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Texas’s Certificate Of Merit Statute Requires Certifying Expert To Demonstrate Knowledge Of The Defendant Design Professional’s Area Of Practice

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.