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Pedernal Energy, LLC v. Bruington Engineering, Ltd.

Supreme Court of Texas

April 28, 2017

Pedernal Energy, LLC, Petitioner,
v.
Bruington Engineering, Ltd., Respondent

          Argued September 14, 2016

         On Petition for Review from the Court of Appeals for the Fourth District of Texas

          Justice Johnson delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Willett, Justice Guzman, Justice Lehrmann, Justice Boyd, and Justice Brown joined.

          Phil Johnson Justice

         Section 150.002 of the Civil Practice and Remedies Code is entitled "Certificate of Merit." It requires a plaintiff to file an expert affidavit in a lawsuit or arbitration for damages arising out of the provision of professional services by licensed or registered professionals. Section 150.002(e) provides that if an affidavit is not filed in accordance with the statute, the trial court shall dismiss the claim and the dismissal may be with prejudice. This case involves the application of that language.

         Pedernal Energy, Ltd. sued Bruington Engineering, LLC and others for damages resulting from a fracturing operation on Pedernal's gas well. Pedernal alleged that Bruington provided substandard engineering services in connection with the operation, but failed to file a certificate of merit expert affidavit with its claim. Bruington moved for dismissal and Pedernal non-suited, then re-sued Bruington by amended petition accompanied by an expert affidavit. The trial court denied Bruington's motion to dismiss, Bruington appealed, and the case was remanded with instructions. The trial court then dismissed Pedernal's amended claim without prejudice. Bruington again appealed. This time the court of appeals held that section 150.002(e) required Pedernal's claim to be dismissed with prejudice because an expert affidavit was not filed with the original petition.

         We reverse the judgment of the court of appeals and reinstate the judgment of the trial court. Section 150.002(e) required dismissal of the claims against Bruington, but the statute affords trial courts discretion to dismiss either with or without prejudice. Under this record the trial court did not abuse its discretion by dismissing the claims without prejudice.

         I. Background

         Pedernal's predecessors in interest hired Schlumberger Technology Corporation, Schlumberger Services, Inc., and Schlumberger, Ltd. (collectively, Schlumberger) to perform fracturing operations on a gas well in Zapata County. Bruington was hired as project engineer.

         The fracturing operations did not go well, resulting in Pedernal's suing Schlumberger and Bruington for damages to the well and the formation. Pedernal did not file a certificate of merit expert affidavit (affidavit) as to Bruington with its original petition, so Bruington moved for dismissal of the claims against it with prejudice pursuant to section 150.002 of the Civil Practice and Remedies Code. That section, in relevant part, provides as follows:

Certificate of Merit
(a) 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 . . . .
(b) The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. . . .
(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.
. . . .
(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.
(f) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.

Tex. Civ. Prac. & Rem. Code § 150.002 (emphasis added). Before the trial court heard Bruington's motion, Pedernal filed notice of non-suit as to Bruington and requested the trial court to sign an order of non-suit without prejudice, which it did. Pedernal's suit against Schlumberger proceeded.

         Pedernal amended its petition several months after the non-suit to reassert the same claims against Bruington that it had asserted in its original petition. This time it attached an affidavit. Bruington moved for dismissal with prejudice of the claims in the amended petition on two grounds. The first was that Pedernal did not file an expert affidavit with its original petition as required by section 150.002; the trial court did not hold a hearing on Bruington's motion to dismiss with prejudice and did not address the motion in its order dismissing Pedernal's claims without prejudice, so the dismissal was "incomplete"; therefore, the claims should be dismissed with prejudice. The second ground was that even if the claims in the amended petition were not barred because of the failure to file an affidavit with the original petition, the affidavit filed with Pedernal's amended petition failed to address each of ...


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