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& Hunt, Inc. v. East Rio Hondo Water Supply Corporation, No. 16-0078,
2017 WL 2492006 (Tex. June 9, 2017), East Rio Hondo Water Supply Corp.
contracted with Melden & Hunt, Inc. to provide engineering-design and
project-supervision services for a new water-treatment plant in San Benito,
Texas. Following substantial completion of the project, East Rio complained
about the quality of water treated at the plant and attributed the
water-quality issues to the plant’s design and construction. East Rio
subsequently filed a complaint against Melden & Hunt asserting claims for
breach of contract, breach of express and implied warranties, negligence, and
East Rio filed the affidavit of Dan Leyendecker, P.E.,
to comply with Texas’s Certificate of Merit statute. Texas’s certificate of
merit statute provides a sworn certificate of merit must accompany a
plaintiff’s complaint in any case “arising out of the provision of professional
services by a licensed or registered professional” named in the statute, and
the licensed or registered professional must be “knowledgeable in the
[defendant’s] area of practice.” Tex.
Code § 150.002(a)-(b).
Mr. Leyendecker’s affidavit stated he held a bachelor
of science degree in civil engineering from Texas A&M University, was a
registered professional engineer in Texas and eight other states, was the
president and principal of LNV Engineering, and had twenty-three years’
experience in “master planning, detailed design and construction management.” Mr.
Leyendecker further swore he had experience designing and analyzing water-treatment
plants, like East Rio’s, and was familiar with the standard of care an engineer
of ordinary knowledge and skill should employ when designing such a project.
Hunt argued Mr. Leyendecker’s affidavit failed to demonstrate he was knowledgeable
and competent to testify because his qualifications were “conclusory assertions,”
establishing nothing more than his status as an engineer. The Court disagreed, holding a certificate of
merit may be sufficient even if it only contains conclusory assertions not
otherwise admissible as expert testimony.
The Court noted Mr. Leyendecker's recital of his qualifications and
experience are factual statements supporting his conclusion that he is
knowledgeable in the area of practice and competent to testify.
Court previously held Texas’s Certificate of Merit statute’s requirement the
expert affiant demonstrate specialized knowledge about the defendant’s area of
practice was not a mere formality. The
Court’s decision in Melden & Hunt, Inc. clarifies an affiant may
support the knowledge requirement through conclusory statements which would
otherwise not be competent evidence for expert testimony.