Jennings, Hackler & Partners, Inc. v. North Texas Municipal Water District

Dallas Court of Appeals, No. 05-14-01043-CV (July 31, 2015)

Justices Fillmore, Stoddart, and Whitehill (Opinion)

The HVAC system designed and installed by defendants was not so hot, or so alleged the plaintiff in this architect and engineer negligence claim. Texas Civil Practice & Remedies Code §150.002 requires a plaintiff asserting a claim “arising out of the provision of professional services” to file with the complaint an affidavit, or certificate of merit, from a competent professional specifically identifying the alleged negligence of each licensed or registered professional in providing the professional service at issue. Defendant Jennings filed a motion to dismiss, alleging the affidavit filed by plaintiff was not sufficient to support the allegations against him. The trial court disagreed and denied the motion.

On appeal, the Dallas Court of Appeals held the trial court erred in refusing to dismiss the direct claims against Jennings. The statute explicitly requires the certificate of merit to be from a person who “holds the same professional license or registration as the defendant.” Therefore, the affidavit submitted by the plaintiff, from a licensed professional engineer, could not support claims against Jennings, a licensed architect. But the Court did affirm the trial court’s denial of the motion as to the claims based on vicarious liability. The Court found those claims did “not assert any negligence or other act, error, or omission by Jennings in providing professional services. They assert only negligence by [co-defendant] TurkWorks for which Jennings is allegedly vicariously liable.” Because these claims did not arise out of Jennings’s professional services, no certificate of merit was required, and the motion to dismiss was appropriately denied.