Tx. Sup. Ct. Says To Be Careful Before Suing Architects, Engineers, or Surveyors

CTL v Starwood Homeowner’s Association

While this isn’t a local government case, it has some impact on certain things city and county litigators do. Plus, it’s a Texas Supreme Court case, so it carries just a little bit of weight with the rest of the districts.

The facts are not as important (you can read them if you really want to); but the main thing to get out of this case is to be very certain you know what you are doing before you sue a professional, such as an architect,  engineer, or surveyor.

Tex. Civ. Prac. & Rem. Code § 150.002 states that in any claim for damages against a professional (architect, engineer, surveyor, etc.)  the plaintiff shall be required to file an affidavit of a third-party licensed professional essentially saying the defendant professional messed up and why. Failure to file the affidavit timely results in a dismissal and it is within the court’s discretion whether it will be with or without prejudice.

In this case Starwood sued CTL alleging deficient geotechnical services and filed an affidavit it thought complied with§ 150.002;  but CTL filed a motion to dismiss alleging it was deficient.  The trial court denied CTL’s motion, and CTL brought an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE §150.002(f). But before the appeal could be decided, Starwood nonsuited (without prejudice). The court of appeals held that the nonsuit mooted the appeal, depriving the court of jurisdiction.

CTL then brought a petition for review. CTL argued the nonsuit must be with prejudice under §150.002 and the court had a duty to rule which survived the non-suit.

The Court first held that while it normally does not have jurisdiction to review interlocutory appeals, it always has jurisdiction to determine if the appellate court had jurisdiction (helpful for sovereign immunity arguments).  The Court then determined that a dismissal under §150.002 is a form of sanction (interesting analysis in the opinion).  While some sanctions cannot survive a non-suit, others can. The Court held  “For example, a sanction excluding witnesses for failure to supplement discovery does not survive nonsuit because its purpose is fully served by protecting the fairness of the trial of the action in which it is imposed. But a sanction for filing a frivolous lawsuit does survive nonsuit.”  The §150.002 sanction was the type that survives a non-suit.   As a result, the non-suit did not deprive the appellate court of jurisdiction to determine if a dismissal with or without prejudice is appropriate and remanded the case.

For the pure litigators, the case holds some analysis of court jurisdiction and what is and is not a sanction which can survive a non-suit (I found it interesting). For general counsel (City and County attorneys), this case stands for the proposition that you better have all your ducks in a row and a strong third-party professional affidavit at the beginning of a case against a professional as you might not get the opportunity to fix a deficiency later on in the litigation.

To read the opinion click here.