Expert Requirements in Construction Cases: The Good, The Bad, and The Ugly (BPI 2013– Part C) bit.ly/11ZMi3g By: Richard E. Schellhammer and Heather M. Woods I. Certificate of Merit Statute In an effort to weed out groundless claims against design professionals, certain lawsuits for damages arising out of the provision of professional services must be accompanied by an affidavit substantiating the claims, colloquially known as a “certificate of merit.”[1] A certificate of merit is an affidavit by a third-party licensed or registered professional setting forth the negligent act, error, or omission claimed to exist and the factual basis for each claim. Although there is no legislative history explaining the intent of the certificate of merit statute, Texas courts have opined that the purpose of the statute “is to provide a basis for the trial court to conclude that the plaintiff’s claims have merit” and to eradicate “frivolous” claims.[2] The Texas Supreme Court, in its only decision on the statute, stated that the statute’s dismissal remedy “is a sanction with the… purpose, to deter meritless claims and bring them quickly to an end.”[3] A. The Statute Section 150.002 of the Texas Civil Practice & Remedies Code currently reads as follows: (a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who: (1) is competent to testify; (2) holds the same professional license or registration as the defendant; and (3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person’s: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice. (b) 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 in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying. (c) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires. (d) The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such affidavit. (e) The plaintiff’s failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice. (f) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order. (g) This statute shall not be construed to extend any applicable period of limitation or repose. (h) This statute does not apply to any suit or action for the payment of fees arising out of the provision of professional services.[4] B. Statutory Requirements 1. What are damages “arising out of the provision of professional services?” Case law demonstrates that this phrase “implicates the professional’s education, training, and experience in applying special knowledge or judgment.”[5] For example, in TDIndustries, Inc. v. Rivera, the Court found that the claims regarding the negligent acts of an employee in operating a freight elevator did not require a certificate of merit because the employee did not have a professional license, education, or training and was not applying special knowledge or judgment in operating the elevator.[6] Compare that case with TDIndustries, Inc. v. Citicorp N. Am., Inc., in which the Fort Worth Court of Appeals required a certificate because the claimant based its negligence claim on the installation and testing of complex machinery, which stemmed from the defendant’s engineering expertise.[7] 2. Who is “competent to testify?” This phrase is undefined in the statute, but as one court pointed out it does not require that statements in the certificate of merit must be competent as evidence when the affiant provides the “factual basis” for the claims. In Benchmark Eng’g Corp. v. Sam Houston Race Park, the defendant argued that the affiant’s statements in the certificate should be subject to a standard similar to whether expert testimony constitutes competent summary judgment evidence or admissible evidence at trial.[8] The Court acknowledged that the expert must be “competent to testify” but stated that there was no such evidentiary requirement in the certificate of merit statute’s plain language.[9] 3. Must the certificate state that the expert practices in the same area as the defendant? A previous version of the statute used language requiring that the expert practice in the “same area” as the defendant. The current 2009 version requires that the expert hold the “same license” as and be “knowledgeable in the area of practice” of the defendant. Although it may not be required, a plaintiff should include specific statements in the certificate indicating that the expert meets these requirements. Applying the pre-2009 statute, the Benchmark Court concluded that since the expert’s affidavit and attached resume demonstrated that he practiced in the same area as the defendant, he did not have to specifically state that he did in the certificate.[10] In contrast, in Landreth v. Las Brisas Council of Co-Owners, Inc., that Court, also applying the pre-2009 statute, determined that a certificate of merit failed to meet the basic statutory [...] bit.ly/eA8V8J
Posted on: Wed, 05 Jun 2013 19:44:24 +0000
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