Suing a Design Professional in Texas? Make Sure to Include a Certificate of Merit in Your Pleading

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On August 4, 2020, the Court of Appeals of Texas (First District) reversed a trial court’s denial of an engineering firm’s motion to dismiss finding that the plaintiff’s failure to attach the required certificate of merit affidavit to its petition against the engineering firm required dismissal of the petition under the plain language of Tex. Civ. Prac. & Rem. Code § 150.002. § 150.002(a) requires an affidavit or certificate of merit from a qualified professional to accompany a plaintiff’s petition against certain professionals, such as an engineer, in a matter that “arises out of the provision of professional services by [the] licensed or registered professional.” Per § 150.002(b), amongst other requirements, the affidavit “shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error or omission of the licensed or registered professional.” Pursuant to § 150.002(e), a plaintiff’s failure to include the affidavit “shall result in dismissal of the complaint [against the professional]” and such “dismissal may be with prejudice.”

In TRW Engineers, Inc. v. Hussion Street Buildings, LLC, Hussion Street Buildings, the owner of property adjacent to a construction site for a housing project, alleged work on the housing project had damaged its property. In October 2017, Hussion initially sued the owner of the housing project and its general contractor. In 2018, in advance of a temporary injunction hearing, Hussion designated a licensed engineer as an expert, and that expert was deposed. Hussion read over 100 pages of the expert’s deposition testimony into the record during the temporary injunction hearing. The testimony identified deficiencies in the design of the housing project, including the use of incorrect drainage calculations.

In September 2018, Hussion amended its pleadings to name the engineer of the housing project, TRW Engineers, as an additional defendant. TRW provided professional engineering services for the design of the project. Hussion did not file a certificate of merit affidavit with its amended petition. TRW moved to dismiss Hussion’s amended petition for failure to attach the required affidavit. In response, Hussion argued it satisfied the affidavit requirement through the deposition testimony of its expert, which included specific statements identifying TRW’s alleged failures. The trial court denied the motion to dismiss, and TRW appealed that decision.

Finding in favor of TRW, the appellate court rejected Hussion’s arguments that the deposition testimony from its expert satisfied the certificate of merit affidavit requirements in § 150.002. The appellate court concluded that the plain language of the statute controls. The court also held that the deposition testimony was not an affidavit, was not filed contemporaneously with the amended petition, and did not set forth specifically the conduct giving rise to TRW’s alleged liability. According to the court, save for certain exceptions that did not apply to Hussion, the requirements of § 150.002 were compulsory, and the trial court did not have discretion to waive the requirement or piecemeal the requirement through other documents in the trial record. The appellate court reversed the denial of the motion to dismiss and remanded to the trial court for a determination of whether the dismissal should be with or without prejudice.

Lessons from TRW Engineers

States vary on whether to require that a pleading include a certificate of merit affidavit or similar declaration to support a claim against a design professional. But, where such requirements are codified by statute, the apparent purpose is to discourage frivolous suits against professional service providers by requiring a plaintiff to submit, via affidavit from a qualified professional, evidence of the provider’s negligence or other error. There may be some question regarding the utility of such statutes to disputes involving sophisticated parties on complex commercial projects. For example, it seems unlikely that, after hiring an expert and litigating its claim for more than a year, that Hussion would amend its pleading to add TRW as a defendant on some meritless basis. That may explain why the trial court rejected TRW’s argument for dismissal in the first place.

Nevertheless, this particular Texas appellate court applied the statute strictly and required dismissal of Hussion’s petition. In simplest terms, if a party does not include a certificate of merit with its claim against an architect or engineering professional no matter what stage the litigation is in their claim will be automatically dismissed. On remand, Hussion now faces the prospect of a dismissal “with prejudice” meaning it may not be able to refile against TRW, and, even if the dismissal is “without prejudice,” Hussion may face statute of limitations’ bars on some or all of its claims against TRW. For other potential plaintiffs, the decision in TRW Engineers should be a reminder to read up on technical filing requirements in whatever jurisdiction is appropriate for any brewing disputes or hire experienced local counsel in that jurisdiction. Avoiding such hidden trapdoors may be important to preserving your claims.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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