Justice Gisela Triana
The Austin Court of Appeals has reversed a trial court order denying an engineering firm’s motion to dismiss for Plaintiffs’ failure to file a certificate of merit with their first-filed petition.
Quintero Engineering, LLC v. Amy Hendy; Sean Hendy; and Alethium Development, LLC d/b/a Alethium Homes (No. 03-24-00700-CV; October 22, 2026) arose from a dispute between an engineering firm that designed and built a retention pond and homeowners in an Alethium subdivision in Temple. Plaintiffs alleged that after a heavy rain, the retention pond overflowed, flooding their land and causing damage to their home and landscaping. They sued Quintero for private nuisance, alleging that the flooding resulted in substantial interference with the use and enjoyment of their property. Alethium filed a cross-claim against Quintero for contribution. Quintero filed a motion to dismiss for failure to file a certificate of merit. Plaintiffs responded that Quintero’s affidavit, provided by a professional engineer employed as Quintero’s principal, was insufficient to show that the certificate-of-merit requirement was applicable to their claims. Alethium added that since it wasn’t a plaintiff in the case, it didn’t have to file a certificate. The trial court denied the motion for the present. Plaintiffs filed a certificate 60 days later. Quintero reasserted its motion, which the trial court denied. Defendant filed an interlocutory appeal.
In an opinion by Justice Triana, the court of appeals reversed and remanded. Section 150.002, CPRC, “requires a claimant seeking damages against a licensed or registered professional to file a certificate of merit with their complaint.” Plaintiffs asserted that they didn’t need to file a certificate “because Quintero failed to ‘demonstrate that it is a “licensed or registered professional” as defined by the certificate-of-merit statute” and failed to ‘provide competent evidence to support its claim that [Quintero] provided professional services in relation to the Project.” Looking to Plaintiffs’ pleading, the court ruled that their flaims against Quintero were for damages arising from professional engineering services, “specifically services related to the design, engineering, and construction of a retention pond within the development.” Quintero’s affidavit stated that it was registered with the Texas Board of Professional Engineers and Land Surveyors as an engineering firm, and that it “employed licensed professional engineers and registered land surveyors to provide engineering and surveying services to its clients.” The affidavit went on to aver that Quintero “was engaged by Alethium Development, LLC, to provide professional land surveying and civil engineering services for the civil design and staking of the” of subdivision, including design of the retention pond, preparation of a plat, surveying work, and construction inspection services.
This was enough for the court to conclude that “Quintero is a firm in which licensed professional engineers practice and that it provided professional engineering services in relation to the development project that was the subject of [Plaintiffs’] claims against Quintero.” The trial court abused its discretion in ruling that Plaintiffs didn’t have to file a certificate or merit. As to Alethium, the court observed that the Legislature amended Chapter 150, CPRC, in 2019 changed “plaintiff” to “claimant,” thus requiring anybody asserting a claim against a licensed or registered professional to file a certificate. Additionally, the statute defines “claimant” to include “a plaintiff or third-party plaintiff, seeking recovery for damages, contribution, or indemnification.” That change made Alethium, a cross-claimant for contribution from Quintero, subject to the certificate of merit requirement.
Plaintiffs attached the certificate to its fourth amended petititon, not its “first-filed petition.” SCOTX, the court observed, “has held that the ‘failure to file a certificate of merit with the original petition cannot be cured by amendment” (citations omitted). Following suit, the court concluded that Plaintiffs were required to file with their first-filed petition. When they didn’t, the trial court had to grant Quintero’s motion to dismiss. The court thus reversed the trial court’s order and remanded for a determination whether the dismissal should be with or without prejudice.
