In Durivage v. La Alhambra Condo. Ass'n, No. 13-11-00324-CV, 2011 WL 6747384 (Tex. App.--Corpus Christi Dec. 21, 2011, pet. filed), the Court addressed whether a certificate of merit set forth the factual basis "for each theory of recovery" a plaintiff alleged against a professional engineer. (applying Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b)).
The plaintiff, La Alhambra Condominium Association, sued the engineer, Durivage, alleging negligence, gross negligence and breach of contract in connection with a roof that he inspected and certified.
The Court concluded that La Alhambra's certificate of merit adequately set forth the factual basis of its negligence claim because the affiant explained he was familiar with the applicable standard of care and set forth how Durivage allegedly breached it.
However, the Court further concluded La Alhambra failed to set forth any factual basis for its gross negligence and breach-of-contract claims.
Rather than dismissing the entire complaint and remanding the whole case to the trial court for a prejudice determination, this Court reversed the portion of the trial court's judgment denying Durivage's motion to dismiss La Alhambra's gross negligence and breach-of-contract claims.
The Court remanded the case to the trial court for a determination of whether the dismissal of those two claims would be with or without prejudice. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e) ("The plaintiff's failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice.")).