The Texas Supreme Court issued two opinions in 2017 addressing the requirements of Section 150.002 of the Texas Civil Practice and Remedies Code – the certificate of merit statute that applies to lawsuits or arbitration proceedings against architects, professional engineers, professional land surveyors, and landscape architects. The statute generally requires that a sworn affidavit from a third-party professional accompany the plaintiff’s complaint if the claim arises out of the provision of professional services. The failure to file the affidavit contemporaneously with the complaint will ordinarily result in dismissal.
The statute imposes several requirements to qualify the third-party professional providing the affidavit. The expert must hold the same professional license or registration as the defendant. The expert must also be licensed or registered in Texas and actively engaged in the practice of architecture, engineering, or surveying. Finally, the expert must be knowledgeable in the area of practice of the defendant. The certificate of merit statute also requires that the third-party professional’s affidavit address the lawsuit’s factual basis. The 2017 Texas Supreme Court opinions address how these requirements can be satisfied.
In Levinson Alcoser Assoc., L.P. v. El Pistolon II, Ltd., the court held that the affidavit of an architect was insufficient because nothing in the affidavit or the record indicated he was knowledgeable in the defendant’s area of practice. The plaintiff hired the defendant architects to design a commercial retail project and oversee construction. The third-party architect’s affidavit only contained basic information regarding the architect’s Texas license and referenced his “active architecture practice in the State of Texas today.” The affidavit did not include any explanation or statement regarding the architect’s familiarity with or knowledge of the defendant’s area of practice. The court concluded that “the statute’s knowledge requirement is not synonymous with the expert’s licensure or active engagement in the practice; it requires some additional explication or evidence reflecting the expert’s familiarity or experience with the practice area at issue in the litigation.”
In Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., the court held that the affidavit of a professional engineer was sufficient because it: (1) included factual statements supporting the conclusion that the engineer was knowledgeable in the defendant’s area of practice and competent to testify; and (2) identified the defendant’s negligence and other errors and explained each of the alleged failures in detail. The plaintiff had hired the defendant engineering firm to provide engineering-design and project-supervision services for a new water-treatment plant. Quoting the Third Court of Appeals in Austin, the court expressed its view that the affidavit must “identify and verify the existence of any professional errors or omissions that are elements or operative facts under any legal theory on which the plaintiff intends to rely to recover damages.” The third-party professional’s affidavit does not need to address the elements of each cause of action alleged by the plaintiff, but it must connect the third-party professional’s claims of professional errors or omissions to each of the plaintiff’s alleged theories of liability.
One important takeaway from these two cases is that, while not specifically required by the statute to be included in the affidavit, the expert’s qualifications, including an explanation of the expert’s relevant knowledge and experience, should be included in the affidavit and the expert’s curriculum vitae should be attached to the affidavit. The certificate of merit statute’s knowledge requirement is not synonymous with its licensure or active-engagement requirements. “[S]ome additional explication or evidence reflecting the expert’s familiarity or experience with the practice area at issue in the litigation” is required.