Levinson Alcoser Associates, L.P. v. El Pistolón II, Ltd.
513 S.W.3d 487
Tex.2017Background
- El Pistolón II, Ltd. sued architects Levinson Aleoser Associates alleging design/construction negligence and breach of contract for a commercial retail project in McAllen, Texas.
- Plaintiff filed an affidavit (certificate of merit) by Gary Payne, a Texas-registered architect, with the original petition.
- Architects moved to dismiss under Tex. Civ. Prac. & Rem. Code § 150.002, arguing Payne’s affidavit failed the statute’s qualifications and factual-basis requirements.
- Trial court denied the motion; the court of appeals affirmed denial as to negligence but reversed as to the contract claim and remanded.
- The Texas Supreme Court granted review on the architects’ interlocutory appeal, focusing on whether Payne demonstrated the statutorily required “knowledge in the area of practice” to qualify as an expert for the certificate of merit.
- The Supreme Court reversed the court of appeals, holding Payne’s affidavit did not show (in the affidavit or elsewhere in the record) that he was knowledgeable in the defendants’ area of practice and ordered dismissal remanded for determination of prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Payne met §150.002(a) qualifications (knowledgeable in defendant’s area) | Payne’s affidavit plus statement he maintains an active Texas practice suffices; knowledge need not be explicit in the affidavit | Affidavit contains no evidence of familiarity with defendants’ specific practice area (shopping-center/commercial design); statute requires more than licensure/active practice | Court: §150.002(a)(3) requires evidence of familiarity/experience with the defendant’s practice area; Payne’s affidavit is insufficient and certificate is noncompliant |
| Whether the court may infer affiant’s knowledge from sources other than the affidavit | Knowledge may be inferred from record; affidavit need not state qualifications on its face | If no evidence in affidavit, the record must contain some other evidence of knowledge; otherwise dismissal required | Court: Knowledge can be inferred from the record, but here the affidavit was the only source and contained no such evidence, so dismissal required |
| Whether the court of appeals’ approach conflicted with precedent and permitted Supreme Court review | Plaintiff relied on appellate cases allowing inference or construing licensure/active practice as sufficient | Architects argued conflict with cases (e.g., Dunham) that required affidavit evidence of familiarity; this raised a jurisdictional conflict | Court found conflict with Dunham and related cases; exercised jurisdiction and resolved that conflating licensure/active practice with the separate "knowledgeable" requirement renders that clause superfluous |
Key Cases Cited
- Dunham Eng’g, Inc. v. Sherwin-Williams Co., 404 S.W.3d 785 (Tex. App.-Houston [14th Dist.] 2013) (upholding dismissal inquiry where expert affidavit showed specific familiarity with defendant’s practice area)
- CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339 (Tex. App.-Houston [1st Dist.] 2013) (discussing whether affidavit must state affiant’s qualifications on its face)
- Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53 (Tex. 2016) (explaining scope of the Court’s interlocutory jurisdiction over conflicts)
- PlainsCapital Bank v. Martin, 459 S.W.3d 550 (Tex. 2015) (statutory construction principles and presumption that legislature’s words are deliberate)