THE CERTIFICATE OF MERIT STATUTE
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1 THE CERTIFICATE OF MERIT STATUTE Gordon K. Wright Cooper & Scully, P.C This paper and/or presentation provides information on general legal issues. It is not intended to provide advice on any specific legal matter or factual situation, and should not be construed as defining Cooper and Scully, P.C.'s position in a particular situation. Each case must be evaluated on its own facts. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should not act on this information without receiving professional legal counsel.
2 Key provisions in current statute Texas Civil Practice and Remedies Code (CPRC) In any action arising out of the provision of professional services by a licensed or registered professional...
3 Key provisions in current statute Texas Civil Practice and Remedies Code (CPRC) In any action arising out of the provision of professional services by a licensed or registered professional.... the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor
4 Key provisions in current statute Texas Civil Practice and Remedies Code (CPRC) In any action arising out of the provision of professional services by a licensed or registered professional.... the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor (1) is competent to testify; (2) holds the same professional license or registration...; and (3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person s: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice.
5 Key provisions in current statute The affidavit needs to specifically set out For each theory of recovery the negligence, if any, or other action, error, or omission of the licensed or registered professional... and the factual basis of each such claim. The affiant shall be licensed or registered in this state and actively engaged in the practice....
6 Key provisions in current statute The failure to file the affidavit shall result in dismissal.... Such dismissal may be with prejudice. An order granting or denying the dismissal may be immediately appealed. The court, after hearing, may for good cause extend such time [to file the affidavit] as it shall determine justice requires when limitations comes into play.
7 (2009) Licensed or registered professional means a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices....
8 Questions about When does the statute apply? Negligence Contract claims? Owens v. Hous. Auth. Of City of San Augustine, 2013 WL (Tex. App. Tyler 2013, no pet.) Breach of warranty claims? Statutory violations? Tortious interference? Dunham Eng g. Inc. v. Sherwin-Williams, Co., 404 S.W.3d 785, 788 (Tex. App Houston [14 th Dist.] 2013, no pet.) Indemnity? Childress Eng g Services, Inc. v. National Mut. Ins. Co., 456 S.W.3d 725 (Tex. App Fort Worth 2013, no pet.) Key is provision of potential services
9 Questions about Does the statute apply to third-party claims? No see Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014).
10 Questions about What must be included in the affidavit?
11 Recent Decisions TIC N. Central Dallas 3, L.L.C. v. Envirobusiness, Inc. d/b/a EBI Consulting, et al WL (Dallas, Sept. 24, 2014, pet. filed) May is significant Related to professional services
12 Recent Decisions Bruington Engineering, Ltd., v. Pedernal Energy, L.L.C., 2014 WL (San Antonio, August 27, 2014) First-filed means first filed Miramar Petroleum, Inc. v. Cimarron Engineering, LLC, CV (Tex. App. Corpus Christi, January 7, 2016) Cannot dismiss a second time with prejudice if first time dismissed without prejudice
13 Levinson Alcoser Associates LP v. El Pistolon II, Tex. S. Ct., Cause No From the Corpus Christi Court of Appeals Argued November 6, 2016 Still no ruling.
14 Levinson Two Issues: Factual basis Undefined in statute How much needs to be said Does the affiant have expertise in the specific question?
15 Thank you. Gordon K. Wright Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, Texas
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