Texas Supreme Court to Consider Whether Certificate of Merit Includes Sufficient “Factual Basis” For Claim Against Architect

The Texas Supreme Court recently agreed to consider whether a certificate of merit against an architect met the legal requirement to state the “factual basis” for each of the plaintiff’s claims.

In Levinson Alcoser Associates, L.P. v. El Pistolon II, Ltd., a property owner sued its architect, Levinson Alcoser, for negligence and breach of contract related to the architect’s design of a shopping center in McAllen, Texas.  Because the owner’s first suit did not include a certificate of merit—an affidavit from an architect supporting the claims against Levinson Alcoser—as required by Texas law, Levinson Alcoser asked for the case to be dismissed.

Before the court could rule, the owner voluntarily dismissed its original suit and filed a new suit that included a certificate of merit.  The certificate was very brief, stating that based on the signer’s review of certain documents he concluded Levinson Alcoser failed to “design [the owner’s] property in the manner that a reasonable architect would under similar circumstances.  The current design fails to maximize the property’s highest and best use.”

Levinson Alcoser again asked the trial court to dismiss the lawsuit, arguing that the certificate of merit did not meet several statutory requirements.  After the trial court refused, the case was appealed to the 13th Court of Appeals in Corpus Christi.  The 13th court agreed with Levinson Alcoser, but only partially.  It dismissed the owner’s breach of contract claim because the certificate failed to even mention the contract.  But the Court upheld the owner’s negligence claim, finding that the certificate met the statutory requirements because it contained factual assertions that were “clear, positive, and free from inconsistencies.”

Levinson Alcoser has now appealed that decision to the Texas Supreme Court, arguing that the law requires a certificate to state “the factual basis for each . . . claim” so the Court can decide if the owner’s negligence claim has merit.  According to Levinson Alcoser, the Court can’t make that determination in this case because the certificate of merit does not state any facts, but simply recites opinions about the quality of the architect’s work.

The 13th Court of Appeals’ decision is significant for design professionals because it weakens the certificate of merit requirements.  If certificates no longer need to include the specific factual basis supporting a negligence or breach-of-contract claim, courts cannot evaluate whether a particular claim truly has merit.  Instead, they are left to simply take another architect or engineer’s word for it.  Further, the 13th Court’s reliance on the assertion that Levinson Alcoser failed “to maximize the property’s highest and best use” potentially expands the scope of design services beyond that ordinarily assumed or assumable by and between design professionals and their clients.

Allensworth & Porter, LLP has filed an amicus curiae (“friend of the court”) brief on behalf of the Texas Society of Architects and the American Council of Engineering Companies of Texas in support of Levison Alcoser’s position.  Oral arguments in the case are currently scheduled for this fall, and a decision is expected from the Texas Supreme Court by early next year.  For more information please contact Amy Emerson or Will Allensworth.