DHM Design v. Catherine Morzak
05-15-00103-CV
| Tex. App. | Jun 19, 2015Background
- Plaintiff Catherine Morzak fell at city park bleachers and sued for negligent design of seating/stairs; she initially sued architect BRS and attached a certificate of merit by architect Tony DiNicola addressing BRS.
- After learning DHM Design (a landscape architect) had designed the seating/stairs, Morzak amended to add DHM within ~2 months of learning that fact and within 10 days of the statute of limitations expiring.
- She attached the original certificate (which addressed BRS) to the amended petition and later filed a second sworn certificate stating the first certificate “applies to” both BRS and DHM.
- DHM moved to dismiss under Tex. Civ. Prac. & Rem. Code § 150.002 for failure to file a timely/sufficient certificate of merit specific to DHM.
- Trial court denied DHM’s motion, found good cause for an extension, and Morzak appealed; the Court of Appeals reviewed statutory construction de novo and the dismissal ruling for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Morzak filed a §150.002 certificate contemporaneously with the first petition asserting claims against DHM | The First Certificate (and later Second Certificate) are sufficient to cover DHM | Morzak failed to file any certificate specifically addressing DHM with the first amended petition that added DHM | Court: Morzak failed the contemporaneous filing requirement; dismissal required |
| Whether a certificate must identify the specific defendant and conduct | First Certificate applies collectively to both firms; specificity unnecessary | Statute requires the affidavit to set forth specific conduct of the named professional | Court: Certificate must identify the particular defendant and that defendant’s specific conduct; collective/borrowed certificate insufficient |
| Whether Morzak satisfied §150.002(c) to obtain the automatic 30-day extension (filed within 10 days of limitations) | Filing within 10 days of limitations entitled her to the extension; trial court found good cause | Extension requires (1) filing within 10 days of limitations AND (2) allegation that time constraints prevented preparing the affidavit | Court: Morzak did not allege inability to prepare the affidavit; she failed the statute’s twin prerequisites and was not entitled to the automatic extension |
| Whether the belated Second Certificate cured defects | The Second Certificate tied DHM to the First Certificate and thus cured defects | DHM: Second Certificate still fails because it does not specifically attribute conduct to DHM | Court: Did not reach merits because timeliness/extension failures dispositive; noted Second Certificate fails to specifically describe DHM’s conduct |
Key Cases Cited
- Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421 (Tex. App.—Dallas 2012) (standard of review and certificate purpose)
- JJW Dev., L.L.C. v. Strand Sys. Eng’g, Inc., 378 S.W.3d 571 (Tex. App.—Dallas 2012) (certificate must accompany first pleading that asserts claims against a given professional)
- Robert Navarro & Assocs. Eng’g, Inc. v. Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475 (Tex. App.—El Paso 2012) (collective assertions of negligence insufficient)
- Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014) (both prerequisites to §150.002(c) extension must be met)
- State v. Shumake, 199 S.W.3d 279 (Tex. 2006) (statutory construction principles)
- Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636 (Tex. App.—Dallas 2003) (analogue on need to identify defendant and breaches in expert report)