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In Levinson Alcoser Associates,
L.P. v. El Pistolón II, LTD., No. 15-0232, 2017 WL 727269 (Tex. Feb. 24,
2017), the Supreme Court of Texas held Texas’s recently amended Certificate of Merit
statute requires a plaintiff to accompany his complaint not only with a sworn Certificate
of Merit from an expert stating the claim has merit, but also, the Certificate
of Merit must demonstrate the expert has knowledge of the area of practice to
which the complaint relates.
Sometime in 2007,
El Pistolón II, Ltd. (“El Pistolón”) hired Levinson Alcoser Associates, L.P.
and Levinson Associates, Inc. (architects) to design a shopping center in
McAllen, Texas. On June 7, 2010, El
Pistolón sued Levinson, alleging breach of contract and negligence in the
project’s design. Along with the Complaint,
El Pistolón filed an affidavit provided by Gary Payne, a licensed architect,
stating his professional opinion that Levinson’s work breached the standard of
care and El Pistolón’s complaint had merit.
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. Tex. Code § 150.002(a). The Certificate of Merit statute was amended
in 2009 to omit the requirement the expert practice in the same area of
practice as the defendant. Instead, the
affiant should merely be “knowledgeable in the [defendant’s] area of practice.”
Id. § 150.002(a)–(b). Levinson
argued Mr. Payne’s affidavit was insufficient because the affidavit did not
demonstrate Mr. Payne was knowledgeable in the area of the design of shopping
centers.
The Supreme Court
agreed with Levinson, rejecting El Pistolón’s argument the knowledge
requirement was synonymous with the expert’s licensure or active engagement in
the practice. The Supreme Court concluded
the statute requires some additional explanation or evidence reflecting the
expert’s familiarity or experience with the practice area at issue. Because Mr. Payne’s affidavit did not
demonstrate he possessed knowledge of shopping center design, beyond the
generalized knowledge associated with holding an architect’s license, the
Supreme Court held the affidavit was insufficient under the Certificate of Merit
statute.
The Supreme Court’s decision in Levinson
Alcoser Associates is important in interpreting Texas’s Certificate of Merit
statute. Although the requirement the
expert providing the Certificate of Merit practice in the same area as the
defendant was removed, the statute still requires the expert demonstrate
specialized knowledge about the defendant’s area of practice. The Texas Supreme Court made it clear this
requirement was not a mere formality, but rather, it was a protection against
frivolous lawsuits. Architects and engineers in Texas should verify that a Certificate
of Merit filed with a complaint meets the knowledge requirement and move to dismiss
the complaint if the Certificate of Merit does not contain evidence of
knowledge in the practice area at issue.