Levinson Alcoser Associates, L.P. v. El Pistolón II, Ltd.
513 S.W.3d 487, 2017 WL 727269 (2017)
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Rule of Law:
Under Texas Civil Practice and Remedies Code § 150.002, the requirement that an expert affiant be 'knowledgeable in the area of practice of the defendant' is a distinct statutory element that is not satisfied merely by the affiant holding the same professional license or being actively engaged in the profession. The record must contain some affirmative evidence, either in the affidavit or elsewhere, from which the trial court can infer the expert's familiarity or experience with the specific practice area at issue in the litigation.
Facts:
- El Pistolón II, Ltd. owned land in McAllen, Texas, where it planned to build a commercial retail project.
- El Pistolón hired Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. (the 'architects') to design the project and oversee its construction.
- Becoming disappointed with the quality of the architects' services, El Pistolón decided to pursue legal action.
- To support its claims, El Pistolón obtained a sworn affidavit from Gary Payne, a third-party licensed architect.
- Payne's affidavit stated that he was a registered architect in Texas, licensed since 1980, and maintained an active practice.
- The affidavit did not contain any information describing Payne's specific experience, familiarity, or knowledge of designing commercial retail projects or the architects' particular area of practice.
Procedural Posture:
- El Pistolón II, Ltd. sued Levinson Alcoser Associates, L.P. and Levinson Associates, Inc. in a Texas trial court for negligence and breach of contract, contemporaneously filing a certificate of merit.
- The architects filed a motion to dismiss, arguing that the certificate of merit failed to meet the statutory requirements.
- The trial court denied the architects' motion to dismiss.
- The architects, as appellants, filed an interlocutory appeal to the Court of Appeals for the Thirteenth District of Texas at Corpus Christi-Edinburg, with El Pistolón as the appellee.
- The Court of Appeals affirmed the trial court's order as to the negligence claim but reversed as to the breach of contract claim, remanding that claim to the trial court.
- The architects then appealed the Court of Appeals' decision regarding the negligence claim to the Supreme Court of Texas.
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Issue:
Does a certificate of merit filed pursuant to Texas Civil Practice and Remedies Code § 150.002 comply with the statute's requirement that the affiant be 'knowledgeable in the area of practice of the defendant' if the affidavit and the record contain no evidence of such knowledge beyond the affiant holding the same professional license and being actively engaged in the profession?
Opinions:
Majority - Justice Devine
No. A certificate of merit does not comply with the statute if the record lacks affirmative evidence that the expert is 'knowledgeable in the area of practice of the defendant.' The statute imposes several distinct qualifications on an expert affiant: 1) holding the same professional license as the defendant, 2) being actively engaged in the practice, and 3) being knowledgeable in the defendant's area of practice. To interpret the 'knowledgeable' requirement as being satisfied by the other two qualifications would render it superfluous, violating principles of statutory construction. A trial court cannot simply infer this specific knowledge from licensure alone; there must be some basis in the record—either in the affidavit or from another source—that demonstrates the expert's familiarity or experience with the particular practice area at issue. Because Payne's affidavit and the record contained no such evidence, it was non-compliant, and the case should have been dismissed.
Concurring - Justice Brown
No, the certificate is non-compliant, but the Court's reasoning is incorrect. While I agree with the judgment to reverse and dismiss the case, the majority errs by creating a requirement not found in the statute's text—that evidence of the expert's knowledge must appear in the affidavit or the record. The statute requires that the expert be knowledgeable, but it does not prescribe a method for how this must be proven. The proper basis for dismissal is that Payne's affidavit was conclusory and failed to set forth the 'factual basis' for the claims, as explicitly required by subsection (b) of the statute. The affidavit was so devoid of substance and specific facts that it was deficient on its face, making it unnecessary to address the expert's qualifications.
Analysis:
This decision clarifies and heightens the evidentiary standard for the certificate-of-merit requirement in Texas litigation against design professionals. By establishing that 'knowledgeable in the area of practice' is a distinct, provable element, the Court has given defendants a powerful tool to seek early dismissal. Plaintiffs' attorneys must now ensure their expert's affidavit, or other record evidence, explicitly details the expert's specific experience relevant to the defendant's practice area, rather than relying on general qualifications like licensure. The ruling will likely lead to more litigation over the sufficiency of expert qualifications at the outset of cases, increasing the initial burden on plaintiffs to vet their experts thoroughly.
