SCOTX REMINDS PLAINTIFFS TO CHECK ALL THE BOXES BEFORE FILING A CLAIM AGAINST AN ARCHITECT

Levinson Alcoser Associates, L.P. v. El Pistolón II, Ltd.
Supreme Court of Texas, No. 15-0232 (February 24, 2017)
Justice Brown (Opinion, linked here); Justice Boyd (Concurring)

Brent Rubin

El Pistolón sued Levinson, its architect, after it became dissatisfied with Levinson’s services on a commercial retail project. In a suit concerning professional services rendered by an architect (or certain other licensed professionals), Chapter 150 of the Civil Practice and Remedies Code requires a plaintiff to submit a sworn certificate of merit. The certificate of merit must be prepared by a third-party professional who (a) has the same professional license as the defendant; (b) is licensed in Texas; (c) is actively engaged in practice; and (d) is knowledgeable in the defendant’s area of practice.

El Pistolón submitted an affidavit from Payne, an actively practicing Texas-licensed professional architect. But the affidavit was silent as to Payne’s knowledge of Levinson’s practice area, shopping centers and similar commercial construction. After the trial court denied Levinson’s motion to dismiss, Levinson brought an interlocutory appeal. The court of appeals affirmed, but the Supreme Court did not. The Court recognized that an architect’s knowledge may be established outside the affidavit, but concluded there was no record evidence that could satisfy the knowledge requirement. So the Court remanded to the trial court with instructions to dismiss, leaving it to the trial court to decide whether the dismissal should be with or without prejudice.