A Challenge to Certificate of Merit Survives Non-Suit

Much has been written by both courts and practitioners about the certificate of merit statute and the requirements of the affidavit that must be attached to an original petition when suing a design professional for negligence.  This week, in the opinion for CTL/Thompson Texas LLC v. Starwood Homeowner’s Assoc., the supreme court offered insight concerning a defendant’s rights when asserting a motion to dismiss related to a defective certificate of merit.

(Clicking the link above this paragraph will direct you to the opinion from the Supreme Court’s website.)

In CTL v. Starwood, the plaintiff’s filed suit against a geotechnical engineer.  The defendant filed a motion to dismiss challenging the certificate of merit.  After the trial court denied the motion, the defendant filed an interlocutory appeal.  While the appeal was before the appellate court, the plaintiff non-suited its claims without prejudice, presumably to end the appeal and permit refiling in the court below.  After notice of nonsuit, the appellate court determined the non-suit deprived it of jurisdiction and declared the appeal moot.

The defendant disagreed and filed a petition for review with the supreme court.  The supreme court recognized that normally, a non-suit would effectively remove jurisdiction.  However, where a defendant has asserted affirmative claims, a plaintiffs non-suit is ineffective in removing the defendant’s claims.  As an example the court cited Aetna Casualty v Specia, 849 S.W 2d 805, 806-7 (Tex. 1993).  There, the defendant filed a motion for sanctions which the court said was a claim for affirmative relief.  If, while the motion for sanctions were pending, the palintiffnon-suited its claims, it would be allowed to escape liability for possibly sanctionable conduct.  This maneuvering would deprive the defendant of it rights prior to a courts having determined the validity of the defendant affirmative claim.  The motion for sanctions can survive a non-suit in that situation.

In CTL, the defendant moved to dismiss with prejudice and sought attorney’s fees.  Because these sanctions were sought for allegedly filing a frivolous claim, the sanctions survived a non-suit.  The underlying questions regarding the merit of the appeal were not properly before the supreme court, so it did not comment on the contents of the certificate of merit.  Instead, it remanded the case to the appellate court to decide that issue.

For both plaintiffs and defendants in tort claims arising from a design professional’s conduct, this case serves as a reminder of the significance of each parties rights as they relate to the certificate of merit statute.