Michael Gaertner D/B/A Michael Gaertner & Associates v. Robert Langhoff
509 S.W.3d 392
Tex. App.2014Background
- In Jan. 2010 Robert Langhoff slipped and fell on the stairs of the Lamar-Calder House (a historic Fort Bend County property) and sued owners, contractors, and architect Michael Gaertner for negligence alleging unsafe stairway conditions.
- Langhoff’s petition against architect Gaertner included a Certificate of Merit affidavit by Robert A. Bueker, a Texas-licensed architect since 1980, describing his experience in architecture, construction management, and contracting.
- Gaertner moved to dismiss under Tex. Civ. Prac. & Rem. Code § 150.002(e), arguing Bueker was not "knowledgeable in the area of practice of the defendant" because he lacked experience in historic-preservation architecture and familiarity with applicable historic preservation codes and the Texas Historical Commission.
- Langhoff responded that § 150.002 requires only that the affiant be a licensed architect "knowledgeable in the area of practice" generally (not the defendant’s sub-specialty), and pointed to Bueker’s extensive residential and commercial design and construction-management experience.
- The trial court denied Gaertner’s motion to dismiss; Gaertner appealed the interlocutory denial. The Court of Appeals reviewed for abuse of discretion and affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bueker satisfied § 150.002(a)(3)’s requirement of being "knowledgeable in the area of practice of the defendant" | Bueker is a licensed, experienced architect in architectural design and construction management — the same general area Gaertner practiced — so he is qualified; no need to show historic-preservation sub-specialty | Bueker lacks historic-preservation experience and familiarity with historic-code exceptions and the Texas Historical Commission, so he is not knowledgeable in Gaertner’s area of practice | The court held Bueker’s licensing and extensive residential/commercial design and construction-management experience satisfied § 150.002; trial court did not abuse its discretion in denying dismissal. |
Key Cases Cited
- Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex. App.—Corpus Christi 2009) (earlier interpretation requiring affiant to show practice in same area; discussed and distinguished)
- Benchmark Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41 (Tex. App.—Houston [14th Dist.] 2010) (interpreting earlier statute language; relevant to scope of affiant qualifications)
- CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339 (Tex. App.—Houston [1st Dist.] 2013) (permitting consideration of record beyond four corners of affidavit when assessing affiant’s qualifications)
- Dunham Eng’g Inc. v. Sherwin-Williams Co., 404 S.W.3d 785 (Tex. App.—Houston [14th Dist.] 2013) (rejecting requirement that affiant show knowledge of defendant’s narrow subspecialty)