Background
Residents of the Lull subdivision in Edinburg, Texas, sued Texas Cordia Construction (TCC) and Melden & Hunt, Inc. (M&H) — the engineering firm retained by the City of Edinburg to design and oversee a street improvement project — for damages arising out of TCC’s construction activities. Appellees alleged that M&H unreasonably delayed responding to information requests, and that the negligence and other misconduct of TCC and M&H caused damage to their homes, vehicles, and property. Under Texas Civil Practice and Remedies Code § 150.002, suits for damages arising out of professional services provided by a licensed engineer must include a “certificate of merit” — an affidavit from a third-party licensed engineer addressing each theory of recovery — filed contemporaneously with the complaint.
In their original petition, appellees did not include a certificate of merit. Instead, they cited § 150.002(c) — the provision that excuses contemporaneous filing if the suit is filed within ten days of the limitations deadline and the claimant alleges the affidavit could not be prepared due to the time constraint — and stated that a certificate of merit would be forthcoming within thirty days. The petition named the anticipated affiant (John Metting, a licensed professional engineer) but did not contain the required allegation that the limitations deadline was imminent or that time constraints had prevented preparation of the affidavit. When M&H moved to dismiss for failure to comply with § 150.002, the trial court denied the motion. This accelerated interlocutory appeal followed.
The Court’s Holding
The Thirteenth Court of Appeals reversed. Under § 150.002, a claimant asserting professional negligence claims against a licensed engineer must file a certificate of merit contemporaneously with the petition. The sole exception — found in subsection (c) — requires two specific allegations: (1) that the suit was filed within ten days of the applicable limitations period, and (2) that the proximity to the limitations deadline prevented the preparation of the affidavit. Both allegations must appear in the petition. The court relied on the Texas Supreme Court’s decision in Crosstex Energy Services, LP v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014), which held that the exception requires the claimant to allege that its near-limitations filing actually prevented preparation of the certificate.
Appellees’ original petition neither alleged that limitations was expiring within ten days nor that the time constraint prevented them from preparing a certificate. Citing § 150.002(c) by number and promising a forthcoming affidavit did not fill that gap. The court held that this approach did not substantially comply with the subsection’s requirements: substantial compliance means performing the “essential requirements” of the statute and excuses only deviations that do not frustrate the legislative purpose; here, the essential allegation — that near-limitations filing prevented certificate preparation — was entirely missing. Under LaLonde v. Gosnell, 593 S.W.3d 212 (Tex. 2019), absent a properly filed certificate of merit, professionals “have the right to avoid litigation entirely,” and dismissal was required. The court remanded solely to determine whether dismissal should be with or without prejudice.
Key Takeaways
- Texas Civil Practice and Remedies Code § 150.002 requires a certificate of merit to be filed with the original petition in any suit for damages arising from a licensed engineer’s professional services; the contemporaneous-filing exception in subsection (c) is available only if the petition explicitly alleges both that limitations would expire within ten days and that the time constraint prevented affidavit preparation.
- Simply citing § 150.002(c) and representing that a certificate is forthcoming — without making the required factual allegations — does not substantially comply with the statute and does not prevent dismissal.
- On reversal for failure to file a certificate of merit, the trial court must determine whether dismissal is with or without prejudice to refiling; this is a separate inquiry left to the trial court’s discretion.
Why It Matters
Texas’s certificate-of-merit requirement is a significant procedural hurdle in any professional negligence action against a licensed engineer, architect, or surveyor. Melden & Hunt confirms that the requirements of § 150.002 — both the contemporaneous filing mandate and the exception’s two-part allegation standard — are enforced strictly. A petition that flags the statute, names an anticipated affiant, and promises a certificate “within 30 days” without pleading the time-constraint excuse will not survive a motion to dismiss.
Practitioners filing engineering-negligence claims in Texas — particularly those arising from public improvement projects where multiple defendants may include engineering firms — should build the certificate-of-merit affidavit into the filing timeline from the outset. If that is genuinely impossible due to a limitations crunch, the petition must contain explicit allegations invoking both prongs of the § 150.002(c) exception. Boilerplate references to the statute, without the required factual averments, will leave the claim exposed to pre-answer dismissal — with the added uncertainty of whether the dismissal will be with prejudice.