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Texas Court of Appeals Holds Plaintiffs Must Follow Plain Language of Statute Regarding Certificates of Merit
Construction Practices Newsletter
Summer 2010
In Benchmark Engineering Corp. v. Sam Houston Race Park, 2010 WL 1709225 (Tex. App. – Houston [14th Dist.] April 29, 2010), the Texas Court of Appeals, 14th District, held that where certificates of merit are concerned, plaintiffs must follow the plain language of the statute.
In Benchmark, a horse-racing park hired Benchmark Engineering to perform design and engineering services for an outdoor concert venue. After completion, the park sued Benchmark and others over problems with water drainage at the construction site. The park alleged that Benchmark was negligent in the design and construction of subsurface draining in the infield. The park attached a certificate of merit to its original petition as required under Section 150.002(a) of the Texas Civil Practice and Remedies Code, supported by an affidavit of a designated engineer.
The version of Section 150.002(a) in effect at the time the case was filed required:
In any action or arbitration proceeding for damages 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, registered professional land surveyor, or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim....
(The statute was amended in late 2009, elaborating the previous requirement that the affidavit specify "at least one negligent act, error, or omission" to a requirement it set forth specifically "for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion or similar professional skill...."
Although the park's certificate of merit cited several specific examples of Benchmark's allegedly negligent acts or omissions, Benchmark filed a motion to dismiss for want of jurisdiction pursuant to § 150.002(d), alleging numerous defects in the certificate and affidavit. Specifically, Benchmark contended that (1) the retained engineer failed to provide the "factual basis" for each of the park's allegations of negligence in the certificate of merit; and (2) was not qualified to make the affidavit under § 150.002. The trial court denied the motion and Benchmark appealed.
For its first argument, Benchmark contended that the factual bases for negligence given in the certificate of merit were insufficient because they did not describe the standard of care or whether Benchmark had met it. The court held that one must look to the plain language of § 150.002, stating that "every word excluded from the statute must ... be presumed to have been excluded for a purpose." Because the Legislature had not expressly incorporated a "standard of care" requirement for certificates of merit, the park's certificate had sufficiently described the factual bases for the negligence claims.
Additionally, Benchmark urged that the retained engineer had failed to satisfy § 152.002(a) because he had not "set forth specifically at least one negligent act," along with "the factual basis for ... such claim." The court agreed that the language used in the affidavit was ambiguous, but held that the ambiguity was not fatal, because each conceivable interpretation of the ambiguous language still provided a factual basis for negligence. Thus, the court upheld the trial court's ruling that the certificate of merit contained a description of at least one negligent act, error or omission, along with a factual basis for each claim, which is all the "plain and understandable" language of the statute requires.
For its second argument, Benchmark alleged that the engineer was not qualified under § 150.002 to provide an engineer's certificate or expert opinion regarding drainage design, as he allegedly had not demonstrated that he practices in the same area as Benchmark. (The 2009 legislative session relaxed this requirement, which now demands only that the designated engineer be "knowledgeable in the area of practice of the defendant.") Following the plain language of the statute, the court examined the certificate of merit, which included an affidavit and resume, and compared the engineer's areas of practice with those of Benchmark. His resume indicated that he practiced in the broad area of project engineering, including ground preparation, foundation, and building design. Benchmark's areas of practice were "more difficult to ascertain," as they were not described in Benchmark's pleadings or briefing, but the court would "not ignore the obvious: Benchmark provided design and construction engineering for a construction project which included excavation of soil." The court believed the documents demonstrated that the retained engineer and Benchmark practiced in the same area of construction engineering. Thus, on the second issue, the court of appeals held the trial court had not abused its discretion in finding the designated engineer to be a qualified affiant under § 150.002(a).
While the Benchmark case is generally significant for the proposition that certificates of merit require no more and no less than that which the plain language of § 150.002 requires, the most significant part of the holding has to do with the standard of care. The Benchmark court specifically noted it that it "respectfully disagree[d]" with its "sister court" in Beaumont, which recently had held that "the certificate of merit must necessarily address the applicable standard of care and the defendant's failure to meet the standard." See Criterium-Farrell Eng'rs v. Owens, 248 S.W.3d 395, 400 (Tex. App. – Beaumont 2008, no pet.). Until the Texas Supreme Court weighs in on the issue, therefore, plaintiffs would be wise to include a discussion of the standard of care in their certificates of merit.
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