Introduction. Another Texas construction design defect case was recently dismissed under the Texas Certificate of Merit statute because the plaintiff failed to file a proper affidavit by a qualified design professional in support of the lawsuit. Kayne Anderson Capital Advisors, L.P. v. Hill & Frank, Inc., 570 S.W.3d 884 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

Background. Kayne Anderson hired Hill & Frank to be the designer and architect on a project that included the design of a swimming pool on top of a parking garage. A dispute arose after the construction of the pool and Kayne Anderson sued Hill & Frank and the swimming pool contractor.

Kayne Anderson attached an affidavit by a licensed engineer to its lawsuit in support of its claims against Hill & Frank, a registered architectural firm, in an attempt to comply with the Texas Certificate of Merit statute. This statute requires the plaintiff “in any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional” to file with the lawsuit an affidavit by a qualified design expert. Tex. Civ. Prac. & Rem. Code (CPRC) §150.002. The statute requires that the affidavit must be by an expert who “holds the same professional license or registration as the defendant.” CPRC §150.002(a)(2).

Hill & Frank filed a motion to dismiss the lawsuit on the grounds that since the affidavit attached to the lawsuit was given by a licensed engineer rather than a licensed architect then it failed to comply with the certificate of merit statute. The trial court agreed. Since the defendant Hill Frank was a registered architectural firm, then the plaintiff Kayne Anderson had to provide an affidavit by a licensed architect. The trial court dismissed the lawsuit and the Houston Court of Appeals affirmed the decision.

Lessons learned. The plaintiff in a construction design defect case should always perform a diligent pre-suit investigation before filing suit and make sure to retain a qualified design professional expert who holds the same license as the defendant design professional. The expert will need to provide a detailed affidavit supporting the allegations against the defendant, to be filed with the lawsuit. Otherwise, the plaintiff’s lawsuit will be dismissed.