Construction Risk

Certificate of Merit Filed with Amended Complaint Doesn’t Make up for Failure to File with First Complaint

Where a certificate of merit is required by state statute to be filed with a complaint alleging negligence against a licensed design professional, a suit that failed to timely file such certificate must be dismissed with prejudice, and the plaintiff cannot correct the problem by filing an amended complaint and attaching a certificate of merit to it.  In Sharp Engineering v. Sergio Luis, 321 S.W. 3d 748 (Ct of App. TX, 2010), a carpenter was injured when the roof of a house he was framing collapsed.

The carpenter sued the developer and settled for a confidential amount.  He then sued the engineering firm, as well as its principal engineer, alleging that they “failed to follow basic engineering principles in the review, approval and design of the construction drawings, roof framing plan and the swoop cornice.”  Such a suit was required by Texas statute to include a certificate of merit with the “complaint.”  Such certificate must “set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim.”  Since the plaintiff didn’t file a certificate with its complaint, the engineer filed a motion to dismiss.

In response, the plaintiff filed an amended complaint and affixed a certificate to it – and claimed that this satisfied the certificate requirement in that the law didn’t specifically say the certificate had to be with the “original” complaint, it just said with the “complaint.”  The trial court agreed with that argument and declined to grant the motion to dismiss.  This was reversed by the appellate court—holding that the certificate must be filed with the initial complaint, except for a limited circumstance in which the certificate is permitted to be filed within 30 days of the complaint, as set forth in the statute (TX Civil Practice and Remedies Code, 150.002(a)-(e)) as follows:

“(b) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of a third-party licensed architect, registered professional land surveyor, or professional engineer could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires.”

Under the plaintiff’s interpretation of the statute, it would be allowed to file a certificate of merit with an amended complaint in response to a motion to dismiss an earlier complaint that lacks the required certificate.  This interpretation, said the court, would render paragraph (b) of the statute meaningless.  Making a clear, bright line, interpretation and application of the statute, the court concluded that it “requires a plaintiff to file a certificate of merit with the first-filed complaint asserting a negligence claim against a professional.”


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