

Apart from the errors and omissions associated with the CSM,
Dr. Bedient states in his certificate of merit that ERM and PBW
each failed to (1) “fully identify additional areas of potential
contamination, such as the Englewood Intermodal Yard, in
order to develop an appropriate remediation plan,” (2)
“characterize, assess and develop a plan to mitigate dense
non-aqueous phase liquids (DNAPL) at the site as required by
[Texas Risk Reduction Program],” and (3) “establish the full
extent of community impacts or develop actions to completely
stop those releases.”

■■■

Thus, as in T & T Engineering Services, the record reflects
ERM and PBW both acknowledge in their motions to dismiss
that they were responsible for one or more aspects of the

30
remediation project Dr. Bedient addresses and criticizes in his
certificate of merit, such as the preparation and refinement of
the CSM, the design of remedial action, or the evaluation and
identification of evaluation of exposure pathways. Dr. Bedient’s
certificate of merit thus identifies specific acts or omissions by
ERM and PBW, and ERM and PBW both acknowledge they
were involved in such aspects of the work at the Facility. See T
& T Eng’g Servs., 2022 WL 3588718, at * 7 (stating certificate
of merit should specifically address “the conduct of the
professional who provided the service at issue,” and “identify
each defendant and that defendant’s specific conduct”) (quoting
Fluor Enters., 2020 WL 2070257, at * 5). We thus conclude the
certificate of merit provided a basis for the trial court to
conclude that Appellants’ claims are not frivolous, and they may
thus “proceed in the ordinary course to the next stages of
litigation.” See T & T Eng’g Servs., 2022 WL 3588718, at * 10
(quoting CBM Eng’rs, 403 S.W.3d at 346).

Bratton, 2024 WL 1662391 at * 9 – 10.

Both ERM and PBW filed separate petitions for review challenging

the decision of the Fourteenth Court of Appeals in Bratton. The Supreme

Court denied the petitions for review. Both of the petitions for review

challenged the Court of Appeals’ analysis based on the “collective

allegations of negligence” arguments made by ERM and PBW. The

Supreme Court filings are available for review via the online Supreme Court

document portal.

On March 13, 2025, the Fourteenth Court of Appeals issued three

appellate opinions arising from the same trial court case: EDI International,

31
PC v. Mond Homeowners Association, Inc., No. 14-23-00958-CV, 2025 WL

798073 (Tex. App. – Houston [14th Dist.] Mar. 13, 2025, no pet.) (mem.

op.); Ryan Engineering, Inc. v. Mond Homeowners Association, Inc., No.

14-23-00960-CV, 2025 WL 798075 (Tex. App. – Houston [14th Dist.] Mar.

13, 2025, no pet.) (mem. op.); and Henderson Rogers Structural

Engineers, LLC v. Mond Homeowners Association, Inc., No. 14-24-00043-

CV, 2025 WL 798081 (Tex. App. – Houston [14th Dist.] Mar. 13, 2025, no

pet.) (mem. op.)

The underlying case involved “the faulty design and installation of a

glass curtain wall system.” EDI, 2025 WL 798073 at * 1; Henderson, 2025

WL 798081 at * 1; Ryan, 2025 WL 798075 at * 1. “In relevant part, the

Mond asserted negligence claims against EDI, Henderson Rogers

Structural Engineering, LLC … and Ryan Engineering, Inc. …”. Id. In all

three appeals, the defendants/appellants asserted that the trial court

abused its discretion “in denying [their] motion[s] to dismiss because the

Mond’s certificate of merit made collective assertions of negligence.” Id.

The collective assertions of negligence argument was rejected in all

three appeals. The Certificate of Merit stated that there was “lack of proper

coordination review, and oversight between EDI, Henderson, and Ryan.”

32
EDI, 2025 WL 798073 at * 2. In rejecting the “collective assertions”

argument, the Court of Appeals in EDI stated as follows:

Kahanek states that “[t]he lack of proper coordination review,
and oversight between EDI, Henderson, and Ryan have
resulted in a poorly performing window glass curtain wall
assembly which lacks the ability to control audible stress relief
during periods of increasing and decreasing thermal exposure
....” This provides a factual basis for the Mond’s negligence
claim against EDI and Kahanek’s assertion that in his
professional opinion and expertise EDI was negligent by
improperly reviewing and overseeing Ryan. See M-E Eng’rs,
Inc., 365 S.W.3d at 504. We reject EDI’s argument that
Kahanek’s affidavit only makes global assertions of negligence
and failed to specifically identify EDI and EDI’s conduct. See
Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b); see also
Jaster-Quintanilla & Assocs., Inc. v. Prouty, 549 S.W.3d 183,
191 (Tex. App. – Austin 2018, no pet.) (“Melden & Hunt
confirms that the factual basis required is merely that which
underlies the asserted professional error or omission to which
the affiant attests; the affiant need not address the elements of
the plaintiff’s various theories or causes of action or operative
facts other than the professional errors or omissions that are
the focus of the statute.”) (internal quotation marks omitted).
We cannot conclude that the trial court abused its discretion
when it denied EDI’s motion to dismiss. See Dunham Eng’g,
Inc., 404 S.W.3d at 796 – 97.

Id. Identical statements appear in the Henderson and Ryan opinions.

Henderson, 2025 WL 798081 at * 3; Ryan, 2025 WL 798075 at * 3.

In support of its “collective assertions of negligence” argument,

Appellant Encotech relied on: 1) Robert Navarro & Assocs. Eng’g, Inc. v.

Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475, 482 (Tex. App. – El

33
Paso 2012, no pet.), 2) Macina, Bose, Copeland & Assocs. v. Yanez, No.

05-17-00180-CV, 2017 WL 4837691 at * 7 – 8 (Tex. App. – Dallas Oct. 26,

2017, pet. dism’d) (mem. op.), and 3) DHM Design v. Morzak, No. 05-15-

00103-CV, 2015 WL 3823942 at * 3 (Tex. App. – Dallas June 19, 2015,

pet. denied) (mem. op.). See Motion to Dismiss, pp. 4 – 5. (CR 242 – 243).

The Beaumont Court of Appeals considered these three cases in

AMEC Foster Wheeler USA Corporation v. Maricelli, No. 09-19-00122-CV,

2020 WL 3579567 at * 5 – 7 (Tex. App. – Beaumont July 2, 2020, no pet.)

(mem. op.), and affirmed the denial of the motion to dismiss by the trial

court. In that case, the expert made collective allegations that a piping

hazard was not identified. The Court of Appeals explained as follows:

In contrast, in the present case the trial court could have
concluded that the original certificate of merit meets the
minimum threshold requirement because it specified facts that
could bear on the allegations made against Foster Wheeler.

In Plaintiffs’ original certificate of merit, Sawyer names Foster
Wheeler and explains that Foster Wheeler was the technology
licensee for the Deep Conversion Project. In the original
certificate of merit, the affidavit identifies Fluor as the entity
providing the front-end engineering and design and
construction for the defendant “Foster Wheeler USA
Corporation licensed Delayed Coker at the Total Port Arthur
Refinery[,]” and it states that the hazard associated with Mr.
Maricelli’s incident would have been present during the design
and construction of the project, and asserts that a study would
have identified the hazard associated with maintenance of the

34
304 Strainers and a safer alternative design implemented. The
paragraph then concludes that “[t]he firms associated with the
engineering and design of the Coker at Total failed to identify
the piping hazard and such failure was a proximate cause of
Mr. Maricelli’s incident.” The certificate refers to Wyatt and
Triple “S” as contractors that were involved with maintenance
and modifications to the 30FL-304A/B Fines Removal Strainers
and associated piping before the incident and opined as to how
the contractors who conducted the piping modification were
negligent. And, the certificate describes how Total “bears some
responsibility” for the incident.

While the allegations in the original certificate may be poorly
worded, we cannot say the trial court erred in denying the
motion to dismiss on the record now before us as the trial court
could have construed the original certificate in context with the
paragraphs that specifically referenced Foster Wheeler as
describing Foster Wheeler as the licensee, and Fluor as the
engineers, and that both were involved in the engineering and
design of the Coker at Total, and that they both “failed to
identify the piping hazard and such failure was a proximate
cause of Mr. Maricelli’s incident.” The trial court could have
reasonably concluded that the original certificate of merit makes
specific averments about Foster Wheeler, its role in the project,
and its errors or omissions, and that it provided enough detail
from which the trial court could determine Plaintiffs’ complaint is
not frivolous. See Melden & Hunt, Inc., 520 S.W.3d at 896; see
also Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b).

Id. at * 6 – 7.

This reasoning fully applies to the Miramons’ Certificate of Merit. Mr.

Darville’s Certificate of Merit “specified facts that could bear on the

allegations made against [Encotech] … that [multiple defendants] were

involved in the engineering and design … and that they [all] ‘failed to

35
identify the … hazard and such failure was a proximate cause of [Mr.

Miramon’s] incident’.” Id. (CR 18 – 24). “The trial court could have

reasonably concluded that the original certificate of merit makes specific

averments about [Encotech], its role in the project, and its errors or

omissions, and that it provided enough detail from which the trial court

could determine Plaintiffs’ complaint is not frivolous.” Id.

The Bratton Court, previously discussed herein, rejecting “collective

assertion of negligence” arguments based on the authorities cited by

Encotech. Bratton, 2024 WL 1662391 at * 6.

In Resource Planning Associates, LLC v. Sea Scout Base Galveston

and Point Glass, LLC, 2021 WL 1375797 at * 16 – 17 (mem. op.), the

Court of Appeals considered and rejected collective assertions of

negligence arguments based on the same authorities cited by Encotech.

The Court of Appeals affirmed the trial court’s denial of the motion to

dismiss where the certificate of merit explicitly stated that the expert was

not aware of the division of responsibilities between the defendants.

RPA and Shipley argue on appeal, as they did in the trial court,
that SSBG’s certificate of merit is insufficient because Coltzer
did not segregate the allegations between RPA and Shipley.
Rather, Coltzer states: “I am not aware of the division of
responsibilities between the two Architects.” And, thereafter,
Coltzer “jointly refers to both RPA and [Shipley] where he

36
makes an allegation of deficient architectural work.” RPA and
Shipley argue that such collective allegations render SSBG’s
certificate of merit insufficient and requires the dismissal of its
claims.

■■■

Here, SSBG’s expert, Coltzer, testified that “each Architectural
sheet has the seal associated with Mr. Randall and Mr. Shipley.
I am not aware of the division of responsibilities between the
two Architects.” (Emphasis added.) That is, RPA and Shipley
each affixed a seal to the documents at issue but did not
identify any specific portions of the documents that each
prepared. See Id. §§ 1.103(a), 1.104(b). Accordingly, Coltzer
attributed the errors and omissions he cited to both architects,
i.e., “[p]ortions of the plans prepared by [RPA] and [Shipley]
under the seals of Mr. Randall and Mr. Shipley are not correct
from a technical perspective.”

Id. at * 15 – 16.

The Court of Appeals rejected the collective assertions of negligence

argument after examining and explaining the purpose of the Certificate of

Merit at the preliminary, before discovery stage of the case and concluding

that accepting the argument would effectively bar the suit – “A plaintiffs

expert being unable to attribute any certain error to a specific architect

would render the plaintiff unable to produce a sufficient certificate of merit,

thus ending the suit … We decline to adopt such an approach.”

We note that section 150.002 requires that a certificate of merit
be filed at the beginning of a lawsuit, with the petition. See Tex.
Civ. Prac. & Rem. Code § 150.002(a). At this preliminary stage,

37
the plaintiff is not required to marshal its evidence or to provide
the full range of information that the defendant is entitled to
obtain through formal discovery. See Melden & Hunt, 520
S.W.3d at 897 (citing Dunham Eng’g, 404 S.W.3d at 795
(noting that “at the certificate-of-merit stage, before discovery
and before other dispositive motions are available, the plaintiff
is not required to fully marshal his evidence”)). Again, the
function of the certificate of merit is to provide a basis for the
trial court to determine merely that the plaintiff’s claims are not
frivolous, and to thereby conclude that the plaintiff is entitled to
proceed in the ordinary course to the next stages of litigation.
Id.; M-E Eng’rs, 365 S.W.3d at 504 (noting that statute “reflects
a legislative goal of requiring merely that plaintiffs make a
threshold showing that their claims have merit”). Notably, RPA
was sued, in part, under a theory that it was vicarious[ly] liable
for Shipley’s errors and omissions.

Were we to adopt the approach that RPA and Shipley espouse,
any two or more architects working on a large project, as here,
could advance the project by affixing their respective seals, see
22 Tex. Admin. Code. § 1.103(a), while insulating themselves
from future liability simply by not identifying the portions of the
document each prepared. See Id. § 1.104(b). A plaintiff’s expert
being unable to attribute any certain error to a specific architect
would render the plaintiff unable to produce a sufficient
certificate of merit, thus ending the suit. See Tex. Civ. Prac. &
Rem. Code § 150.002(e) (providing that claimant’s failure to file
certificate of merit in accordance with section 150.002 “shall
result in dismissal of the complaint against the defendant”). We
decline to adopt such an approach.

Id. at * 16.

The “collective assertions of negligence” arguments made by

Encotech are without merit.

38
E. THE EXPERT QUALIFICATION ARGUMENT MADE BY
ENCOTECH IS MERITLESS (Responsive to Encotech’s Brief of
Appellant, pp. 23 - 27)

Encotech falsely claimed in the trial court that “Shane M. Darville,

P.E.’s Curriculum Vitae, attached to his Certificate of Merit, demonstrates

he is not actively engaged in the practice of engineering.” Motion to

Dismiss, p. 4, ¶ 10 (emphasis in original). (CR 242). Encotech next claimed

that Darville’s only employment experience is failure analysis and litigation

support and not the practice of providing mechanical, electrical and

plumbing engineering design services. Id.

Mr. Darville’s Curriculum Vitae states, in part, as follows:

Primary areas of consultation: mechanical systems and
component failure analysis, Carbon Monoxide exposure, and
utility systems. Residential and commercial construction. HVAC
and plumbing, roof inspections, water intrusion/damage, and
foundation failure/deflection analysis. Construction Safety and
OSHA compliance related to workplace safety and injury.

Experiences include detailed on-site analyses, repair scope and
specification development. Analyses are conducted according
to current applicable standards. And providing sworn testimony
when required.

■■■

Apr. 2019 MCDOWELL OWEN ENGINEERING, INC.
– Present
Houston, Engineering Manager/Consulting Engineer.
Texas Areas of primary interest include

39
mechanical system and equipment failure
analysis, commercial and residential
construction, hazardous gas exposure, and
mechanical, electrical, plumbing (MEP)
related losses. Premises liability related to
slip/trip and fall accidents.

Nov. 2016 BISON ENGINEERING, INC.
– 2019
Kingwood, Mechanical Forensic Engineer. Areas of
Texas primary interest include mechanical
systems analysis including pressure
vessels, hazardous gas exposure with a
focus on Carbon Monoxide (CO) and
mechanical, electrical, plumbing (MEP)
related losses.

(CR 21, 267).

Mr. Darville states in the Certificate of Merit as follows:

I am a professional engineer licensed in the State of Texas (No.
122773). I am actively engaged in the practice of engineering. I
am employed by McDowell Owens Engineering, Inc. A copy of
my current curriculum vitae is attached hereto as Exhibit 1. My
engineering practice includes forensic engineering and
mechanical engineering, including the placement of machines
and the safety of such with regard to human interaction.
Throughout my career as an engineer, I have evaluated several
hundred matters related to workplace and industrial accidents.
Many of these matters I have worked on involved the improper
placement of a machine and/or its components that caused or
contributed to an injury.

I am knowledgeable in the area of engineering services and
machine placement, including but not limited to the duties and
standard of care for an engineer. The opinions expressed in
this Certificate are based upon my personal knowledge, skill,

40
education, training, experience, practice, and review of analysis
of certain evidence (described below) concerning the events
surrounding the June 17, 2023 incident in which Mr. Ian
Miramon was injured.

(CR 18, 264).

The forensic and “not actively engaged in the practice of engineering”

arguments are patently frivolous and untrue for the same reasons

discussed in Mayse, 635 S.W.3d at 290 – 291, quoted on page 21, herein.

In Mayse, the Court of Appeals stated:

Applying our interpretation of § 150.002(a)(3), we conclude
Coffman’s affidavit complies with § 150.002(a)(3) because it
states that he is actively engaged in the “practice of forensic
engineering, which includes various components of structural
engineering[,]” and structural engineering is DCI’s area of
practice. See Tex. Civ. Prac. & Rem. Code Ann. §
150.002(a)(3). While DCI argues that Coffman’s affidavit does
not comply because Coffman is not actively practicing structural
engineering, we disagree as on its face Coffman’s affidavit says
otherwise. Thus, we conclude Coffman's affidavit satisfies §
150.002(a)(3).

We sustain Underwriters’s second issue as it relates to DCI.

The Third Court of Appeals recently addressed and rejected “practice

area” qualification arguments identical to those made by Encotech in this

case. In Janis Smith Consulting, LLC v. Rosenberg, No. 03-23-00370-CV,

2024 WL 4750757 at * 1 (Tex. App. – Austin Nov. 6, 2024, pet. denied)

(mem. op.), the trial court denied the motion to dismiss. The engineering

41
defendant asserted on interlocutory appeal that the plaintiff’s expert did not

work in the same “practice area” as the defendant.

Eric B. Rosenberg attached a certificate of merit from a
professional engineer to his suit alleging professional
negligence and malpractice claims against Janis Smith
Consulting, LLC and Janis Smith (collectively, Smith). However,
Smith contends Rosenberg’s certificate of merit is deficient
because the affiant does not practice in the same subspecialty
practice area as Smith does.

■■■

Smith filed a motion to dismiss, arguing that Campbell lacks the
required knowledge, skill, experience, education, training, and
practice in the relevant area of specialization, and thus his
affidavit cannot support Rosenberg’s professional negligence or
malpractice claims. Specifically, Smith maintained Campbell
lacks experience with “the construction and maintenance of
boat docks and bulkheads in Lake Austin, or attached to the
banks of Lake Austin,” which she characterizes as a “narrow
and very specialized area of practice,” as well as her “sole area
of practice.” She argued an engineer practicing in this area
must understand the City of Austin’s and Army Corps of
Engineers’ regulations for Lake Austin shoreline projects, the
“constructability of proposed designs to ensure that the design
will actually function,” and the “regulatory reviewers’ pattern of
enforcement of regulations,” in addition to having “a working
knowledge of past precedents as they pertain to boat docks
and bulkheads on Lake Austin.”

Id. at * 1.

The Third Court of Appeals quoted from the certificate of merit which

is similar in many respects to the Darville Certificate in this case. Id. at * 3.

42
Campbell’s certificate of merit states that he “practice[s] in the
same area of practice, that being civil engineering, as [Smith].”
He attests that he made the observations and conclusions in
his affidavit based on his “professional experience, skill,
knowledge, education, training, and practice in the engineering
field.” And Campbell’s resume, which he attached to his
affidavit, reflects his civil-engineering degree, professional
engineering license, and over 20 years of experience in
municipal and city engineering services, including planning,
design, and permit reviews, and involving water and
wastewater services.

The Third Court of Appeals rejected the “subspecialty” and practice

area arguments.

In sum, this litigation involves a feasibility determination
regarding the relocation of a residential boat dock and whether
Rosenberg’s preferred design and location were consistent with
permitting requirements. That is, notwithstanding Smith’s
advanced subspecialty – i.e., “engineering in the specialty area
of regulatory approval for site plan permitting required for the
construction and maintenance of boat docks and bulkheads on
Lake Austin, or attached to the banks of Lake Austin” – the
practice area at issue here involves civil engineering design
and permitting services.

Id. at * 3.

The Third Court of Appeals cited numerous cases rejecting the same

argument that Encotech makes challenging Darville’s qualifications in this

case.

On this record, we conclude the trial court could have
reasonably found Campbell practices in the same area as
Smith for purposes of the certificate of merit requirement in

43
Chapter 150. See Eric L. Davis Eng’g, Inc. v. Hegemeyer, No.
14-22-00657-CV, 2023 WL 8270984, at * 4 (Tex. App. –
Houston [14th Dist.] Nov. 30, 2023, no pet.) (mem. op.)
(concluding affiant practiced in same structural-engineering
practice area as appellants despite appellants’ argument that
affiant did not specifically state he designs residential post-
tension foundations); T & T Eng’g Servs., 2022 WL 3588718, at
* 4 – 6 (holding that petroleum-engineer affiant sufficiently
demonstrated he practiced in structural and mechanical
engineering for Section 150.002(a)(3) purposes); Howe-Baker
Eng’rs, Ltd. v. Enterprise Prods. Operating, LLC, No. 01-09-
01087-CV, 2011 WL 1660715, at * 5 (Tex. App. – Houston [1st
Dist.] Apr. 29, 2011, no pet.) (mem. op.) (concluding affiant and
appellants shared same practice area when record established
that affiant’s practice “overlaps with” appellants’); see also
Carlson, Brigance & Doering, Inc. v. Compton, No. 03-19-
00954-CV, 2020 WL 7233612, at * 4 – 5 (Tex. App. – Austin
Dec. 8, 2020, pet. denied) (mem. op.) (concluding, under
different version of statute, that trial court could have
reasonably inferred affiant’s knowledge of practice area based
on his observations and evaluations).

Id. at * 3.

Continuing, the Third Court of Appeals rejected the narrow argument

advocated by the defendant professional.

Neither the statute nor case law support the narrowly drawn
practice area parameters Smith urges. See Tex. Occ. Code §
1001.003(c) (defining “the practice of engineering”); Nortex
Found. Designs, Inc. v. Ream, No. 02-12-00212-CV, 2013 WL
3488185, at * 3 (Tex. App. – Fort Worth July 11, 2013, no pet.)
(mem. op.) (“[T]he statute requires the expert to be practicing in
the same area as the defendant, but it does not require the
expert to have the same job description. All that is necessary is
that, whatever the expert’s job, it falls within the same area of
practice as the defendant.”); Benchmark Eng’g Corp. v. Sam

44
Houston Race Park, 316 S.W.3d 41, 49 – 50 (Tex. App. –
Houston [14th Dist.] 2010, pet. granted, judgm’t vacated w.r.m.)
(rejecting appellant’s argument that affiant was required to
practice in engineering subspecialty of “drainage and drainage
design” when record established he practiced in same area of
construction engineering as appellant). Thus, the trial court did
not abuse its discretion in denying Smith’s motion to dismiss
under section 150.002.

Id. at * 3.

Other similar cases include Morrison Seifert Murphy, Inc. v. Zion, 384

S.W.3d 421, 427 (Tex. App. – Dallas 2012, no pet.) (Chapter 150 only

requires that author of certificate of merit must be knowledgeable in the

area of practice of the defendant); Elness Swenson Graham Architects, Inc.

v. RLJ II-C Austin Air, LP, No. 03-10-00805-CV, 2011 WL 1562891 at * 2 –

3 (Tex. App. – Austin Apr. 20, 2011, pet. denied) (mem. op.)

In M-E Engineers, Inc. v. City of Temple, 365 S.W.3d 497, 503 (Tex.

App. – Austin 2012, pet. denied), the Third Court of Appeals found the

author of the certificate of merit was knowledgeable in the defendant’s area

of practice as required by Chapter 150 based on statements similar to

those made by Darville in the Certificate of Merit in this case.

In this case, the district court had before it Long’s sworn
certificate indicating that he is currently licensed by the State of
Texas as a professional engineer, that he is “actively engaged
in the practice of mechanical engineering,” and that he
“practice[s] in the design of heating, ventilating, air conditioning

45
systems and plumbing systems.” The district court also could
have considered other facts tending to confirm that Long was
knowledgeable concerning HVAC systems, most notably
including his descriptions and analysis of eleven sets of
identified problems in the building’s HVAC system that he
attributed to Tochihara.

■■■

On this record, we cannot conclude that the district court
abused its discretion in determining that Long “is
knowledgeable” in Tochihara’s area of practice, as required by
section 150.002, subsection (a). See Tex. Civ. Prac. & Rem.
Code Ann. § 150.002(a). We overrule appellants’ second issue.

Appellant Encotech qualifications argument is meritless.

CONCLUSION AND PRAYER

Appellant Encotech Engineering Consultants, Inc.’s motion to dismiss

was properly denied by the trial court. The trial court’s order must be

affirmed.

Respectfully submitted,

RAMSEY LAW GROUP

/s/ John C. Ramsey
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

46
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@freemanlaw.com

PAUL WEBB, P.C.

/s/ Vincent L. Marable III
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 APPELLEES IAN
MIRAMON AND CAROLINE MIRAMON

47
CERTIFICATE OF COMPLIANCE

This Brief of Appellees complies with the length limitations of Tex. R.
App. P. 9.4(i)(2)(B) because the Brief of Appellees consists of 8,671 words,
excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Vincent L. Marable III
VINCENT L. MARABLE III

48
CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of January, 2026, a true and
correct copy of the above and foregoing was sent to all the attorneys of
record, in accordance with the Texas Rules of Appellate Procedure by e-
file.

/s/ Vincent L. Marable III
VINCENT L. MARABLE III

49
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.

Vincent Marable III on behalf of Vincent Marable III
Bar No. 12961600
tripp@paulwebbpc.com
Envelope ID: 109811092
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Brief of Appellees Ian Miramon and Caroline Miramon
Status as of 1/8/2026 11:53 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Nicholas Scott nscott@wslawpc.com 1/8/2026 11:27:50 AM SENT

Brandon Waddell bwaddell@wslawpc.com 1/8/2026 11:27:50 AM SENT

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Michelle Connrt mconner@wslawpc.com 1/8/2026 11:27:50 AM SENT

John Ramsey john@ramseylawpc.com 1/8/2026 11:27:50 AM SENT

Rick Freeman rick@rickfreemanlaw.com 1/8/2026 11:27:50 AM SENT

Vincent Marable tripp@paulwebbpc.com 1/8/2026 11:27:50 AM SENT

Ramsey LawGroup eservice@ramseylawpc.com 1/8/2026 11:27:50 AM SENT

K. GraceHooten grace@ramseylawpc.com 1/8/2026 11:27:50 AM SENT