author: EVELYN V. KEYES, Justice.

text:
    ROYCE HOMES, L.P. and Hammersmith Group, Inc., Appellants, v. Deborah F. BATES, Verdia L. Boyce, Wadie and Demetria Butler, Robert and Billye Evans, Darlene Handy, Josaulyn Hoskins, Jinnell Ray, Trilyon Taylor, and Barbara Wilson, Appellees.
    No. 01-08-00191-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 21, 2010.

      Kathleen Hopkins Alsina, Patricia Hair, Phelps Dunbar, L.L.P., Houston, TX, for Appellant.
    Karl C. Hoppess, Karl C. Hoppess & Associates, P.C., Houston, TX, for Appel-lee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Royce Homes, L.P., appeals the order of the trial court confirming an arbitration award and final judgment in favor of appellees, a group of homeowners (“homeowners”). In three issues, Royce Homes argues that (1) the trial court abused its discretion by failing to appoint the arbitrator specified in the parties’ arbitration agreement; (2) the trial court erred in failing to vacate the arbitration award because the arbitrator exceeded his powers; and (3) the trial court erred in failing to vacate the arbitration award because it demonstrated a manifest disregard for the law and a gross mistake in interpreting and applying the law.

We affirm.

Background

The nine homeowner appellees purchased homes from Royce Homes between 1998 and 1999 in the Garden Valley Estates subdivision. In purchasing their homes, each homeowner received a “2-10 Home Buyer’s Warranty,” which was to be administered by Home Buyer’s Warranty, Inc. (“HBW”). The “2-10 Home Buyer’s Warranty” stated: “This Warranty is a contract between you and your Builder. HBW is the warranty administrator, but NOT a warrantor under the contract.” The arbitration provision in the warranty stated:

Any and all claims, disputes and controversies arising under or relating to this Agreement, including without limitation, any claim of breach of contract, negligent or intentional misrepresentation or nondisclosure in the inducement, execution or performance of any contract, and breach of any alleged duty of good faith and fair dealing, shall be submitted to arbitration by and pursuant to the rules of Construction Arbitration Services, Inc. (hereinafter “CAS”) in effect at the time of the request for arbitration. If CAS shall for any reason be unable or unwilling to conduct, or is disabled from conducting such arbitration, the arbitration shall be conducted by and pursuant to the rules of the American Arbitration Association applicable to home warranty arbitration proceedings in effect at the time of the request for arbitration. The decision of the arbitrator shall be final and binding and may be entered as a judgment in any State or Federal court of competent jurisdiction.
The parties expressly agree that this arbitration provision involves and concerns interstate commerce and is governed by the provisions of the Federal Arbitration Act, (9 U.S.C. § 1, et seq.), now in effect and as the same may from time to time be amended.

Some of the homeowners also signed earnest money contracts that each contained an arbitration provision in an attached arbitration addendum (“Espree Arbitration Addendum”). That provision stated, “Any controversy, claim or dispute arising out of or related directly or indirectly but not limited to ... the construction or repair of the home ... shall be settled by arbitra-tions [conducted by CAS].”

On February 11, 1999, disgruntled residents of the Green Valley Estates filed suit against their homebuilders, the neighborhood developer, and various other entities. This original lawsuit sought to establish a separate homeowner’s association and to address claims surrounding the creation of the subdivision and construction defects. None of the homeowners filed warranty complaints by HBW under the Home Buyer’s Warranty provisions for the construction defects that were the subject of their claims. Nor did Royce Homes seek to compel arbitration at this point. After several interventions and amendments of the pleadings, additional plaintiffs were joined, and some plaintiffs expanded their claims to include claims for construction defects, breach of contract, fraud, and DTPA violations. Royce Homes and its general partner Hammersmith were made parties to the litigation in 2002.

In February 2004, the parties entered into a settlement agreement (“Settlement Agreement”). This agreement expressly excluded the homeowners’ construction defect claims against Royce Homes and Hammersmith. The Settlement Agreement stated:

Notwithstanding anything to the contrary herein, it is understood and agreed that this settlement and the compliance with the terms and receipt of and payments made hereunder shall not settle or affect any of the claims and causes of action arising out of or created by the alleged deficiencies in the construction of any home, Construction Defects Claims, now pending against Royce Homes, L.P. by any of the homeowners who purchased homes from Royce Homes, L.P. All claims against Royce Hom.es, L.P. related to such alleged construction defects remain pending, abated for arbitration under Cause No. 107,-892-D.... Specifically, all claims against Royce Homes, L.P. related to construction defects in the construction of the property itself (“Construction Defect Claims”) as set forth in Plaintiffs’ and Intervenors’ First Supplemental Petition in Response to DWM Holdings’ Special Exceptions and Pursuant to Court Order, shall remain pending and are abated for arbitration.
The parties further acknowledge that the purpose of this agreement is to resolve disputed claims made, in order that these parties may buy their peace forever, with the exception of all construction defects claims which are to be resolved through either settlement and/or arbitration.
This document together with the take nothing judgment dismissing Cause No. 107,892 contains the entire agreement between the parties and the terms hereof are contractual and not mere recitals.
This agreement shall be governed by the laws of the State of Texas.

(Emphasis added.) The construction defect claims were severed from the rest of the litigation on April 12, 2004. Neither the homeowners nor Royce Homes filed the arbitration proceedings contemplated in the settlement agreement.

On May 6, 2004, the homeowners filed their eleventh amended petition against Royce Homes and its general partner, Hammersmith, on the severed claims. The eleventh amended petition alleged causes of action for breach of contract based on Royce Homes’ alleged breach of “numerous material terms of the contractual agreements ... including the failures to construct the homes as promised and in a good and workmanlike fashion [and] the implied warranty of habitability and implied warranty of good workmanship”; common law fraud and unconscionability based on statements and representations made by Royce Homes “concerning the quality of the construction and the skill to be utilized by” Royce Homes; statutory fraud in a real estate transaction in violation of Texas Business and Commerce Code section 27.01; and deceptive trade practices.

Two years later, on June 29, 2006, the trial court notified the parties that it had set the case on the non-jury trial docket on September 6, 2006 and that “there will be no continuances or passes [granted].” A month later, on July 25, 2006, ten of the fifteen homeowners, whose claims had been severed but who had not signed Espree Arbitration Addendums with their earnest money contracts, moved the trial court to appoint an arbitrator pursuant to section 171.041 of the Texas Arbitration Act (TAA). This motion stated:

All ... 15 homeowner disputes were referred, to arbitration by agreement. Five of the homeowners had previously signed an Espree Arbitration Addendum wherein an arbitrator was designated in advance. The remaining [homeowners] have no such agreement, but have agreed to arbitrate solely in accordance with the Texas Arbitration Act.
[The 10 moving homeowners] have proposed to [Royce Homes] that an agreed arbitrator arbitrate all 15 disputes at one hearing. To date, the [homeowners] have received no response to this suggestion or request. Therefore, due to the limited time schedule set forth by the Court, and in order to avoid dismissal, the [10 moving homeowners] are pursuing their rights under the Texas Arbitration Act and the other 5 homeowners are pursuing theirs under their agreements.

(Emphasis added.) The motion also stated that the ten moving homeowners had agreed to no “defined method of appointment of arbitrators” and that it was proper for the trial court to appoint one for them under section 171.041(b) of the TAA. The homeowners suggested three candidates for arbitrator, including Tom McDonald. On July 31, 2006, the trial court appointed Tom McDonald arbitrator for the fifteen homeowners named in the motion.

In response to the homeowners’ application to appoint an arbitrator under the TAA, on August 8, 2006, Royce Homes filed a motion to enforce the arbitration agreements signed by all fifteen of the homeowners in purchasing them homes, which provided that CAS should act as arbitrator, and it filed a motion to reconsider the appointment of Tom McDonald as arbitrator. Royce Homes argued that because all fifteen homeowners with pending construction defect claims had signed arbitration provisions in their Home Buyer’s Warranty agreements and some of the homeowners had signed arbitration agreements in the Espree Arbitration Ad-dendums, and because both required arbitration to be conducted by CAS, the arbitration should be conducted by CAS.

On August 17, 2006, the five homeowners who had not joined the original motion to appoint an arbitrator pursuant to the TAA moved the trial court for appointment of Tom McDonald as arbitrator for their claims. This motion stated, “At the time of the filing of the first motion for appointment of an arbitrator, it was believed that Construction Arbitration Services (“CAS”) would act as arbitrator for the remaining five [homeowners].” The motion stated that the homeowners had attempted to comply with CAS’s procedural rules by filing the proper applications and arranging to pay the applicable fees, but CAS refused to accept the role of arbitrator.

Specifically, in his supporting affidavit, the attorney for the homeowners averred that in June 2006, the homeowners contacted CAS through its Construction Dispute Representative, Cardell Wade, who “directed [lawyers for the homeowners] to CAS’s website and advised [them] of the necessary applications, rules and information needed” to pursue arbitration though CAS. In July 2006, attorneys for the homeowners prepared applications and helped the homeowners make arrangements to pay the application fee to CAS “in order to have it immediately appoint its names arbitrator and enter a scheduling order” to avoid the trial court’s order for dismissal. The motion further stated:

Then, on August 14, 2006, CAS’s representative, Cardell Wade, for no apparent reason, informed counsel for [the homeowners] that CAS would no longer accept the role as arbitrator under these contracts. He further informed counsel that unless the [homeowners] made applications for limited warranty claims, only, through Home Buyer’s Warranty, Inc., the purported administrator of an alleged warranty program in which the builder Royce Homes, L.P., attempted to enroll Movants at the time of their respective closings, and Home Buyers Warranty, Inc. and Royce Homes, L.P., made an application to CAS, CAS would not arbitrate these five claims.
Despite being informed that the claims in this dispute were being submitted to arbitration pursuant to the agreements reached in this case and upon the Court’s order severing the fifteen remaining claims, Cardell Wade informed counsel for Movants that CAS still refused to accept a request of demand for arbitration from the Movants and that CAS would refuse to act as arbitrator even if ordered by this Court to do so, unless the homebuilder, Royce Homes, L.P., and Home Buyers Warranty, Inc., requested CAS to do so.
CAS’s refusal to arbitrate this matter coupled with its refusal to act under any order entered by this Court and Royce Homes, L.P.’s refusal to arbitrate this dispute as a joint claims arbitration leaves Movants with no alternative but to seek appointment of an arbitrator pursuant to Section 171.041 of the Texas Arbitration Act....

The affidavit of the attorney for the homeowners also related the details of the interaction between the homeowners and CAS in support of these claims.

Also on August 17, 2006, Royce Homes filed a motion for reconsideration, arguing that Royce Homes had sought to compel the homeowners to arbitration with CAS since it had first made an appearance in the case and that, under both the TAA and the FAA, the trial court was required to appoint the arbitrator specified in the arbitration agreements.

On August 22, 2006, Royce Homes filed a response to the remaining five homeowners’ motion to have Tom McDonald appointed as arbitrator. This response outlined Royce Homes’ procedure for resolving warranty disputes, including arbitration before CAS. Royce Homes claimed that it was the homeowners’ failure to follow the procedures required to invoke arbitration before CAS that had led to the dispute over appointment of an arbitrator. Royce Homes attached the affidavit of Cardell Wade, which stated:

The CAS Rules for the Arbitration of Home Warranty Disputes ... require that the Parties agree to utilize the CAS Rules either through a separate agreement or as part of a warranty program. In those instances in which the home is enrolled in a warranty program, a Homeowner making a claim starts the arbitration process by filing the appropriate forms with his or her warranty insurer, which then forwards the case to CAS, which then initiates the arbitration process and appoints an Arbitrator. CAS will accept a court appointment to act as an arbitration administrative agency, pursuant to the terms of a court order issued by a court of competent jurisdiction.
CAS has arbitrated numerous warranty claims involving homes in the Home Buyers Warranty (2-10) program. However, it is necessary for the Homeowner to complete the forms required by Home Buyers Warranty (2-10), and to initiate the process with Home Buyers Warranty (2-10), in order for the Arbitration process to ultimately be administered by CAS.
In a prior phone conference I previously advised Karl Hoppess, Esq., that his client’s home is enrolled in the Home Buyers Warranty (2-10) program, and Home Buyers Warranty (2-10) must be contacted in order for this clients to initiate their “Pre-Arbitration” process, and to prevent the Homeowner(s) warranty from being voided with Home Buyers Warranty (2-10), along with the possible resolving [sic] the dispute between the Parties before send [sic] the case to CAS. Upon receipt of the Homeowner(s) case file from Home Buyers Warranty (2-10), CAS can then initiate the Arbitration process, and appoint an Arbitrator from its panel of Arbitrators.

On August 22, 2006, the trial court signed an order denying Royce Homes’ motions to enforce the arbitration agreement and to reconsider the appointment of Tom McDonald as arbitrator. On September 1, 2006, the trial court also denied Royce Homes’ motion for reconsideration of those rulings and ordered the trial setting removed from its September 6, 2006 docket.

Royce Homes subsequently filed a petition for writ of mandamus in this Court seeking to enforce the arbitration provisions selecting CAS as arbitrator, or alternatively, applying CAS procedural rules. This petition for writ of mandamus was denied without an opinion on the merits on March 29, 2007.

On April 12, 2007, Royce Homes filed a motion with McDonald, the court-appointed arbitrator, again seeking to enforce the arbitration provisions designating CAS as arbitrator, or alternatively, implementing CAS procedures. The arbitrator denied this motion and set a schedule for conducting the arbitration proceedings. At the beginning of the arbitration hearing on November 12, 2007, Royce Homes repeated its request to have CAS appointed as arbitrator or to have the arbitration conducted following CAS procedures. The arbitrator denied Royce Homes’ request again and began the hearing.

On January 1, 2008, the arbitrator granted the homeowners collectively a $336,121.26 award, including over $82,000 for actual damages and more than $245,000 as treble damages, plus $75,000 in attorney’s fees and $15,000 in litigation expenses.

Royce Homes moved the trial court to vacate the arbitration award. The homeowners filed a motion to confirm the award. On February 29, 2008, the trial court entered a final judgment confirming the full amount of the arbitration award. Royce Homes appeals.

Controlling Law

We first determine whether the contract is controlled by the Federal Arbitration Act (FAA) or the Texas General Arbitration Act (TAA), or both. The parties dispute which statute governs here. Royce Homes argues that the FAA applies, while the homeowners argue that the settlement agreement provided that it was “governed by the laws of the State of Texas.”

The FAA preempts all otherwise applicable inconsistent state laws, including any inconsistent provisions of the TAA, under the Supremacy Clause of the United States Constitution. U.S. Const, art. VI; see Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 272, 115 S.Ct. 834, 838, 130 L.Ed.2d 753 (1995). The FAA applies to contracts involving interstate commerce. 9 U.S.C. § 2. It requires only that interstate commerce be involved or affected. Allied-Bruce, 513 U.S. at 277-81,115 S.Ct. at 841-43; see also In re Brock Specialty Servs., 286 S.W.3d 649, 653 (Tex.App.-Corpus Christi 2009, orig. proceeding) (“ ‘Commerce’ has been broadly defined and encompasses contracts relating to interstate commerce.”). Interstate commerce is evidenced by location of headquarters in another state, manufacture of components in a different state, transportation of goods across state lines, and billings prepared in another state, among other factors. Stewart Title Guar. Co. v. Mack, 945 S.W.2d 330, 333 (Tex.App.Houston [1st Dist.] 1997, writ dism’d w.o.j.); see also Robinson v. TCI/US West Commc’ns Inc., 117 F.3d 900, 904 (5th Cir.1997) (defining interstate commerce as “trade, commerce, transportation, or communication among the several States, or between any foreign country and any place or ship outside thereof’). The burden is on the party seeking to compel arbitration to establish its right under the FAA. Ikon Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 696 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

The Texas Supreme Court has held that a Texas choice-of-law provision will not be construed to select the TAA to the exclusion of the FAA unless the clause specifically excludes the application of federal law. In re L & L Kempwood Assocs., L.P., 9 S.W.3d 125, 127-28 (Tex.1999); Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 803 (Tex.App.-Dallas 2008, pet. denied). Texas eourts have also held that a general choice-of-law clause such as the one in the settlement agreement does not satisfy that standard. Roehrs, 246 S.W.3d at 803 (citing Dewey v. Wegner, 138 S.W.3d 591, 596 & n. 5 (Tex.App.-Houston [14th Dist.] 2004, no pet.)).

Royce Homes, L.P. is a Delaware Limited Partnership; therefore, this agreement affects interstate commerce. See Stewart Title Guar. Co., 945 S.W.2d at 333. Accordingly, we apply the FAA, while recognizing that the TAA also applies to the extent it is consistent with the FAA. See Roehrs, 246 S.W.3d at 803 (citing In re D. Wilson Constr. Co., 196 S.W.3d 774, 779-80 (Tex.2006)).

Review of Confirmation of Arbitration Award

We review de novo a trial court’s confirmation of an arbitration award under the FAA based on the entire record. Myer v. Americo Life, Inc., 232 S.W.3d 401, 407 (Tex.App.-Dallas 2007, no pet.); Tanox, Inc. v. Akin, Champ, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 250 (TexApp.-Houston [14th Dist.] 2003, pet. denied). All reasonable presumptions are indulged to uphold the arbitrator’s decision, and none are indulged against it. Bailey & Williams v. Westfall, 727 S.W.2d 86, 90 (Tex.App.-Dallas 1987, writ refd n.r.e.).

An arbitration award is presumed valid and entitled to great deference. Myer, 232 S.W.3d at 407-08. When reviewing an arbitration award, we may not substitute our judgment merely because we would have reached a different decision. Bailey, 727 S.W.2d at 90. Because judicial review of an arbitration award adds expense and delay that diminishes the benefits of arbitration as an efficient, economical system for resolving disputes, our review of the arbitration award is “extraordinarily narrow.” See Myer, 232 S.W.3d at 408. Accordingly, we may not vacate an award even if it is based upon a mistake in law or fact. Anzilotti v. Gene D. Liggin, Inc., 899 S.W.2d 264, 266 (Tex.App.-Houston [14th Dist.] 1995, no writ).

The Supreme Court has recently held that the statutory grounds provided in sections 10 and 11 of the FAA for vacating, modifying, or correcting an arbitration award are the exclusive grounds for vacating an arbitration award. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1403, 170 L.Ed.2d 254 (2008). Section 10(a) permits a court to vacate an arbitration award:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a).

Validity of the Arbitration Proceedings

In its first and second issues, Royce Homes argues that the trial court erred in appointing an arbitrator who was not specified in the agreement between the parties and that the trial court erred in failing to vacate the arbitration award because the appointed arbitrator exceeded his authority. In its third issue, Royce Homes argues that the trial court erred in failing to vacate the arbitration award because the award demonstrated a manifest disregard of the law and gross mistake.

A. Scope of Arbitrator’s Powers

Royce Homes argues that the arbitration should have been conducted by CAS, or in the alternative, that it should have been conducted following CAS procedures. Royce Homes argues that the trial court erred in appointing Tom McDonald as arbitrator instead of CAS, and that McDonald exceeded the scope of his powers by not referring the arbitration to CAS or, alternatively, by not conducting the arbitration following CAS procedures.

Arbitration is a matter of contract, and “the power and authority of the arbitrators in an arbitration proceeding is dependent on the provisions under which the arbitrators were appointed.” Brook v. Peak Int'l, Ltd., 294 F.3d 668, 672 (5th Cir.2002) (quoting Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830, 831 (11th Cir.1991); see also Myer, 232 S.W.3d at 408 (holding that arbitrator’s authority “is defined by the contract containing the arbitration clause and by the issues actually submitted to arbitration”). Parties to an arbitration agreement may determine by contract the method for appointing an arbitrator and, under the FAA, the agreed upon method of appointment “shall be followed.” See id. (citing 9 U.S.C. § 5).

However, section 5 of the FAA also provides that the agreed-upon method of appointing an arbitrator can be set aside under some circumstances. Section 5 of the FAA provides:

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.

9 U.S.C. § 5. As the Texas Supreme Court has stated, “Courts interpreting the ‘fail to avail’ or ‘lapse’ language of the FAA have generally held that the section 5 substitution process should be invoked by the trial court only when some ‘mechanical breakdown in the arbitrator selection process’ occurs or when ‘one of the parties refuses to comply, thereby delaying arbitration indefinitely.’ ” In re La. Pac. Corp., 972 S.W.2d 63, 64-65 (Tex.1998) (citing In re Salomon Inc., 68 F.3d 554, 560 (2d Cir.1995)); see also Pac. Reins. Mgmt. Corp. v. Ohio Reins. Corp., 814 F.2d 1324, 1329 (9th Cir.1987) (holding section 5 substitution process can also be used when parties reach impasse in making their selection).

Here, Royce argues that the arbitration of the homeowners’ construction defect claims was subject to the arbitration provisions outlined in the “2-10 Home Buyers Warranty” or in the earnest money contracts signed by some of the homeowners. The homeowners dispute that either of those provisions governed the current proceedings, arguing that the settlement agreement governed the arbitration of their construction defect claims.

Therefore, we must first determine which agreement, if any, governed the arbitration of the construction defect claims.

1. Settlement Agreement

The homeowners contend that the settlement agreement contained an arbitration provision that superseded all prior arbitration agreements. The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous. Id.

However, the settlement agreement expressly excepted the construction defect claims of the homeowners who are currently parties to this appeal from the settlement agreement and provided that those claims remained pending and were “abated for arbitration.” The settlement agreement specifically contemplated that the claims would be either settled or arbitrated, but it did not specify a method of arbitration. Subsequently, the homeowners acknowledged that the five homeowners who had signed an Espree Arbitration Addendum for CAS to arbitrate their claims considered themselves bound to arbitrate in accordance with their agreements. However, although all fifteen homeowners were signatories of warranty agreements that contained provisions to arbitrate under CAS rules, the remaining ten homeowners did not consider themselves bound by the terms of those agreements.

The homeowners who moved for arbitration acknowledged in a written motion their agreement to submit to arbitration in the Settlement Agreement, but they asserted that the Settlement Agreement entitled them to arbitration under the TAA, which we have held is superseded by the FAA to the extent it is inconsistent with the TAA. No method of arbitration was, however, specified. Under Texas law, “A partially integrated agreement is a final and complete expression of all the terms addressed in that written agreement, but is not a final and complete expression of all the terms the parties have agreed upon.” Morgan Bldgs. & Spas, Inc. v. Humane Soc’y, 249 S.W.3d 480, 486 (TexApp.-Beaumont 2008, no pet.). Rather, courts must consider “surrounding circumstances in determining whether, and to what degree, an agreement is integrated.” Id.; see also Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731-32 (Tex.1981) (holding that surrounding circumstances are eonsid-ered in determining whether written agreement is complete and exclusive statement of terms); DeClaire v. G & B McIntosh Family Ltd. P’ship, 260 S.W.3d 34, 45 (Tex.App.-Houston [1st] 2008, no pet.) (holding that all prior negotiations and agreements are presumed merged into the final agreement but that parol evidence may be admissible to show collateral, contemporaneous agreements that are consistent with the underlying agreement).

We hold that, while the Settlement Agreement does constitute an agreement to submit the construction' defect claims to arbitration, it does not contain a final and complete expression of all the terms the parties had agreed upon, specifically, the method of arbitration, which the parties had previously agreed should be conducted by CAS. See Morgan Bldgs. & Spas, 249 S.W.3d at 486; see also Sun Oil Co., 626 S.W.2d at 731-32; DeClaire, 260 S.W.3d at 45.

We turn, therefore, to whether the trial court erred by not referring the arbitration to CAS.

2. Failure to Appoint CAS Arbitrator

The homeowners contend that, even if the settlement agreement did not supersede the previous arbitration agreements, those arbitration provisions were not binding on the arbitration of the construction defect claims. The homeowners argue that the construction defect claims “are completely independent of the third party insured limited warranty contract and have been maintained without reference to the supplied warranty booklet; therefore these claims are not subject to and are not governed by limited warranty provisions.” The homeowners also argue that Royce’s two-year delay in seeking to have a CAS arbitration initiated constituted a failure of the agreed method of arbitration and that CAS arbitration was not possible under the circumstances of this case because CAS refused to proceed with the arbitration as the claims stood at the time it was contacted by counsel for the homeowners. We conclude that we need not reach the homeowners’ argument that their construction defect claims were not subject to CAS arbitration under their warranty agreements because the trial court did not err in appointing McDonald the arbitrator for all fifteen homeowners.

Section 5 of the FAA provides that the agreed-upon method of appointing an arbitrator can be set aside under some circumstances. 9 U.S.C. § 5; see also In re La. Pac. Corp., 972 S.W.2d at 64-65 (holding that section 5 substitution process should be invoked by trial court when some “mechanical breakdown in the arbitrator selection process” occurs); Pac. Reins. Mgmt. Corp., 814 F.2d at 1329 (holding section 5 substitution process can also be used when parties reach impasse in making their selection).

Here, the trial court did not abuse its discretion by appointing an arbitrator because the record reflects that there was a mechanical breakdown in the process of appointing CAS as arbitrator. The affidavits of both the homeowners’ counsel and of Cardell Wade of CAS reflect that arbitration through CAS could not be conducted unless the homeowners filed their construction defect complaints against Royce Homes through HBW, which the homeowners had declined to do, citing the inapplicability of the warranty agreements to their claims.

Despite having had the warranty agreements in place prior to the initiation of litigation, Royce Homes never moved to compel arbitration conducted by CAS until two years after the settlement agreement was entered and more than four years after it was made a party to the litigation. When the homeowners eventually contacted CAS, CAS refused to serve as arbitrator. Thus, even if Royce Homes did not waive its right to arbitration before CAS, a matter we do not decide, we find that at this point there was a mechanical breakdown in the process of appointing an arbitrator. Therefore, the trial court was justified in invoking the substitution process set out in section 5 of the FAA. See In re La. Pac. Corp., 972 S.W.2d at 64-65; see also In re Brock Specialty Servs., Ltd., 286 S.W.3d 649, 655 (TexApp.-Corpus Christi 2009, orig. proceeding) (“Section five of the FAA has been utilized in situations ... where the arbitrator specified in the contract was no longer in existence.”).

We hold that the trial court did not err in appointing an arbitrator not named in the agreement. We further hold that Tom McDonald did not exceed his authority by refusing to refer the arbitration to CAS and refusing to conduct the arbitration and issue the award following CAS procedures because the trial court properly appointed him as an alternate arbitrator when arbitration through CAS failed. McDonald acted within the scope of his authority by deciding the issues properly submitted to arbitration under the parties’ Settlement Agreement — the homeowners’ claims for construction defects. See Myer, 232 S.W.3d at 408.

We overrule Royce Homes’ first and second issue.

B. Manifest Disregard of the Law and Gross Mistake

Royce Homes also argues that the trial court erred in failing to vacate the award on the common law ground that the award demonstrates manifest disregard of the law and gross mistake. Specifically, Royce Homes argues that “McDonald ignored the well-established law that the rights of the parties are limited by the express warranty agreements into which they entered,” that “there was absolutely no evidence to support findings of either liability or actual damages[, or treble damages] under the DTPA,” that there was no evidence of any breach of an express or implied warranty or of an unconscionable action, that the homeowners’ DTPA claims were barred by the statute of limitations, and that the warranty agreement did not provide a basis for awarding attorney’s fees.

As we have already discussed, the United States Supreme Court has expressly rejected the idea that an arbitrator’s “manifest disregard of the law” expanded the grounds for vacatur of an arbitration award beyond those listed in the FAA. Hall Street, 128 S.Ct. at 1403; see also Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 350 (5th Cir.2009) (holding that Hall Street restricts grounds for vacatur to those set forth in section 10 of the FAA); cf. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953) (recognizing manifest disregard as ground for vacating arbitration award). All of the authority cited by Royce Homes in its brief in support of these common-law grounds for vacatur predates the Supreme Court’s holding in Hall Street.

We have already held that the FAA applies to this case. We conclude that Hall Street forecloses any common-law grounds for vacatur of an arbitration award such as manifest disregard of the law and gross mistake. See Hall Street, 128 S.Ct. at 1403; see also Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 350 (5th Cir.2009) (holding that Hall Street restricts grounds for vacatur to those set forth in section 10 of the FAA); Anzilotti, 899 S.W.2d at 266 (holding that courts may not vacate arbitration award even if it is based upon mistake in law or fact).

We overrule Royce Homes’ third issue.

Conclusion

We affirm the judgment of the trial court.

      . Construction Arbitration Services is an independent arbitration service that specializes in disputes arising from residential home construction.

      . These homeowners include the Evanses, Taylor, and Wilson.

      . Royce Homes states that it filed a motion to compel arbitration with CAS acting as the arbitrator; however, the motion that it cites in its brief is the August 8, 2006 motion that it did not file until after the current parties' disputes were severed from the rest of the case. Royce Homes also points out that the parties' attorneys signed an agreed order to enforce the arbitration agreement in the warranties, but this order was never signed by the trial court and is undated.

      .Royce Homes states that the trial court issued an order staying the litigation of the construction defect claims pending arbitration. However, the record does not contain an order to this effect — the one reference made by Royce Homes in its briefing is to the order severing the construction defect claims from the rest of the litigation.

      . The record and the briefing do not reveal what occurred during this two-year gap.

      . This motion to appoint an arbitrator named the following appellees: Bates, Boyce, the Butlers, the Evanses, Handy, Hoskins, and Ray.

      . Appellees Taylor and Wilson were specifically named as movants in this second motion to appoint an arbitrator.

      . In re Royce Homes, L.P., No. 01-06-00920-CV, 2007 WL 926562 (Tex.App.-Houston [1st Dist.] Mar. 29, 2007) (not designated for publication).

      . Hall Street specifically addressed the ability of parties to an arbitration agreement to contractually agree to expanded grounds for judicial review of an arbitration award. The Supreme Court held that parties could not contractually agree to grounds that deviated from those prescribed in the FAA. See Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1400-03, 170 L.Ed.2d 254 (2008).

      . We consider Royce Homes’ issues one and two together because under the FAA after Hall Street, an arbitration award cannot be vacated based on the appointment of an improper arbitrator unless that appointment would also implicate one of the statutory provisions for vacatur. See Hall St. Assocs., 128 S.Ct. at 1403; Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 350 (5th Cir.2009) (holding that Hall Street restricts grounds for vacatur to those set forth in section 10 of FAA). Therefore, we consider Royce Homes' argument that the trial court erred in appointing Tom McDonald arbitrator as part of its argument that McDonald exceeded his authority.

      . This argument by the homeowners is supported by the affidavit from CAS representative Cardell Wade, which indicated that the homeowners had never filed the construction defect complaints with HBW that they raised against Royce Homes in this litigation and that they were not entitled to proceed with arbitration through CAS until such complaints had been filed with HBW.
      Our analysis here does not address the broad arbitration clause in the arbitration addendum to the earnest money contract signed by three of the appellee homeowners. Presumably, they do not dispute that those three homeowners should have been required to arbitrate under the terms of that arbitration agreement except for their arguments that the agreed method of arbitration failed, as discussed below.

      . See Perry Homes v. Cull, 258 S.W.3d 580, 590-593 (Tex.2008) (discussing waiver of right to arbitration by substantially invoking litigation process and stating that “a party who enjoys substantial direct benefits by gaining an advantage in the pretrial litigation process should be barred from turning around and seeking arbitration with the spoils”).


source: Caselaw Access Project

author: LAURA CARTER HIGLEY, Justice.

license: Public Domain

text:
    Pablo LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00302-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 28, 2010.
    Rehearing Overruled March 22, 2010.
    Discretionary Review Granted Sept. 22, 2010.

      J.C. Castillo, The Lyric Centre, Houston, TX, for Appellant.
    Kenneth Magidson, Hams County District Attorney, William J. Delmore III, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, HIGLEY, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

LAURA CARTER HIGLEY, Justice.

A jury convicted appellant, Pablo Lopez, of the first-degree felony offense of aggravated sexual assault of a child. The jury assessed punishment at confinement for 50 years.

In his sole issue, appellant contends that he was denied effective assistance of counsel at trial because counsel (1) “failed to raise the provisions of [Article] 38.072 of the Code of Criminal Procedure and limit the amount of hearsay that could be admitted” and (2) failed to object to inadmissible opinion testimony.

We reverse and remand.

Background

The complainant, B.R., who was 16 years old at the time of trial, testified that appellant, who was her step-father, began sexually abusing her when she was five years old. B.R. testified that the abusive events continued until she reached the age of twelve, when her mother, Marlena Soli-sa España, divorced appellant. Appellant was charged with and convicted of a single act that occurred on or about July 1, 2001, when B.R. was nine.

Concerning the incident at issue, B.R. testified that when her mother was away from home out shopping, appellant instructed B.R. to go into his room and disrobe. B.R. testified that appellant got on top of her and attempted to insert his “thing” into her “private part,” referring to male and female sexual organs, respectively. B.R. testified that it hurt very badly and that she begged him to stop. When he continued, B.R. began kicking and scratching, and was able to extricate herself from underneath appellant. B.R. ran from appellant, but he chased her around the house. B.R. fell, and appellant caught her and began beating her. The struggle ended when B.R.’s mother came home. B.R. did not report the incident to anyone at that time.

In 2006, when B.R. was a sophomore in high school, she told a close friend about her history with appellant. The friend reported the information to the friend’s aunt, who called B.R.’s school counselor, Toni Sika.

According to Sika, the aunt said that “[B.R.] had told her some things that were upsetting and that some things had happened to [B.R.] that were inappropriate.” The aunt did not offer any details. Sika called B.R. into her office. Sika testified that B.R. was very emotional and told her that appellant had touched and fondled her, “had pulled her panties down,” and that he promised to be kind to her in exchange for “things.” Sika said that B.R. told her that the incidents began when B.R. was “around four years old.” Sika reported the information to CPS.

Claudia Mullin of the Harris County Children’s Assessment Center conducted a videotaped interview of B.R. Mullin explained that her purpose during the interview process is to assess the credibility of the child, and she explained certain credibility factors. Mullin explained that, where there are multiple allegations of sexual abuse, she seeks to establish the first and last acts. Mullin testified that she used this method while interviewing B.R. and that B.R.’s “disclosure seemed credible.”

According to Mullin’s testimony, the first incident B.R. could remember occurred while B.R. was “either four or five.” B.R. remembered having gone into the kitchen and asked appellant for something to eat. B.R. reported that appellant responded, “You have to give me something first.” B.R. said that appellant “stood her on a chair, pulled down her panties, pulled out his thing, ... and started to touch her down there in front.”

Concerning the incident at issue, B.R. reported to Mullin that appellant pulled B.R. by the hair into his bedroom and insisted that they “were going to do it.” B.R. told Mullin that appellant pushed her onto her mother’s bed, that he took off her pants, and that he “didn’t put it all the way in, just halfway.”

Maria Benavides, B.R.’s mentor as part of a school program, testified that she learned of B.R.’s allegations against appellant through Sika. Benavides called B.R. and met with her. Benavides testified that B.R. was emotional as she recounted a series of abusive events that had begun when B.R. was four or five years old. On the first occasion in B.R.’s memory, appellant was in the kitchen cooking while her mother was at the laundromat. B.R. asked him if she could have something to eat and he said, “Fine. What are you going to give me?” Appellant picked up B.R., placed her on a chair or table, removed her panties, and “rubbed his penis on her vagina.” Benavides testified that B.R. said that this conduct happened “a lot” and that she frequently had to “fight him off.”

Concerning the incident at issue, Bena-vides testified that B.R. said that, while her mother was away at the store, appellant had gotten on top of her. B.R. pushed him off, but he beat her very badly. Appellant told B.R.’s mother that he had disciplined B.R. for failing to do her chores.

Officer M. Parrie, of the Juvenile Sex Crimes Division of the Houston Police Department, testified that he viewed B.R.’s videotaped interview but, as is customary, he did not speak directly with B.R. Officer Parrie testified that B.R. stated during her interview that Sika was the first person she had told about the incident. Officer Parrie interviewed appellant and, based in part on the interview, arrested appellant.

Appellant testified at trial that he works six days per week from 6:00 a.m. to 6:00 p.m.; that B.R.’s mother does not drive and does not have a car; that he was “never” left alone with B.R., or his other two daughters; and that B.R. had fabricated the allegations.

The jury found appellant guilty of aggravated sexual assault of a child and assessed punishment at 50 years’ confinement. Appellant moved for the withdrawal of his trial counsel, Robert Valles, whose representation is the subject of this appeal, and for the appointment of appellate counsel, J.C. Castillo. Appellant’s motion was granted. The trial court denied appellant’s motion for new trial. This appeal followed.

Ineffective Assistance of Counsel

In his sole issue, appellant contends that he was denied his right to effective assistance of counsel at trial because counsel (1) “failed to raise the provisions of Section 38.072 of the Code of Criminal Procedure and limit the amount of hearsay that could be admitted” and (2) failed to object to inadmissible opinion testimony.

A. Standard of Review

Appellant is entitled to reasonably effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const, art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). To prove ineffective assistance of counsel, appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694,104 S.Ct. at 2068.

To prevail, appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. See Robertson, 187 S.W.3d at 482-83; Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). A failure to make a showing under either prong defeats a claim of ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003) (emphasis added).

As the reviewing court, we look to the totality of the representation and to the circumstances of the case, not to isolated errors. Robertson, 187 S.W.3d at 488-84. We must consider the adequacy of assistance as viewed at the time of trial, not through hindsight. Id. at 482-83.

Additionally, we cannot speculate as to the reasons supporting counsel’s behavior. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App.2002).' Allegations of ineffectiveness must be firmly founded in the record. Id. at 833 & n. 13. Ordinarily, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions. Rylander, 101 S.W.3d at 110-11. In the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court should not find deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).

In the rare cases in which the record on direct appeal is sufficient to show that counsel’s performance was deficient, an appellate court should address the claim. Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App.2000). An appellant may prevail on an ineffective assistance claim by providing a record that affirmatively demonstrates that counsel’s performance was not based on sound trial strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001). If “no reasonable trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for acting as [he] did.” Andrews, 159 S.W.3d at 102. A single egregious error of omission or commission by counsel has been held to constitute ineffective assistance, even in the absence of a record setting forth counsel’s reasons for the challenged conduct. Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App.1992); McKinny v. State, 76 S.W.3d 463, 470-71 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

B. Counsel’s Performance

1. Article 38.072 and Hearsay

Appellant first contends that his trial counsel was ineffective because he “failed to raise the provisions of Section 38.072 of the Code of Criminal Procedure and limit the amount of hearsay that could be admitted.”

Generally, hearsay statements are inadmissible except as provided by statute or other rule. Tex.R. Evid. 802; see Tex.R. Evid. 803 (providing exceptions). Texas Code of Criminal Procedure article 38.072 provides a statutory exception that allows the State to introduce outcry statements made by a child victim of certain offenses, which would otherwise be considered inadmissible hearsay. See Act of May 27, 1985, 69th Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2222-23, amended by Act of May 27, 2009, 81st Leg., R.S., ch. 710, § 1-2, 2009 Tex. Gen. Laws 1780, 1780-81 (current version at Tex.Code CRiM. Proc. Ann. art. 38.072 § 1-2 (Vernon Supp. 2009)); see Martinez v. State, 178 S.W.3d 806, 810-11, n. 14 (Tex.Crim.App.2005). Article 38.072 applies to, inter alia, the prosecution of assaultive offenses under Penal Code section 22.021 committed against children twelve years of age and younger, as here. See Act of May 27, 1985, 69th Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2222-23 (amended 2009). Article 38.072 allows statements of the child victim describing the alleged offense to be admitted through an “outcry witness,” that is, the first adult “to whom the child makes a statement that in some discernible manner describes the alleged offense.” See Act of May 27, 1985, 69th Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2222-23 (amended 2009) (current version at Tex.Code Crim. Proc. Ann. art. 38.072 § 2(a) (Vernon Supp. 2009)); Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990) (explaining that statement must be “more than words which give a general allusion that something in the area of child abuse was going on”). However, testimony from more than one outcry witness may be admissible under article 38.072 if the witnesses describe different events and do not merely repeat the same event as related to them by the victim. Broderick v. State, 35 S.W.3d 67, 73-74 (TexApp.-Texarkana 2000, pet. refd).

Invoking the statutory exception, however, requires notice and a hearing. Long v. State, 800 S.W.2d 545, 546 (Tex.Crim.App.1990). Pursuant to article 38.072, a statement is not inadmissible as hearsay if (1) the party intending to offer the statement timely notifies the adverse party of its intention to do so, and provides the name of the witness and a summary of the statement; (2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and (3) the child testifies or is available to testify at the proceeding. See Tex.Code Crim. Proc. Ann. art. 38.072, § 2(b) (Vernon 2009).

Here, the record shows that the State gave a “Notice of Intention to Use Child Abuse Victim’s Hearsay Statement.” The Notice states that the State intended to offer B.R.’s statements though Maria Benavides and Claudia Mullin, and includes a summary of their statements. At trial, the State presented the testimony of Benavides and Mullin, as well as that of Sika, the school counselor, without a defense objection. The testimony of Bena-vides, Mullin, and Sika constituted inadmissible hearsay.

First, the record before us does not indicate that an article 38.072 hearing was requested or conducted. Appellant contends that “[n]o hearing was ever requested by trial counsel,” and that “[t]he judge did not make a determination ... as required by Texas Code of Criminal Procedure, Article 38.072”; the State responds that no hearing was conducted. The requirements of article 38.072 are mandatory. Long, 800 S.W.2d at 547; Duncan v. State, 95 S.W.3d 669, 671 (Tex.App.-Houston [1st Dist.] 2002, pet. refd). When no hearing is conducted, the statutory requirements have not been met, the exception is not invoked, and the testimony constitutes inadmissible hearsay. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b)(2); Dorado v. State, 843 S.W.2d 37, 38 (Tex.Crim.App.1992).

Second, each of the witnesses testified concerning B.R.’s statements regarding the same event — the alleged offense. Sika, the school counselor, testified that B.R. told her that appellant had touched and fondled her, “had pulled her panties down,” and that he promised to be kind to her in exchange for “things.” Mullin, of CAC, testified that B.R. reported to her that appellant had pulled her by the hair into his bedroom and had insisted that they “were going to do it.” B.R. told Mullin that appellant pushed her onto her mother’s bed, that he took off her pants, and that he “didn’t put it all the way in, just halfway.” Benavides testified that B.R. told her that, while her mother was away at the store, appellant had gotten on top of her. B.R. had pushed him off, but appellant beat her very badly. Testimony from more than one outcry witness is not admissible under article 38.072 when, as here, the witnesses merely repeat the same event as related to them by the victim. Broderick, 35 S.W.3d at 73.

Moreover, the testimonies of Sika, Mullin, and Benavides constituted improper bolstering of B.R.’s testimony. See Farris v. State, 643 S.W.2d 694, 697 (Tex.Crim.App.1982). Bolstering generally refers to evidence that improperly supports the testimony of an unimpeached witness or adds credence or weight to prior evidence introduced by the same party. State v. Balderas, 915 S.W.2d 913, 919 (TexApp.-Houston [1st Dist.] 1996, pet. refd); see Rivas v. State, 275 S.W.3d 880, 886 & n. 3 (Tex.Crim.App.2009) (explaining that “[w]hile the term ‘bolstering’ is slowly dying as an objection on its face, it has not yet expired, despite the fact that the term itself failed to survive the adoption of the Rules” and indicating that “bolstering” has ties to Texas Rule of Evidence 613(c), which involves prior consistent statements and reiterates principles of hearsay). Bolstering occurs when the testimony’s sole purpose is to enhance the credibility of a witness or source of evidence, without substantively contributing “to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Cohn v. State, 849 S.W.2d 817, 819-20 (Tex.Crim.App.1993). Here, although counsel cross-examined B.R. at trial, counsel focused his questions on B.R.’s relationship with her mother. Each witness’s rendition of the facts, as told to them by B.R., served to add credence or weight to B.R.’s testimony and did not substantively contribute toward making “the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” See id.

Because the only issue at trial was B.R.’s credibility, trial counsel’s failure to object to such extensive improper testimony can only be characterized as falling below an objective standard of reasonableness. See Andrews, 159 S.W.3d at 101; Vasquez, 830 S.W.2d at 950-51; McKinny, 76 S.W.3d at 470-71.

We recognize that the record is silent regarding trial counsel’s reasons for allowing the State to present the hearsay testimony of multiple witnesses concerning the alleged offense, without an article 38.072 hearing. These contentions lie outside the scope of the issues appellant raised in his motion for new trial. Notwithstanding, we conclude that this is one of those cases in which the record clearly reflects that counsel’s performance “fell below an objective standard of reasonableness.” See Andrews, 159 S.W.3d at 102 (concluding that if “no reasonable trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for acting as [he] did”).

We also recognize that this court has previously concluded that a failure to object to outcry testimony by multiple witnesses can constitute plausible strategy. Vega v. State, No. 01-05-00358, 2006 WL 407821, at *3 (Tex.App.-Houston [1st Dist.] Feb. 23, 2006, pet. refd) (mem. op., not designated for publication). We did so, however, under circumstances not present in this case.

In Vega, three outcry witnesses were permitted to testify at trial, without objection by defense counsel. Id. at *1. On appeal, appellant contended that his counsel was ineffective for having failed to object. Id. We concluded that the record demonstrated that there were “two reasons that counsel may have chosen not to object to the testimony.” Id. at *3. First, “counsel may have concluded that his attack on [the child complainant’s] credibility through cross-examination allowed the State to introduce the [outcry witness testimony] to show a prior consistent statement.” Id. Second, counsel had “relied heavily” on the child complainant having initially told the three witnesses that someone other than appellant had committed the sexual assault at issue." Id. We concluded, “Under these circumstances, we cannot say that counsel’s failure to challenge the outcry statements could not have been a plausible trial strategy.” Id. at *4 (emphasis added).

The instant case is distinguishable from Vega in that, here, as discussed above, counsel did not attack B.R.’s credibility during cross-examination and B.R. never wavered in her testimony or in her allegation that appellant was the perpetrator. Under these circumstances, we can glean no sound trial strategy from defense counsel’s failure to object to the extensive inadmissible testimony of the multiple outcry witnesses when the only issue at trial was the credibility of the complainant. See Andrews, 159 S.W.3d at 101-02. We conclude that, even if allowing extensive, inadmissible testimony to come in without objection constituted counsel’s trial strategy, it cannot reasonably be considered sound trial strategy. See Robertson, 187 S.W.3d at 482-83 (stating that, to prevail, appellant must prove ineffective assistance by preponderance of evidence and must overcome strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy). We hold that counsel’s performance was. deficient.

2. Opinion testimony

Next, appellant contends that his trial counsel was ineffective because he failed to object to opinion testimony by Officer Parrie and by Mullin that B.R. was credible.

“It is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness and such opinion is therefore inadmissible evidence.” Blackwell v. State, 193 S.W.3d 1, 21 (Tex.App.-Houston [1st Dist.] 2006, pet. refd) (citing Schütz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997)). “A direct opinion on the truthfulness of the child” is inadmissible. Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App.1993); Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.-Tex-arkana 2004, pet. refd). Although an expert may testify to behaviors and traits that might constitute indicia of manipulation, Schütz, 957 S.W.2d at 59, or that a child exhibits behavioral characteristics that have been empirically shown to be common among children who have been abused, Perez v. State, 113 S.W.3d 819, 832 (TexApp.-Austin 2003, pet. refd), a direct comment on a complainant’s “truthfulness” is “absolutely inadmissible.” Sessums, 129 S.W.3d at 247. This rule applies to expert and to lay witness testimony. Fisher v. State, 121 S.W.3d 38, 41-42 (Tex.App.-San Antonio 2003, pet. refd). This type of testimony is inadmissible because it does more than “assist the trier of fact to understand the evidence or to determine a fact in issue”; it decides an issue for the jury. Yount, 872 S.W.2d at 709.

Specifically, appellant complains of the following testimony by Officer Parrie:

[Officer Parrie]: The statements [B.R.] gave to Ms. Benavides and the statements she gave to Ms. Sika, there were details that she gave that I thought lend credence to what [B.R.] was saying.
[Defense Counsel]: Could you share with us what those details were?
[Officer Parrie]: I know one of the details was that she talked about when she was five years old and the defendant made her stand on a chair and, you know, had her lower her papts and then digitally penetrated her.

(Emphasis added.)

Officer Parrie’s testimony, which specifically relates facts concerning the incident when B.R. was five, clearly relates the content of the out-of-court statement. Officer Parrie testified that these details, in his opinion, “len[t] credence” to B.R.’s testimony. Hence, Officer Parrie’s testimony constituted a direct opinion on the truthfulness of B.R., which constituted inadmissible evidence. See Yount, 872 S.W.2d at 708; Sessums, 129 S.W.3d at 247.

Appellant also complains that Mullin was permitted to testify that B.R. was “very credible.” The record shows that Mullin testified during direct examination, in relevant part, as follows:

[State]: And did [B.R.’s] disclosure seem valid based on the factors that you have just described to the jury that you consider when determining the validity of disclosure?
[Mullin]: Her disclosure seemed very credible.
[State]: And what was it about her disclosure that seemed credible to you?
[Mullin]: The way she told her story. She was telling it about something that did happen. She described — especially the first incident that she remembered, she described body positions and, you know, various things happening that, again, she put — she put me in a room, and I was in the room visualizing what was going on based on the detail that she was able to give.

(Emphasis added.) Like that of Officer Parrie, the testimony of Mullin constituted a direct opinion on the truthfulness of B.R., which was inadmissible. See Yount, 872 S.W.2d at 708; Sessums, 129 S.W.Sd at 247.

In Lane v. State, the appellant contended that his counsel was ineffective for having failed to properly challenge opinion testimony concerning the truthfulness of the child complainant. 257 S.W.3d 22, 26 (Tex.App.-Houston [14th Dist.] 2008, pet. refd). There, a children’s assessment center representative testified that false accusations are “extremely rare,” are “a rare occurrence,” and that children “do not make — tend to make false accusations.” Id. at 24-25. Another representative from the center testified that “in her opinion formed after counseling [the child complainant] ..., [the child complainant] had post-traumatic stress disorder caused by childhood sexual abuse.” Id. at 25.

The Lane court reasoned that, because jurors must decide the credibility of the parties, opinions on the truthfulness of a child complainant’s allegations or that a class of persons to which the complainant belongs is truthful, are prohibited. Id. at 27 (citing Yount, 872 S.W.2d at 708, 710-12). Testimony that false accusations of childhood sexual assault are very rare had the effect of telling the jury they could believe the child’s testimony. Id. Testimony that it had been determined from counseling sessions that the child had been sexually assaulted constituted direct testimony that the complainant was being truthful. Id. Such testimony is prohibited. Id.

The Lane court concluded that the record on direct appeal was sufficient to determine whether appellant’s trial counsel’s performance was deficient. Id. The court further concluded that, even though there was nothing in the record explaining counsel’s strategy for allowing the testimony into evidence, “there was no conceivable strategy or tactic that would justify allowing this inadmissible testimony in front of the jury.” Id. at 27. The court held that counsel’s performance was deficient. Id. at 28.

Here, the sole issue at trial was the credibility of B.R. We conclude that, as did the court in Lane, although there is nothing in the record explaining counsel’s strategy for allowing into evidence direct testimony by Parrie and by Mullin regarding B.R.’s truthfulness, there is no conceivable strategy or tactic that would justify allowing such inadmissible testimony in front of the jury. See id. at 27-28; Garcia v. State, 712 S.W.2d 249, 253 (Tex.App.-El Paso 1986, pet. refd) (concluding that failure to enter objection to testimony by detective and child protective services officer concerning their opinions as to truthfulness of child complainant “clearly was ineffective assistance”). We hold that counsel’s performance was deficient.

C. Prejudice

Having determined that counsel’s performance at trial was deficient, we consider whether there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Here, the record shows that Sika, Mul-lin, and Benavides were permitted to testify extensively at trial, without objection by counsel, concerning B.R.’s statements to each regarding the alleged offense. The State focused heavily on such testimony throughout its closing argument. In addition, Officer Parrie and Mullin were permitted to testify, without objection, that they each believed that B.R. was truthful. The only other testimony presented by the State at trial was that of B.R. and that of Dr. L. Thompson, Jr., of the CAC. Dr. Thompson testified only in general terms and not specifically about B.R.

In sum, the jury was exposed to a barrage of inadmissible testimony concerning B.R.’s credibility, when the sole issue at trial was her credibility. See Miller v. State, 757 S.W.2d 880, 884 (Tex.App.-Dallas 1988, pet. refd) (concluding that failing to object to “extensive, inadmissible testimony concerning the only real issue at trial — complainant’s credibility” results in denying appellant effective assistance of counsel). We can only reasonably conclude that the testimony of B.R. was bolstered immeasurably by the inadmissible testimony of three outcry witnesses, which included a school counselor and a CAC representative, and that of Officer Parrie and Mullin. See Farris, 643 S.W.2d at 697 (concluding, “It would be unreasonable not to conclude that the testimony of the small children was bolstered immeasurably by testimony that they were utterly incapable of fantasizing about [the conduct at issue].”). We conclude that appellant has met his burden to show that he was prejudiced by the deficiency in counsel’s performance. See Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101.

After reviewing the totality of defense counsel’s representation, we conclude that appellant has met his burden under Strickland to show that his counsel was ineffective.

Accordingly, we sustain appellant’s sole issue.

Conclusion

We reverse the trial court’s judgment and remand for further proceedings.

      . See Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5, 2001 Tex. Gen. Laws 893, 898, amended by Act of May 28, 2003, 78th Leg., R.S., 528, § 2, 2003 Tex. Gen. Laws 1805, 1806 (current version at Tex Penal Code Ann. § 22.021 (a)(l)(B)(i), (a)(2)(B) (Vernon Supp. 2008)). The 2003 amendments apply only to an offense that was committed on or after September 1, 2003, the effective date of the amendments. Here, the offense at issue was committed on or about July 1, 2001. Accordingly, the former version of section 22.021 applies to this case.

      . Because we conclude that these grounds are dispositive, we do not reach appellant’s contentions that trial counsel failed to conduct an effective voir dire and failed to object to inadmissible testimony at punishment.

      . Appellant is fluent only in the Spanish language and testified through an interpreter.

      . Hearsay is "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” TexR. Evid. 801(d).

      . The applicable 2009 amendment applies only to a criminal proceeding commenced on or after its effective date, which is September 1, 2009. See Act of May 28, 2009, 81st Leg., R.S., ch. 710, § 3, 2009 Tex. Gen. Laws 1780, 1781. Here, the proceeding was commenced on or about January 11, 2008. Accordingly, the former version of article 38.072, section 1, applies to this case.

      . The victim's age when the offense is committed triggers whether the statute applies, not the victim’s age at the time the outcry statement is made. See Harvey v. State, 123 S.W.3d 623, 627-29 (Tex.App.-Texarkana 2003, pet. ref'd) (holding that, for article 38.072 to apply, not only must offense have been committed against child age 12 or younger, but victim, while still "a child” — that is, not having reached his or her 18th birthday— must have confided details of ordeal to person age 18 years or older). Here, B.R. was age nine at the time of the offense and was under age eighteen at the time of her disclosure.

      .The State did not name Sika in its notice of intention to use a child abuse victim's hearsay statement. See Tex.Code Crim. Proc. Ann. art. 38.072, § 2(b)(1) (Vernon 2009). Appellant did not, however, complain about this at trial, nor does he complain about it on appeal.

      . Generally, the party seeking admissibility of the evidence bears the burden of invoking the exception.

      . Article 38.072 “applies only to statements that describe the alleged offense.” See Act of May 27, 1985, 69th Leg., R.S., ch. 590, § 1, 1985 Tex. Gen. Laws 2222, 2222-23, amended by Act of May 27, 2009, 81st Leg., R.S., ch. 710, § 2, 2009 Tex. Gen. Laws 1780, 1780-81 (current version at Tex.Code Crim Proc. Ann. art. 38.072 § 2(a) (Vernon Supp. 2009)).


author: TERRY JENNINGS, Justice.

text:
    CURTIS & WINDHAM ARCHITECTS, INC., Russell Windham, and William Curtis, Appellants, v. John Eddie WILLIAMS and Sheridan Williams, Appellees.
    No. 01-09-00760-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 25, 2010.

      Thomas M. Farrell, Nickens Keeton Lawless Farrell & Flack LLP, Houston, TX, for appellant.
    Edwin Armistead Easterby, Williams Kherkher Hart Boundas, L.L.P., Houston, TX, Richard N. Countiss, Countiss Law Firm, Coldspring, TX, for appellee.
    Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
   OPINION

TERRY JENNINGS, Justice.

In this interlocutory appeal, appellants, Curtis & Windham Architects, Inc., Russell Windham, and William Curtis (collectively “C & W”) challenge the trial court’s order denying its motion to dismiss the counterclaims and third-party petition for damages of appellees, John Eddie Williams and Sheridan Williams. In its sole issue, C & W contends that the trial court erred in not dismissing the Williamses’ counterclaims and third-party claims, which arose out of C & W’s provision of architectural services to the Williamses.

We affirm the order of the trial court.

Background

In its original petition, C & W alleges that the Williamses retained C & W to provide “architectural services in connection with the design, construction and landscaping of a proposed residence.” C & W explained to the Williamses that, on a monthly basis, it would “bill[ ] for its time on a hourly basis according to a schedule of hourly rates that was provided to the Williamsfes].” The Williamses “agreed to proceed on this basis and to pay C & W’s monthly invoices for hourly fees and expenses.” C & W explained to the Williamses that “its fees typically run in the range of 12 to 15% of the project’s construction costs.” The Williamses paid all invoices between February 2008 and March 2009 but refused to pay the April 2009 invoice in the amount of $47,103.49. C & W also alleges that the fees and expenses were “not insubstantial, but the amount was driven, in large part, by the expansive scope of the project specified by [the] Williams[es] and by the countless changes they requested.” Payment was due on May 22, 2009, but the Williamses did not pay and instructed C & W to stop work on the residence, which it did. C & W further alleges that the “April 2009 invoice in the amount of $47,103.49 is just, due and owing” and the Williamses’ failure to pay constituted a breach of contract.

In their original answer, the Williamses specifically deny that the amount owed on the April 2009 invoice is “just, due, and owing.” They assert the affirmative defenses of “breach of fiduciary duty,” “fraudulent acts, specifically, but without limitation, C & W’s fraudulent billing practices,” “waiver, ratification, ... acquiescence,” lack of a written contract, and, alternatively, C & W’s prior breach of the contract, statute of frauds, laches, unclean hands, and equitable estoppel.

The Williamses assert counterclaims against C & W for (1) breach of fiduciary duty because C & Ws invoices “reflect hours billed that cannot be reconciled with C & W’s actual work product,” “C & W’s project design was and is materially inconsistent with the design parameters established by the Williams[es],” and C & W failed to provide an accounting upon request to support its invoices; (2) fraud because C & W “pervasively] and systemic[ally] overbill[ed] the Williams[es],” C & W “either knew [its] invoices were overstated, or was reckless about the accuracy of the information contained in the invoices,” and C & W had a “duty to disclose to the Williams[es] that C & W was seeking to bill 15-18% of construction costs”; (3) deceptive trade practices based on C & Ws engaging in “false and misleading acts related to its billing practices and through its failure to disclose ... that C & W was seeking to bill the project as if the Williams[es] had agreed to a percentage contract”; (4) unjust enrichment because C & W has been paid “nearly $1 million and [the Williamses] have received little or no tangible benefit”; (5) damages incurred as a result of C & W’s frivolous lawsuit against the Williamses because it failed “to disclose in its pleadings that it has already offered to credit the purported balance owed by more than the amount claimed”; and (6) a declaration that C & Ws “architectural designs ... are not protected as original works ... and/or the Williams[es] should have the full right to use the designs.” The Williamses also filed a third-party petition alleging the same claims against Russell Windham and William Curtis individually.

In their counterclaims and third-party petition, the Williamses specifically allege that C & W held “itself out as a premier architectural firm ... [with an] ability to develop ‘design solutions that are appropriate for their context and that serve the programmatic requirements and budgets of [their] clients.’ ” Based on C & W’s “design excellence,” the Williamses hired C & W as their architects. The Williamses believed that C & W was “operating in a fiduciary capacity,” would perform work as instructed by the Williamses using the design criteria and other information supplied by the them, and they would be charged only for work “actually performed.” However, C & W “fundamentally ignored much of the design criteria and information supplied by the Williams[es] and billed almost $1 million for an overall design that is not consistent with the [Williamses’] instructions.” They also allege that Mr. Williams had engaged an attorney to draft a contract to govern the engagement but the contract was never executed. The Williamses further allege that as of March 2009, they had paid C & W “$926,232.51 ... that only represented 40% of the total architectural costs.” The Williamses then learned that “C & W had apparently been striving to bill 15-18% of the anticipated construction costs in lieu of simply billing hours on authorized and necessary work” and C & W’s design “was inconsistent with the design parameters provided by the Williams[es].” After the Williamses conveyed their disappointment to C & W, it offered to refund the “landscape architect fees of $113,883.75.” On May 22, 2009, the Williamses served a “written demand letter on C & W, demanding a full refund.”

C & W moved to dismiss the Williamses’ counterclaims and third-party petition on the ground that the Williamses had filed claims accusing it of “wrongful conduct in the provision of professional services, but their [counterclaims and third-party petition were] not accompanied” by a certificate of merit, i.e., an affidavit of a third-party licensed architect describing the factual bases for their claims. The trial court denied C & W’s motion.

Standard of Review

We review a trial court’s decision to deny a motion to dismiss for failure to file a certificate of merit under an abuse of discretion standard. Consol. Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887, 891 (Tex.App.-Austin 2008, no pet.); Criterium-FarreU Eng’rs v. Owens, 248 S.W.Sd 395, 397 (Tex.App.Beaumont 2008, no pet.); Palladian Bldg. Co. v. Nortex Found,. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.-Fort Worth 2005, no pet.). A trial court abuses its discretion “if it acts in an arbitrary or unreasonable manner without reference to guiding rules and principles.” See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (TexApp.-Houston [1st Dist.] 2006, no pet.). However, a trial court has “no discretion in determining what the law is or in applying the law to the facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas 2007, pet. denied).

We review matters of statutory construction de novo. City of San Antonio v. City of Boeme, 111 S.W.3d 22, 25 (Tex.2003). In construing statutes, our primary goal is to determine and give effect to the legislature’s intent. Id. We begin with the plain language of the statute at issue and apply its common meaning. Id. Where the statutory text is unambiguous, we adopt a construction supported by the statute’s plain language, unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). “Once we determine the statute’s proper construction, we must then decide whether the trial court abused its discretion in applying the statute.” Owens, 248 S.W.3d at 397.

Certificate of Merit

In its sole issue, C & W argues that the trial court erred in not dismissing the Williamses’ counterclaims and third-party petition because the Williamses’ claims “arose out of the provision of professional sendees by a licensed architect,” and the Williamses “did not file a certificate of merit setting forth ‘at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.’ ” See Act of May 18, 2005, 79th Leg., R.S., ch. 208, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 150.002 (Vernon Supp. 2009)).

The 2005 version of section 150.002, which is applicable to this case and entitled “Certificate of Merit,” provided,

(a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect ... competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party ... licensed architect shall be licensed in this state and actively engaged in the practice of architecture. ...
(d) The plaintiffs failure to file the affidavit ... shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice.

Id. (emphasis added). Here, C & W and the Williamses disagree as to whether the Williamses’ claims “arise out of the provision of professional services by a licensed architect” such that those claims are subject to the affidavit requirement in section 150.002(a).

C & W argues that because the Williamses’ “counterclaims and third-party claims arise out of the provision of architectural professional services,” the Williamses “were required to file with [their] petition an affidavit ... from a third-party licensed architect setting forth at least one negligent act, error or omission claimed to exist and the factual basis for each such claim.” C & W emphasizes that “the statute was amended in 2005 to broaden its application from claims for ‘damages alleging professional negligence’ to claims for damages ‘arising out of the provision of professional services.’ ” C & W asserts that the 2005 version of section 150.002 requires that for the Williamses “to assert any cause of action arising out of the provision of professional services by a licensed or registered professional— whether the allegations are based on negligence or intentional acts — the Williamses must come forward with at least proof of [or at a minimum] the lesser offense of negligence — that is, [C & W’s] professional services fell below the applicable standard of care.” The Williamses counter that because their claims arise out of “C & W’s alleged overbilling,” they were not required to file a certificate of merit with their counterclaims and third-party petition.

In 2005, the legislature amended section 150.002 to apply to actions “arising out of the provision of professional services.” Id. However, the Austin, San Antonio, and Corpus Christi Courts of Appeals have concluded that no certificate of merit is required under the 2005 version of section 150.002 when the plaintiff does not allege “a negligent act, error or omission.” Landreth v. Las Brisas Council of Co-Owners, 285 S.W.3d 492, 500 (Tex.App.Corpus Christi 2009, no pet.); Consol. Reinforcement, L.P., 271 S.W.Bd at 892; Kniestedt v. Southwest Sound and Elees., Inc., 281 S.W.3d 452, 455 (Tex.App.-San Antonio 2007, no pet.). The plain wording of the 2005 version of section 150.002 necessarily leads to this conclusion because otherwise the legislature would not have specified that the affidavit “shall set forth specifically at least one negligent act, error, or omission claimed to exist.” Act of May 18, 2005, 79th Leg., R.S., ch. 208, 2005 Tex. Gen. Laws 370 (amended 2005). Because a straight-forward reading of the 2005 version of section 150.002 reveals that the filing of a certificate of merit is not required for causes of action that do not allege a negligent act, error, or omission, we, along with our sister courts of appeal, decline to expand the scope of the 2005 version of section 150.002 to causes of action “generally arising from” services provided by licensed engineers and architects. Consol. Reinforcement, L.P., 271 S.W.3d at 892. Accordingly, we hold that the 2005 version of section 150.002 does not apply in a suit other than one for negligent acts, errors, or omissions arising out of the provision of professional services. See id,.; Landreth, 285 S.W.Sd at 500; Kniestedt, 281 S.W.3d at 455.

We note that the practice of architecture is defined as “a service or creative work applying the art and science of developing design concepts, planning for functional relationships and intended uses, and establishing the form, appearance, aesthetics, and construction details for the construction ... of a building or environs intended for human use or occupancy, the proper application of which requires education, training, and experience in those matters.” Tex. Occ.Code Ann. § 1051.001(7) (Vernon Supp. 2009). Thus, if a plaintiffs claim for damages does not implicate the special knowledge and training of an architect, it cannot be a claim for damages arising out of the provision of professional services. See Consol. Reinforcement, L.P., 271 S.W.3d at 894.

In Consol. Reinforcement, L.P., Caroth-ers Executive Homes filed claims against Consolidated, an engineering firm, for breach of contract, deceptive trade practices, and breach of warranty regarding Consolidated’s “design and construction of the buildings’] foundations.” 271 S.W.3d at 890. The Austin Court of Appeals reasoned that:

[Plaintiffs non-negligent causes of action] do not implicate a professional engineer’s education, training, and experience in applying special knowledge or judgment. An affidavit of a licensed or registered professional setting forth the negligent act, error, or omission and factual basis for each appears irrelevant to claims that do not arise from the provision of professional services. We believe the non-negligence causes of action did not require a certificate of merit.

Id. at 894 (quoting Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at *2-3 (Tex.App.-San Antonio Oct.3, 2007, no pet.)).

Likewise, the Williamses’ causes of action do not implicate a professional architect’s “education, training, and experience” in applying “special knowledge or judgment.” The gist of the Williamses’ claims, which are made in response to C & W’s breach of contract claim for the Williamses’ non-payment of fees, is that C & W engaged in “pervasive and systemic overbilling.” The Williamses’ claims for damages for breach of fiduciary duty, fraud, deceptive trade practices, unjust enrichment, and the filing of a frivolous lawsuit against them and their request for a declaratory judgment do not implicate a negligent act, error, or omission by C & W. It simply makes no sense to require an affidavit of a licensed or registered professional setting forth “at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim” when, in fact, a plaintiffs causes of action do not concern negligence. Accordingly, we hold that the Williamses were not required to file a certificate of merit with them claims and the trial court did not err in denying C & W’s motion to dismiss.

We overrule C & W’s sole issue.

Conclusion

We affirm the order of the trial court.

      . See Tex. Civ. Prac. & Rem Code Ann. § 150.002(e) (Vernon Supp. 2009).

      . See id. § 150.002(d) (Vernon Supp. 2009).

      . See Act of May 18, 2005, 79th Leg., R.S., ch. 208, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 150.002 (Vernon Supp. 2009)).

      . See also Parker County Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., No. 2-08-380-CV, 2009 WL 3938051, at *6 (Tex.App.-Fort Worth Nov. 19, 2009, pet. filed).