Texas Appellate Court Holds Certificate Of Merit Against One Design Professional Does Not Apply To Sub Consultant By Mere Reference To Such In A Pleading

By Stephen F. Willig

The Texas Court of Appeal (14th District) issued an April 2022 opinion in Thompson Hancock Witte &
Associates v. Stanley Spurling & Hamilton
, 2022 WL 1010270, affirming that state’s requirement for a certificate of merit in a suit against a design professional. In particular, the Court held a certificate of merit directed toward one professional would not, through simple reference in a pleading, apply to another professional even though the alleged breach of the standard of care is the same for both.

The case involved a construction project to expand a senior living community owned by Brazos Presbyterian Homes. Brazos hired architect Thompson Hancock to design the addition and Lendlease as the general contractor. Issues arose on the project, and Brazos sued Lendlease. After commencing the suit, flooding from a hurricane caused damage at the project. It was asserted that the flooding
resulted from improper design by Thompson Hancock of a retaining wall. Brazos amended its pleading to add Thompson Hancock to the suit. Along with the amendment, Brazos filed certificates of merit by an engineer and an architect to support the claim against the architect. Thompson Hancock then filed a third-party action against Stanley Spurling, another design professional, alleging it was responsible for design of the retaining wall. The third-party pleading noted the previously filed certificates of merit,
but Thompson Hancock did not submit a certificate of merit directed toward Stanley Spurling. A counterclaim was filed against Thompson Hancock. Following some discovery, Thompson Hancock’s third-party claim and the counterclaim were voluntarily discontinued.

Sometime later, Thompson Hancock recommenced the third-party action. Stanley Spurling sought to dismiss by enforcing the prior agreement to discontinue the claim and also due to the failure to submit a certificate of merit. The trial Court granted the motion on both counts.

The Court of Appeals looked at the issue of the required certificate of merit and noted a change in the law that occurred after commencement of the first third-party action. The law applicable when Thompson Hancock brought the first third-party action required a “plaintiff’ to submit a certificate of merit when suing a professional. The law that applied when the second third-party action was commenced required a “claimant” to submit a certificate of merit. It was determined that the new law would apply, as the third-party claim would not relate back to the time of the prior action for these purposes. Therefore, Thompson Hancock was a “claimant” that was required to submit a certificate of merit when bringing an action against a professional.

Most significantly, the Court considered Thompson Hancock’s argument it satisfied the certificate of merit
requirements by making reference to a certificate of merit that was applied against it (the pleading did not specify to which of the two certificated filed against Thompson Hancock it was referring). It suggested that since the certificate of merit opined Thompson Hancock’s design of the retaining wall had breached the standard of care of a design professional, such would apply to Stanley Spurling, who Thompson Hancock alleged was responsible for the design. The Court did not accept the argument and affirmed dismissal of the third-party action for failure to meet the certificate of merit requirement. The opinion noted the third-party complaint did not attach the certificates of merit, did not affirmatively state it
was incorporating the certificates by reference and did not identify which of the two certificates it meant to apply. Thus, the Court left open the possibility of satisfying the certificate of merit requirement if those elements are met. Left unstated, by logically implied, would be the necessity that the alleged breach must be the same in such a circumstance.