Claims Against Architects and Engineers: The Certificate of Merit Rule in Texas

What is a certificate of merit, and who needs one?

A sworn statement from a qualified professional, filed with the first pleading that raises a claim against a design professional, saying what the defendant did wrong. Civil Practice and Remedies Code § 150.002 requires it in any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional. That phrase covers licensed architects, licensed professional engineers, registered professional land surveyors and one further registered design profession named in § 150.001, and any firm through which they practice.

The requirement falls on the claimant, which the statute defines to include a plaintiff or a third-party plaintiff seeking damages, contribution or indemnification. An owner suing its architect, a contractor suing the structural engineer over a design that could not be built, and a general contractor bringing the engineer into a defect case as a third-party defendant all need the affidavit. The current text, after amendments through 2019, applies expressly to arbitration and to third-party claimants, so moving the fight to an arbitrator does not remove the requirement.

Two carve-outs. The statute does not apply to a suit for payment of fees for professional services (§ 150.002(h)), so an architect suing the owner for its invoice needs no affidavit, and neither does the owner's defense. And a design-build firm or its member on a governmental design-build project may bring a third-party claim or cross-claim against another licensed professional without one (§ 150.002(i)).

Who can sign the affidavit?

A third-party professional who meets every item on a short list. Under § 150.002(a) and (b) the affiant must be competent to testify, must hold the same professional license or registration as the defendant, must practice in the defendant's area of practice, and must offer the opinion based on knowledge, skill, experience, education, training and practice. The affiant must be licensed or registered in Texas and actively engaged in the practice of architecture, engineering or surveying.

Same license means same license. An engineer's affidavit does not support a claim against an architect, and an architect's does not support a claim against a surveyor, however qualified each may be. Within engineering, the area of practice requirement means a structural claim needs a structural engineer, not a mechanical one. A retired professional with an inactive license, or one licensed only in another state, is not actively engaged in Texas practice and fails the test. Finding the right affiant takes time, which is why the question has to be asked long before the limitations deadline approaches.

What must the affidavit say?

For each theory of recovery on which damages are sought, the negligence or other action, error or omission of the professional in providing the service, including any error in advice, judgment or opinion, and the factual basis for each claim (§ 150.002(b)). An affidavit that recites the elements of negligence and says the drawings were deficient has not done this. One that identifies the sheet, the detail, the code provision or standard it violated and the resulting condition has.

The affidavit is not an expert report and does not have to prove the case. It has to show that a qualified peer has looked at the facts and can point to a specific professional failing under each theory pleaded. Breach of contract and negligent misrepresentation theories need their own paragraphs; a court may dismiss a theory the affidavit does not address while letting the others proceed.

Example

Suppose a Dallas owner's parking structure shows cracking in post-tensioned slabs two years after completion, and the owner's consultant blames the structural design. Before filing, the owner's counsel retains a Texas-licensed structural engineer in active practice who reviews the drawings, calculations and field reports and signs an affidavit identifying the undersized tendons on specific sheets, the design standard they fail and the resulting overstress. The petition against the engineering firm is filed with that affidavit attached. If instead the owner filed first with a forensic architect's affidavit and planned to find an engineer later, the firm would move to dismiss, the motion would likely be granted, and the owner would be arguing about whether the dismissal is with prejudice while limitations keeps running.

When must it be filed?

With the complaint, meaning the petition or other pleading that first raises the claim against the professional (§ 150.001(1-b), § 150.002(a)). One exception: if the limitations period will expire within ten days of filing and the claimant alleges that the affidavit could not be prepared in time, the claimant has 30 days after filing to supplement with the affidavit, and the court may extend that period for good cause (§ 150.002(c)). The defendant need not answer until 30 days after the affidavit is filed (§ 150.002(d)). The statute does not extend any limitations or repose period (§ 150.002(g)), so the ten-year repose period for architects and engineers under Civil Practice and Remedies Code § 16.008 and the ordinary limitations periods still control when the claim must be filed. Statute of repose and limitations for construction claims explains those dates.

What happens without it?

Dismissal. A claimant's failure to file the affidavit as the statute requires results in dismissal of the complaint against that defendant, and the dismissal may be with prejudice (§ 150.002(e)). Whether to make it with prejudice is for the trial court, which looks at why the affidavit was missing or deficient; a claimant who filed nothing is in a worse position than one whose affidavit was specific but signed by a professional in the wrong sub-discipline. An order granting or denying a motion to dismiss is immediately appealable as an interlocutory order (§ 150.002(f)), so these rulings are often fought in the court of appeals before any discovery happens.

Defendants raise the motion early and specifically. The usual grounds are that the affiant does not hold the same license, does not practice in the same area, is not shown to be actively practicing in Texas, or that the affidavit speaks in generalities or omits a pleaded theory. A claimant whose affidavit is attacked can sometimes amend or supplement, but the safer course is to get it right the first time.

What else decides a claim against a design professional?

• Standard of care. The question is whether the professional did what a reasonably prudent member of the profession would have done in the same circumstances, which is proven through expert testimony at trial as well as in the affidavit. When a business case needs an expert witness covers how that evidence is built.
• Who the claimant is. An owner with a contract has breach of contract and negligence theories. A contractor with no contract with the architect usually has only tort theories, and the economic loss rule limits recovery of purely economic losses in that setting; the economic loss rule in Texas explains the limit.
• Contract terms. Owner-architect agreements commonly include limitation of liability clauses, waivers of consequential damages and short internal notice periods.
• Causation and apportionment. Construction defects usually have several causes. The design professional will point to the contractor, the contractor to the design, and the case turns on expert analysis of which failure produced which damage. Construction defect claims in Texas describes that allocation.

Common mistakes with certificates of merit

• Filing suit against the general contractor and adding the engineer later by amendment without an affidavit, on the theory that the case is already pending.
• Using the forensic expert already retained for the defect case without checking that the license and practice area match each defendant.
• One affidavit for several defendants in different disciplines.
• An affidavit that addresses negligence but not the breach of contract or misrepresentation counts also pleaded.
• Waiting until the last month before limitations and relying on the 30-day grace period, which applies only if the limitations deadline is within ten days of filing and only if the claimant pleads why the affidavit could not be prepared.

Tina Wysk represents owners, contractors and design professionals in construction claims in Dallas–Fort Worth state and federal courts and in arbitration; the construction litigation page describes that work.