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A Chapter 150 Certificate of Merit, or the Record Itself, Must Demonstrate the Affiant is Knowledgeable in the Defendant’s Area of Practice, Says Texas Supreme Court

By: Kyle Burke

In suits against architects, engineers, surveyors, and landscape architects, Section 150.002 of the Texas Civil Practice and Remedies Code requires that a sworn “certificate of merit” (an affidavit) accompany a plaintiff’s complaint.  The affidavit must be from a similarly licensed professional, who meets certain qualifications and attests to the merit of the underlying claim. The statute provides, in part, that the affiant should be “knowledgeable in the (defendant’s) area of practice” and that the affidavit should set forth the defendant’s negligence or other wrongdoing and its “factual basis.” If the plaintiff fails to file a compliant affidavit, the complaint must be dismissed.

The Texas Supreme Court recently concluded that a Chapter 150 affidavit—or the record itself—must demonstrate that the professional providing the affidavit is “knowledgeable” in the defendant’s area of practice.  Levinson Alcoser Associates, L.P. v. El Pistolón II, Ltd., No. 15-0232, 2017 WL 727269 (Tex. Feb. 24, 2017).

El Pistolón hired Levinson Alcoser (the “architects”) to design a commercial retail project and oversee construction.  Unhappy with the architects’ services, El Pistolón sued, alleging breach of contract and negligence in the project’s design and development.  El Pistolón filed an affidavit by Payne, a third-party licensed architect, stating his professional opinion about the defendants’ work.

The architects moved to dismiss, objecting that Payne’s affidavit did not provide any information about his knowledge of the architects’ area of practice or the factual basis for the claimed errors or omissions by the architects.  The trial court denied the motion to dismiss, and the architects appealed.  The court of appeals affirmed, concluding that Payne’s affidavit satisfied both the statute’s knowledge and factual-basis requirements as to the negligence claim. The question before the supreme court was whether Payne’s affidavit was sufficient under the statute to support El Pistolón’s negligence claim. 

El Pistolón and the court of appeals suggested that the statute’s knowledge requirement might be inferred from Payne’s statements regarding his active architecture practice or the fact he held the same license as the architects.  But the supreme court rejected such an inference, holding that the statute’s knowledge requirement is not synonymous with the expert’s licensure or active engagement in the practice; instead, it requires some additional explication or evidence reflecting the expert’s familiarity or experience with the practice area at issue in the litigation.  The court generally agreed that such knowledge may be inferred from record sources other than the expert’s affidavit, but here, the affidavit was the only evidence of Payne’s qualifications.  And, because nothing in Payne’s affidavit allowed an inference that Payne possessed knowledge of the defendants’ area of practice beyond the generalized knowledge associated with holding the same license, Payne had not shown himself qualified to render the certificate of merit. Thus, the lower courts erred in blessing Payne’s affidavit.

Still remaining is the question of the level of detail necessary to satisfy the “factual basis” requirement for Chapter 150 certificates of merit.  That issue is currently pending before the Texas Supreme Court in case No. 16-0087, Melden & Hunt, Inc. v. East Rio Hondo Water Supply.  The court requested briefs on the merits therein and held oral argument on March 22, 2017. Hopefully, the court will provide further guidance on the precise requirements of the certificate-of-merit statute.

Stay tuned!


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