March 22, 2017
Petition for Review from the Court of Appeals for the
Thirteenth District of Texas
P. DEVINE JUSTICE.
150 of the Civil Practice and Remedies Code generally
requires that a sworn "certificate of merit"
accompany a plaintiff's "complaint" in a case
that "aris[es] out of the provision of professional
services by a licensed or registered professional" named
in the statute. See Tex. Civ. Prac. & Rem. Code
§ 150.002(a). The sworn certificate or affidavit must be
from a similarly licensed professional who meets certain
qualifications and attests to the lawsuit's merit.
Id. § 150.002(a), (b). If the plaintiff fails
to file a compliant certificate of merit, the statute directs
the complaint's dismissal. Id. §
150.002(e). And the "order granting or denying a motion
for dismissal is immediately appealable as an interlocutory
order." Id. § 150.002(f).
interlocutory appeal, the defendant, an engineering firm to
which the statute applies, contends that the trial court
erred in not dismissing the plaintiff's complaint because
the certificate of merit's author was unqualified and his
affidavit's content inadequate. The court of appeals
disagreed and affirmed the trial court's order denying
the defendant's motion. 511 S.W.3d 743, 745, 750 (Tex.
App.-Corpus Christi-Edinburg 2015). Because we agree that the
trial court did not abuse its discretion in determining the
certificate of merit sufficient for the plaintiff's case
to proceed, we affirm as well.
Rio Hondo Water Supply Corp., a member-owned, non-profit,
water-supply corporation, contracted with Melden & Hunt,
Inc., to provide engineering-design and project-supervision
services for a new water-treatment plant in San Benito,
Texas. After the project's substantial completion, East
Rio complained about the water's quality, eventually
attributing the water-quality issues to the plant's
design and construction. East Rio subsequently sued the
project's engineers (hereafter referred to as
"Melden") and others involved with the
construction, asserting claims for breach of contract, breach
of express and implied warranties, negligence, and negligent
comply with the certificate-of-merit statute, East Rio filed
the affidavit of Dan Leyendecker, P.E., with its original
petition in the case. Leyendecker holds a bachelor of science
degree in civil engineering from Texas A&M University, is
a registered professional engineer in Texas and eight other
states, is the president and principal of LNV Engineering,
and claims twenty-three years' experience in "master
planning, detailed design and construction management."
He further swears he has experience designing and analyzing
water-treatment plants like East Rio's and is familiar
with the standard of care an engineer of ordinary knowledge
and skill should employ when designing such a project.
objected to Leyendecker's affidavit, complaining that the
affidavit did not comply with the statute's requirements
and that Leyendecker did not meet the statute's
qualifications. After the court of appeals affirmed the trial
court's order rejecting these same complaints, 511 S.W.3d
at 745, Melden filed its petition for review, complaining
again about Leyendecker's qualifications and the
affidavit's failure to provide the factual basis required
by the statute. Similar challenges are a recurring theme
under chapter 150, so we granted Melden's petition for
review to consider these issues.
150 applies to "any action or arbitration proceeding for
damages arising out of the provision of professional
services" by architects, engineers, land surveyors, and
landscape architects, as well as the firms in which they
practice. Tex. Civ. Prac. & Rem. Code §§
150.001(1-a), .002(a). It requires that a certificate of
merit accompany the initiation of a lawsuit against these
named design professionals. Id. § 150.002(a). A
certificate of merit is an affidavit from a third-party
professional who is competent to testify, holds the same
license or registration as the defendant, and is
knowledgeable in the defendant's practice area.
Id. The affiant must also be licensed or registered
in Texas and actively engaged in the practice. Id.
§ 150.002(b); see also Levinson Alcoser Assocs.,
L.P. v. El Pistolón II, Ltd., 513 S.W.3d 487, 492
(Tex. 2017) (listing the qualifications for a
case, the defendant design professional is an engineering
firm. The certificate of merit therefore must come from a
competent and qualified third-party engineer who can attest
to the factual basis of the plaintiff's underlying
complaint. Tex. Civ. Prac. & Rem. Code §
150.002(a)-(b). Leyendecker's affidavit states that he
"hold[s] the same engineering license as [the engineer]
who designed the Plant and drafted the construction
documents, " and Melden does not dispute that
Leyendecker is a Texas-licensed professional engineer. But
Melden questions whether Leyendecker is "actively
engaged in the practice" and "knowledgeable"
about Melden's practice area. Id.
Melden observes that Leyendecker never states he is actively
engaged in engineering and argues that neither
Leyendecker's position as president and principal of an
engineering firm nor his statements about past engineering
experience demonstrate Leyendecker's active engagement.
Next, Melden contends that Leyendecker's averments of
many years of experience "in master planning, detailed
design and construction management" and of
"education and experience in the design and analysis of
water treatment plants, including clarifiers, pumps, filters,
piping, controls, and chemical feed systems" are
conclusory and thus no evidence that Leyendecker is
"knowledgeable" in its practice area. Finally,
Melden submits that Leyendecker's opinions should be
judged like any other expert witness for competency and
admissibility because the statutory requirements here mirror
those in our rules of evidence. Compare id. §
150.002(a)(3) with Tex. R. Evid. 702.
courts of appeals have generally rejected the notion that
chapter 150 imposes the same level of scrutiny as that
imposed on the admissibility of expert-opinion testimony for
summary-judgment or trial purposes. See, e.g.,
Benchmark Eng'g Corp. v. Sam Houston Race Park,
316 S.W.3d 41, 47 (Tex. App.-Houston [14th Dist.] 2010, pet.
granted, judgm't vacated w.r.m.) (contrasting statutory
requirements for certificates of merit with standards
governing admissibility of trial and summary-judgment
evidence); see also Gaertner v. Langhoff, 509 S.W.3d
392, 398 (Tex. App.-Houston [1st Dist.] 2014, no pet.)
(holding that the statute's focus is on providing the
trial court a basis to judge the lawsuit's potential
rather than on the potential admissibility of expert
testimony); Hardy v. Matter, 350 S.W.3d 329, 333
(Tex. App.-San Antonio 2011, pet. dism'd) (noting that
the statute requires only that the affiant hold the specified
qualifications and is silent on how and when the expert's
qualifications must be established). The Third Court of
Appeals has interpreted the statute similarly:
What chapter 150 requires, with respect to subject-area
expertise, is that the affiant "is
knowledgeable in the area of practice of the defendant."
Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a)
(emphasis added). Chapter 150 does not require that an
affiant establish his or her knowledge through testimony that
would be competent or admissible as evidence, or even that
the affiant explicitly establish or address such knowledge
within the face of the certificate-indeed, it imposes no
particular requirements or limitations as to how the trial
court ascertains whether the affiant possesses the requisite
M-E Eng'rs, Inc. v. City of Temple, 365 S.W.3d
497, 503 (Tex. App.-Austin 2012, ...