A Texas requirement, that a plaintiff must file a certificate of merit signed by an expert when it files a complaint against an engineer, was deemed waived by the defendant (engineer) where the engineer substantially participated in the litigation process over a three and one-half year period (including interrogatories, depositions, and motion for summary judgment), before it asked the court to issue a decision on its previously submitted motion to dismiss based on failure of the plaintiff to file the certificate by the date required by statute.  In Murphy v. Gutierrz, 374 SW 3d 627 (Texas 2012), the court looked at a number of factors in deciding that the Engineer had rested on his rights for such a long period as to have forfeited the right to dismissal.  Ironically, the engineer filed its motion to dismiss quite promptly at the outset of the case but the court never acted upon it.  Only after participating in lengthy discovery, motion of summary judgment and court ordered mediation, did the Engineer finally “reurge his motion to dismiss only five days before trial was scheduled.”  The court found the Engineer demonstrated intent to “substantially invoke the judicial process and intended to relinquish his right to seek dismissal.”

Comment:  This decision could impact litigation strategy.  In some jurisdictions, the certificate of merit can be filed several months after the initial complaint has been filed.  If the plaintiff misses the deadline, the complaint is dismissed with prejudice – meaning that is the end of the case.  It can’t be filed again.  A defendant (design professional) in such a jurisdiction might want to wait until the final deadline for filing the certificate has lapsed before making an issue of it with the court, because to raise it earlier would enable the plaintiff to quickly file it before missing the deadline.  In following that strategy, however, counsel for defendants might want to consider how deeply involved to become in the litigation process lest a court follow the Texas court reasoning and find that the certificate requirement has been waived.


About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 15, No. 2 (Feb 2013).

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