The Thirteenth Court of Appeals released this opinion on December 5, 2013 that provides commentary and interpretation to the Texas Certificate of Merit Statute, found in chapter 150 of the Texas Civil Practice and Remedies Code.
In the case, a general contractor filed suit against an engineering firm related to design defects for a building used to treat hazardous materials. The contractor claimed that is was forced to redesign the building at its own cost in order to keep the project on schedule. Ultimately, the contractor filed suit very near the expiration of the limitations period, but not within the 10 days specifically referenced n the statute. When it filed, it did not include a certificate of merit. It filed one late and asked the court for an extension of its deadline to allow the filing to comply with the statute.
The trial court granted the extension and the appellate court affirmed based on the court’s discretion. While this decision is interesting for its facts an the application of the extension, the comments made by the court addressing the engineering firm’s challenge to the certificate based on the affiant’s qualifications is also informative.
The engineer that signed the certificate was structural engineer with experience as both a licensed engineer and a licensed architect. He affidavit established this experience. The engineering firm defendant claimed he was not qualified to provide the certificate because he was a structural engineer and not a chemical engineer.
The problem with the design, as alleged in the suit, was with the four-sided dust containment curtain system. The defendant engineer claimed that the affiant was unqualified because he was not a chemical engineer and that his structural engineering experience was insufficient in this case. The court rejected that assertion and determined that he was both qualified to issue the certificate and that the certificate contained sufficient factual detail to allow the court to determine that the plaintiff’s suit was not frivolous. And, as the court stated, that determination is the underlying purpose of the requirement.
This case adds to a growing body of law dealing with certificates of merit.