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“Wait! Do You Have All Your Ducks in a Row?” Filing of a Certificate of Merit in Conjunction With a Complaint

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In Barrett v. Berry Contr. L.P., No. 13-18-00498-CV, 2019 Tex. LEXIS 8811, the Thirteenth District Court of Appeals of Texas considered, among other things, the procedural timing requirements of filing a certificate of merit in conjunction with a complaint. The court concluded that the proper reading of the statute requires a plaintiff to file a certificate of merit with the first complaint naming the defendant as a party.

In Barrett, after sustaining injuries while working at a refinery, David Barrett (Barrett) filed suit against Berry Contracting, LP and Elite Piping & Civil, Ltd. on July 6, 2016. In Barrett’s first amended complaint, which he filed on August 23, 2016, Barrett added Govind Development, LLC (Govind) as another defendant. Barrett subsequently filed a second amended complaint (omitting Govind) and, on December 27, 2017, shortly before the statute of limitations ran, a third amended complaint (reasserting claims against Govind). On January 28, 2018, after the statute of limitations period ran, Barrett filed a certificate of merit. Govind filed a motion to dismiss the claim, asserting that Barrett violated the statute that required a certificate of merit to be filed with the complaint, Tex. Civ. Prac & Rem. Code §150.002.

Tex. Civ. Prac. & Rem. Code §150.002(a) states,

In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, a claimant 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…

There is an exception to the requirement that the certificate of merit be filed contemporaneously with the complaint. Specifically, if the complaint is filed within ten days of the expiration of the statute of limitations and the plaintiff specifically pleads that he or she cannot obtain a certificate of merit in such a short period of time, then the plaintiff can supplement his or her pleading with a certificate of merit, so long as it is filed within 30 days of the date of the filing of the complaint. Tex. Civ. Prac. & Rem. Code §150.002(c).

Although the exception exists, in Barrett the court of appeals clarified that §150.002(c) only applies to the first time a defendant is named in a complaint. Accordingly, if a plaintiff names a defendant in a complaint without including a certificate of merit and, subsequently, within ten days of the expiration of the statute of limitations period, files an amended complaint that also names the defendant, the plaintiff is not protected by §150.002(c)’s 30 day-extension period for filing the certificate of merit. Because the court of appeals found that Barrett should have filed a certificate of merit when he first named Govind as a defendant on August 23, 2016, the court upheld the trial court’s dismissal of the claims against Govind.

This case serves as a good reminder that before a lawyer files suit against a professional such as an engineer or architect, the lawyer should review the applicable jurisdiction’s procedural rules for specific certificate of merit requirements. Absent compliance with a jurisdiction’s procedural rules, a lawyer’s temptation to file suit against all parties that may possibly be liable could lead to unintended consequences, including preclusion of a valid claim.

This entry was posted in Construction Defects, Statute of Limitations-Repose, Texas and tagged , , , .

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