Update on Certificate of Merit Requirement: Dismissal With or Without Prejudice


In a lawsuit “for damages arising out of the provision of professional services by licensed or registered professional,” the Texas Civil Practices and Remedies Code requires a plaintiff to file with the complaint an expert affidavit supporting each theory of recovery.  Tex. Civ. Prac. & Rem. Code 150.002.  The failure to file a certificate of merit requires a court to dismiss the lawsuit.  Tex. Civ. Prac. & Rem. Code 150.002(e).  The dismissal may be with prejudice.  Id.  


In 2017, the Texas Supreme Court issued a much-needed opinion clarifying whether a court must or may dismiss with prejudice.  Pedernal Energy, LLC v. Bruington Eng’g, Ltd., 536 S.W.3d 487, 492 (Tex. 2017); see Part I of "Certificate of Merit - 2017 in Review" for additional information.  The Fourteenth Court of Appeals recently addressed this issue, holding the trial court was within its discretion to dismiss with prejudice Texas Southern University’s professional malpractice claims due to its failure to file a certificate of merit.  Texas S. Univ. v. Kirksey Architects, Inc., 14-18-00146-CV, 2019 WL 922296, at *9 (Tex. App.—Houston [14th Dist.] Feb. 26, 2019, no pet. h.).  In Kirksey, TSU filed suit against its architect and construction engineers for the allegedly defective design and construction of campus building, but failed to file certificate of merit.  Id. at *1.  The court recognized that, although courts have the discretion to dismiss such claim with prejudice, they may not do so arbitrarily or unreasonably.  Id. at *6.  Further, in making this decision, courts must consider various factors given the facts and circumstances of the particular case.  Id. 


In support of its holding, the Kirksey court highlighted that TSU was aware of the issues with the building at least seven years before filing suit.  Id. at *8.  TSU even hired several consultants to investigate and report on the issues.  Id.  No action was taken by TSU in response.  Id.  In 2014, TSU commissioned new studies and surveys to detail the building’s issues and estimate costs for repair.  Id.  The court could not understand how, in light of these investigations, TSU failed to obtain the necessary affidavits before filing its original petition in July of 2017.  Id.  Further, the court took issue with TSU’s failure to supplement its petition with a certificate of merit before the trial court issued its dismissal order.  Id.  According to the court, this fact alone distinguished TSU’s case from those in which the court dismissed without prejudice.  See, e.g., Pedernal, 536 S.W.3d at 490; see also CDI Corp. v. TOTAL Specialties USA, Inc., 528 S.W.3d 802, 807 (Tex. App.—Houston [14th Dist.] 2017, no pet.)( “A certificate of merit was obtained and filed with TOTAL’s notice of nonsuit within four months after CDI’s motion to dismiss notified TOTAL’s counsel of the mistake.”); see also TDIndustries, Inc. v. United Nat'l Ins. Co., No. 07-16-00231-CV, 2017 WL 2334234, at *2 (Tex. App.—Amarillo May 23, 2017, pet. denied) (mem. op.) (“United’s ability to produce an expert’s affidavit at the hearing is a factor the trial court could have considered in its decision whether to dismiss the case with prejudice.”).  Moving forward, the Kirksey opinion will ultimately assist in identifying the conduct necessary to warrant dismissal with prejudice under Section 150.002. 

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