Procedural Irregularities with Certificate of Merit Require Dismissal of Suit

In yet another interlocutory appeal regarding procedural irregularities with a certificate of merit, the Dallas Court of Appeals reversed a trial court’s order and mandated dismissal of Plaintiff’s claims. In DHM Design v. Catherine Morzak, Cause No. 05-15-00103-CV (Tex. App.—Dallas June 19, 2015), Plaintiff sued the architect of record for bleachers at Breckenridge Park in Richardson, Texas after sustaining personal injuries from a fall at the park. Plaintiff alleged that the architect did not include sufficient contrasting color to distinguish between stairs and a seating area, preventing her from perceiving the change in depth of the risers between the stairs and the seating area.

Plaintiff initially filed suit against the wrong architect, attaching a certificate of merit to her petition. The certificate alleged that the wrong architect had negligently designed the bleachers. Exactly two years after her fall, on the date the statute of limitations was set to expire, Plaintiff filed an amended petition, naming the correct architect of record for the bleachers as a Defendant. She attached the original certificate of merit to the amended petition. After Defendant filed a motion to dismiss due to the certificate failing to mention Defendant’s conduct, Plaintiff filed a new certificate of merit stating that the original certificate applied to both the incorrectly named architect and Defendant. Defendant filed a second motion to dismiss, arguing that Plaintiff failed to timely seek an extension to comply with the certificate of merit statute.

The Dallas Court of Appeals, in interpreting the certificate of merit statute, held that the good-cause exception for an extension of time to file a certificate of merit has two prerequisites. First, the limitations period must expire within ten days of the date of filing. Second, because of time constraints, Plaintiff must allege that it was unable to secure an affidavit from a licensed architect, engineer, landscape architect or professional land surveyor. If both prerequisites are satisfied, Plaintiff receives an automatic extension to supplement its pleadings with a certificate of merit.

Plaintiff failed to allege in her amended petition that, due to the approaching expiration of the limitations period, she could obtain a certificate in compliance with the statute. Absent compliance with both prerequisites for the exception to filing a certificate of merit, there is no thirty-day extension. The Dallas Court of Appeals reversed the trial court’s order and rendered judgment dismissing Plaintiff’s claims against Defendant.