Reported / Citable
Background
The Islamic Association of the Colony hired AHL Builders, LLC as general contractor for construction of a mosque. AHL engaged Carr Consulting, Inc. and its principal, professional engineer John P. Carr, to design a parking lot supported by a retaining wall. During a rainstorm on October 17, 2021, the retaining wall shifted and the parking lot collapsed. The Association and AHL sued Carr Consulting and other parties for breach of contract, breach of warranty, and negligence, seeking between $900,000 and $1.8 million in damages and attorney’s fees.
The trial court initially dismissed the claims against Carr Consulting without prejudice because the plaintiffs had not timely filed the certificate of merit required by Chapter 150 of the Texas Civil Practice and Remedies Code. After the plaintiffs filed a new action with professional engineer Glenn W. Campbell’s affidavit attached, the trial court dismissed the contract claim with prejudice. It later reinstated the negligence and warranty claims but granted Carr Consulting traditional summary judgment on them. The claims were severed, and the Association and AHL appealed.
The Court’s Holding
The Eleventh Court of Appeals held that the certificate of merit was timely, valid, and sufficient. Because the first action had been dismissed without prejudice, the parties were returned to the position they occupied before that action was filed. The plaintiffs therefore complied with Chapter 150 by attaching Campbell’s affidavit to the first-filed petition in their new action. The affidavit adequately identified alleged professional errors and their factual basis, including the failure to obtain a global stability analysis and a retaining-wall design that allegedly fell below engineering standards. Chapter 150 did not require the engineer to analyze the existence or terms of a contract or otherwise supply the legal basis for the contract claim.
The court nevertheless affirmed summary judgment on the other claims. The two-year limitations period for negligence began when the wall catastrophically failed on October 17, 2021, because the failure placed the plaintiffs on notice of their injury; their January 18, 2024 suit was therefore untimely. Texas law did not recognize the asserted implied warranty of good and workmanlike professional engineering services under these circumstances because other remedies were available. The plaintiffs also failed to challenge the ruling on their express-warranty claim. The court reversed the dismissal of the breach-of-contract claim and the related request for attorney’s fees, remanded those matters, and affirmed in all other respects.
Key Takeaways
- A plaintiff whose Chapter 150 claims were dismissed without prejudice may satisfy the statute by filing a new action and attaching a certificate of merit to the first petition in that action.
- A certificate of merit must identify alleged professional errors or omissions and their factual basis, but the expert need not address contract formation, interpret contractual terms, or establish every element of a legal theory.
- A catastrophic structural failure can start limitations because it gives reasonable notice of injury, even if the claimant has not yet identified the professional’s specific fault.
Why It Matters
The decision confirms that Chapter 150’s certificate requirement is a threshold safeguard against frivolous professional-services claims, not a substitute for later contract interpretation or merits litigation. A properly supported engineering affidavit can permit a contract claim to proceed without offering legal opinions outside the engineer’s expertise.
The opinion also underscores the limitations risk created by a dismissal without prejudice. Although the plaintiffs successfully revived their contract claim with a compliant certificate, the refiling did not preserve their negligence claim beyond the applicable two-year period.