Englobal U.S., Inc. v. Jefferson Refinery, L.L.C. ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00120-CV
____________________
ENGLOBAL U.S., INC., Appellant
V.
JEFFERSON REFINERY, L.L.C., Appellee
__________________________________________________________________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-194,140
__________________________________________________________________
MEMORANDUM OPINION
ENGlobal U.S., Inc. and Jefferson Refinery, L.L.C. entered a contract
whereby ENGlobal agreed to provide consulting and engineering services
regarding Jefferson’s Texas facility, the Winnie Refinery. ENGlobal subsequently
sued Jefferson for suit on a sworn account, breach of contract, quantum meruit,
violation of the Prompt Payment Act, and lien foreclosure. Jefferson filed a
counterclaim against ENGlobal, alleging breach of contract, conversion, tortious
interference, and fraudulent lien. ENGlobal moved to dismiss Jefferson’s
1
counterclaim for failure to file a certificate of merit. The trial court granted the
motion and dismissed Jefferson’s claims without prejudice. When Jefferson filed
an amended counterclaim with a certificate of merit, ENGlobal moved to dismiss
on grounds that the certificate was insufficient. The trial court denied ENGlobal’s
motion. In this interlocutory appeal, ENGlobal presents two appellate issues
challenging the denial of its motion to dismiss. See Tex. Civ. Prac. & Rem. Code
Ann. § 150.002(f) (West 2011). We affirm the trial court’s order denying
ENGlobal’s motion to dismiss.
In an action or arbitration proceeding for damages arising out of the
provision of professional services by a licensed or registered professional, the
plaintiff must file with the complaint an affidavit of a third-party licensed
professional engineer. Id. § 150.002(a). The affidavit must state:
[E]ach theory of recovery for which damages are sought, the
negligence, if any, or other action, error, or omission of the licensed or
registered professional in providing the professional service, including
any error or omission in providing advice, judgment, opinion, or a
similar professional skill claimed to exist and the factual basis for
each such claim.
Id. § 150.002(b). A plaintiff’s failure to file the affidavit in accordance with section
150.002 shall result in dismissal of the complaint against the defendant and the
dismissal may be with prejudice. Id. § 150.002(e).
2
The Texas Supreme Court recently addressed whether section 150.002
applies to cross-claimants and third-party plaintiffs. Jaster v. Comet II Constr.,
Inc., No. 12-0804, 2014 Tex. LEXIS 567, at *2 (Tex. July 3, 2014) (plurality op.)
(not yet released for publication). The Court explained that “section 150.002
requires ‘the plaintiff’ to file a certificate of merit in ‘any [lawsuit] or arbitration
proceeding’ against a licensed professional, and ‘the plaintiff’ is a party who
initiates the ‘action’ or suit, not any party who asserts claims or causes of action
within the suit.” Id. at *22. “Third-party plaintiffs and cross-claimants do not
initiate a lawsuit or legal proceeding.” Id. The Court added that “when the
Legislature wants to use a term that includes only a party who initiates a lawsuit,
thus excluding third-party plaintiffs, cross-claimants, and counter-claimants, it uses
the term ‘plaintiff,’ rather than the term ‘claimant.’” Id. at *30. The Supreme Court
held that section 150.002 only applies to “‘the plaintiff’ who initiates an action for
damages arising out of the provision of professional services by a licensed or
registered professional,” not to a defendant, third-party defendant, cross-claimant,
counter-claimant, or third-party plaintiff who asserts such claims. Id. at **2, 29-30,
32-33, 41-42.
In this case, Jefferson, the defendant, filed a counterclaim against ENGlobal.
Because section 150.002’s certificate of merit requirement applies to the party who
3
initiates the action or suit, and does not apply to a party who asserts claims or
causes of action within that suit, such as a counter-claimant, Jefferson was not
required to comply with section 150.002. See id. at **2, 22-23, 29-30, 32-33, 41-
42; see also Hydrotech Eng’g, Inc. v. OMP Dev., L.L.C., No. 05-13-00713-CV,
2014 Tex. App. LEXIS 8125, at **2, 6-11 (Tex. App.—Dallas July 25, 2014, no
pet. h.) (not yet released for publication) (Affirming the trial court’s denial of
motion to dismiss cross-claims and third party claims under Jaster.). Thus, we
overrule Englobal’s issues, affirm the trial court’s order denying ENGlobal’s
motion to dismiss, and we need not address ENGlobal’s contentions that Jefferson
failed to comply with section 150.002’s certificate of merit requirement. See Tex.
R. App. P. 47.1.
AFFIRMED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on June 26, 2014
Opinion Delivered September 4, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
4