Appeal from the 215th District Court Harris County, Texas
Trial Court Cause No. 2015-26137
consists of Chief Justice Frost and Justices Brown and
certificate of merit case, we must determine whether the
trial court erred by dismissing the third-party claims of
Engineering & Terminal Services, L.P. ("ETS")
against TARSCO, Inc. and Orcus Fire Protection, LLC because
ETS did not file a certificate of merit with its third-party
petition. In Jaster v. Comet II Construction, Inc.,
438 S.W.3d 556 (Tex. 2014), five justices who joined in the
court's judgment agreed that a third-party plaintiff is
not "the plaintiff" in an "action or
arbitration proceeding" and thus is not subject to the
certificate of merit requirement in Civil Practice and
Remedies Code section 150.002. The question presented in this
appeal is whether the certificate of merit requirement
applies to a third-party petition filed by an original
plaintiff seeking contribution from a third-party defendant.
We conclude that ETS, a third-party plaintiff, was not
required to file a certificate of merit with its third-party
petition against TARSCO and Orcus. We reverse and remand for
further proceedings consistent with this opinion.
an engineering firm. Buckeye Partners, LP contracted with ETS
to provide engineering design and support services for
construction of a tank farm and other petroleum processing
facilities, as well as a marine terminal, in the Corpus
Christi area. ETS, in turn, subcontracted with TARSCO to
provide on-site engineering and design services for the part
of the project known as "the LPG process facility in
Area 5000." Separately, ETS subcontracted with Orcus to
provide fire-protection engineering consulting services.
sued Buckeye for breach of contract based on Buckeye's
alleged failure to pay for ETS's engineering services. In
response to ETS's original petition, Buckeye filed
counterclaims against ETS, alleging that ETS's
engineering designs contained errors, omissions, and other
deficiencies that caused Buckeye substantial damages totaling
over $3, 000, 000. As relevant here, Buckeye complained in
part about work that ETS subcontracted to TARSCO and Orcus.
Buckeye was not required to file a certificate of merit with
its counterclaim,  and our record does not indicate whether
it did so.
a third-party plaintiff, filed a third-party petition against
TARSCO and Orcus based on the allegedly defective engineering
and design services forming the basis of Buckeye's
counterclaim. ETS sought contribution damages from TARSCO and
Orcus to the extent that ETS was liable to Buckeye. ETS still
denied liability and denied Buckeye's allegations that
the engineering and design services were defective. ETS did
not file a certificate of merit with its third-party petition
against TARSCO and Orcus.
and Orcus filed motions to dismiss ETS's third-party
claims under Texas Civil Practice and Remedies Code section
150.002 because ETS did not file a certificate of merit with
its third-party petition. In relevant part, section 150.002,
entitled "Certificate of Merit, " provides:
In any action or arbitration proceeding for damages arising
out of the provision of professional services by a licensed
or registered professional, the plaintiff shall be required
to file with the complaint an affidavit of a third-party
licensed architect, licensed professional engineer,
registered landscape architect, or registered professional
land surveyor . . . .
Tex. Civ. Prac. & Rem. Code § 150.002.
responded to the motions to dismiss, relying on
Jaster for the proposition that third-party
plaintiffs are exempt from section 150.002's certificate
of merit requirement. The trial court disagreed, granted
TARSCO's and Orcus's motions, and dismissed ETS's
claims against them with prejudice.
timely filed this interlocutory appeal, challenging the trial
court's dismissal of its third-party claims against
TARSCO and Orcus. See Tex. Civ. Prac. & Rem.
Code § 150.002(f).
we review a trial court's order granting a motion to
dismiss under section 150.002 for an abuse of discretion.
Epco Holdings, Inc. v. Chicago Bridge & Iron
Co., 352 S.W.3d 265, 269 (Tex. App.-Houston [14th Dist.]
2011, pet. dism'd). A court abuses its discretion if it
fails to analyze or apply the law correctly. Id.;
Sharp Eng'g v. Luis, 321 S.W.3d 748, 752 (Tex.
App.-Houston [14th Dist.] 2010, no pet.). But, we review the
ruling de novo when, as here, none of the relevant facts are
disputed and the trial court's ruling is based on
statutory construction. See Epco Holdings, 352
S.W.3d at 269. The question before us is whether the
certificate of merit requirement applies to ETS's
third-party petition- a ...