Hardy v. Matter
2011 Tex. App. LEXIS 5514
| Tex. App. | 2011Background
- Matters sued architect Hardy for alleged architectural malpractice relating to drainage, moisture barriers, and waterproofing in a Helotes residence designed in 1998–1999.
- Texas Section 150.002(a) requires an affidavit from a third-party licensed architect detailing at least one negligent act and the factual basis for each claim, with qualifications of the affiant.
- Initial affidavit by Lance Tatum stated he is a licensed Texas architect but did not expressly state he practiced in the same area as Hardy.
- Matters filed amended response with a supplemental affidavit and resume asserting Tatum's qualifications in architecture and builder's plans.
- Trial court denied Hardy’s motion to dismiss, holding that Section 150.002(a) does not require the affiant’s face-face qualifications and that the supplemental materials could be used to evaluate qualifications.
- Court of Appeals affirmed, holding that the statute does not require on-face qualifications and that the trial court could consider the supplemental affidavit to determine qualifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 150.002(a) requires on-face affiant qualifications | Matter argues no such on-face requirement. | Hardy argues on-face qualifications are required. | No on-face requirement; qualifications may be shown via supplemental evidence |
| Whether the trial court could consider supplemental affidavits | Supplemental materials may be reviewed to establish qualifications. | Only initial affidavit matters; no cure through supplements. | Trial court may consider supplemental affidavit to determine qualifications |
| Whether Landreth restricts consideration of non-face qualifications | Landreth supports considering content beyond the face of the affidavit. | Landreth is not controlling; focus on the face of the affidavit. | Landreth not binding; the court may rely on content outside facial statements |
| What is the proper construction of 150.002(a) overall | Affiant must show all listed qualifications on the face of the affidavit. | Plain language only requires qualifications to be held, not necessarily stated on face. | Statute requires affiant to hold qualifications and permits examining supplemental evidence |
Key Cases Cited
- Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex.App.-Corpus Christi 2009, no pet.) (affidavit content can establish qualifications not expressly stated on face)
- Benchmark Eng'g. Corp. v. Sam Houston Race Park, 316 S.W.3d 41 (Tex.App.-Houston [14th Dist.] 2010, pet. dism'd by agr.) (look to affidavits and resumes to gauge qualifications)
- Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728 (Tex.App.-Texarkana 2010, pet. filed) (upheld qualifications despite non-face statements; discussed cure concept)
- Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (recognizes deference to statutory interpretation in 150.002 context)
- Sharp Eng'g. v. Luis, 321 S.W.3d 748 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (concerns contemporaneous filing and timing under 150.002(b))