Lead Opinion
This is an interlocutory appeal from an order denying a motion to dismiss under Chapter 150 of the Civil Practice and Remedies Code, the statute that applies to suits against architects, engineers, surveyors, and landscape architects. Tex. Civ. Prac. & Rem. Code § 150.001(l-a). The chapter generally requires that a sworn “certificate of merit” accompany a plaintiffs complaint in any case “arising out of the provision of professional services by a licensed or registered professional” named in the statute. Id. § 150.002(a). The certificate or affidavit must be from a similarly licensed professional, who meets certain qualifications and attests to the merit of the underlying claim. Id. § 150.002(a), (b). If the plaintiff fails to file a compliant certificate of merit, the statute directs dismissal of the complaint. Id. § 150.002(e).
A certificate of merit was filed with the complaint in this case, but the defendant architects contend that it failed to comply with the statute’s requirements and was thus a nullity. The court of appeals disagreed. It concluded, as did the trial court, that the certificate was sufficient for the plaintiffs negligence claim to proceed.
I
The lawsuit concerns a commercial retail project constructed on land owned by El Pistolón II, Ltd. in McAllen, Texas. El Pistolón hired Levinson Aleoser Associates, L.P. and Levinson Associates, Inc. (the “architects”) to design the project and oversee construction. Disappointed with the architects’ services, El Pistolón sued, alleging breach of contract and negligence in the project’s design and development. Gary Payne, a third-party licensed architect, provided El Pistolón an affidavit stating his professional opinion about the architects’ work. El Pistolón filed Payne’s affidavit with its original petition.
The architects nevertheless moved to dismiss El Pistolón’s suit, objecting that Payne’s affidavit did not meet the requirements for a certificate of merit. The certificate-of-merit statute- provides, among other things, that the affiant should be “knowledgeable in the (defendant’s) area of practice” and that the affidavit should set forth the professional’s negligence or other wrongdoing and its “factual basis.” Tex. Civ. Prac. & Rem. Code § 150.002(a)-(b). -The architects complained in the trial court that Payne’s affidavit satisfied nei
The court of appeals affirmed the trial court’s order in part, reversed it in part, and remanded the ease to the trial court.
II
But before we consider that question, there is the matter of our own jurisdiction over the appeal. The statute provides for an interlocutory appeal, Tex. Civ. Prac. & Rem. Code § 150.002(f), but our jurisdiction does not ordinarily extend to such appeals. Tex. Gov’t Code § 22.225(b)(3). Exceptions exist, however. For example, we have jurisdiction over an interlocutory appeal when the appellate decision under review conflicts with a prior case, that is, when “the court[ ] of appeals holds differently from a prior decision of another court of appeals or of the supreme court.” Id. § 22.225(c). Moreover, the Legislature has determined that a sufficient conflict exists for purposes of our jurisdiction “when there is inconsistency in [the] respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.” Id. § 22.225 (e); see Coyote Lake Ranch, LLC v. City of Lubbock,
The architects argue that such a conflict exists with Dunham Engineering, Inc. v. Sherwin-Williams Co.,
In his affidavit, O’Connor stated that he was familiar with the legal requirements and industry customs regarding competitive bidding on Texas public works projects. Id. Based on his review of Dunham’s plan specifications, O’Connor concluded that the project required competitive bidding but that Dunham’s specification on paint products was a closed or sole-source
Dunham moved to dismiss the suit on the ground that O’Connor had failed to demonstrate his knowledge of Dunham’s practice area. Id. at 789. The court of appeals disagreed, concluding that the trial court had not abused its discretion in denying Dunham’s motion to dismiss on this ground. Id. at 795. O’Connor’s affidavit indicated that he held a Ph.D. in civil engineering, was licensed by the State of Texas as a professional engineer with the designation of “civil,” and currently served as a professor in project management within the civil, architectural, and environmental engineering department at the University of Texas. Id. O’Connor further averred that he was familiar with both the legal requirements and industry customs regarding competitive bidding on public works projects, particularly in the State of Texas, through his practice, research, and teaching in the state. Id. On this record, the appellate court concluded the trial court could have reasonably inferred that O’Connor was knowledgeable in the relevant area of practice, as required by section 150.002(a)(3). Id.
In contrast, the court of appeals here concluded that the requisite knowledge could be inferred simply from the expert’s status as a similarly licensed professional because “the statute merely requires that the expert be knowledgeable in the defendant’s general area of practice.”
Ill
The statute provides that a sworn certificate of merit must accompany the plaintiffs complaint in any case “arising out of the provision of professional services by a licensed or registered professional” named in the statute. Tex. Civ. Prac. & Rem. Code § 150.002(a). The sworn certificate or affidavit must be by a similarly licensed or registered professional capable of attesting to any professional errors or omissions forming the basis of the suit. Id. The statute describes the affiant’s qualifications and what the affidavit should include. Id. § 150.002(a)-(b). The affidavit is generally a prerequisite to the suit going forward, and the failure to file it contemporaneously with the complaint will ordinarily result in dismissal. See id. § 150.002(a), (e); but see id. § 150.002(c).
The architects contend that the lower courts erred in not dismissing El Pistolón’s negligence claim because Payne’s affidavit did not meet the requirements for a certificate of merit. They argue the affidavit was insufficient because (1) Payne was not properly qualified under the statute to give a professional opinion and (2) his professional opinion failed to supply the “factual basis” for the underlying claims as the statute requires. See id. § 150.002(a)-(b). We turn to the issue of Payne’s qualifications because it is disposi-tive of the appeal.
The statute identifies those who are qualified to render a certificate of merit. It provides that the sworn certificate or affidavit must come from a third-party professional who:
(1) is competent to testify;
(2) holds the same professional license or registration as the defendant; and
(3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person’s:
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
(F) practice.
Id. § 150.002(a)(emphasis added). The statute also provides that the third-party expert must be “licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.” Id. § 150.002(b). The certificate of merit must thus come from a competent third-party expert who meets the statutory qualifications, which are that the expert (1) hold the same professional license or registration as the defendant, (2) be licensed or registered in this state, (3) be actively engaged in the practice, and (4) be knowledgeable in the defendant’s area of practice. Id. § 150.002(a)-(b),
Payne’s affidavit includes the following information about his competency and qualifications:
1. My name is Gary Payne. I am a professional architect who is registered to practice in the State of Texas, license number 11655. I have been a registered architect in Texas since 1980, and have an active architecture practice in the State of Texas today.
2. I am over the age of eighteen years, have never been convicted of a felony or crime of moral turpitude, and am otherwise competent to make this affidavit. I have personal knowledge of the facts contained in this affidavit. Those facts are true and correct.
While the affidavit provides some of the relevant information, the architects point out that it does not provide any information about Payne’s knowledge of their area of practice as section 150.002(a)(3) requires.
El Pistolón responds that Payne’s affidavit demonstrates the requisite knowledge, but that the architects waived the complaint in any event by failing properly to raise it in the trial court. The court of appeals did not agree.
After urging waiver, El Pistolón next argues about what the certificate of merit did not need to include. For example, El Pistolón submits that Payne did not have to be engaged in the same area of practice as the defendants to be qualified to give his opinion. Although the certificate-of-merit statute at one time provided that the expert had to be “competent to testify and practicing in the same area of practice as the defendant,” the highlighted language was amended in 2009 to provide that the expert was instead to be “knowledgeable in the area of practice of the defendant.” Compare Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847, 896-97 (emphasis added) with Act of June 19, 2009, 81st Leg., R.S., ch. 789, § 3, 2009 Tex. Gen Laws 1991, 1992 (codified at Tex. Civ. Prac. & Rem. Code § 150.002(a)(3)), Because the 2009 version of the statute applies in this case, we agree that the third-party expert did not have to be actively engaged in the practice area at
El Pistolón next argues that the expert’s knowledge of the practice area does not have to be expressed in the affidavit itself but may be inferred from other record sources. El Pistolón submits that the majority of Texas courts to consider the question have concluded that “while the affiant must be knowledgeable in the area of practice of the defendant, he need not explicitly establish such knowledge on the face of the certificate of merit.” CBM Eng’rs, Inc. v. Tellepsen Builders, L.P.,
The court of appeals here agreed , that the trial court was free to infer Payne’s knowledge from sources other than his affidavit and that his certificate of merit was not deficient merely because it failed to show on its face that Payne was knowledgeable of the architects’ area of practice.
. El Pistolón nevertheless argues that we may infer the requisite knowledge and thus Payne’s qualifications to render a certificate of merit from Payne’s averment that he maintains “an active architecture practice in the State of Texas today.” According to El Pistolón, “Payne proved knowledge by showing that he actually used his licensure recently (which not all people do).” The argument assumes that the statute’s knowledge requirement is coextensive with its licensure and active-practice requirements. The court of appeals suggested something similar, interpreting the statute’s knowledge requirement as simply a recognition of the various design professionals included under the statute. See
We review matters of statutory construction de novo. State v. Shumake,
As noted, the certifieate-of-merit statute imposes several requirements to qualify the third-party expert. The expert must “hold[] the same professional license or registration as the defendant.” Tex. Civ. Prac. & Rem. Code § 150.002(a)(2). The expert must be “licensed or registered in this state and actively engaged in the prac
We conclude then that the statute’s knowledge requirement is not synonymous with the expert’s licensure or active engagement in the practice; it requires some additional explication or evidence reflecting the expert’s familiarity or experience with the practice area at issue in the litigation. Here, we have no such evidence. Although we generally agree that such knowledge may be inferred from record sources other than the expert’s affidavit, here the affidavit is all we have of Payne’s qualifications. Because nothing exists in Payne’s affidavit from which to draw an inference that Payne possessed knowledge of the defendants’ area of practice beyond the generalized knowledge associated with holding the same license, we conclude that Payne has not shown himself qualified to render the certifícate of merit. And, because the certificate-of-merit statute requires dismissal when the plaintiff fails to file a compliant affidavit, Tex. Civ. Prac. & Rem. Code § 150.002(e), we conclude the court of appeals erred in affirming the trial court’s order denying the motion to dismiss.
The concurring opinion suggests that the Court imposes a condition not contemplated by the statute by requiring there to be some evidence of the expert’s knowledge in the practice area at issue. Post at 495 (Brown, J. concurring). The concurrence states that the statute’s plain text does not require that the expert’s qualifications be included in the certificate of merit or that a curriculum vitae be attached thereto, and we agree. Id. But the concurrence goes further, stating that evidence of the expert’s requisite knowledge need not appear elsewhere in the record. See id. (“The plain text of the statute simply does not require ... that the record contain any other extrinsic evidence from which to draw the inference that the affiant was knowledgeable in the area of practice.”). With that we disagree because the statute requires such knowledge. And if this information is not included in the certificate of merit, it must be available somewhere else in the record. A trial court cannot assume or infer that an expert knows something about the defendants’ area of practice unless there is some evidence to suggest that he does.
Ill
El Pistolón finally entreats us to remand the case in the interests of justice, if we are otherwise inclined to reverse the court of appeals’ judgment. El Pistolón speculates that any opinion in the case “is virtually certain to constitute a prototypical case for [such] a remand” because it will involve “the clarification of uncertain law and the overruling of precedent that litigants had every reason to view as reliable.” Our opinion, however, does neither. We merely conclude that the statute sets out several related but distinct qualifica
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The certificate-of-merit statute provides that the plaintiffs “complaint against the defendant ... shall result in dismissal” if the plaintiff fails “to file the affidavit in accordance with this section.” Tex. Civ. Prac. & Rem. Code § 150.002(e). The section requires, among other things, that the licensed or registered professional providing the affidavit be “knowledgeable in the area of practice of the defendant.” Id. § 150.002(a)(3). The record here fails to demonstrate such knowledge (either in the affidavit or elsewhere), and thus the affidavit is non-compliant; it was not filed “in accordance with this section.” Id. § 150.002(e). The motion to dismiss should therefore have been sustained, and the trial and appellate courts erred in ruling otherwise. The court of appeals’ judgment is accordingly reversed, and the cause is remanded to the trial court to determine whether the dismissal mandated here shall be with or without prejudice. See id. (providing that the “dismissal may be with prejudice”).
Concurrence Opinion
concurring.
Though the Court is correct to reverse the court of appeals and render judgment for Levinson, I cannot join its opinion. El Pistolón’s certificate of merit, an affidavit sworn out by architect Gary Payne, is deficient because it is conclusory. A certificate of merit must set forth “the factual basis” for each claim of professional liability. Tex. Civ. Prac. & Rem. Code § 150.002(b). But Payne’s affidavit is devoid of substance. Its text could be copied and pasted into any certificate of merit without regard to the particular facts of the case.
The Court does not base its decision on the certificate’s conclusory nature. Instead, the Court renders judgment for Levinson because the record lacks proof of Payne’s “knowledge in the area of practice.” Ante at 495. The Court holds that “the statute’s knowledge requirement ... requires some additional explication or evidence reflecting the expert’s familiarity or experience with the practice area at issue in the litigation.” Ante at 494. But the text of Chapter 150 contains no such requirement. I agree with those courts of appeals that have noted the statute’s silence “as to how and when the third-party architect’s qualifications must be established.” Hardy v. Matter,
The majority correctly states that we should presume the Legislature “deliberately and purposefully’ chooses the words it uses. Ante at 493. This highlights the difference between subsections (a) and (b) of Chapter 150.002. Subsection (a) requires that the licensed professional submitting the certificate “is knowledgeable” in certain areas; subsection (b) explicitly directs that the negligence and accompanying factual basis “shall [be] set forth specifically” in the affidavit. Tex. Civ. Prac. & Rem. Code § 150.002 (a)-(b). The plain text of the statute simply does not require that a curriculum vitae be attached to the certificate, that the certificate lay out the affi-ant’s qualifications, or even that the record contain any other extrinsic evidence from which to draw the inference that the affi-ant was knowledgeable in the area of practice.
The statute requires that the affiant have certain qualifications. But it does not set forth a method for the trial court to determine whether he actually does. Rather than create a scheme on behalf of the Legislature and conclude that the trial court abused its discretion by not employing such a scheme, I would dispose of the case on other grounds. Regardless of whether the affiant in this case possesses the requisite qualifications, his certificate is conclusory. I would render judgment for Levinson on that basis alone.