No. 05-15-00103-CV 

 IN THE FIFTH

COURT OF APPEALS

AT DALLAS, TEXAS 

DMH DESIGN, 

Appellant

v.

CATHERINE MORZAK, 

Appellee

Interlocutory Appeal from the County Court at Law No. 3,

Dallas County, Texas, Cause No. CC-14-00798-C, 

the Honorable Sally Montgomery, Presiding

APPELLANT’S REPLY BRIEF

Wade C. Crosnoe

State Bar No. 00783903

E-mail: wcrosnoe@thompsoncoe.com

Sara Berkeley Churchin

State Bar No. 24073913

E-mail: schurchin@thompsoncoe.com

THOMPSON, COE, COUSINS & 

IRONS, L.L.P.

701 Brazos, Suite 1500

Austin, Texas 78701

Telephone: (512) 703-5035

Facsimile: (512) 708-8777

Shawn W. Phelan

State Bar No. 00784758

E-mail: sphelan@thompsoncoe.com

THOMPSON, COE, COUSINS & 

IRONS, L.L.P.

700 N. Pearl Street, Twenty-Fifth Floor

Dallas, Texas 75201-2832

Telephone: (214) 871-8200

Facsimile: (214) 871-8209

Counsel for Appellant DMH Design

ORAL ARGUMENT REQUESTED

ACCEPTED

05-15-00103-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

4/20/2015 4:09:30 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 4/20/2015 4:09:30 PM LISA MATZ Clerk
TABLE OF CONTENTS

Table of Contents........................................................................................................i

Index of Authorities.................................................................................................. ii

I. Introduction......................................................................................................1

II. The Certificate of Merit Attached to Morzak’s First Amended Petition 

Is Insufficient to Meet the Statute’s Requirements.........................................3

III. Morzak Did Not Seek a Timely Extension to the ContemporaneousFiling Requirement and Is Not Entitled to a “Good Cause” Exception..........8

A. The Only Exception to the Contemporaneous Filing Rule Is 

Stated in the Statute...............................................................................8

B. Morzak Did Not Meet the Statutory Prerequisites to Qualify for 

a Good-Cause Exception.....................................................................11

IV. DHM Design Did Not Waive Its Argument That the Certificate of 

Merit Filed on June 13th Is Insufficient ........................................................14

Conclusion and Prayer.............................................................................................15

Certificate of Compliance ........................................................................................17

Certificate of Service................................................................................................17

i
INDEX OF AUTHORITIES

Cases

Apex Geoscience, Inc. v. Arden Texarkana, LLC, 370 S.W.3d 14 (Tex. 

App.—Texarkana 2012, pet. granted, judgm’t vacated by agr.) .........................13

Austin Nursing Center v. Lovato, 171 S.W.3d 845 (Tex. 2005) .............................10

Crosland v. Tex. Emp’t Comm’n, 550 S.W.2d 314 (Tex. Civ. App.—

Dallas 1977, writ ref’d n.r.e.)...............................................................................11

Crosstex Energy Servs, L.P. v. Pro Plus, Inc., 430 S.W.3d

384 (Tex. 2014)......................................................................... 8, 9, 10, 11, 12, 13

Dallas Cent. Appraisal Dist. v. Wang, 82 S.W.3d 697 (Tex. App.—

Dallas 2002, pet. denied)......................................................................................11

Robert Navarro & Assocs. Eng’g, Inc. v. Flowers Baking Co. of El 

Paso, LLC, 389 S.W.3d 475 (Tex. App.—El Paso 2012, no pet.) ............... 5, 7, 8

Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265 

(Tex. App.—Houston [14th Dist.] 2011, pet. dism’d).........................................13

Howe-Baker Eng’rs, Ltd. v. Entr. Prod. Operating, LLC, 2011 WL 

1660715 (Tex. App.—Houston [1st Dist.] Apr. 29, 2011, no pet.)...................6, 7

JJW Dev., LLC v. Strand Sys. Eng’g, Inc., 378 S.W.3d 571 (Tex. 

App.—Dallas 2012, pet. denied)..........................................................................11

Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 

(Tex. App.—Corpus Christi 2009, no pet.) ...........................................................9

Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011)....................................................4

Nangia v. Taylor, 338 S.W.3d 768 (Tex. App.—Beaumont 2011, no 

pet.).......................................................................................................................13

Sharp Eng’g v. Luis, 321 S.W.3d 748 (Tex. App.—Houston [14th 

Dist.] 2010, no pet.) .............................................................................................12

ii
Siemens Energy, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 

Penn., No. 14-13-00863-CV, 2014 WL 2531577 (Tex. App.—

Houston [14th Dist.] June 3, 2014, pet. denied) ................................................5, 8

Sylva Eng’g Corp. v. Kaya, No. 03-12-00334-CV, 2013 WL 1748754 

(Tex. App.—Austin Apr. 18, 2013, no pet.)..........................................................5

TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13-

01021-CV, 2014 WL 4724706 (Tex. App.—Dallas Sept. 24, 2014, 

pet. filed) ..........................................................................................................8, 11

Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303 (Tex. 1978)............................10

Statutes

Tex. Civ. Prac. & Rem. Code § 74.351(c).................................................................8

Tex. Civ. Prac. & Rem. Code § 150.002 ................................ 2, 3, 6, 7, 8, 10, 11, 15

Tex. Civ. Prac. & Rem. Code § 150.002(b).................................................. 3, 4, 5, 8

Tex. Civ. Prac. & Rem. Code § 150.002(c)............................................ 9, 10, 12, 13

Tex. Civ. Prac. & Rem. Code § 150.002(e).............................................................16

iii
I. Introduction 

According to Morzak, her claims have merit and are not frivolous, and 

therefore the requirements of section 150.002 should not be applied strictly—by 

which she means, applied at all—in this case. But it is the Texas Legislature’s 

prerogative to specify the procedure and requirements under which claims against 

licensed professionals are determined to have sufficient merit to proceed. Courts 

are required to give effect to the Legislature’s determinations as expressed through 

a statute’s plain language. 

Morzak does not dispute DHM Design’s argument that section 150.002 

clearly and ambiguously requires a plaintiff to file a certificate of merit with its 

first-filed claim against a licensed design professional. Instead, Morzak argues that 

the first-filed certificate of merit—which does not name DHM Design as the 

design professional, but rather names only an employee of Barker Rinker Seacat 

Architecture (“BRS Architecture”)—is sufficient because it was generally 

“directed to the designer of the grandstand area.” To that end, Morzak asks this 

Court to ignore the statute’s plain language and construe it in a manner allegedly 

consistent with its legislative purpose. This Court should reject Morzak’s 

invitation to ignore the plain language of section 150.002, just as it has rejected 

similar invitations in the past. 

1
Although Morzak complains of “gotcha” tactics, she does not dispute that 

she learned approximately two months prior to the filing of her First Amended 

Petition that DHM Design had designed the grandstands at issue in this lawsuit. 

Morzak thus had two months to investigate, to obtain a proper certificate of merit 

naming DHM Design, and to attach it to her first pleading naming DHM Design as 

defendant. Morzak failed to do so. Morzak instead waited another thirty-nine days 

after filing her first amended petition to request an extension of time to file a 

certificate of merit. And when Morzak finally filed a certificate of merit actually 

naming DHM Design, that certificate of merit, too, was insufficient under section 

150.002. 

Morzak’s accusation that DHM Design’s reliance upon the plain language of 

section 150 constitutes unfair “gotcha” tactics designed to avoid answering 

Morzak’s claims has no merit and should warrant little sympathy. Similarly 

unavailing should be her request that the Court rewrite the statute to create an 

equitable “relation back” exception. Morzak had the information, the time, and the 

opportunity to comply with Texas Civil Practice & Remedies Code section 

150.002. Her failure to do so should have resulted in dismissal of her claims 

against DHM Design.

2
II. The Certificate of Merit Attached to Morzak’s First Amended Petition 

Is Insufficient to Meet the Statute’s Requirements 

The Certificate of Merit attached to Morzak’s First Amended Petition—the 

first to allege claims against DHM Design—sets out specifically that an employee 

of BRS Architecture, Kenneth Berendt, was the licensed professional who 

committed the “action, error, or omission” forming the basis of the lawsuit (CR 

32). Tex. Civ. Prac. & Rem. Code § 150.002(b). DHM Design’s name appears 

nowhere in the Certificate of Merit/expert affidavit (CR 32–39). Moreover, the 

certificate, which is identical to the certificate of merit attached to Morzak’s 

Original Petition, contains no allegations whatsoever concerning DHM Design’s 

conduct.

Ignoring contrary case law, Morzak argues that a certificate of merit need 

not attribute specific conduct to a particular defendant to satisfy the requirements 

of section 150.002(b). Going one step further, Morzak then argues that the 

certificate of merit need not even name the design professional-defendant at all to 

meet 150.002(b) requirements, so long as the affidavit makes seemingly 

meritorious allegations against any landscape design professional. 

Not only is Morzak’s argument unsupported by Texas case law construing 

section 150.002, it is unsupported by the plain language of the statute itself. 

Morzak contends that DHM design “hoists form over substance” and urges this 

Court to look beyond the language of the statute to “the purpose of the certificate 

3
of merit,” which purpose she claims was met here. The Legislature’s purpose, 

however, is best served by following the plain, unambiguous language of section 

150.002(b), which provides that:

The affidavit shall set forth specifically . . . the 

negligence . . . or other action, error or omission of the 

licensed or registered professional in providing the 

professional service.

(emphasis added). 

“The plain meaning of the text is the best expression of legislative intent 

unless a different meaning is apparent from the context or the plain meaning leads 

to absurd or nonsensical results.” See Molinet v. Kimbrell, 356 S.W.3d 407, 411 

(Tex. 2011). Here, the Legislature’s use of “the licensed . . . professional”—a 

definite article indicating a specific person—rather than “a”—an indefinite article 

with a more general meaning—makes clear that the affidavit must at minimum 

identify the licensed professional whose “negligence . . . other action, error or 

omission” forms the basis of the lawsuit. In other words, the affidavit must 

identify the licensed professional being sued. Moreover, construed literally, “the 

licensed or registered professional” is singular, not plural. This further indicates

that the certificate of merit must tie specified tortious conduct to a particular 

licensed or registered professional named therein.

Under Morzak’s reasoning, the name of virtually any licensed 

professional(s) (singular or plural) in the certificate of merit is sufficient to meet 

4
statutory requirements as to all other licensed professionals, so long as the affidavit 

alleges that some licensed professional was negligent in some manner. Taken to its 

logical conclusion, Morzak’s stance is that there is no limit to the number of 

professionals and claims a single certificate of merit can support. Yet not one 

Texas case holds that a certificate of merit that not only fails to name the 

defendant, but names some other entity entirely, satisfies the requirements of 

section 150.002(b). This case would be the first, and by a long shot. 

To the contrary, several Texas courts have held that even where the affiant 

identifies the proper licensed professional in the certificate of merit, the certificate 

is nevertheless insufficient if it fails to set forth conduct specific to that particular 

licensed professional. Texas courts have concluded that certificates of merit 

naming more than one professional, but failing to specifically attribute negligent 

conduct to each, are insufficient. E.g., Robert Navarro & Assocs. Eng’g, Inc. v. 

Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475, 482–83 (Tex. App.—El 

Paso 2012, no pet.) (holding that allegations in a certificate of merit must be tied to 

a particular defendant); Siemens Energy, Inc. v. Nat’l Union Fire Ins. Co. of 

Pittsburgh, Penn., No. 14-13-00863-CV, 2014 WL 2531577, at *10 (Tex. App.—

Houston [14th Dist.] June 3, 2014, pet. denied) (same); Sylva Eng’g Corp. v. Kaya, 

No. 03-12-00334-CV, 2013 WL 1748754, at *5 (Tex. App.—Austin Apr. 18, 

2013, no pet.) (same). 

5
Under the rationale of these cases, the Certificate of Merit attached to 

Morzak’s First Amended Petition (alleging the negligent conduct of BRS 

Architecture, and not naming DHM Design at all), is wholly inadequate as to DHM 

Design. That is, if a certificate of merit is insufficient because it fails to tie specific 

conduct to a specific defendant, it is surely insufficient if it fails to name the 

defendant at all.

Morzak relies in her brief on Howe-Baker to argue that a certificate of merit 

need not tie allegedly tortious conduct to a particular defendant. See Howe-Baker 

Eng’rs, Ltd. v. Entr. Prod. Operating, LLC, 2011 WL 1660715, at *6 (Tex. App.—

Houston [1st Dist.] Apr. 29, 2011, no pet.). But Morzak ignores that the two 

named defendants in that case were alleged to be alter egos, or a single legal entity. 

Id. For that reason, the court explained, section 150.002 did not require that the 

certificate of merit attribute a negligent act, error, or omission to each of the two 

named entities. The court ultimately held that the statute did not require the 

certificate of merit to attribute conduct “to a defendant whose alleged liability for a 

claim covered by the statute is entirely vicarious of the alleged liability of another 

defendant as to which the affidavit did not satisfy the statute.” Id. at *6.

Here, there is no allegation that DHM Design is vicariously liable for BRS 

Architecture’s acts or omissions or that the companies were alter egos. Only under 

those facts could Morzak’s argument be supported by the rationale set forth in 

6
Howe-Baker—even assuming it was correctly decided—and could a certificate of 

merit naming only BRS Architecture suffice to meet section 150.002 requirements 

as to DHM Design. See id.; see also Robert Navarro & Assocs., 389 S.W.3d at 

480 (recognizing that Howe-Baker turns on its facts—i.e., is limited to cases 

wherein the defendants are alter egos and liability is vicarious).

Morzak concedes that Navarro & Associates stands for the proposition that a 

certificate of merit must tie alleged tortious conduct to a specific defendant 

(Appellee’s Brief at p. 9 n.3). Yet Morzak fails to distinguish the case or explain 

in her brief why this Court should not reach the same conclusion the El Paso Court 

of Appeals reached there. See Robert Navarro & Assocs., 389 S.W.3d at 482. In 

that case, the plaintiff filed a certificate of merit that discussed the negligence of 

two different defendants using the phrase “and/or.” Id. at 481. The defendants 

filed a motion to dismiss on that basis, contending that the certificate of merit was 

deficient because “the statute requires a direct and unequivocal statement by the 

affiant that attributes a specific act, error, or omission to each defendant.” Id. 

The court of appeals agreed, explaining:

[T]he statutory language does not allow for collective 

assertions of negligence: It cannot be presumed that 

anytime two defendants are accused of similar conduct 

that valid claims exist against both of them—if such 

claims indeed exist, the expert must actually say so, and 

do so in the form of positive averments made under oath.

7
Id. at 482; see also Siemens Energy, 2014 WL 2531577, at *10 (“Because the 

affidavits at issue did not clearly indicate that one particular defendant was 

involved in a particular professional error, the trial courts abused their discretion in 

denying the motion to dismiss.”).

III. Morzak Did Not Seek a Timely Extension to the ContemporaneousFiling Requirement and Is Not Entitled to a “Good Cause” Exception

A. The Only Exception to the Contemporaneous Filing Rule Is Stated in 

the Statute

Section 150.002 requires that the plaintiff “file the certificate of merit with 

the first petition filed in the action that raises claims subject to its provisions.” TIC 

N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13-01021-CV, 2014 WL 

4724706, at *4 (Tex. App.—Dallas Sept. 24, 2014, pet. filed). Texas courts, 

including this Court, have uniformly construed this language to require that the 

plaintiff file its certificate of merit with the “first-filed petition.” See id.

The exception to this rule is narrow, as the Texas Supreme Court has 

recognized. Crosstex Energy Servs, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390–

91 (Tex. 2014). The healthcare liability claim statute, for example, allows a party 

filing a deficient expert report one thirty-day extension to cure a deficiency. See 

Tex. Civ. Prac. & Rem. Code § 74.351(c). In contrast, the design professional 

statute does not. See id. § 150.002(b); see also Landreth v. Las Brisas Council of 

Co-Owners, Inc., 285 S.W.3d 492, 499 (Tex. App.—Corpus Christi 2009, no pet.) 

8
(comparing the certificate of merit requirement of a design professional claim to 

the expert-report requirement of a medical liability claim), superseded by statute 

on other grounds as stated in Crosstex, 430 S.W.3d at 393.

To obtain an extension to the certificate of merit requirement, plaintiff must 

meet the requirements of section 150.002(c):

The contemporaneous filing requirement of Subsection 

(a) shall not apply to any case in which the period of 

limitation will expire within 10 days of the date of filing 

and, because of such time constraints, the plaintiff has 

alleged that an affidavit of a third-party licensed 

architect, licensed professional engineer, registered 

landscape architect, or registered professional land 

surveyor could not be prepared. In such cases, the 

plaintiff shall have 30 days after the filing of the 

complaint to supplement the pleadings with the affidavit. 

The trial court may, on motion, after hearing and for 

good cause, extend such time as it shall determine justice 

requires.

Tex. Civ. Prac. & Rem. Code § 150.002(c) (emphasis added); Crosstex, 430 

S.W.3d at 390 (“A plaintiff must allege that its near-limitations filing prevented the 

preparation of a certificate of merit.”). 

Morzak points out that although she did not assert the time-constraint 

allegation in her first amended petition, she made those allegations over two 

months later in her second amended petition. For the first time, Morzak argues in 

this Court that under the “relation-back doctrine,” her second amended petition 

relates back to the time of filing for her first amended petition, making her time9
constraint allegation timely to trigger the automatic thirty-day extension 

(Appellee’s Brief at p. 15). 

Morzak’s newfound reliance on the relation-back doctrine is untenable. 

Morzak has no authority to support it either in the text of the statute or in case law. 

The case Morzak cites to support this theory is not even a design professional case, 

and has nothing to do with section 150.002.1

 Morzak does not explain why the 

relation-back doctrine, applicable in the context of statute of limitations, should 

save her claims here in an entirely different context, and where the Legislature has 

expressly required litigants to strictly adhere to a narrow filing timeframe without 

mentioning anything about the relation-back doctrine. Crosstex, 430 S.W.3d at 

390–91 (recognizing that section 150.002(c) employs a very narrow exception); 

see Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex. 1978) (“When 

specific exclusions or exceptions to a statute are stated by the Legislature, the 

intent is usually clear that no others shall apply.”). Neither does Morzak have 

authority to support her argument that section 150.002 allows her to supplant her 

first amended petition with her first, for purposes of making her certificate of merit 

timely. 

1 Austin Nursing Center v. Lovato, 171 S.W.3d 845, 846, 853 (Tex. 2005), concerns whether 

standing requirements are met where a litigant lacks capacity to bring a lawsuit at the time it is 

filed, but which defect is later cured by an administrator. 

10

 
“[F]ailure to file a certificate of merit with the original petition cannot be 

cured by amendment.” Crosstex Energy Servs., 430 S.W.3d at 395; see JJW Dev., 

LLC v. Strand Sys. Eng’g, Inc., 378 S.W.3d 571, 576 (Tex. App.—Dallas 2012, 

pet. denied); TIC N. Cent. Dallas, 2014 WL 4724706, at *3–4. Should Morzak’s 

approach prevail, it would effectively eviscerate this rule and the statute’s narrow 

exception by allowing litigants to simply amend their petitions to extend the 

deadline to file a compliant certificate of merit. The relation-back doctrine is 

equitable in nature, but courts are not permitted to assume the legislative 

prerogative and rewrite a statute in order to save a litigant from a harsh result. See 

Dallas Cent. Appraisal Dist. v. Wang, 82 S.W.3d 697 (Tex. App.—Dallas 2002, 

pet. denied) (“We are not free to rewrite the statutes to reach a result we might 

consider more desirable, in the name of statutory construction.”) (citation omitted); 

Crosland v. Tex. Emp’t Comm’n, 550 S.W.2d 314, 320 (Tex. Civ. App.—Dallas 

1977, writ ref’d n.r.e.) (Robertson, dissenting) (“[T]he harshness of a literal 

construction’s result is no excuse for judicial improvisation. An unambiguous 

statute should be applied and enforced as it reads, regardless of its policy or 

purpose or the justice of its effect.”).

B. Morzak Did Not Meet the Statutory Prerequisites to Qualify for a 

Good-Cause Exception

Section 150.002 allows for supplementation of the pleadings with a 

certificate of merit under only limited circumstances. Subsection (c) has two 

11
requirements: (1) the limitations period must be about to expire in ten days, and (2) 

the plaintiff “has alleged” that because of the time constraints, an affidavit could 

not be prepared. If these two requirements are both met, plaintiff has thirty days to 

supplement the pleadings with a certificate of merit. On the other hand, if either of 

these two requirements is not met, plaintiff does not qualify for an exemption from 

the contemporaneous-filing requirement. See Tex. Civ. Prac. & Rem. Code 

§150.002(c); Sharp Eng’g v. Luis, 321 S.W.3d 748, 751 (Tex. App.—Houston 

[14th Dist.] 2010, no pet.). In that case, plaintiff also does not qualify for a goodcause exception. Crosstex, 430 S.W.3d at 390–91.

Morzak argues that she met subsection (c)’s twin requisites because “she 

filed her first amended petition adding DHM on the date limitations expired” and 

then made the time-constraint allegation in her second amended petition, which she 

filed two months later (Appellee’s Brief at p. 15). Again, Morzak ignores the plain 

language of the statute.

The Legislature’s use of “will expire,” coupled with its use of “has alleged,” 

makes clear that to take advantage of the exception to the contemporaneous-filing 

rule, the plaintiff must make the allegation that it was unable to obtain a certificate 

of merit in the first-filed pleading—i.e., before limitations expires. Here, it is 

undisputed that Morzak did not allege in her First Amended Petition that she could 

not procure a certificate of merit, and then she waited another thirty-nine days after 

12
that initial filing to request an extension to supplement her non-complaint 

certificate of merit. At the very least, Morzak was required to make the timeconstraint allegation within the thirty-days following the filing of her First 

Amended Petition. Because she did not, the request was untimely. See Nangia v. 

Taylor, 338 S.W.3d 768, 772 (Tex. App.—Beaumont 2011, no pet.); Apex 

Geoscience, Inc. v. Arden Texarkana, LLC, 370 S.W.3d 14, 22–23 (Tex. App.—

Texarkana 2012, pet. granted, judgm’t vacated by agr.). 

Morzak continues to argue that the trial court had discretion to find that good

cause existed to extend the time for filing a supplemental certificate of merit up to 

and including June 13, 2014. But Crosstex forecloses this result. Only when the 

twin requisites of section 150.002(c) are met, and the automatic thirty-day 

supplementation period is triggered, may the trial court then extend that thirty-day 

period for good cause. Here, Morzak failed to comply with the statute’s plain 

language and intent by filing a certificate of merit and invoking a basis for a 

supplementation period within thirty days of filing her first amended petition. The 

trial court thus had no discretion to grant a good-cause exception. See Crosstex, 

430 S.W.3d at 390; Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352 

S.W.3d 265, 269 (Tex. App.—Houston [14th Dist.] 2011, pet. dism’d). Likewise, 

the trial court had no discretion but to dismiss the claims against DHM Design. 

13
IV. DHM Design Did Not Waive Its Argument That the Certificate of Merit 

Filed on June 13th Is Insufficient

Morzak argues that DHM Design complained in the trial court only of the 

timing of the supplemental certificate of merit (dated June 13, 2014), and that 

DHM Design has challenged the sufficiency of the supplemental certificate for the 

first time on appeal. Morzak is mistaken. In DHM Design’s Motion to Dismiss, 

filed on July 30, 2014, and contained in this record, DHM Design argued the 

following to the trial court:

Finally, even if the Court were to decide to consider Mr. 

DiNicola’s June 13, 2014 Certificate of Merit 

Affidavit—which, as explained above, would be patently 

improper—the Court should still grant this motion to 

dismiss as the late-filed June 13, 2014 Certificate of 

Merit does not “set forth specifically” the “negligence if 

any, or other action, error or omission” of DHM. Instead 

of setting forth any negligence or other act, error, or 

omission of DHM, the June 13, 2014 Certificate of Merit 

attempts to modify or supplement Mr. DiNicola’s 

January 24, 2014 affidavit by alleging that: “The 

Certificate of Merit, dated 24 January 2014, applies to 

Barker Rinker Seacat Architecture and DHM 

Design . . . .”

(CR 143–44). 

Again, Morzak fails to address the Texas cases holding that a certificate of 

merit, to be sufficient, must tie a specific defendant to specific tortious conduct. 

See supra Discussion at Section II. As DHM Design explained in its opening 

14
brief, the insufficiency of Morzak’s June 13th Certificate of Merit is yet another 

reason why the claims against DHM Design must be dismissed.

CONCLUSION AND PRAYER

The purpose of section 150.002’s certificate of merit requirement is to 

provide the trial court an expeditious means to determine whether a plaintiff’s 

claims have merit. For the trial court to make this determination properly, the 

plain language of the statute must be followed: the certificate of merit must, at 

minimum, identify “the licensed professional” being sued, and the conduct for 

which he or she being sued. The certificate of merit must also be timely filed. The 

statute leaves no question that failure to strictly adhere to the statutory 

requirements results in mandatory dismissal.

The trial court abused its discretion by (1) concluding that the statute does 

not require that a certificate of merit set forth an act or omission attributable to a 

particular licensed professional “specifically for each theory of recovery,” and (2) 

concluding that the good-cause exception was available to Morzak and that good 

cause existed to extend the statutory time-period up to and including June 13, 

2014. For these reasons, Appellant DHM Design requests that this Court reverse 

the trial court’s order denying its Motion to Dismiss and instead render judgment 

dismissing Morzak’s claims against DHM Design under Texas Civil Practice & 

15
Remedies Code section 150.002(e). Appellant also requests all other relief to 

which it may be entitled.

Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS, L.L.P.

By: /s/ Sara Berkeley Churchin

Wade Crosnoe

State Bar No. 00783903

E-mail: wcrosnoe@thompsoncoe.com

Sara Berkeley Churchin

State Bar No. 24073913

E-mail: schurchin@thompsoncoe.com

701 Brazos, Suite 1500

Austin, Texas 78701

Telephone: (512) 703-5035

Facsimile: (512) 708-8777

Shawn W. Phelan

State Bar No. 00784758

sphelan@thompsoncoe.com

THOMPSON, COE, COUSINS & IRONS, L.L.P.

Plaza of the Americas

700 N. Pearl Street, Twenty-Fifth Floor

Dallas, Texas 75201-2832

Telephone: (214) 871-8200

Facsimile: (214) 871-8209

ATTORNEYS FOR APPELLANT DHM DESIGN

16
CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Tex. R. App. P. 9.4(i)(2)(B) 

because it contains 3,598 words, excluding the parts of the brief exempted by Tex. 

R. App. P. 9.4(i)(1).

/s/ Sara Berkeley Churchin

Sara Berkeley Churchin

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Appellant’s Reply Brief was 

served on April 20, 2015, via electronic service or email, to the following counsel:

Steve E. Aldous

Forshey & Prostok, LLP

500 Crescent Court, Suite 240

Dallas, Texas 75201

Email: saldous@forsheyprostok.com

Mark Alan Goodman

Fox Rothschild, LLP

Two Lincoln Centre

5420 Lyndon B Johnson Freeway, Suite 1200

Dallas, Texas 75240

Email: magoodman@foxrothschild.com

/s/ Sara Berkeley Churchin

Sara Berkeley Churchin

17