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Legal - Texas Supreme Court clarifies standard for suits against design professionals

image Tracy Galimore, Senior Counsel, Peckar & Abramson, Austin, TX

SAN ANTONIO - The Texas Supreme Court recently considered two cases seeking to clarify the meaning of and standards in Tex. Civ. Prac. Rem. Code Ch. 150, which requires suits against design professionals to be supported by a sworn affidavit known as a Certificate of Merit (“COM”). When the plaintiff’s claims arise from the defendant’s provision of professional services, a COM must be furnished by a similarly licensed third-party expert who shall attest the design professional’s negligent acts, errors or omissions. The purpose of the law is to deter and quickly dismiss non-meritorious claims.


    The statute requires the third-party expert hold the same license as the defendant design professional, and also be knowledgeable in the defendant’s practice area. If the plaintiff fails to file a COM in compliance with the statute, the court shall dismiss the claim and the plaintiff may be prevented from filing suit again.
    In Levinson Alcoser Assoc. LP v. El Pistolon II, Ltd., the Court considered whether the COM filed by El Pistolon, the developer of a shopping center, sufficiently complied with the statute when the third-party expert listed only his license as his relevant experience. The Texas Supreme Court held the requirement that the third-party expert be knowledgeable in the practice area cannot be satisfied simply because the expert holds the same professional license as the defendant. The COM must include the specific illustrations of the expert’s familiarity or experience with the practice area at issue in the litigation. In this case, the plaintiff’s expert should have detailed his experience designing shopping centers in the COM. The faulty COM resulted in the developer’s claims against the architect being dismissed.
    In Melden & Hunt v. East Rio Hondo Water Supply, East Rio Hondo sued Melden, the designer of its water-treatment plant, for defective engineering and project supervision. Melden challenged the COM submitted by East Rio Hondo’s expert on the grounds that it did not contain sufficient factual support for each of the plaintiff’s claims. The Court rejected Melden’s interpretation of the statute which would require the COM to substantiate the plaintiff’s legal theories for suing the engineer. According to the Court, the statute only obligates the plaintiff to furnish a COM attesting to the defendant’s professional errors or omissions and their factual basis. The Court also determined the third-party expert could reserve his/her right to modify the opinion if additional information is made available, noting the COM statute does not require the plaintiff to disclose all its evidence at the start of the case.
    These opinions offer clarification for those seeking to file suit against licensed architects, engineers, surveyors and landscape architects and the interpretations provided should be closely heeded to avoid a complete dismissal of claims against these professionals.
    Tracy Galimore is Senior Counsel in Peckar & Abramson’s Houston office. A Board Certified Construction lawyer, she represents contractors, sureties, owners, and developers in construction related transactions and disputes. She can be reached at 281.953.7706 or tgalimore@pecklaw.com.

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