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Texas Court Of Appeals Rules Engineers May Not Provide Certificates Of Merit In Suits Against Architects

In Kayne Anderson Capital Advisors, L.P. v. Hill & Frank, Inc., 2018 WL 6613656 (Tex. Ct. App., Dec. 18, 2018), the Texas Court of Appeals held an engineer’s affidavit does not satisfy the Certificate of Merit requirement in a suit against an architect.

Hill & Frank, Inc. (“Hill & Frank”) was hired to be the architect for a multi-use property in College Station, Texas, which included a swimming pool at the top of a parking garage. Kayne Anderson Capital Advisors, L.P. (“Kayne Anderson”), the property owner, filed suit against Hill & Frank alleging faulty design and construction of the pool. Kayne Anderson attached the affidavit of Robert N. Kenney (“Mr. Kenney”), a licensed engineer, to serve as the Certificate of Merit for the claims against Hill & Frank. Hill & Frank moved to dismiss, arguing the engineer’s Certificate of Merit did not satisfy the statutory requirements, because Mr. Kenny was not an architect. The trial court granted the Motion to Dismiss.

Section 150.002(a) of the Texas Civil Practice and Remedies Code provides that in an action 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, licensed professional engineer, registered landscape architect, or registered professional surveyor who: (1) competent to testify; (2) holds the same professional license or registration as the defendant; and (3) is knowledgeable in the area of the practice of the defendant…” The same code section mandates dismissal if the plaintiff fails to file such a certificate.

Kayne Anderson argued Ms. Kenny’s affidavit satisfied the Certificate of Merit requirement because the Texas Occupation Code allows some work to be performed by either a licensed engineer or a licensed architect, and Hill & Frank’s work fell into this category. The Texas Occupation Code, Section 1001.031(e)(4) allows either an architect or an engineer to “provid[e] expert opinion and testimony with respect to issues within the responsibility of the engineer or architect.” Kayne Anderson argued that because the Texas Legislature allows either an engineer or an architect to provide expert opinion concerning the overlapping work and the work in this suit falls within that work, the Texas Legislature intended to allow either engineers or architects to provide Certificates of Merit in this situation.

On appeal, the Texas Court of Appeals upheld the dismissal, holding that Kayne Anderson’s argument was foreclosed by the plain meaning of the Certificate of Merit statute. While the Court found the Texas Occupation Code could support the engineer’s satisfaction of the Certificate of Merit requirements of competence to testify and knowledge in the defendant’s practice area, the Texas Occupation Code did not satisfy the additional requirement that an affiant “holds the same professional license or registration as the defendant.”

The Texas Court of Appeals’ ruling affirms that Texas law imposes the unambiguous requirement that the Certificate of Merit affiant hold the same license as the defendant. Defense counsel should verify that the professional providing a Certificate of Merit actually holds the same license as the Defendant and file a Motion to Dismiss if not.