Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CDI Corp. v. Total Specialties USA, Inc.

Court of Appeals of Texas, Fourteenth District

July 27, 2017

CDI CORPORATION, Appellant
v.
TOTAL SPECIALTIES USA, INC., Appellee

         On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2015-64655

          Panel consists of Chief Justice Frost and Justices Donovan and Wise.

          OPINION

          Ken Wise, Justice

         This 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.

         Factual and Procedural Background

         On 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.

         It is 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).

         The 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.

         On 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."

         After 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 following facts:

(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 engineers practice;
(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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.