This is a continuation of an earlier article that I wrote on the subject of Certificates of Merit. I am not surprised that this issue continues to arise.
We continue to see tests of the Texas Civil Practices and Remedies Code due to changes that were a result of the recent tort reform. Case law in the particular area of Certificates of Merit has been evolving and despite some early questionable statements by the Court (see my previous article) it seems to have reached a certain maturity.
In the instant case "Joseph G. Gartrell, Jr. v. Ernest Joseph Wren" the Appellant challenged the Certificate of Merit by RPLS Trusky on the grounds that "the certificate of merit was insufficiently specific as to the alleged error regarding the area of the real property, the location of the house, and the description of easements", "it lacked specificity because it did not state a standard of care" and that "Trusky was not an appropriate third party affiant".
These types of legal theory have proven to hold no water in the past although as I mentioned it has led to some confused statements coming from the Court. Unfortunately this confusion has led to attempts (like those in the instant case) to rely on those statements to try and push an envelope that simply does not exist.
First let's look at the "third-party argument. Some back ground on the "third-party" requirement: "Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a). The certificate of merit is an affidavit of a third-party licensed professional who is competent to testify and holds the same professional license or registration as the defendant, and who is knowledgeable in the area of practice of the defendant." In the instant case the Court rightly concludes that the definition of a "third-party" is “[a] person who is not a party to a lawsuit, agreement or other transaction but who is usually somehow implicated in it; someone other than the principal parties.” Black’s Law Dictionary 1617 (9th ed. 2009)." Trusky is not a party to the lawsuit therefore such an argument is preposterous on it's face.
The argument that Trusky's Certificate of Merit "lacked sufficient specificity as to a violation of a standard of care" fails to understand the fact that the statute does not expressly require the affiant to state the applicable "standard of care" as part of the factual basis for the professional’s alleged error. What it states is "affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim." So there is no such requirement for a statement by the Affiant of a violation of a particular "standard of care." The plain words of the statute mean the Certificate of Merit may be for a claim of "negligence", "error" or "omission" and must contain a "factual basis" for each such claim.
Finally, we have the argument that Trusky's Certificate of Merit "was insufficiently specific as to the alleged error regarding the area of the real property, the location of the house, and the description of easements." This argument seems to center around the the wording in the statute that requires "a factual basis for each such claim." The statute is requiring the Affiant to provide a reason to believe there is a factual basis for a claim, not that absolute proof must be provided by an Affiant for a factual basis of a claim. That would be determined by the Court or a jury in the course of a trial, not by the Affiant. The Court concludes "Trusky testified by affidavit that he had “walked the subject property and [had] prepared a survey of [his] own on the subject property.” We hold that this statement provided the required “factual basis” for his statements identifying Gartrell’s alleged errors."
Here is a link to my previous article on this subject under the heading "Chain." I suggest that if you are practicing Land Surveying in Texas that you become intimately familiar with this aspect of the law.
Thoughts