Professional Negligence Law Reporter
Engineering
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Dismissal warranted where third-party plaintiff failed to file certificate of merit
September/October 2022A Texas appellate court held that a third-party plaintiff was required to file its own certificate of merit in a case against an engineering firm.
Thomas Hancock Witte & Associates, an architectural firm, was part of a construction project to expand Bayou Manor, a senior living community. The owner of the community, Brazos Presbyterian Homes, later filed suit against general contractor Lendlease (US) Construction, Inc., alleging breach of contract and other claims. When a hurricane later flooded the Bayou Manor campus and caused substantial damage, Brazos named Thompson Hancock to the lawsuit, asserting that its improper design of a retaining wall was at least partially to blame for the flooding. The architectural firm filed its answer then filed a third-party petition against engineering firm Stanley Spurling & Hamilton, Inc., alleging that it was responsible for the retaining wall’s design.
Stanley Spurling moved to dismiss Thompson Hancock’s third-party petition. The trial court granted the motion.
Affirming, the appellate court found that under Tex. Civ. Prac. & Rem. Code §150.002(a), a claimant asserting negligence or other omissions by a licensed engineer must file a certificate of merit with the complaint. Citing case law, the court found “claimant” is defined as someone asserting a claim for relief in a lawsuit. The term claimant is broader than the term plaintiff because it encompasses third-party plaintiffs, cross-claimants, and counter-claimants, the court said. Here, the court found that because Thompson Hancock did not file a certificate of merit with its third-party petition, it failed to comply with the certificate of merit statute. Moreover, the court said, Thompson Hancock did not incorporate one of the certificates of merit filed in the original lawsuit.
Consequently, the court held that the trial court had not erred in dismissing Thompson Hancock’s case.
Citation: Thompson Hancock Witte & Assocs., Inc. v. Stanley Spurling & Hamilton, Inc., 2022 WL 1010270 (Tex. App. Apr. 5, 2022).
