In Texas, a plaintiff filing a lawsuit pertaining to a construction project for damages arising out of the provision of services by licensed design professionals such as architects or engineers, must file an affidavit by a competent expert with the lawsuit supporting the claims against these professionals. Otherwise, the lawsuit will be dismissed.
This issue was recently addressed by the Houston Court of Appeals in Texas Southern University v. Kirksey Architects, Inc., 2019 WL 922296 (Tex.App.-Hous. (14 Dist.)) (Tex.App.-Hous. (14 Dist.), 2019) in which the Plaintiff, Texas Southern University (TSU), filed suit against architectural and engineering firms for the alleged defective design of a building on TSU’s campus. TSU failed to file a certificate of merit affidavit with the lawsuit and the Defendants sought dismissal on these grounds. The trial court dismissed TSU’s lawsuit with prejudice, and the Houston Court of Appeals affirmed this decision.
Comments. Civil Practice & Remedies Code § 150.002 requires, in any action for damages against a licensed or registered professional such as an architect or engineer arising out of the professional provided, that the plaintiff file with the lawsuit an affidavit of a competent expert. The expert must hold the same license or registration as the defendant professional and set forth the information required by the statute. Although, the statute provides an exception and extension of time for filing the affidavit under certain circumstances, the affidavit will have to be provided. The trial court must dismiss the lawsuit if the plaintiff fails to file the affidavit as required, and the dismissal may be with prejudice to refiling the lawsuit.
Thus, a party who anticipates filing a lawsuit covered by the statute should consult with an experienced litigation attorney and qualified experts early on who can provide supporting affidavits to be filed with the lawsuit.