Greg Ziegler argues first appellate case for applying A/E Certificates of Merit to arbitrations.

In a case of first impression in Texas involving the application of the certificate of merit statute to arbitrations of architect/engineer professional liability claims, Greg Ziegler submitted oral argument in the Dallas Court of Appeals on September 11, 2018 in the case of SM Architects, et al. v. AMX Construction.  A design-builder filed an arbitration case against Macdonald Devin’s architect client for $5 million alleging breach of contract, negligence, and tortious interference arising out of an allegation that the architect did not design a health care facility within budget, which the architect vehemently denies.  The design-builder plaintiff failed to file a certificate of merit with the first-filed arbitration complaint.  The architect filed a motion to dismiss, citing Section 150.001(a) of the Texas Civil Practice & Remedies Code, which provides that the mandatory certificate of merit requirement applies to arbitrations.  The arbitrators denied the architect’s motion to dismiss.  The architect filed a declaratory judgment action in district court seeking an order vacating the arbitrators’ order denying dismissal by way of motion for summary judgment and motion to vacate arbitration order.  The district court entered an order denying the architect’s motions.  The architect filed an interlocutory appeal of the district court’s order, pursuant to Section 150.001(f), which permits an interlocutory appeal of an order denying the motion to dismiss.  The design-builder contested the subject matter jurisdiction of the trial and appellate courts.  Greg Ziegler argued on behalf of the architect that the plain language of the statute demonstrates the legislative intent that the certificate of merit statute not only applies to arbitrations but that the right of immediate interlocutory appeal must also apply to an arbitration panel’s order denying a motion to dismiss under Chapter 150, otherwise, the Court of Appeals would be rendering the statutory language meaningless in cases of arbitrations.  Also, a denial of the 150 motion to dismiss by the arbitrators amounted to exceeding the arbitrators’ powers because the architect’s contract with the design-builder required the application of Texas law and the design-builder had clearly failed to comply with the requirements of Texas law.