Do Not Forget Your Certificates of Merit!
by Jason L. Cagle and Nick S. Brooks
An owner discovers its newly built structure has a problem and believes the design may be partially or entirely to blame. In a dispute with an architect or engineer outside the construction context, the plaintiff would file suit based on fact allegations rather than including any evidence to support the claims. The plaintiff might eventually retain experts to evaluate the cause of the problems during the discovery process. But in any case involving problems arising out of the provision of professional services by an architect or engineer, Texas law requires the plaintiff to provide a certificate of merit with the original petition. Failure to file an adequate certificate of merit or, even worse, failing to file one at all, can result in dismissal of the petition.
Under Chapter 150 of the Texas Civil Practice and Remedies Code, a certificate of merit is a sworn statement from a licensed architect or licensed professional engineer. The certificate of merit is not valid unless it shows the professional making the sworn affidavit: (1) is competent to testify; (2) has the same professional license or registration as the defendant; and (3) is knowledgeable in the defendant’s area of practice based on the professional’s knowledge, skill, experience, education, training and practice.
Chapter 150 requires the certificate of merit to specifically set out the negligent acts, or other acts or omissions, for each theory of recovery for which damages are sought. It is not just required in cases involving negligence, but rather must be filed in all suits arising out of the provision of professional services regardless of the claims asserted. The certificate must also set forth the factual basis for each claim. Some courts require certificates of merit to state facts supporting each element of all claims. In others, the certificate of merit need not address claims such as a breach of contract or breach of warranty, under the reasoning that allegations of professional errors and omissions are sufficient. When in doubt of which standard will be applied, plaintiffs should err on the side of caution and include facts supporting all claims.
Practically speaking, obtaining a certificate of merit requires the plaintiff to gather a significant amount of information regarding the causes of its problems much sooner than normal. Without such information, the architect or engineer issuing the certificate of merit may not have enough facts to support his or her opinion.
While the engineer or architect issuing the certificate of merit must practice in the same field as the defendant, the affidavit does not need to state that specifically. Courts have interpreted the requirement broadly, and generally do not require that engineer or architect to practice in the same sub-specialty as the defendant.
If the certificate of merit fails to meet the requirements of Chapter 150, the court must grant a motion to dismiss on this basis from the defendant. Architects and engineers are well-aware of their rights under the law and often seek dismissal where certificates lack sufficient detail or (as is common) are not filed at all. Defendants should be aware, however, that it is possible to waive their right to seek dismissal for failure to file an adequate certificate of merit. Courts evaluate whether such waivers have occurred based on a totality of the circumstances.
The court may dismiss all claims to which the certificate of merit is insufficient and may elect to dismiss those claims with prejudice. Even if dismissal is without prejudice, it can cause significant problems if the case was filed near the end of the limitations period. Moreover, the Courts of Appeal disagree on whether a plaintiff may cure issues raised in a motion to dismiss by filing or amending the certificate of merit. In other words, a plaintiff may only get one chance to get the certificate right.
Certificates of merit can require a plaintiff to expend significant costs at an early stage in the litigation process. The penalties can be severe if the plaintiff does not include sufficient information to meet statutory requirements. As such, they can be a trap for the unwary in construction cases.