Greg Ziegler and Bryan Rutherford Win in Texas Supreme Court for Geotechnical Engineering Firm

A homeowner’s association sued a geotechnical engineering firm for alleged design defects arising out of the failure of a retaining wall slope.  The plaintiff homeowner’s association attempted to support its lawsuit with a certificate of merit that the defendant geotechnical engineering firm deemed objectionable and non-compliant with the Texas Certificate of Merit Statute. 
The defendant engineering firm filed a motion to dismiss, which the trial court overruled.  The defendant engineering firm appealed.  The plaintiff homeowner’s association attempted to cure the defect in its certificate of merit by filing another lawsuit in the same county with a different certificate of merit.  The plaintiff homeowner’s association then non-suited the first-filed case while it was on appeal and notified the intermediate appellate court of the non-suit.  The appellate court dismissed the appeal as moot.  The defendant engineering firm sought Supreme Court review.  
In a case of first impression, the Texas Supreme Court, ruling in favor of Macdonald Devin’s geotechnical engineering firm client, held that the plaintiff homeowner association’s non-suit did not impact the defendant engineering firm’s right to appeal of the trial court’s decision denying the motion to dismiss.  The Supreme Court ordered the case remanded back to the appellate court for review of the trial court’s denial of the engineering firm’s motion to dismiss and the sufficiency of the original certificate of merit.  Macdonald Devin partner, Greg Ziegler, served as lead trial counsel.  Associate attorney, Bryan Rutherford, served as lead appellate counsel.