by Melanie Okon and Kevin Muenster
Chapter 150 of the Texas Civil Practice and Remedies Code requires a party asserting claims “arising out of the provision of professional services” by a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices to file with their complaint an affidavit commonly known as a “Certificate of Merit” (COM). This affidavit must be signed by an individual that (1) is licensed or registered in Texas, (2) is competent to testify, (3) holds the same professional license or registration as the defendant, (4) is knowledgeable in the area of practice of the defendant and offers testimony based on the affiant’s knowledge, skill, experience, education, training, and practice, and (5) is actively engaged in the practice of architecture, engineering or surveying. The affidavit must also specifically set forth, for each theory of recovery alleged, the negligence or other action, error or omission of the licensed or registered professional involved in providing the professional service rendered and the factual basis for each such claim.
The purpose of a COM is to provide a basis for the trial court to determine—at the outset of the case—whether a party’s claims are frivolous. However, a COM is not required in every case in which a licensed or registered professional is named as a defendant. For example, a suit against an engineer operating a side business of mowing lawns premised upon an act done in the course of providing those services does not require a COM under the statute. Rather, it is only when the suit “implicates a [professional’s] education, training, and experience in applying special knowledge or judgment” that a COM is required. In determining the nature of a party’s claims with respect to Chapter 150, Texas courts compare the substantive allegations against the professional to the applicable statutory definition of the “practice of architecture” or “practice of engineering” to determine whether a COM is required.
When a COM is required, it is crucial that the COM fully comply with the statute and be timely filed. However, in describing the “factual basis” of a claim, a plaintiff is not required to “marshal all of its evidence,” explain the law to the trial court or provide “operative facts other than the professional errors and omissions” committed by the defendant. Similarly, a COM does not have to identify “how or why” the errors occurred. Instead, the statute simply requires a COM to “describe the facts giving rise to the claim.” Finally, nothing in Chapter 150 requires a COM to address causation nor does it preclude a defendant from later challenging the sufficiency of the plaintiff’s evidence or the admissibility of the affiant’s opinions should the affiant be designated as a testifying expert. (Signing a COM does not automatically render an affiant a testifying expert.)
As for timing, the statute requires that the COM be filed contemporaneously with the plaintiff’s original petition unless the statute of limitations will expire within 10 days of the date the petition is filed, and the plaintiff alleges he is unable to secure a COM within that period of time. In those cases, the plaintiff generally has 30 days from the filing of suit to supplement his pleadings with a COM.
The true teeth of the statute can be found in Section 150.002(e), which mandates dismissal of any action when the COM requirements are not met. Texas courts have unequivocally warned that a plaintiff’s “failure to file a certificate of merit with the original petition cannot be cured by [a subsequent] amendment.” However, Texas courts are currently split as to whether the failure to comply with the COM statute requires a dismissal with or without prejudice. The San Antonio Court has held that a dismissal is effectively with prejudice, thereby precluding a plaintiff from curing COM deficiencies by simply re-filing a previously dismissed action. The Dallas Court of Appeals has ruled the opposite: that a dismissal may be without prejudice and a plaintiff can re-file a subsequent action following dismissal. Under the statute, any order granting or denying a motion to dismiss is immediately appealable as an interlocutory order.
The failure to comply with the COM requirements in cases involving licensed or registered professionals can be devastating to a plaintiff’s case. Therefore, a working familiarity of the requirements of Chapter 150 is a must for every practitioner representing clients in the construction arena.
Melanie Okon and Kevin Muenster are partners in the law firm of Estes Okon Thorne & Carr PLLC and can be reached at [email protected] and [email protected], respectively.