Unreported / Non-Citable
Background
Amy and Sean Hendy alleged that water from a retention pond in Alethium Development, LLC’s Temple housing development repeatedly flooded their neighboring property, damaging their home, foundation, land, and foliage. They sued Alethium and Quintero Engineering, LLC for private nuisance, alleging that Quintero had designed, engineered, or constructed the pond. Alethium asserted a contribution cross-claim against Quintero.
Quintero moved to dismiss under Chapter 150 of the Texas Civil Practice and Remedies Code because neither the Hendys nor Alethium had filed a certificate of merit with the pleading that first asserted claims against it. After the district court initially denied the motion “for now,” the Hendys attached a certificate to their fourth amended petition; Alethium did not amend its cross-claim similarly. The district court ultimately denied dismissal, and Quintero pursued an interlocutory appeal.
The Court’s Holding
The Third Court of Appeals held that both the Hendys and Alethium were required to file certificates of merit. The Hendys’ allegations and Quintero’s evidence established that their claims arose from professional engineering services, including retention-pond design, drainage planning, surveying, plat preparation, and construction inspection. Quintero also established that it was a registered engineering firm employing licensed engineers and surveyors.
Alethium was likewise subject to Chapter 150 because the Legislature amended the statute in 2019 to apply to any “claimant,” including a party seeking contribution. The court further held that the Hendys could not cure their original omission by attaching a certificate to a later amended petition: controlling precedent requires the certificate to accompany the first-filed pleading asserting the covered claim.
The court reversed the order denying Quintero’s motion to dismiss and remanded. Because dismissal for noncompliance may be with or without prejudice, the district court must decide that question on remand.
Key Takeaways
- A certificate of merit is required when pleaded damages arise from a registered engineering firm’s professional services.
- Chapter 150 applies to cross-claimants seeking contribution, not only to plaintiffs who initiated the lawsuit.
- Attaching a certificate of merit to a later amended pleading does not cure failure to attach one to the first pleading asserting the covered claim.
Why It Matters
The decision reinforces Chapter 150’s contemporaneous-filing requirement as a substantive threshold protection for covered professionals rather than a technical defect that can be repaired through amendment. Parties asserting engineering-related claims must evaluate the requirement before filing their first pleading against the professional.
The ruling also highlights the reach of the statute’s post-2019 language: defendants and other parties seeking contribution or indemnification may qualify as claimants and must independently comply with the certificate requirement.