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Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp.

Supreme Court of Texas

June 9, 2017

Melden & Hunt, Inc., Petitioner,
East Rio Hondo Water Supply Corporation, Respondent

          Argued March 22, 2017

         On Petition for Review from the Court of Appeals for the Thirteenth District of Texas



         Chapter 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).

         In this 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.


         East 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 misrepresentation.

         To 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.

         Melden 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.[1]


         Chapter 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 certificate-of-merit expert).

         In this 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.

         First, 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.

         Our 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 knowledge.

M-E Eng'rs, Inc. v. City of Temple, 365 S.W.3d 497, 503 (Tex. App.-Austin 2012, ...

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