Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 99th District Court Lubbock County, Texas
Trial Court No. 2016-519, 559, Honorable William C. Sowder,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. CAMPBELL, JUSTICE
National Insurance Company, as subrogee of its insured, sued
TDIndustries, Inc. (TDI), a licensed engineering firm, for
alleged negligence in the design and installation of a
storm-water drainage system in United's insured's
building. United did not file a certificate of merit with its
original petition and TDI moved to dismiss the suit with
prejudice under Civil Practice and Remedies Code section
150.002(e) for that reason. At the hearing on United's
motion, United did not deny its failure to file a certificate
of merit or that the suit should be dismissed. It argued
instead for dismissal without prejudice. Counsel for United
told the trial court that he "looked at it as a roofing
case, but upon further reflection looking at TD Industries,
they're clearly an engineering firm as well."
United's counsel also told the court at the conclusion of
the hearing that he had given counsel for TDI a certificate
of merit "that [United] just obtained." The trial
court dismissed the case without prejudice and TDI appeals
that determination. We will affirm the trial court's
order of dismissal without prejudice.
three issues, TDI argues the trial court abused its
discretion by not dismissing United's case with
prejudice. "A court abuses its discretion if its
decision is arbitrary, unreasonable, or without reference to
guiding principles." In re GE Co., 271 S.W.3d
681, 685 (Tex. 2008) (orig. proceeding).
every suit or arbitration for damages arising out of the
provision of professional services by licensed or registered
professionals, including architects and engineers, the
plaintiff must file the affidavit of a third-party
professional, called a "certificate of merit, "
with its complaint. Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002(a), (b). By subsection 150.002(e), 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." Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(e).
contentions TDI raises by its three issues largely parallel
the issues just recently addressed by the Supreme Court of
Texas. See Pedernal Energy, LLC. v. Bruington Eng'g.,
Ltd., No. 15-0123, 2017 Tex. LEXIS 408, at *13 (Tex.
Apr. 28, 2017). We find the court's holdings in
Pedernal Energy resolve all TDI's contentions,
and we will address TDI's three issues together.
primary argument is that a trial court "lacks any real
discretion" when a plaintiff fails to file a certificate
of merit with its original petition, and must dismiss the
suit with prejudice. Pedernal Energy holds the trial
court's decision whether to dismiss with or without
prejudice in that circumstance is discretionary, subject to
the prohibition on arbitrary or unreasonable decisions
without reference to guiding rules or principles. 2017 Tex.
LEXIS 408, at *16 (citing CTL/Thompson Texas, LLC v.
Starwood Homeowner's Ass'n, 390 S.W.3d 299, 301
(Tex. 2013) (per curiam)).
also argues against the application of a "good
cause" standard, by which a court might dismiss the
plaintiff's claim without prejudice if its failure to
file the certificate of merit was not intentional or the
result of conscious indifference. The court in Pedernal
Energy rejected such a standard. 2017 Tex. LEXIS 408, at
*13. Noting the absence of an expressly-stated legislative
rule or principle to guide a court's decision, the court
held that the decision requires consideration of various
factors, giving attention to the facts and circumstances of
the particular case. Id. at *16. It reiterated its
explanation in CTL/Thompson that dismissal under
section 150.002(e) "is a sanction . . . to deter
meritless claims and bring them quickly to an end."
Id. at *17 (quoting CTL/Thompson, 390
S.W.3d at 301).
the abuse-of-discretion to the record before us, we consider
whether the circumstances presented to the trial court at the
time of its dismissal demonstrated that United's claims
are meritless, or otherwise required dismissal with
prejudice. See Pedernal Energy, 2017 Tex. LEXIS 408,
at *18 (court considered "record as of the time of the
dismissal"). United's petition alleged TDI
negligently installed, designed, or serviced a storm-water
drainage system and as a proximate result of the negligence
its insured sustained damage to its business property in the
amount of $317, 729.61. On its face, the pleading alleged a
cause of action for negligence brought by an insurance
company as its insured's subrogee. Standing alone,
United's failure to file a certificate of merit with its
original petition does not show its allegations have no merit
and require the sanction of dismissal with prejudice. See
Pedernal Energy, 2017 Tex. LEXIS 408, at *18
(plaintiff's "failure to file an expert affidavit
with its original petition was not, by itself, evidence that
the allegations in its petition lacked merit or mandated the
sanction of dismissal with prejudice"). Nor has TDI
demonstrated the trial court's dismissal without
prejudice otherwise constituted an abuse of discretion.
See id. (finding record as of time of dismissal did
not otherwise lead to conclusion court violated guiding rules
or principles such that dismissal without prejudice was abuse
of discretion). The expert's affidavit that United
produced at the hearing is not in the appellate record and it
is unclear the trial court reviewed it. Nonetheless,
United's ability to produce an expert's affidavit at
the hearing is a factor the trial court could have considered
in its decision whether to dismiss the case with prejudice.
In sum, the record before us does not demonstrate the trial
court abused its discretion by dismissing United's case
without prejudice. We overrule TDI's issues.
overruled TDI's issues, we affirm the judgment ...