Wenholz | Dow, P.C. Wins Certificate of Merit Appeal
On December 8, 2020, the Texas Court of Appeals, Third District at Austin, affirmed Judge Terry L. Flenniken’s ruling denying Carlson, Brigance & Doering, Inc.’s (“CBD”) and LJA Engineering, Inc.’s (“LJA”) motion to dismiss Plaintiff’s engineering malpractice claims. This case involved fourteen Plaintiffs that sued two of the largest engineering firms in the state for their roles in causing flooding in and near the Hunter’s Crossing neighborhood in Bastrop, Texas. See generally Carlson, Brigance & Doering, Inc. v. Compton, No. 03-19-00954-CV, 2020 WL 7233612 (Tex. App.—Austin Dec. 8, 2020, no pet. h.).
Plaintiffs contend the lead developer for the 250 acre mixed use real estate development (Forestar USA Real Estate Group) hired CBD to design and supervise the construction of the storm water drainage facilities. Plaintiffs also contend the engineering defendants failed to comply with city ordinances and verify existing conditions and inadequacies downstream of the drainage system. Plaintiffs attached a Certificate of Merit from professional engineer Adrian Rosas averring specific acts of negligence by both engineering groups.
In response, CBD and LJA filed motions to dismiss, and alleged the Rosas Certificate did not comply with chapter 150 of the Tex. Civ. Prac. & Rem. Code. The crux of their argument was that the “Rosas” Certificate did not expressly mention CBD. Instead, it referenced the work of CBD’s lead engineer, Tim Holland, P.E. who sealed the plans for the storm water design. They also argued “Rosas” Certificate did not cite the factual bases for his opinions and how he was knowledgeable of Mr. Holland’s practice area. LJA joined CBD’s motion. Prior to the District Court’s hearing, Plaintiffs’ amended to allege CBD was vicariously liable for Mr. Holland’s actions.
The court rejected CBD’s argument that the Court is only to consider the Plaintiffs’ first filed petition. The crux of the ruling was that the statute does not require the certificate writer to address by name each licensed or registered professional whose conduct is implicated in the case. Rather, “chapter 150 merely obligates the plaintiff to get an affidavit from a third party expert attesting to the defendant’s professional errors and omissions and their factual basis.”
Turning next to the complaint that Mr. Rosas lacked the needed qualifications, the court restated the requirement that the third party expert hold the same professional license as the defendant and “is knowledgeable in the area of practice of the defendant.” Mr. Rosas averred he is actively engaged in the same practice of engineering as Timothy Holland. Mr. Rosas also mentioned that he was a duly licensed engineer and president of a licensed engineering firm. Moreover, Mr. Rosas mentioned that in forming his opinions, he reviewed the construction records for the development, along with FEMA records and visited the site to evaluate the function of the drainage system. Based on this information, the court held Rosas exhibited sufficient knowledge of the opposing engineer’s practice area to satisfy Chapter 150.
In rejecting CBD’s third point of error that the certificate lacked a sufficient factual basis for the opinions, the Third Court of Appeals emphasized that the “factual basis” required by Ch. 150 “need not address the elements of the plaintiff’s various causes of action” but should merely assert facts necessary to support the underlying professional negligence. Rosas’ alleged that Holland failed to properly evaluate the existing land conditions, verify the adequacy of the onsite drainage system, and confirm the record drawing representations. The court held, “These are not mere conclusions let alone ones that could be copied and pasted into any certificate” as the engineering firms alleged.
A copy of the court’s opinion is attached. The Wenholz | Dow firm handles residential and complex commercial construction disputes involving engineering malpractice. Should you wish to discuss this or any engineering case/issue, please email us at dwenholz@wenholzdow.com.
