In order to assert a professional negligence claim in Texas against an architect, professional engineer, registered landscape architect, or registered professional land surveyor, the claimant must file a certificate of merit prepared by an outside expert when initiating a lawsuit. The purpose of this statutory requirement is to discourage frivolous claims that serve to increase construction costs. This post outlines key issues regarding deadlines and requirements for filing a certificate of merit, as well as the potential consequences if the claimant fails to comply with statutory requirements.
Section 150.002 of the Texas Civil Practice and Remedies Code outlines the necessary requirements for the certificate of merit. Subsection (a) states the certificate of merit must be in the form of an affidavit. The affidavit must be carried out by a “third-party licensed architect, licensed or registered professional engineer, registered landscape architect, or registered professional land surveyor who:
- is competent to testify;
- holds the same professional license or registration as the defendant; and
- practices in the area of practice of the defendant and offers testimony based on the person’s knowledge, skill, experience, education, training, and practice.”
The professional authoring the affidavit must be licensed or registered in the State of Texas and actively engaged in the practice of architecture, engineering, or surveying. Further, the professional must practice in the particular area involving the design error in question. In other words, if there is an architectural design error, an architect must be retained to prepare the affidavit, as opposed to some other category of design professional.
The affidavit must “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 . . .” (Tex. Civ. Prac. & Rem. Code § 150.002(b).) The statute identifies such deficiencies as, among other issues, “error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim.” (Id.)
Importantly, the certificate of merit requirements do not apply to any claims for payment of fees arising out of the provision of professional services. (Tex. Civ. Prac. & Rem. Code § 150.002(h).) Rather, such claims represent strictly a breach of contract matter.
The certificate of merit must be filed contemporaneously with the original petition. (Tex. Civ. Prac. & Rem. Code § 150.002(c).) The only exception to this requirement is when: (a) the statute of limitation is set to expire within 10 days of the date of filing, and (b) because of such time constraints, the claimant alleges the affidavit could not be timely prepared to meet the applicable deadline. (Id.) In such cases, the claimant then has 30 days after initially filing the lawsuit to file the supplemental certificate of merit. (Id.) The initial 30 day extension period may be again extended, at the discretion of the court, upon a motion and after a hearing for good cause. (Id.) The defendant design professional is not required to file an answer to the lawsuit until 30 days after the filing of the certificate of merit.
Consequences of Failing to Comply with Statutory Requirements
If the claimant fails to abide by these requirements, the design professional defendant should move to have the claims dismissed. Pursuant to Section 150.002(e), the lawsuit against the defendant shall be dismissed if the claimant fails to file a certificate of merit that meets the statutory requirements. (Tex. Civ. Prac. & Rem. Code § 150.002(e).) The court has discretion to dismiss the lawsuit with or without prejudice. If the lawsuit is dismissed with prejudice, the claimant is prohibited from reasserting the claim. While courts are generally inclined to dismiss a case without prejudice when the claimant fails to file a proper certificate of merit, it remains within the court’s discretion to dismiss the case with prejudice and prevent refiling of the claim. Consequently, it is very important to comply with the statutory requirements for a certificate of merit when filing the lawsuit. Otherwise, you risk the potential of losing the claim entirely. An order granting or denying a dismissal is immediately appealable as an interlocutory order. (Tex. Civ. Prac. & Rem. Code § 150.002(f).)
Waiver of Certificate of Merit Requirement
Because of the mandatory, non-jurisdictional nature of the filing requirement, a defendant may waive its right to seek dismissal under the statute. (Frazier v. GNRC Realty, LLC, 476 S.W.3d 70, 73 (Tex. App.—Corpus Christi 2014, pet. denied).) Waiver is considered a matter of intent. For implied waiver to be found, intent must be clearly demonstrated by the surrounding facts and circumstances. (Id. at 74.) Waiver is generally evidenced in these actions:
- express renunciation of a known right;
- silence or inaction, coupled with knowledge of the known right, for such an unreasonable period of time as to indicate an intention to waive the right; or
- other conduct of the party knowingly possessing the right of such a nature as to mislead the opposite party into an honest belief that the waiver was intended or assented to. (Id. (citing Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex. 1981).)
To determine whether waiver occurred, the court will look to the moving party’s participation in discovery, whether the party sought affirmative action or judgment on the merits, and the time at which the party sought dismissal. (Murphy v. Gutierrez, 374 S.W.3d 627, 633 (Tex. App.-Fort Worth 2012, pet. denied).)
If confronted with a potential professional negligence claim, it is important to consult with an experienced construction attorney with knowledge addressing the certificate of merit requirements. This is true whether affirmatively asserting a claim or defending against a design error lawsuit. The KRCL Construction Team has significant experience assisting clients through this cumbersome process.
A subsequent blog post will follow discussing recent legislative changes that impact requirements related to filing a certificate of merit, as well as the application of the certificate of merit requirement to third-party claims. Please subscribe to Framing Issues to stay apprised of the latest legal issues impacting the construction industry.
KRCL would like to give special thanks to Ruwendika deSilva for her significant assistance in the preparation of this blog post. Ms. deSilva was a summer associate in the Firm’s Houston office in 2020. She is currently a third-year lawsuit at South Texas College of Law — Houston.