Lian Skaf | White and Williams
The purpose of certificate of merit (sometimes referred to as affidavit of merit) statutes is to identify frivolous claims before the court wastes time and resources during litigation. More common in medical malpractice cases, several states have enacted similar requirements for professional negligence claims dealing with construction-related issues. While a subrogation attorney should not be bringing a frivolous case to suit anyway, the requirement adds another step in the process that plaintiffs need to properly navigate.
Chapter 150 of the Texas Civil Practice and Remedies Code requires that in an action arising out of professional services by a licensed or registered professional, claimants must file an affidavit from a qualified expert attesting to the theories of recovery, the negligence and the factual basis for the claims. The expert must be competent, have the same professional license or registration as the defendant and practice in the area of practice of the defendant.
In Janis Smith Consulting, LLC v. Rosenberg, No. 03-23-00370-CV, 2024 Tex. App. LEXIS 7961, the Court of Appeals of Texas, Third District (Court of Appeals) addressed a challenge from the defendant as to the sufficiency of the plaintiff’s certificate of merit in an interlocutory appeal. The Court of Appeals affirmed the lower court’s dismissal of the defendant’s motion to dismiss based on the allegedly improper certificate of merit, holding that the plaintiff’s expert was sufficiently qualified to certify the legitimacy of the case.
The case at hand involves plaintiff Eric B. Rosenberg’s hiring of defendant Janis Smith Construction, LLC and Janis Smith (collectively, Smith) to relocate his Lake Austin boat dock to comply with local permitting requirements. After a dispute about the scope of the work, Smith sued Rosenberg for breach of contract when he refused to pay an invoice of $2,215. Rosenberg countersued and included a claim for professional negligence. Attached with the counterclaim was a certificate of merit by Jay Campbell, P.E. (Campbell). Smith filed a motion to dismiss in response to the certificate of merit, arguing that Campbell lacked “the required knowledge, skill, experience, education, training and practice in the relevant area of specialization” to qualify as an affiant.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.