Levinson Alcoser Associates, L. P. and Levinson Associates, Inc. v. El Pistolon II, Ltd.
500 S.W.3d 431
Tex. App.2015Background
- El Pistolon II, Ltd. sued Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. for negligence and breach of contract relating to architectural work on a McAllen shopping center.
- Levinson moved to dismiss for failure to attach a certificate of merit under Tex. Civ. Prac. & Rem. Code § 150.002(a).
- El Pistolon filed a second suit on November 8, 2010, attaching a certificate of merit by architect Gary Payne.
- The trial court denied Levinson’s motion to dismiss; Levinson appealed the denial.
- Section 150.002 requires a certificate from a licensed professional knowledgeable in the defendant’s area of practice, with a specific factual basis for each theory of recovery.
- The court held Payne’s certificate was adequate to support the negligence claim but deficient as to the breach of contract claim, and remanded for the breach issue on whether dismissal should be with or without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Knowledge of the expert in defendant’s area | Payne was knowledgeable in Levinson’s area; explicit face-of-certificate knowledge isn’t required. | The certificate must explicitly show the expert’s knowledge in Levinson’s area of practice. | Certificate sufficient; knowledge may be inferred; explicit facial assertion not required. |
| Adequacy of factual basis for negligence | Payne identified standard of care and how Levinson failed to meet it; sufficient factual basis for negligence. | Factual basis insufficient or vague for negligence claim. | Factual basis for negligence adequate; certificate not required to marshal all proof. |
| Adequacy of factual basis for breach of contract | Payne’s affidavit references documents and analysis supporting breach. | No facts addressing existence or breach of contract are provided in the certificate. | Breath of contract claim lacks factual basis; certificate deficient; dismissal for that claim affirmed. |
| Effect of the certificate on dismissal remedy | Certificate should allow proceeding on claims that have a valid factual basis. | Noncompliant certificate justifies dismissal; remedy may be with or without prejudice. | Remand to determine whether dismissal of breach of contract claim should be with prejudice. |
Key Cases Cited
- CBM Engineers, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339 (Tex. App.—Houston [1st Dist.] 2013) (affiant need not explicitly establish knowledge on face of certificate)
- Dunham Engineering v. Sherwin-Williams Co., 404 S.W.3d 785 (Tex. App.—Houston [14th Dist.] 2013) (statute requires only knowledge in defendant’s area, not sub-specialty)
- Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421 (Tex. App.—Dallas 2012) (plain-language §150.002(a) does not require sub-specialty expertise)
- Garza v. Carmona, 390 S.W.3d 391 (Tex. App.—Corpus Christi 2012) (certificate must address alleged negligence with competent articulation)
- IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794 (Tex. 2004) (elements of negligence; standard of care discussion relevant to certificates)
- Packard Eng’g Assocs. v. Sally Group, L.L.C., 398 S.W.3d 389 (Tex. App.—Beaumont 2013) (certificate must address applicable standard of care; not all proof required in certificate)