Introduction. The failure of the plaintiff in a construction lawsuit to properly address the unique procedural and evidentiary issues involved may result in the dismissal of the plaintiff’s claims. This is exactly what happened to the plaintiff in a recent case filed in San Antonio, Texas against an architectural firm when the plaintiff failed to attach an affidavit known as a certificate of merit to the lawsuit. Studio E Architecture and Interiors, Inc., Appellant v. Emily Lehmberg, 04-19-00026-CV, 2019 WL 3229194, at *1 (Tex. App.—San Antonio Apr. 17, 2019, no pet.).

Background. The Plaintiff, Emily Lehmberg, filed a lawsuit including claims for fraud and deceptive trade against two licensed architects, the Escamillas, and their architectural firm, Studio E, who were involved in the administration of the construction project in dispute. Lehmberg did not attach to her lawsuit a certificate of merit from a qualified expert in support of these claims.

The record from the opinion states:

“In 2012, appellee Emily Lehmberg (“Lehmberg”) hired Projekt Construction, Inc. (“Projekt”) to perform construction on residential real property located in San Antonio. Lehmberg alleges Joaquin and Aimee Escamilla (“the Escamillas”) initially represented that Projekt was a partnership between themselves and another individual. Projekt shared office space with Studio E—a separate company also owned by the Escamillas. Lehmberg contends Projekt’s construction permit for the property was revoked, and the Escamillas subsequently began representing that the construction project belonged to Studio E. According to Lehmberg’s pleading, Studio E was “the de facto General Contractor at the Property” and ultimately “conducted construction management and oversaw the project at the Property.” Id. at p. 1.

In her lawsuit filed in 2016, Lehmberg alleged that “the Escamillas as representatives of Studio E, “manipulated, forged, and double paid on multiple invoices which greatly increased the cost of construction.” Against Studio E specifically, Lehmberg asserted claims for violations of the Texas Deceptive Trade Practices Act (DTPA), common law fraud, money had and received, and breach of fiduciary duty. Lehmberg claimed Studio E and the other defendants “committed fraud by making material misrepresentations regarding pricing and invoicing,” “purposefully manipulated documents to hide their wrongful payments to contractors, double payments to contractors, and payments to themselves,” and “misappropriated and misapplied proceeds from [Lehmberg’s] construction trust fund.”” Id. at p. 1.

Plaintiff denied that she was asserting any claims arising from these defendant’s providing professional architectural services.

Studio E filed a motion to dismiss the claims against it on the grounds that Lehmberg failed to comply with the Texas Civil Practices & Remedies § 150.002 (the Certificate of Merit Statute) by failing to attach a certificate of merit  to the lawsuit. The trial court denied the motion to dismiss. Unfortunately for Lehmberg on appeal, the San Antonio Court of Appeals reversed the trial court’s decision and found that the claims against Studio E should be dismissed.

The Court of Appeals found that even a claim for an intentional tort such as fraud alleged against design professionals may fall within the scope of the Certificate of Merit Statute. The court stated:

Here, too, by alleging Studio E “conducted construction management and oversaw the project at the Property,” Lehmberg alleges conduct involving “observing the construction, modification, or alteration of work to evaluate conformance with architectural plans and specifications.” See TEX. OCC. CODE ANN. § 1051.001(7)(C). And, while Lehmberg does not assert Studio E was negligent in doing so, Studio E’s alleged misconduct necessarily took place in the context of that activity.

Id. at p. 4.

The court went on to conclude that Lehmberg was seeking damages “arising out of the provision of professional services by a licensed or registered professional.” Thus, Lehmberg’s claims against Studio E were covered by the Certificate of Merit Statute requiring Lehmberg to attach a certificate of merit from a qualified expert to her lawsuit. Since, Lehmerberg failed to do so, the trial court erred in not dismissing the claims against Studio E. The Court of Appeals reversed the trial court’s order and remanded the case to the trial court to determine whether the dismissal should be with or without prejudice to refiling.

Conclusion. Lately, there have been a series of Texas cases dismissing the plaintiff’s claims against architects and engineers because the plaintiff failed to comply with the Certificate of Merit Statute. See previous blog article on this topic. The bottom line is that a plaintiff pursuing construction-related claims against an architect or engineer should retain an expert prior to filing suit who can provide the necessary affidavit in support of the lawsuit. This will not only help ensure that the lawsuit will withstand a motion to dismiss but it will also provide necessary expert testimony to support the claims for the duration of the lawsuit.  Alternatively, if a competent expert determines that the design professionals were not at fault, this will save the plaintiff and the potential defendants the costs of fighting a meritless lawsuit.