In an opinion published last month, the Corpus Christi Court of Appeals split 2-1 over whether a licensed professional engineer’s affidavit satisfied the certificate of merit requirements of §150.002, CPRC. That section requires a plaintiff seeking damages arising out of the provision of professional services by a licensed or registered architect or engineer to file with the complaint an affidavit of a third party licensee who: (1) is competent to testify; (2) holds the same professional license or registration as the defendant; and (3) 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 case, Certain Underwriters of Lloyd’s of London Subscribing to Policy No. NAJL05000016-H87, As Subrogee of Momentum Hospitality, Inc. & 75 and Sunny Hospitality D/B/A Fairfield Inn and Suites v. Mayse and Associates (No. 13-20-00261-CV), arose from the structural failure of a Rockport hotel damaged by Hurricane Harvey in 2017. The Underwriters paid about $4 million to the insured to repair a collapsed wall. They then asserted subrogation claims against the architectural firm who designed the hotel and the structural engineering firm that stamped the design. In accordance with §150.002 they filed affidavits sworn by a licensed architect and engineer. Each firm moved to dismiss the claim against based on the insufficiency of the affidavits. The trial court dismissed each claim with prejudice. The Underwriters filed an interlocutory appeal in both cases, which were consolidated by the court of appeals.
A panel consisting of Justices Longoria, Benavides, and Tijerina agreed with the trial court with respect to the architect but split on whether the affidavit submitted by the third-party engineer complied with the statute. As a threshold matter, the court of appeals determined that the engineering firm did not waive its right to seek dismissal although it did not contest the affidavit in its original answer and submitted discovery requests prior to filing its motion. The court reasoned that §150.002 does not require a defendant to object to the certificate of merit in its answer (unlike an affirmative defense, which must be affirmatively pleaded), the statute sets no deadline for a motion to dismiss, and the fact that the defendant participated in discovery and also made a traditional summary judgment motion did not rise to the level of an implied waiver of its right to dismiss.
Reaching the issue of whether the certificate of merit complied with the statute, the court analyzed §150.002(a)(3) requirement that the affiant practice in the “area of practice” of the defendant. Noting that the statute does not define “area of practice,” the court looked to SCOTX’s interpretation of the term in Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487 (Tex. 2017) and determined that the statute requires practice in the “area of practice at issue in the litigation,” not just general practice based on holding the same license. To determine “area of practice at issue,” the court of appeals referred to the relevant documents to characterize the defendant engineer’s area of practice as structural engineering. It then turned to the certificate of merit itself, which characterized the affiant as having more than 8 years of experience as a civil, structural, and forensic engineer, being actively engaged in the practice of forensic engineering, “which includes various components of structural engineering,” and having performed structural engineering designs for commercial and residential structures in high-wind areas similar to Rockport.
The court divided at this point. The majority held that the certificate of merit satisfied the statute because it asserted that the affiant practiced “structural engineering,” the defendant’s area of practice. Justice Tijerina dissented, concurring with the majority on the statement of the law but disagreeing with its application. He would have found that the certificate of merit did not comply with the “area of practice” requirement because there was no evidence that the affiant currently practiced structural engineering and the affiant’s active forensic engineering practice was limited only to “various components of structural engineering.” The affidavit further contained no additional information to support the affiant’s knowledge and experience in the specific structural defect at issue in the case or whether or how any components of his current practice apply specifically to the defects complained of by the Underwriters. He would thus have upheld the trial court’s dismissal of the Underwriters’ claim with respect to the engineer.
The court of appeals, however, agreed that the architect’s certificate of merit was fatally flawed. Following the same analysis as above, the court determined the defendant architect’s “area of practice” as the design and construction of a hotel or similar commercial building and the provision of usual and customary structural, mechanical, and electrical engineering services as required by a similarly situated architect for a hotel or other similar commercial structure. Turning to the third-party architect’s certificate of merit, the court found that the affiant did not specify that he practices in the design or construction of hotels or other similar commercial buildings, and that he does not state that he provides the standard of care of a similar situated architect. While the certificate stated that the affiant participated in design and construction services for “new construction,” it did not specify commercial construction, leaving it open to speculation regarding the type of construction services the architect performed. The court thus upheld the dismissal of the Underwriters’ case against the architect.
Finally, the court of appeals construed the “same professional license or registration” requirement of §150.002 to mean simply that the affiant engineer be licensed by the Texas Board of Professional Engineers and Land Surveyors, not that the affiant and defendant engineer have the same branch designations as listed on the Board’s website. In other words, for purposes of the statue, a licensed professional engineer is a licensed professional engineer.
This case contributes to a growing body of law interpreting §150.002 in construction defect litigation. The bottom line seems to be that the certificate of merit should track as closely as possible to the defendant’s characterization of its area of practice lest it run the risk of over-generality or leaving too much to the trial court’s imagination.