In 2007, the Texas Legislature adopted a Certificate of Merit requirement applicable to claims against architects and engineers. The statutory requirement is much like the expert affidavit requirement applicable to health care liability claims. The Houston First District Court of Appeals has given us an idea of just how broadly the statute should be interpreted.
In Carter & Burgess Inc. v. Sardari, Sardari brought suit against a contractor–Carter & Burgess–responsible for installing a door in a business in the Houston Galleria after Sardari cut her wrist on the edge of the door. The trial court denied Carter & Burgess’s motion to dismiss, which was based upon Sardari’s failure to file a certificate of merit. Sardari argued that she was not required to file a certificate of merit because the nature of her claim against Carter & Burgess was not based upon its design services, but instead was based upon its actions as a project manager during construction.
Carter & Burgess filed an interlocutory appeal, which is provided as part of the statutory scheme. The court of appeals reversed and remanded with instructions to the trial court to dismiss. Civil Practice and Remedies Code Section 150.002(a) requires a certificate of merit in any action (or arbitration) arising out of professional services provided by a licensed or registered professional. Section 150.001(1) broadly defines "licensed professional" to include "any firm in which such licensed or registered professional practices." Thus, it would appear that so long as any defendant employs a licensed, practicing architect, engineer, landscape architect, or land surveyor, a certificate of merit is required–even if the person who is the licensed professional has nothing to do with the activity sued over. The court of appeals expressly rejected Sardari’s argument that Carter & Burgess’s use of an unlicensed employee to provide the services in question takes the case outside of the statutory requirement. The court’s opinion may be found here.