Appeal from the 11th District Court Harris County, Texas
Trial Court Cause No. 2015-64655
consists of Chief Justice Frost and Justices Donovan and
case involves a plaintiff's failure to file a certificate
of merit, as required under Chapter 150 of the Texas Civil
Practice and Remedies Code, in a case arising at least in
part out of the defendant's provision of professional
engineering services. Appellant CDI Corporation (CDI)
contends that the trial court abused its discretion by
denying its request for a dismissal of the case with
prejudice when appellee TOTAL Specialties USA, Inc. (TOTAL)
stipulated that the reason it failed to file the certificate
is that TOTAL and its attorneys did not know that a
certificate of merit was required. TOTAL disagrees, and also
asserts that this court lacks jurisdiction over the appeal.
Because we have jurisdiction over the appeal and the Supreme
Court of Texas's recent opinion in Pedernal Energy,
LLC v. Bruington Engineering, Ltd. defeats CDI's
issue, we affirm.
and Procedural Background
October 28, 2015, TOTAL filed this lawsuit against CDI in the
11th District Court in Harris County. TOTAL's petition
included claims for breach of contract, negligence, gross
negligence, and fraud related to the construction of
TOTAL's hydro de-aromatization unit at TOTAL's
Bayport refinery in Pasadena, Texas.
undisputed that TOTAL sought damages arising at least in part
out of the provision of professional engineering services by
CDI. In such a case, section 150.002 of the Texas Civil
Practice and Remedies Code requires that a certificate of
merit be filed contemporaneously with the petition.
See Tex. Civ. Prac. & Rem. Code §
150.002(a). Because TOTAL did not file a certificate of merit
contemporaneously with its petition and the only exception to
the statute's general requirement did not apply, CDI
moved to dismiss TOTAL's lawsuit on November 30, 2015.
See id. § 150.002(c) (providing good-cause
exception if limitations period will expire within 10 days of
filing). In its motion, CDI specifically requested that
TOTAL's petition be dismissed with prejudice. See
id. § 150.002(e).
parties then engaged in a series of meetings over several
months to discuss the issues and exchange information in
preparation for mediation. However, on March 28, 2016, TOTAL
filed a notice of nonsuit and request for dismissal without
prejudice. In the notice of nonsuit, TOTAL explained that it
intended to refile a similar case with a certificate of
merit, and attached the 36-page certificate of merit "to
catalog CDI's pervasive and crippling engineering
failures." TOTAL filed a new lawsuit against CDI in the
129th District Court of Harris County the next day.
March 31, 2016, the 11th District Court signed an order
dismissing TOTAL's claims without prejudice. The order
recited that the trial court considered only TOTAL's
notice of nonsuit and ordered the dismissal without prejudice
"[p]ursuant to Texas Rule of Civil Procedure 162."
the dismissal of TOTAL's petition without prejudice, CDI
sought a hearing on its motion to dismiss with prejudice.
TOTAL filed a response to CDI's motion to dismiss,
attaching another copy of the certificate of merit. CDI moved
to strike TOTAL's certificate of merit and set both the
motion to strike and its motion to dismiss for hearing. In
advance of the hearing, the parties stipulated to the
(1) a Certificate of Merit was not filed with the Original
Petition in Cause No. 2015-64655, TOTAL Specialties USA,
Inc. v. CDI Corporation, in the 11th District Court of
Harris County, Texas;
(2) CDI is a corporation in which registered professional
(3) the Original Petition sought damages arising at least in
part out of the provision of professional engineering
services by CDI;
(4) no Certificate of Merit had been prepared as of October
28, 2015, the date on which the ...