Plaintiffs continue
to struggle in compliance with Certificate of Merit requirements in Texas. In TRW
Engineers, Inc. v. Hussion Street Buildings, LLC, 2020 WL 4457975 (Tex. Ct.
App. August 4, 2020), the Texas Court of Appeals held that an engineer’s
deposition testimony, which was read into the record by the plaintiff, did not
obviate the need for compliance with the certificate-of-merit requirement found
in Tex. Civ. Prac. & Rem. Code § 150.002, and accordingly dismissed plaintiff’s
unsupported petition.
The Plaintiff in TRW
Engineers filed suit against the owner and general contractor of a housing
project alleging deficient construction of the housing project damaged the
plaintiff’s adjacent property. Plaintiff designated and deposed a licensed
engineer to provide testimony at a temporary injunction hearing. The expert’s
testimony included alleged design deficiencies which he claimed contributed to the
plaintiff’s property damage. Following the temporary injunction hearing, Plaintiff
amended the Complaint and named TRW, the engineer on the project, as an
additional defendant, but did not file a Certificate of Merit.
Tex. Civ. Prac. &
Rem. Code § 150.002(a) requires plaintiffs contemporaneously provide a Certificate
of Merit from qualified professionals to support petitions against architects, engineers,
or land surveyors in cases arising out of the provision of their professional
services. § 150.002(b) describes the required contents of the of the Certificate
of Merit: “[t]he affidavit shall set forth specifically for each theory of
recovery for which damages are sought, the negligence … of the registered
professional in providing the professional service … and the factual basis for
each such claim.” Under § 150.002(e), a plaintiff’s petition shall be dismissed,
potentially with prejudice, if the plaintiff fails to timely submit a Certificate
of Merit that complies with § 150.002(b). Texas courts have routinely upheld
the necessity of strict compliance with § 150.002’s requirements in the face of
a plaintiff’s arguments to the contrary.
TRW filed a Motion
to Dismiss based on this failure and cited § 150.002 in support of its argument.
Plaintiff argued the expert testimony it presented at the temporary injunction included
all the information required under § 150.002(b), thereby bringing it into substantial
compliance with the statute. The trial court denied TRW’S Motion and TRW appealed.
The appellate court
reversed, finding the plain language of the statute required a
contemporaneously filed Certificate of Merit affidavit. The Court held §
150.002’s requirements are compulsory, not discretionary, and as such, the
trial court could not waive the affidavit requirement or sift through documents
in the record in order to find the information traditionally included in an
affidavit.
The result emphasizes
both the importance of abiding by technical filing requirements and taking
swift action when such requirements are breached. Many other jurisdictions also
require supporting documentation like Texas’s Certificate of Merit affidavit, yet
the failure to satisfy these requirements routinely does not result in dismissal
of a claim.
