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.