CASCO Architects v. CLA Cinco, LLC

Reversed and remanded, and Majority and Concurring Memorandum
Opinions filed August 27, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00266-CV

CASCO ARCHITECTS, Appellant
V.
CLA CINCO, LLC, Appellee

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 19-DCV-261827

MEMORANDUM CONCURRING OPINION

I acknowledge that the certificate-of-merit statute enacted by the Legislature
requires the plaintiff to file a certificate of merit contemporaneously with the
complaint. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a), (c). If the plaintiff
fails to do so, then the statute states that such failure “shall result in dismissal of
the complaint against the defendant” and further provides “[t]his dismissal may be
with prejudice.” See id. § 150.002(e). Texas appellate courts, including this Court,
have consistently concluded plaintiffs are required to file a certificate of merit with
the first-filed petition in which a § 150.002 claim applies. See, e.g., Sharp Eng’g v.
Luis, 321 S.W.3d 748, 752 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“We
hold that section 150.002 requires a plaintiff to file a certificate of merit with the
first-filed complaint asserting a negligence claim against a professional.”); Ashkar
Eng’g Corp. v. Gulf Chem. & Metallurgical Corp., No. 01-09-00866-CV, 2010
WL 376076, at *1–3 (Tex. App.—Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem.
op.) (holding that Gulf Chemical failed to timely file a certificate of merit because
it did not file a certificate with its first amended petition but did file one with its
third amended petition). I concur with the majority’s conclusion that on this record
both the statute and precedent require the trial court to dismiss CLA’s claims
against CASCO for its failure to file a certificate of merit with its second amended
petition.

Nevertheless, I write separately to note that requiring dismissal for failure to
file a certificate of merit with the initial pleading in circumstances where a party
files such a certificate with its amended complaint a very short time after it filed its
original complaint defeats the purpose of the statute, which is to deter frivolous
claims against licensed or registered professionals. See CTL/Thompson Tex., LLC
v. Starwood Homeowner’s Ass’n, 390 S.W.3d 299, 301 (Tex. 2013) (per curiam)
(“Section 105.002(e) dismissal is a sanction with the same purpose [as the expert-
report requirement in healthcare liability lawsuit], to deter meritless claims and
bring them quickly to an end.”). Here, CLA filed a certificate of merit with its third
amended petition only fifteen days after it filed the complaint that first raised
professional negligence claims against CASCO. In these circumstances, an
exception should exist based on the timing of the filing of the certificate of merit,
or the trial court should be afforded discretion if the certificate of merit is not filed

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with the initial complaint to determine whether dismissal is warranted in such a
case.1

By way of comparison, in a health care liability claim, by statute, the
claimant has 120 days after each defendant’s answer is filed, or a later date under
§ 74.353, to file an expert report, and the date may be extended by written
agreement of the affected parties. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
Further, it is within the discretion of the trial court to grant one thirty-day extension
to cure deficiencies within an expert report. See id. § 74.351(c); Scoresby v.
Santillan, 346 S.W.3d 546, 557 (Tex. 2011).

1
Currently, the statute contains the following exception “The contemporaneous filing
requirement . . . shall not apply to any case in which the period of limitation will expire within 10
days of the date of filing and, because of such time constraints, a claimant has alleged that an
affidavit of a third-party [professional] could not be prepared. In such cases, the claimant shall
have 30 days after the filing of the complaint to supplement the pleadings with an affidavit.”
Tex. Civ. Prac. & Rem. Code Ann. § 150.002(c). The statute further provides that an affidavit is
not required to be filed by a third-party plaintiff that is a design-build firm or a design-build
team, or an architect, engineer, or other member of a design-build firm or a design-build team in
connection with the filing of a third-party claim or cross claim against a licensed or registered
professional if the proceeding arises out of a design-build project in which a governmental entity
contracts with a single entity to provide both design and construction services concerning a
facility, a building or associated structure, civil works project, or a highway project. Id.
§ 150.002(i). Finally, the statute does not apply to any suit or action for the payment of fees
arising out of the provision of professional services. See id. § 150.002(h); Zachry Eng’g Corp. v.
Encina Dev. Grp., LLC, 672 S.W.3d 534, 540–41 (Tex. App.—Houston [14th Dist.] 2023, pet.
filed).

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Considering the potential harm to complaining parties in precluding the
potential recovery of damages in a case with merit and considering the
requirements of § 150.002(b) as to the specific information that needs to be
contained in the affidavit without the benefit of discovery, balanced against the
potential harm to parties who have been inconvenienced by a fifteen day delay of
such an affidavit, I respectfully concur, but with reservation.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Justice Hassan, Justice Poissant, and Justice Wilson. (Wilson, J.,
majority).

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