Although Texas Statute Expressly Allows an Immediate Interlocutory Appeal of Any Decision Granting or Denying a Motion to Dismiss Based Upon the Certificate of Merit Requirement, There Is No Jurisdiction for an Interlocutory Appeal of an Arbitrator’s Decision on That Issue

SM Architects, PLLC v. AMX Veteran Specialty Servs., LLC, 2018 Tex. App. LEXIS 9203 (November 8, 2018)

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Jane Fox Lehman

AMX Veteran Specialty Services, LLC (“AMX”) filed a demand for arbitration alleging professional negligence against SM Architects, PLLC (“SMA”).  A Texas statute requires a plaintiff in an action or arbitration involving architectural services to file a certificate of merit affidavit by a third-party licensed architect in support of its claims.  AMX attempted to meet this requirement by attaching an unsigned letter by an architect to its demand.

AMX twice amended its demand.  It attached to its second amended demand a signed certificate of merit affidavit by the same architect.  The affidavit was substantially similar to the original unsigned letter, but with added information regarding SMA’s alleged negligence.

SMA moved to dismiss AMX’s claims for failure to comply with the certificate of merit requirement.  SMA argued that the unsigned letter submitted with AMX’s first demand for arbitration was not an affidavit, and that the affidavit filed with its second amended demand was ineffective because its failure to file an affidavit contemporaneously with the first-filed complaint could not be cured by amendment.  The arbitration panel denied SMA’s motion. Continue reading “Although Texas Statute Expressly Allows an Immediate Interlocutory Appeal of Any Decision Granting or Denying a Motion to Dismiss Based Upon the Certificate of Merit Requirement, There Is No Jurisdiction for an Interlocutory Appeal of an Arbitrator’s Decision on That Issue”

Divided New York Court of Appeals Holds That a Third Party Cannot Sue for Breach of Contract Absent Express Language Naming Them as an Intended Beneficiary and That Claims for Breach of Contract and Professional Negligence Against an Architect Cannot Both Be Maintained When the Allegations Supporting Both Claims Are Nearly Identical

Dormitory Auth. of the State of NY v. Samson Constr. Co., 2018 N.Y. Lexis 218 (February 15, 2018)

The Dormitory Authority of the State of New York (“DASNY”) undertook, as project manager, to construct a facility for the Office of the Chief Medical Examiner of the City of New York (the “City”) as a forensic biology laboratory (the “Project”).  DASNY retained Perkins Eastman Architects, P.C. (“Perkins”) as architect for the Project, and Samson Construction Co. (“Samson”) as the foundation contractor.

Complications during the construction of the foundation resulted in 18 months of delays due to the adjacent building settling eight inches, damages to the adjacent sidewalks, utilities and emergency repairs.  DASNY and the City filed suit against Samson, and later joined Perkins, asserting claims against Perkins for breach of contract and negligence.

Perkins moved for summary judgment to dismiss the City’s claims, and to dismiss DASNY’s negligence claim as duplicative of its breach of contract claim.  The trial court dismissed the City’s breach of contract claim; holding that the City was not an intended third-party beneficiary of the contract between DASNY and Perkins (the “Contract”), and allowed both DASNY’s breach of contract and negligence claims to proceed, holding that the claims were not duplicative of each another. Continue reading “Divided New York Court of Appeals Holds That a Third Party Cannot Sue for Breach of Contract Absent Express Language Naming Them as an Intended Beneficiary and That Claims for Breach of Contract and Professional Negligence Against an Architect Cannot Both Be Maintained When the Allegations Supporting Both Claims Are Nearly Identical”