Appeal from the 215th District Court Harris County, Texas
Trial Court Cause No. 2015-20903
consists of Justices Boyce, Busby and Wise.
William J. Boyce Justice.
and Vivian Lee appeal the trial court's order granting
dismissal of their suit against 149 Pool, LLC with prejudice
because they failed to file a certificate of merit.
See Tex. Civ. Prac. & Rem. Code Ann. §
150.002 (Vernon 2011). The Lees contend the trial court
abused its discretion by dismissing their suit with prejudice
because they did not assert claims against a licensed or
registered professional arising out of the provision of
professional services and thus were not required to attach a
certificate of merit to their petition. Because 149 Pool is
not a licensed or registered professional as defined by
statute, we conclude that the trial court abused its
discretion in dismissing the Lees' suit against 149 Pool
with prejudice. We reverse the trial court's order of
dismissal and remand this case for further proceedings.
Lees entered into a contract with 149 Pool for the
construction of a swimming pool designed by Gessner
Engineering, LLC. The contract allegedly required 149 Pool to
construct the pool structure with gunite to achieve a minimum
strength of 4, 000 pounds per square inch (PSI). The Lees
allege that Gessner twice tested gunite samples, and 149 Pool
itself tested the gunite, but the gunite failed to achieve a
strength of 4, 000 PSI. 149 Pool allegedly failed to cure
this issue, and the Lees issued a stop work notice to 149
Lees sued 149 Pool on April 10, 2015, alleging claims for
negligence, breach of contract, breach of warranty, and
violations of the Deceptive Trade Practices Act. 149 Pool
filed an answer on May 21, 2015. 149 Pool filed a motion to
dismiss the Lees' suit with prejudice, arguing that the
Lees were required to file a certificate of merit pursuant to
section 150.002. The Lees responded to 149 Pool's motion
to dismiss, arguing that section 150.002 is inapplicable in
this case because the Lees (1) "have not sued Gessner,
the engineering firm that designed the pool" and
"[t]here are no allegations of negligence against a
licensed or registered architect or engineer in this
lawsuit;" and (2) "are not alleging claims against
a registered professional, nor are they claiming the damages
arose out of the provision of professional services."
trial court signed an order granting 149 Pool's motion to
dismiss on July 31, 2015. The Lees filed a Request for
Rehearing and Motion for New Trial on August 11, 2015. The
trial court signed an "Order Denying Request For
Rehearing And Motion For New Trial" on November 6, 2015.
The Lees filed their notice of appeal on November 13, 2015.
we can consider the merits of the Lees' two issues raised
on appeal, we first address 149 Pool's contention that we
lack jurisdiction to hear the Lees' appeal.
Pool contends that "[t]his court lacks jurisdiction over
this appeal because the Lees did not timely file their notice
of appeal" and failed to offer a reasonable explanation
for the late filing. 149 Pool contends that we must dismiss
the Lees appeal for lack of jurisdiction.
begin our analysis with a timeline.
• The trial court signed an order granting 149
Pool's motion to dismiss the Lees' claims with
prejudice for failure to file a certificate of merit on July
• The Lees filed a Request for Rehearing and Motion for
New Trial on August 11, 2015.
• 149 Pool filed a response to the Lees' motion on
August 13, 2015.
• The trial court signed an order on August 17, 2015,
granting the Lees' motion and setting a hearing "to
reconsider the Motion to Dismiss of 149 Pool" for August
• According to the Lees, the trial court held a hearing
on their motion on August 24, 2015, and "orally granted
the motion and reinstated the case." 149 Pool did not
attend the hearing. The trial court's docket sheet does
not contain an entry for August 24, 2015, but it contains an
entry for August 17, 2015, stating: "Motion To Reinstate
Granted, " "Motion For New Trial Granted, "
"New Trial Granted ...