Court of Appeals of Texas, Ninth District, Beaumont
Submitted on April 9, 2019
Appeal from the 60th District Court Jefferson County, Texas
Trial Cause No. B-198, 294
Kreger, Horton and Johnson, JJ.
CHARLES KREGER Justice
an interlocutory appeal of the trial court's order
denying AMEC Foster Wheeler USA Corporation's (Foster
Wheeler) motion to dismiss for the failure of Kevin Goats,
Lori Goats, and Afshin "Sean" Farshad (Appellees)
to file a certificate of merit with their first-filed
complaint in which Foster Wheeler is named as a defendant.
See Tex. Civ. Prac. & Rem. Code Ann.
§§ 150.001-.002 (West 2019).The trial court
denied the motion to dismiss as moot after Appellees amended
their allegations against Foster Wheeler. Foster Wheeler
presents three issues on appeal asserting: (1) the trial
court erred when it denied Foster Wheeler's motion to
dismiss as moot; (2) the trial court abused its discretion
when it denied Foster Wheeler's motion to dismiss
pursuant to section 150.002 because Appellees failed to file
a certificate of merit as to Foster Wheeler with their
petition; and (3) the court should dismiss the claims against
Foster Wheeler with prejudice. See id. We reverse
the trial court's order and remand for further
proceedings consistent with this opinion.
Kevin Goats (Goats) and Afshin Farshad (Farshad) worked as
operators for TOTAL. On June 21, 2015, as they attempted to
clear a plugged strainer on the Sour Water Pump System, hot
steam sprayed them. Appellees sued for damages and named
Foster Wheeler as a defendant in their second amended
petition, together with Fluor Corporation
(Fluor). For clarity, we will refer to this
pleading as the first-filed complaint.
their first-filed complaint, Appellees included identical
allegations against each defendant. They alleged the Sour
Water Pump System was defectively designed in that it lacked
a bleeder valve that would have relieved the pressure trapped
upstream. They also asserted causes of action for a
manufacturing defect, marketing defect, negligence, and
breach of implied warranty of merchantability. Appellees
specifically complained they "relied on
Defendants['] skill and judgment to furnish a suitable
system that was fit for the ordinary purpose for which it was
used." Appellees did not contemporaneously include a
certificate of merit as to either defendant with their
Wheeler filed a motion to dismiss Appellees' claims with
prejudice for Appellees' failure to comply with Chapter
150 of the Texas Civil Practice and Remedies Code and
attached evidence establishing that Foster Wheeler is a
company that provides professional engineering
services. Appellees amended their petition to allege
that Foster Wheeler had a "non-engineering role"
and was negligent in a non-engineering capacity. The fourth
amended petition omitted all claims of design defects and
asserted claims against Foster Wheeler for negligently
installing, maintaining, inspecting, assembling, supervising,
providing adequate support/personnel, training, and providing
instructions related to the Sour Water Pump System.
filed a motion to continue the hearing on Foster
Wheeler's motion to dismiss, arguing they needed more
time to conduct discovery. At the hearing, Appellees asserted
that they "just don't have those answers yet"
to determine "whether or not Chapter 150
applies[.]" The trial court granted the continuance.
After Appellees obtained a continuance of the hearing on
Foster Wheeler's motion to dismiss, Foster Wheeler
responded to discovery stating it did not participate in the
design or construction of the Sour Water Pump System at
issue, but the company did have a contract to perform
engineering work at the plant.
rescheduled hearing on the motion to dismiss, Appellees'
argued that because Foster Wheeler represented in its
discovery responses that it had nothing to do with designing
the system at issue, a certificate of merit under Chapter 150
was not required. The trial court's order denying Foster
Wheeler's motion to dismiss stated "the Court is of
the opinion that said motion is moot and should be
DENIED." Foster Wheeler timely appealed.
Standard of Review
court's denial or grant of a motion to dismiss pursuant
to section 150.002 is immediately appealable. Tex. Civ. Prac.
& Rem. Code Ann. § 150.002(f). We review a trial
court's order denying a section 150.002 motion to dismiss
for an abuse of discretion. See Barron, Stark & Swift
Consulting Eng'rs, LP v. First Baptist Church,
Vidor, 551 S.W.3d 320, 322 (Tex. App.-Beaumont 2018, no
pet.) (citations omitted); CBM Eng'rs, Inc. v.
Tellepsen Builders, L.P., 403 S.W.3d 339, 342-43 (Tex.
App.-Houston [1st Dist.] 2013, pet. denied). "If a trial
court acts arbitrarily or unreasonably, without reference to
any guiding rules and principles, it constitutes an abuse of
discretion." Barron, Stark & Swift, 551
S.W.3d at 322 (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A
court abuses its discretion if it fails to analyze or apply
the law correctly. Dunham Eng'g, Inc. v.
Sherwin-Williams Co., 404 S.W.3d 785, 789 (Tex.
App.-Houston [14th Dist.] 2013, no pet.) (citations omitted).
If our review necessitates statutory interpretation, we
conduct that review de novo. See Jaster v. Comet
II Const., Inc., 438 S.W.3d 556, 562 (Tex. 2014)
(citation omitted); Barron, Stark & Swift, 551
S.W.3d at 322 (citations omitted).
Issue One: Mootness
appeal is moot, we must dismiss it, because appellate courts
lack jurisdiction to decide moot controversies. See
Nat'l Collegiate Athletic Ass'n v. Jones, 1
S.W.3d 83, 86 (Tex. 1999) (citation omitted). Since mootness
implicates our jurisdiction to consider this appeal, we
address it first.
150.002 of the Texas Civil Practice and Remedies Code
requires that in actions for damages arising from the
provision of professional services by a licensed or
registered architect, engineer, or surveyor, a plaintiff must
file an affidavit attesting to the claim's merit. Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(a);
CTL/Thompson Tex., LLC v. Starwood Homeowner's
Ass'n, Inc., 390 S.W.3d 299, 299 (Tex. 2013).
"The plaintiff's failure to file the affidavit in
accordance with this section shall result in dismissal of the
complaint against the defendant." Tex. Civ. Prac. &
Rem. Code Ann. § 150.002(e). A section 150.002(e)
dismissal is a sanction with the purpose of deterring
meritless claims and quickly ending them. CTL/Thompson
Tex., LLC, 390 S.W.3d at 301.
CTL/Thompson Tex., LLC v. Starwood Homeowner's
Ass'n, Inc., the trial court denied the
defendant's Chapter 150.002 motion to dismiss, but the
plaintiff nonsuited its claims before the appeal could be
decided. Id. at 300. The Texas Supreme Court
considered the issue of whether a defendant's appeal from
a trial court's refusal to dismiss an action under
Section 150.002(e) is mooted by the plaintiff's nonsuit.
Here, after Foster Wheeler filed its motion to dismiss,
Appellees amended their complaint against Foster Wheeler
purportedly to omit any specific allegation against that
company arising from the provision of any engineering
services, effectively nonsuiting any such claims. See FKM
P'ship, Ltd. v. Bd. of Regents of Univ. of Hous.
Sys., 255 S.W.3d 619, 632 (Tex. 2008)(explaining that
filing an amended petition omitting a cause of action
"effectively nonsuits or voluntarily dismisses the
omitted claims as of the time the pleading is filed").
In holding the plaintiff's nonsuit did not render moot
the defendant's motion to dismiss based on section
150.002, the Texas Supreme Court explained that the provision
for dismissal of the complaint with prejudice is a sanction
mandated by Chapter 150. See Tex. Civ. Prac. &
Rem. Code Ann. § 150.002(e). A motion for sanctions is a
claim for affirmative relief which survives a nonsuit if the
nonsuit would defeat the purpose of sanctions. See
CTL/Thompson Tex., LLC, 390 S.W.3d at 300 (citing
Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805,
806-807 (Tex. 1993)). The Court further explained that a
sanction for filing a frivolous lawsuit survives a nonsuit,
otherwise its imposition would rest completely with
plaintiffs, thus defeating the ...