Cynthia Pipkins v. LaBiche Architectural Group, Inc. ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00301-CV
__________________
CYNTHIA PIPKINS, Appellant
V.
LABICHE ARCHITECTURAL GROUP, INC., Appellee
__________________________________________________________________
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-205,876
__________________________________________________________________
OPINION
Chapter 150 of the Texas Civil Practice and Remedies Code requires a sworn
“certificate of merit” to accompany a lawsuit complaining about a licensed
architect’s services and the statute states the “claimant’s failure to file the affidavit
in accordance with this section shall result in dismissal of the complaint against the
defendant.” Tex. Prac. & Rem. Code. Ann. 150.002(a), (e). Based upon an
agreement discussed between the parties in question during an oral hearing, and the
1
trial court’s resulting order of dismissal without prejudice, this appeal involves a
dispute over the interpretation of the trial court’s order concerning same.
Initially, the trial court dismissed the appellant Cynthia Pipkins’s suit without
prejudice to allow Pipkins to amend her pleadings “against The LaBiche
Architectural Group, Inc. including a Certificate of Merit complying with the Texas
Civil Practice & Remedies Code Section 150[.]” In this appeal, Pipkins challenges
the trial court’s subsequent dismissal of her suit with prejudice after she filed a
certificate of merit from one or more licensed architects within the sixty-day grace
period she was given in the trial court’s order.
We hold the trial court abused its discretion in finding that Pipkins failed to
comply with the trial court’s order requiring her to file a licensed architect’s
certificate of merit within the sixty-day period the trial court gave Pipkins in the
order it signed dismissing her suit without prejudice. We reverse the trial court’s
order and remand for further proceedings consistent with this Court’s opinion.
BACKGROUND
In Plaintiff’s Third Amended Petition, Pipkins filed suit alleging a negligence
cause of action against 5U Golf Center, LLC, Ace Golf Netting, L.P., Engel &
Company Engineers, Tanner Consulting Group, LaBiche, and Topgolf International,
Inc. for injuries she sustained when a golf ball struck her in the head at a 5U Golf
Center. We note that Plaintiff’s Third Amended Petition was the first pleading where
2
LaBiche was brought in as a Defendant. LaBiche filed a Motion to Dismiss for Lack
of Certificate of Merit and Subject Thereto Original Answer, arguing that Pipkins’s
claims must be dismissed because she failed to provide a certificate of merit in an
action for damages arising out of the provision of professional services by a
registered professional architect as required by section 150.002 of the Texas Civil
Practice and Remedies Code. See id. § 150.002.
Pipkins filed a Response to LaBiche’s Motion to Dismiss, acknowledging that
the trial court must dismiss her claim against LaBiche because she failed to include
a certificate of merit regarding LaBiche in her Third Amended Petition; however,
Pipkins requested that the trial court dismiss her claim without prejudice to refiling
due to LaBiche’s failure to present any evidence to support a dismissal with
prejudice. Pipkins argued that her case was like Pedernal Energy, LLC v. Bruington
Engineering, Ltd., 536 S.W.3d 487 (Tex. 2017), in which the plaintiff’s case was
dismissed without prejudice after the trial court considered factors, including the
avenue of relief to the plaintiff, the prejudice to the parties, and whether the
plaintiff’s claim had merit. See id. at 490, 494-95. According to Pipkins, just like in
Pedernal, her attorney was unaware of the certificate of merit requirement and did
not fight the dismissal, the dismissal of her case with prejudice would result in a
death penalty sanction, and her attorney’s failure to include the certificate of merit
with the petition was merely a procedural mistake that could be cured. According to
3
Pipkins, LaBiche did not allege or produce any evidence showing that her claim
lacked merit, and she requested that her claim against LaBiche be dismissed without
prejudice so she could replead her claim with a certificate of merit. Pipkins attached
her attorney’s affidavit in support of dismissing her claim without prejudice, in
which he averred that the sole reason he did not attach a certificate of merit was
because he was unaware of the requirement in section 150.002(a). See Tex. Civ.
Prac. & Rem. Code Ann. § 150.002(a).
The trial court conducted a hearing on LaBiche’s Motion to Dismiss for Lack
of Certificate of Merit, during which LaBiche’s counsel asked the trial court to
dismiss Pipkins’s case with prejudice, but in the event the trial court dismissed
without prejudice, LaBiche’s counsel asked the trial court to impose a deadline for
the plaintiff to replead with a certificate of merit. Pipkins’s counsel acknowledged
his mistake and that the trial court had to dismiss the case, but he requested the trial
court dismiss without prejudice. During the hearing, the trial court indicated that
normally it would dismiss with prejudice, but LaBiche’s counsel did not oppose a
dismissal without prejudice. The record shows that the parties agreed to the trial
court’s recommendation to give Pipkins’s counsel sixty days to replead with a
certificate of merit.
More specifically, the discussion between the parties’ counsel and the trial
court is as follows:
4
[LABICHE’S COUNSEL]: So, if the Court’s inclined to dismiss it
without prejudice, we’re not going to object to that, your Honor. . . .
The only think I would ask, Judge, is that if the Court is inclined to
dismiss it without prejudice, that the Court, you know, impose some
sort of deadline for the plaintiff to replead with the certificate of merit.
...
THE COURT: I’m thinking 60 is a good number.
[PIPKINS’ COUNSEL]: 60 is - - I mean, I’m okay with doing anything
because honestly I’m at the mercy of all of you guys. . . .
THE COURT: Yeah, I understand; but I think 60 days is fair. I mean,
does everybody agree with that?
[LABICHE’S COUNSEL]: Yes, your honor. . . .
...
[LABICHE’S COUNSEL]: I think 60 days is reasonable. . . .
THE COURT: I do too[.] . . . I think I’m helping out here giving you
60 days and not doing it without - - because I usually do it with
prejudice, And so I’m going to do it without. I’m going to dismiss and
give you 60 days to replead.
[PIPKINS’ COUNSEL]: Okay. Sounds great.
THE COURT: Is that fair?
[LABICHE’S COUNSEL]: Okay.
THE COURT: Okay?
[LABICHE’S COUNSEL]: I don’t have anything else your Honor.
THE COURT: All right. Give me an order reflecting that.
[LABICHE’S COUNSEL]: Yes, sir, we’ll do it.
5
...
LaBiche’s counsel prepared the order and on April 27, 2021, the trial court
entered the Order of Dismissal (“April 2021 Order”) without prejudice and ordered
that:
Plaintiff’s Original Petition, all subsequent pleadings, and all causes of
action in the above-referenced cause against Defendant The LaBiche
Architectural Group, Inc. are hereby DISMISSED WITHOUT
PREJUDICE, and it is further
ORDERED, ADJUDGED and DECREED that Plaintiff shall have not
more than 60 days from the date of this Order to file any amended
pleadings asserting claims against The LaBiche Architectural Group,
Inc. including a Certificate of Merit complying with Texas Civil
Practice & Remedies Code Section 150, and it is further
ORDERED, ADJUDGED and DECREED that any subsequent
pleadings asserting claims against The LaBiche Architectural Group,
Inc. that fail to comply with the requirements of this Order will be
dismissed with prejudice . . . .
On June 11, 2021, Pipkins filed Plaintiff’s Fourth Amended Petition with a
certificate of merit executed by Michael S. Johnstone, who averred, among other
things, that he was currently licensed to practice architecture in Texas. On June 24,
2021, within the sixty-day deadline, Pipkins filed Plaintiff’s Fifth Amended Petition
with a new certificate of merit from Johnstone and a certificate of merit from David
Valtierra, who both averred they were currently licensed to practice architecture in
Texas. On July 16, 2021, LaBiche filed a Motion to Dismiss for Lack of Certificate
of Merit, in which LaBiche complained that Pipkins’s Fourth Amended Petition
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failed to include a valid certificate of merit that complies with section 150.002,
because Johnstone was not licensed to practice architecture in Texas on June 11,
2021, when he signed the first certificate of merit. See id. § 150.002(b) (requiring
third-party licensed architect to be licensed in Texas). LaBiche argued that the trial
court should dismiss Pipkins’s Fourth Amended Petition because it failed to comply
with the April 2021 Order, which ordered any subsequent pleadings that failed to
comply with section 150 be dismissed with prejudice. According to LaBiche,
Pipkins’s Fifth Amended Petition did not remedy the error.
Pipkins filed Plaintiff’s Motion to Clarify, Modify and/or Vacate Prior Order
and a Response to LaBiche’s Motion to Dismiss, arguing that she complied with the
April 2021 Order by filing her Fourth and Fifth Amended Petitions within the sixty-
day deadline. Pipkins’s counsel explained that after filing Pipkins’s Fourth Amended
Petition with Johnstone’s certificate of merit, he discovered Johnstone’s Texas
license had expired due to non-payment of fees, and Johnstone promptly remitted
those fees, was reinstated as a licensed Texas architect on June 23, 2021, and
reissued his certificate of merit. Pipkins’s counsel further explained that Pipkins’s
Fifth Amended Petition was filed within the sixty-day deadline and included
Johnstone’s reissued certificate of merit and an additional certificate of merit from
Valtierra. According to Pipkins’s counsel, the April 2021 Order stated that Pipkins
had no more than sixty days to file any amended pleadings with a valid certificate of
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merit, Pipkins’s Fifth Amended Petition complies with the April 2021 Order, and
LaBiche’s interpretation ignores the sixty-day deadline it agreed to. Pipkins’s
counsel argued the case should not be dismissed with prejudice because LaBiche
was not harmed by the lapse of time between the filing of Pipkins’s Fourth and Fifth
Amended Petitions, and because a dismissal with prejudice in this case would be
akin to a death penalty sanction that would not deter a meritless claim or bring the
claim to an end.
The trial court conducted a hearing on LaBiche’s Motion to Dismiss for Lack
of certificate of merit with prejudice. LaBiche’s counsel explained that after the trial
court allowed Pipkins to amend her pleadings with a proper certificate of merit,
Pipkins’s counsel filed an insufficient certificate of merit due to the affiant not being
licensed in Texas. According to LaBiche’s counsel, the affiant had to have known
the affidavit was false because his Texas license had been expired since the early
nineties. LaBiche’s counsel argued that even though the statute is silent on the
number of chances a plaintiff gets to file a valid certificate of merit, the case should
be dismissed with prejudice because after the trial court dismissed the case without
prejudice, the trial court only gave Pipkins one chance to file an amended petition
with a valid certificate of merit and she failed to do so.
Pipkins’s counsel argued that Plaintiff’s Fifth Amended Petition replaced
Plaintiff’s Fourth Amended Petition when it was filed with valid certificates of merit
8
within the sixty-day deadline as specified by the April 2021 Order. Pipkins’s counsel
further argued that dismissing the case would not serve Chapter 150’s purpose of
getting rid of meritless claims because two experts have said the case has merit, and
Pipkins’s husband and daughter intend to file suit against LaBiche also. Pipkins’s
counsel asked the trial court to dismiss Plaintiff’s Fourth Amended Petition without
prejudice if it was the trial court’s intent to do so, but Pipkins’s counsel questioned
what the trial court would do with Plaintiff’s Fifth Amended Petition, which was the
live pleading.
The record shows the trial court also questioned whether Plaintiff’s Fifth
Amended Petition cured the mistake because it was filed within the sixty-day
deadline. LaBiche’s counsel argued that although Plaintiff’s Fifth Amended Petition
complied with the statute and cured the problem, the trial court had the absolute
authority to dismiss Plaintiff’s Fourth Amended Petition with prejudice because the
April 2021 Order only gave Pipkin one chance to comply with the statute. LaBiche’s
counsel explained that it was not asking the trial court to dismiss Pipkins’s entire
case, just her claims against LaBiche. According to LaBiche, the court should
dismiss Plaintiff’s Fourth Amended Petition with prejudice, which would then
cancel out Plaintiff’s Fifth Amended Petition because it would be “dismissed at that
point.” After considering the parties’ arguments, the trial court dismissed Plaintiff’s
Fourth Amended Petition with prejudice. The trial court issued an Order of
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Dismissal with Prejudice, granting LaBiche’s Motion to Dismiss and ordering that
“Plaintiff’s Original Petition, all subsequent pleadings, and all causes of action in
the above-styled and numbered cause against Defendant The LaBiche Architectural
Group, Inc. are hereby DISMISSED WITH PREJUDICE[.]”
ANALYSIS
In her sole issue on appeal, Pipkins complains the trial court abused its
discretion by granting LaBiche’s Motion to Dismiss for lack of a valid certificate of
merit and by dismissing her claims against LaBiche with prejudice. According to
Pipkins, her Fifth Amended Petition included proper certificates of merit and was
filed within the sixty-day deadline prescribed by the trial court’s April 2021 Order.
Pipkins argued that by relying on its April 2021 Order to justify dismissing her
claims against LaBiche with prejudice, the trial court failed to exercise its discretion
within the limits created by the circumstances of this particular case and satisfy the
broader purpose of Chapter 150.
A trial court’s denial or grant of a motion to dismiss pursuant to section
150.002 is immediately appealable. See id. § 150.002(f). We review a trial court’s
ruling on a section 150.002 motion to dismiss for an abuse of discretion. See Barron,
Stark & Swift Consulting Eng’rs, LP v. First Baptist Church, 551 S.W.3d 320, 322
(Tex. App.—Beaumont 2018, no pet.) (citations omitted). “If a trial court acts
arbitrarily or unreasonably, without reference to any guiding rules and principles, it
10
constitutes an abuse of discretion.” Id. (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 Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014)
(citation omitted); Barron, Stark & Swift, 551 S.W.3d at 322 (citations omitted).
Section 150.002 of the Texas Civil Practice and Remedies Code generally
requires that a sworn “certificate of merit” accompany a plaintiff’s “complaint” in a
case that “aris[es] out of the provision of professional services by a licensed or
registered professional[]” named in the statute. See Tex. Civ. Prac. & Rem. Code
Ann. § 150.002(a). The sworn certificate or affidavit must be from a similarly
licensed professional who meets certain qualifications and attests to the lawsuit’s
merit. Id. § 150.002(a), (b).
The affidavit shall set forth specifically for each 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. The third-party licensed
architect . . . shall be licensed or registered in this state and actively
engaged in the practice of architecture . . . .
Id. § 150.002(b). The “failure to file the affidavit in accordance with [150.002] shall
result in dismissal of the complaint against the defendant[,]” and the “dismissal may
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be with prejudice.” Id. § 150.002(e) (emphasis added). The purpose behind the
certificate of merit requirement is merely that plaintiffs make a threshold showing
that their claims have merit before proceeding further. Melden & Hunt, Inc. v. East
Rio Hondo Water Supply Corp., 520 S.W.3d 887, 896 (Tex. 2017); M-E Eng’rs, Inc.
v. City of Temple, 365 S.W.3d 497, 504 (Tex. App.—Austin 2012, pet. denied).
Generally, the plain language of the statute does not permit amendments or
supplemental affidavits to correct a failure to comply with section 150.002’s
contemporaneous filing requirement. See Landreth v. Las Brisas Council of Co-
Owners, Inc., 285 S.W.3d 492, 499–500 (Tex. App.—Corpus Christi-Edinburg
2009, no pet.), superseded by statute on other grounds, as recognized in Morrison
Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421, 426 (Tex. App.—Dallas 2012, no
pet.); see also Crosstex Energy Servs., LP v. Pro Plus, Inc., 430 S.W.3d 384, 395
(Tex. 2014) (concluding failure to file a certificate of merit with the original petition
cannot be cured by amendment where the parties’ Rule 11 Agreement and the docket
control order did not extend the deadline for filing a certificate of merit).
Section 150.002 does not provide guidance concerning how a trial court
should exercise its discretion to dismiss with or without prejudice. Tex. S. Univ. v.
Kirksey Architects, Inc., 577 S.W.3d 570, 577 (Tex. App.—Houston [14th Dist.]
2019, no pet.). While Chapter 150 vests the trial court with discretion to dismiss a
supposedly meritless claim, that discretion is limited by the broader purpose of the
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statute. Pedernal Energy, LLC, 536 S.W.3d at 493. The trial court should consider
the facts and circumstances of each particular case and be mindful that the purpose
of a section 150.002(e) dismissal is to deter meritless claims and bring them to a
quick end. Id. at 494; CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n,
390 S.W.3d 299, 301 (Tex. 2013). The fact that a party has supplemented the record
with a sufficient expert’s affidavit is a factor the trial court should consider in
determining whether the case could be dismissed with prejudice. See CDI Corp. v.
TOTAL Specialties USA, Inc., 528 S.W.3d 802, 807 (Tex. App.—Houston [14th
Dist.] 2017, no pet.); TDIndustries v. United Nat’l Ins. Co., No. 07-16-00231-CV,
2017 WL 2334234, at *2 (Tex. App.—Amarillo May 23, 2017, pet. denied) (mem.
op.).
LaBiche argues that Pipkins filed a defective certificate of merit with her
Fourth Amended Petition, which was her first-filed petition against LaBiche and that
Pipkins’s Fifth Amended Petition and Johnstone’s amended affidavit could not cure
her failure to file a proper certificate of merit. See Miramar Petroleum v. Cimarron
Eng’g, LLC, 484 S.W.3d 214, 218 (Tex. App.—Corpus Christi 2016, pet. denied)
(citation omitted) (noting that after dismissal without prejudice for lack of certificate
of merit, the plaintiff files a new action after dismissal as if the suit had never been
brought and includes a certificate of merit with the first-filed petition in that action).
According to LaBiche, the failure to file a certificate of merit with the first-filed
13
petition cannot be cured by amendments or supplemental affidavits. However, the
cases that LaBiche relies upon to support its position are distinguishable because
those cases do not include an oral agreement and the resulting order entered by the
trial court allowing the plaintiff to file a certificate of merit beyond the parameters
of Chapter 150, as is the case here. Although the Supreme Court stated in Pedernal
that “[a] plaintiff’s failure to file an affidavit with an original petition, together with
the filing of an amended petition with a deficient affidavit, might support a trial
court’s determination that the claims lack merit[,]” Pedernal is distinguishable
because it did not include an oral agreement and a resulting order entered by the trial
court allowing the plaintiff additional time to file a sufficient certificate of merit. See
Pedernal, 536 S.W.3d at 496.
In Crosstex, the Supreme Court held that the parties’ Rule 11 Agreement,
which extended the expert designation dates in the docket control order, did not
extend the deadline for filing a certificate of merit where the docket control order
made no mention of the separate certificate of merit requirements. Crosstex Energy
Servs., LP, 430 S.W.3d at 395. Unlike Crosstex, the oral agreement and the resulting
order entered by the trial court in this case specifically provided that Pipkins had
sixty days from the date of the order to file any amended or subsequent pleadings
including a certificate of merit. See id. For that same reason, Hydrotech Engineering,
Inc. v. OMP Development LLC, ICI, 438 S.W.3d 895, 902–03 (Tex. App.—Dallas
14
2014, pet. denied), is also distinguishable. See id. (relying on Supreme Court’s
holding in Crosstex that failure to file a certificate with the original petition cannot
be cured by amendment but did not contain an agreement by the parties to extend
deadline).
LaBiche also relies on Flour Enterprises, Inc. v. Maricelli, in which this Court
held that the trial court did not abuse its discretion by denying Flour Enterprises’
motion to dismiss because the trial court could have reasonably concluded that the
certificate of merit identified Flour Enterprises although it mistakenly referred to it
as Flour Corporation. See Flour Enterprises, Inc. v. Maricelli, No. 09-19-00121-CV,
2020 WL 2070257, at *6 (Tex. App.—Beaumont Apr. 30, 2020, pet. denied) (mem.
op.). Flour is distinguishable because this Court only addressed whether plaintiff’s
original certificate of merit, which included a misnomer, complied with section
150.002’s contemporaneous filing requirement, and although this Court stated that
the plain language of the statute does not permit amendments of supplemental
affidavits to correct a failure to comply with section 150.002’s contemporaneous
requirement, it did not address an oral agreement and a resulting order entered by
the trial court that specifically provided additional time to file any amended or
subsequent pleadings including a certificate of merit. See id. (citations omitted); see
also Sharp Eng’g v. Luis, 321 S.W.3d 748, 751–52 (Tex. App.—Houston [14th Dist.
2010, no pet.) (holding section 150.002 requires plaintiff to file certificate of merit
15
with the first-filed complaint and not an amended complaint but did not include an
agreement modifying section 150.002’s contemporaneous filing requirement).
We hold that based on the particular circumstances in this case, the April 2021
Order entered by the trial court permitted Pipkins to file any amended or subsequent
pleadings asserting claims against LaBiche including a certificate of merit
complying with section 150.002 within sixty days of the date of the order. Since the
trial court’s April 2021 Order in effect expanded the certificate of merit’s
contemporaneous filing requirement under section 150.002(a), the trial court abused
its discretion by refusing to consider the circumstances in this case and follow its
April 2021 Order which provided Pipkins a sixty-day period to cure her error of
failing to include a valid certificate of merit with her Third Amended Petition. See
Pedernal Energy, LLC, 536 S.W.3d at 494; CTL/Thompson Tex., LLC, 390 S.W.3d
at 301; see also Gessner Eng’g, LLC v. St. Paraskevi Greek Orthodox Monastery,
Inc., 507 S.W.3d 865, 870–71 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)
(holding section 150.002(e) does not require dismissal with prejudice and trial court
did not abuse its discretion by dismissing plaintiff’s amended petition without
prejudice when failure to attach adequate certificate or merit was result of clerical
error that was promptly cured).
Moreover, the record shows that Pipkins’s Fifth Amended Petition was the
live petition when the trial court conducted a hearing on LaBiche’s Motion to
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Dismiss Pipkins’s Fourth Amended Petition, and LaBiche did not object to or file
any special exceptions to the substance of Pipkins’s Fifth Amended Petition. The
trial court failed to consider Pipkins’s Fifth Amended Petition even though it
substituted and took the place of Pipkins’s Fourth Amended Petition. See Tex. R.
Civ. P. 65; FKM P’ship v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619,
633 (Tex. 2008). Rule 65 of the Texas Rules of Civil Procedure provides:
Unless the substituted instrument shall be set aside on exceptions, the
instrument for which it is substituted shall no longer be regarded as part
of the pleading in the record of the cause, unless some error of the court
in deciding upon the necessity of the amendment, or otherwise in
superseding it, be complained of, and exception be taken to the action
of the court, or unless it be necessary to look at the superseded pleading
upon a question of limitation.
Tex. R. Civ. P. 65. We also hold the trial court abused its discretion by failing to
consider Rule 65 and Pipkins’s Fifth Amended Petition with valid certificates of
merit that complied with the trial court’s April 2021 Order, which eliminated the
necessity to look at the Fourth Amended Petition since the trial court’s order in effect
expanded the contemporaneous filing requirement under section 150.002(a) and
allowed Pipkins to file any amended or subsequent pleading-s including a certificate
of merit within the sixty-day period. See Dunham Eng’g, Inc., 404 S.W.3d at 789
(explaining abuse of discretion includes failing to correctly apply the law).
Additionally, we note that the trial court’s dismissal of Pipkins’s Fifth
Amended Petition with prejudice fails to satisfy either purpose of a section
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150.002(e) dismissal because LaBiche never claimed that Pipkins’s case lacked
merit, and Pipkins filed two sufficient certificates of merit with her Fifth Amended
Petition that complied with section 150.002 and the trial court’s April 2021 Order.
See Pedernal, 536 S.W.3d at 493-94 (stating purpose of section 150.002(e) dismissal
is to deter meritless claims and bring quickly to an end). During the hearing on its
Motion to Dismiss Pipkins’s Fourth Amended Petition, LaBiche did not contest the
sufficiency of the certificates of merit Pipkins filed with her Fifth Amended Petition
or claim that Pipkins’s case lacked merit. Nor would the dismissal of Pipkins’s
claims against LaBiche with prejudice bring claims against LaBiche to a quick end,
because during the hearing, Pipkins’s counsel stated that Pipkins’s husband and
daughter intended to file claims against LaBiche. Based on this record, we hold the
trial court failed to consider the Legislature’s broader purpose in enacting section
150.002, because it did not exercise its discretion to dismiss a meritless claim and
bring it to a quick end. See id.
Again, the trial court entered the April 2021 Order, which incorporated the
parties’ oral agreement discussed during the oral hearing and specifically ordered
that:
Plaintiff’s Original Petition, all subsequent pleadings, and all causes of
action in the above-referenced cause against Defendant The LaBiche
Architectural Group, Inc. are hereby DISMISSED WITHOUT
PREJUDICE, and it is further
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ORDERED, ADJUDGED and DECREED that Plaintiff shall have not
more than 60 DAYS from the date of this Order to file any amended
pleadingS asserting claims against The LaBiche Architectural Group,
Inc. including a Certificate of Merit complying with Texas Civil
Practice & Remedies Code Section 150, and it is further
ORDERED, ADJUDGED and DECREED that any subsequent
pleadingS asserting claims against The LaBiche Architectural Group,
Inc. that fail to comply with the requirements of this Order will be
dismissed with prejudice . . . . [EMPHASIS ADDED]
It should be noted that the singular “pleading” was not used, but the plural
“pleadings”; the order did not include or make reference that the first-filed amended
or subsequent “pleading” would be the only pleading allowed to correct the defect;
nor did the order include or make reference that Rule 65 of the Texas Rules of Civil
Procedure would not apply where a subsequent amended pleading would not
supersede an earlier filed pleading; nor did the order include or make reference to
how many amended or subsequent pleadings could be filed within the sixty-day
deadline. However, despite its April 2021 Order allowing Pipkins to file any
amended or subsequent pleadings against LaBiche including a certificate of merit
within sixty days of the trial court’s order and Pipkins’s compliance with that order
by filing a Fifth Amended Petition with valid certificates of merit, the trial court
dismissed Pipkins’s Original Petition and all subsequent pleadings and causes of
action against LaBiche with prejudice. Under the specific facts of this case, we
conclude the trial court abused its discretion by dismissing Pipkins’s Original and
First and Second Amended Petitions in which LaBiche was not even a named party
19
when Pipkins filed those three petitions. More importantly, by dismissing Pipkins’s
Fifth Amended Petition, which included valid certificates of merit and was filed
within the sixty-day deadline provided in the trial court’s April 2021 Order, we
conclude the trial court abused its discretion. Accordingly, the case should move
forward on Pipkins’s Fifth Amended Petition with its valid certificates of merit. We
affirm Pipkins’s sole issue and reverse the trial court’s order dismissing Pipkins’s
claims against LaBiche with prejudice and remand to the trial court for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
________________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on June 30, 2022
Opinion Delivered August 31, 2022
Before Golemon, C.J., Horton and Johnson, JJ.
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DISSENTING OPINION
Because the Majority wrongly concludes the trial court abused its discretion
in entering the “dismissal” in this certificate of merit case, I respectfully dissent. The
Majority erroneously finds that the parties “agreed to” and the trial court entered an
order (the April Order) that “in effect expanded the certificate of merit’s
contemporaneous filing requirement under section 150.002(a).” For the reasons
explained below, I would affirm.
There Was No Expansion of the Certificate of Merit Filing
Required by the Statute
A central premise upon which the Majority bases its decision is that the parties
orally agreed at the April hearing to the sixty day time period contained in the April
Order which the Majority then proclaims, “in effect expanded the certificate of
merit’s contemporaneous filing requirement.” This premise is simply wrong, for
several reasons. 1
1
The Majority attempts to distinguish the facts in this case from other cases
by saying the “oral agreement and resulting order entered by the trial court”
distinguishes this case from other cases. For example, the Majority states,
“However, the cases that LaBiche relies upon to support its position are
distinguishable because those cases do not include an oral agreement
and resulting order entered by the trial court allowing the plaintiff to
file a certificate of merit beyond the parameters of Chapter 150, as is
the case here.”
1
First, there is no written agreement between the parties in our Appellate
Record to expand the certificate of merit requirements. And there is nothing in our
record that shows the parties had even an oral agreement to expand the
contemporaneous certificate of merit filing requirement in the statute.2 Second,
“Pedernal is distinguishable because it did not include an oral
agreement and a resulting order entered by the trial court allowing the
plaintiff additional time to file a sufficient certificate of merit.”
“Unlike Crosstex, the oral agreement and the resulting order entered by
the trial court in this case specifically provided that Pipkins had sixty
days from the date of the order to file any amended or subsequent
pleadings including a certificate of merit.”
2
The Majority’s analysis also assumes that the statute permits parties and the
trial court to “expand” the certificate of merit’s contemporaneous filing requirement
under section 150.002(a). The Majority uses the word “expanded” rather than
“extended.” To “expand” means to “increase the extent…enlarge.” Expand,
Merriam-Webster, https://www.merriam-webster.com/dictionary/expand (last
visited August 22, 2022).
In Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 395 (Tex.
2014), the Supreme Court held that a Rule 11 agreement and docket control order
did not extend the deadline for filing a certificate of merit because the docket control
order in that case did not mention the section 150.002 certificate of merit
requirements. In analyzing whether the Rule 11 agreement and docket control order
extended the deadline in that case, the Court looked to a case under Chapter 74 that
examined an agreed order dealing with expert reports and deadlines under Chapter
74. See Spectrum Healthcare Res., Inc. v. McDaniel, 306 S.W.3d 249, 254 (Tex.
2010) (“when parties use an agreed order to extend the section 74.351 threshold
expert report deadline, the order must explicitly indicate the parties’ intention to
extend the deadline and reference that specific deadline[.]”). In a health care liability
lawsuit, a claimant must serve an expert report on the defendant within 120 days
after each defendant’s original answer is filed, 60 days after the court determines
whether the claimant has a health care liability claim, or “a date agreed to in writing
by the affected parties.” See Tex. Civ. Prac. & Rem. Code Ann. § 74.353(b).
2
More recently, in Shinogle v. Whitlock, 596 S.W.3d 772 (Tex. 2020), the
Texas Supreme Court examined whether an agreed scheduling order that set expert
report deadlines extended the statutory deadline to serve expert reports under section
128.053(a) of the Texas Civil Practice & Remedies Code. Section 128.053 requires
a claimant suing a sport shooting range to serve expert reports on each party within
ninety days after the original petition was filed unless the deadline is “extended by
written agreement of the affected parties.” Tex. Civ. Prac. & Rem. Code
§ 128.053(a). The Court held that “an agreed order silent about extending the
statutory deadline does not constitute an agreement to extend the deadline, and
noncompliance with the statute entitled the employee to dismissal with prejudice as
an implicated defendant whose conduct was required to be addressed in an expert
report.” 596 S.W.3d at 774 (citing Tex. Civ. Prac. & Rem. Code Ann. § 128.053(a),
(b)(2)).
In contrast to both Chapters 74 and 128, under Chapter 150, a claimant must
file a certificate of merit contemporaneously with the first-filed complaint that
asserts a claim against a licensed or registered engineer, architect, or surveyor. See
id. §§ 150.001(1-b), 150.002(a). The Legislature made no provision in Chapter 150
for the parties to make an agreement to extend the date for filing a certificate of merit
as it did in Chapter 74 and Chapter 128 for filing expert reports. By its express terms,
section 150.002 only provides for an extension (or expansion) of time to file a
certificate of merit if the statute of limitations will expire within 10 days of filing the
complaint. Id. § 150.002(c). In such a case, the trial court is authorized to extend the
time, “after hearing and for good cause . . . as it shall determine justice requires.” Id.
See also, e.g., TRW Eng’rs, Inc. v. Hussion St. Bldgs., LLC, 608 S.W.3d 317, 322-
23 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (describing section 150.002 as
“‘compulsory, not discretionary[]’” and that it “requires an affidavit [be] filed with
the complaint, and it does not provide the trial court with authority to waive this
requirement[]”) (quoting UOP, L.L.C. v. Kozak, No. 01-08-00896-CV, 2010 WL
2026037, at *4 (Tex. App.—Houston [1st Dist.] May 20, 2010, no pet.) (mem. op.));
Barron, Stark & Swift Consulting Eng’rs, LP v. First Baptist Church, Vidor, 551
SW.3d 320, 322-24 (Tex. App.—Beaumont 2018, no pet.) (explaining that the only
basis for an exception to the “first-filed” statutory requirement is when the claim is
filed “within ten days of the statute of limitations expiring and alleging that the
resulting time constraints prevented it from obtaining a certificate of merit[]”).
Because I conclude that there was no agreement between the parties to expand
the certificate of merit filing requirements and because I conclude that the April
Order did not expand or extend the contemporaneous filing requirement of section
150.002(a), I do not reach the question of whether the statute permits a trial court
3
nothing in our record shows any discussion with the court or parties requesting to
expand, alter, or change the contemporaneous filing requirement required by the
statute. The transcript from the hearing held by the trial court prior to entry of the
trial court’s April Order does not support the Majority’s conclusion. The Appellant
did not argue at trial nor on appeal that the April Order expanded the
contemporaneous filing requirements under the statute.
Pipkins’s Third Amended Petition failed to include a certificate of merit as
required under section 150.002 of the Texas Civil Practice and Remedies Code, and
LaBiche Architectural Group, Inc. (LaBiche) filed a motion to dismiss. In response,
Pipkins conceded that she had not included the required certificate of merit, she
“d[id] not deny” that the trial court must dismiss her claim against LaBiche, and she
requested that the court dismiss her claim without prejudice.
At the April hearing on the first motion to dismiss, Pipkins stated that the court
had “no discretion” but to dismiss and requested the dismissal be without prejudice.
Pipkins also asked for some time to replead to conduct discovery and take
depositions, and LaBiche agreed that the trial court could dismiss Pipkin’s claims
without prejudice, but it asked that the trial court limit the time for Pipkins to file
another claim against LaBiche. So, the parties and the trial court did agree at the
order (clearly not made within the scope of § 150.002(c)) to in effect “expand” or as
is the case here to “remove” the certificate of merit’s contemporaneous filing
requirement under section 150.002(a). See Tex. R. App. P. 47.1.
4
April hearing that the trial court should enter an order of dismissal without prejudice,
and they also set a time limit for Pipkins to refile a complaint against LaBiche, but
nothing in our appellate record shows they “expanded the certificate of merit
contemporaneous filing requirements” in the statute.
In fact, during the April hearing Pipkins’s attorney did not initially agree that
he should be limited to refiling a petition to sixty days, and he asked for additional
time to conduct discovery. During the hearing, none of the parties discussed whether
they had agreed to amend, waive, extend, or expand the “contemporaneous filing
requirement” under the statute. So, I completely disagree with the Majority that the
record shows there was an “oral agreement” between the parties to expand or change
the contemporaneous filing requirement under the statute. Nor do I agree that it was
the intention of the trial court when it entered the April Order to “in effect expand[]
the certificate of merit’s contemporaneous filing requirement.”
After the hearing in April, the trial court signed an order (“the April Order”)
that dismissed the cause of action against LaBiche without prejudice. The April
Order stated:
ORDER OF DISMISSAL WITHOUT PREJUDICE
On this date, came on to be considered Defendant The LaBiche
Architectural Group, Inc.’s Motion to Dismiss for Lack of Certificate
of Merit (the “Motion”). The Court, having considered the Motion, all
timely-filed responses, and arguments of counsel, is of the opinion
that the Motion should be GRANTED.
5
It is therefore ORDERED, ADJUDGED and DECREED that
Plaintiff's Original Petition, all subsequent pleadings, and all causes of
action in the above-referenced cause against Defendant The LaBiche
Architectural Group, Inc. are hereby DISMISSED WITHOUT
PREJUDICE, and it is further
ORDERED, ADJUDGED AND DECREED that Plaintiff shall
have not more than 60 days from the date of this Order to file any
amended pleadings asserting claims against The LaBiche Architectural
Group, Inc. including a Certificate of Merit complying with Texas Civil
Practice & Remedies Code Section 150, and it is further
ORDERED, ADJUDGED AND DECREED that any subsequent
pleadings asserting claims against The LaBiche Architectural Group,
Inc. that fail to comply with the requirements of this Order will be
dismissed with prejudice, and it is further
ORDERED, ADJUDGED AND DECREED all costs of Court
shall be taxed against the party incurring same.
No party appealed the trial court’s April Order of Dismissal. The April Order is
signed by the trial court Judge, but it is not signed by the parties, and there is no
indication in the plain meaning of the April Order or in the appellate record before
us that the trial court “expanded” or changed or altered the contemporaneous filing
requirements of the statute.
The Fourth Amended Petition Became the First-Filed Petition,
It Lacked a Valid Certificate
Under the applicable statute, Pipkins’s Fourth Amended Original Petition was
the first-filed petition after the trial court’s April Order dismissing the claims against
LaBiche without prejudice. The parties do not dispute that Johnstone’s certificate of
merit filed with the Fourth Amended Original Petition did not comply with section
150.002 because Johnstone was not then licensed in Texas. Failure to file the
6
required certificate shall result in dismissal, which may be with prejudice. See Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(e); Crosstex Energy Servs., L.P. v. Pro
Plus, Inc., 430 S.W.3d 384, 387 (Tex. 2014). Therefore, a dismissal was required by
the statute. The lack of a compliant certificate of merit could not be cured by the
Fifth Amended Petition which was filed on June 24, 2021, wherein Pipkins included
another certificate of merit from David Valtierra and one from Michael S.
Johnstone.3
LaBiche filed another motion to dismiss (hereinafter the Second Motion to
Dismiss). The Second Motion to Dismiss alleged that at the time Pipkins filed the
Fourth Amended Petition, Johnstone was not licensed in Texas and “[d]espite[]
Johnston’s swearing under oath that he was licensed to practice in Texas,
Johnstone’s Texas license was voluntarily surrendered on February 29, 1992.”
LaBiche further argued that Pipkins’s Fifth Amended Petition was attempting to
remedy the error she made when she filed her Fourth Amended Petition, which
clearly failed to include a valid Certificate of Merit in compliance with section
150.002. LaBiche noted that the April Order had specified that “any” subsequent
3
Valtierra’s certificate of merit stated in part that he had been a licensed
architect in Texas since 2011 and that he had reviewed Johnstone’s June 11th
certificate and findings. Johnstone’s June 24th certificate was roughly the same as
his June 11th one, but his signature included a different Texas License number,
“Texas License No. 29424[.]”
7
pleadings that were not compliant would be dismissed with prejudice. LaBiche
requested that the court dismiss Pipkins’s claims against LaBiche with prejudice.
On July 19, 2021, Pipkins filed a Motion to Clarify, Modify and/or Vacate
Prior Orders. In that Motion, Pipkins did not ever argue she thought the parties had
“agreed” to suspend, alter, amend, or even “expand” the contemporaneous filing
requirement. According to Pipkins, she thought her Fourth Amended Petition was
compliant when she filed it because it was only after filing her Fourth Amended
Petition that “it was discovered that Mr. Johnstone’s Texas license had expired due
to non-payment of fees.” Pipkins alleged that Johnstone had promptly “paid his fees”
and he was reinstated on June 23, 2021, and that then he re-issued his certificate of
merit. According to Pipkins, her Fifth Amended Petition included Johnstone’s “re-
issued and ‘cured’” certificate of merit and another one from David Valtierra.
Pipkins argued that she had complied with the April Order within sixty days. Pipkins
further argued that the April Order “clearly contemplated pleadings (plural) would
be filed[,]” and she alleged that her Fifth Amended Petition was “fully compliant
with the Court’s Order.” She argued that the “death penalty sanction” of dismissal
with prejudice was not warranted because “[t]he presence of two adequate
Certificates of Merit disproves any notion of her claims being meritless or need to
bring them quickly to an end.” But again, Pipkins never argued she thought she had
8
an agreement to expand or suspend the contemporaneous filing requirement in the
statute.
On August 18, 2021, Pipkins also filed a response to LaBiche’s Second
Motion to Dismiss. The response reiterated the arguments in the Motion to Clarify,
arguing that Pipkins had complied with the April Order within the sixty-day period
specified in the order, and she never argued she had complied with the statute.
Notably, in that response, Pipkins alleged a different reason for Johnstone’s lack of
a license arguing Johnstone’s license had lapsed “due to a ministerial or
administrative mistake” and stating that Johnstone believed he was licensed in Texas
when he executed the Certificate of Merit included with the Fourth Amended
Petition.4 The response also argued that LaBiche’s motion to dismiss had failed to
allege that any certificate of merit was substantively inadequate. According to
4
On Appeal, Pipkins filed exhibits for use in oral argument. One of the
exhibits was referenced as “Johnstone Affidavit (excerpts).” That document
references an affidavit that was not before the trial court at the time it made its
rulings, and it is not part of the Clerk’s Record or Reporter’s Record on appeal.
Therein, it provides information about Johnstone’s license notes that Johnstone
notified Pipkins’s attorney at some point that his license had not yet been reinstated.
Because this exhibit was not before the trial court when it made its ruling, we cannot
consider it on appeal. See Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961)
(A reviewing court may not consider evidence that was not before the trial court at
the time it made its decision.); In re K.M., 401 S.W.3d 864, 866 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (An appellate court may not consider materials
outside the appellate record.).
9
Pipkins, once her claims against LaBiche were dismissed in April, “the remainder
of the [April] order evaporates, and that case ceases to exist as to [her] and LaBiche.”
The trial court held a hearing on LaBiche’s Second Motion to Dismiss on
August 18, 2021. In that hearing, LaBiche argued that the certificate of merit filed
by Pipkins’s previous counsel with her Fourth Amended Petition “was basically a
fraudulent affidavit” because Johnstone had testified under oath that he was licensed
in Texas, but he had not been licensed in Texas since “the early Nineties.” LaBiche
stated that it was “troubling[]” that Johnstone’s Texas license had expired in the
Nineties, and the only reason the issue came to light was because LaBiche had filed
a complaint with the architectural board. LaBiche argued the claims against it should
be dismissed with prejudice.
Pipkins argued that Johnstone’s initial certificate of merit was “mistaken[]”
and not “fraudulent.”5 Pipkins further argued that the court’s April Order allowed
sixty days to refile her petition and because the Fifth Amended Petition was filed
with compliant certificates of merit within sixty days of the order, it had complied
with the court’s order. Pipkins also stated that the trial court could just strike the
Fourth Amended Petition. Notably, Pipkins attorney also stated, “I’m not sure that
5
Clearly, Johnstone was not licensed in Texas at the time he issued his initial
certificate of merit. This Court need not decide whether the certificate was fraudulent
or filed by mistake. See Tex. R. App. P. 47.1.
10
the prior order survives the dismissal order because when [the petition] got refiled,
it became the first filed.”
On September 7, 2021, the trial court signed an Order of Dismissal With
Prejudice (the September Order) granting LaBiche’s Second Motion to Dismiss and
dismissing all of Pipkins’s claims against LaBiche with prejudice. In the September
Order the trial court used similar dismissal language to what it had used in the April
Order but this time it dismissed the claims “With Prejudice.”6
The Majority Has Missed the Mark, Expanded the Issue, and Substituted Its
Judgment for the Trial Court’s
The only issue before us on appeal is whether the trial court abused its
discretion by dismissing Pipkins’s claims against LaBiche with prejudice. Pipkins
did not argue in the trial court that the trial court would err in granting any dismissal,
and she did not argue that her Fifth Amended Original Petition controlled over the
statute because of Rule 65, or that the April Order had by agreement changed or
6
Our appellate record reflects that Pipkins filed a Motion to Reconsider. That
motion was filed after the trial court dismissed Pipkins’s claims against LaBiche.
After the Dismissal With Prejudice, 5U Golf Center, LLC and Tanner Consulting
Group filed Motions to Designate Responsible Third Party, naming LaBiche. 5U
Golf Center, LLC also filed a Third Party Petition naming LaBiche as a third-party
defendant. Because these pleadings were not before the trial court at the time it
rendered the challenged order of dismissal with prejudice, I do not consider them.
See Holden v. Holden, 456 S.W.3d 642, 648-49 (Tex. App.—Tyler 2015, no pet)
(explaining that a reviewing court reviews the trial court’s decisions based on the
record before the trial court at the time it acted); Lifeguard Benefit Servs., Inc. v.
Direct Med. Network Sols., Inc., 308 S.W.3d 102, 117 (Tex. App.—Fort Worth
2010, no pet.) (same).
11
expanded the certificate of merit contemporaneous filing requirements in Chapter
150. The Majority’s reading of the April Order misconstrues the record, and
contravenes other language in the April Order, wherein the trial court issued a direct
warning to Pipkins that it would dismiss the claims “with prejudice” if Pipkins failed
to file a certificate of merit with “any subsequent pleadings.”
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, 551 S.W.3d 320, 322 (Tex. App.—Beaumont 2018, no pet.); CBM
Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 342-43 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied). Only when a trial court acts “arbitrarily or
unreasonably, without reference to any guiding rules and principles,” will it
constitute an abuse of discretion.7 Barron, Stark & Swift Consulting Eng’rs, LP, 551
S.W.3d at 322 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-
42 (Tex. 1985)). If our review necessitates statutory interpretation, we conduct that
review de novo. See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex.
2014); Barron, Stark & Swift Consulting Eng’rs, LP, 551 S.W.3d at 322.
7
A trial court also 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.). But the majority does not criticize the
trial court for failing to analyze or apply the law correctly.
12
Section 150.002 of the Texas Civil Practice and Remedies Code requires that
a sworn “certificate of merit” accompany a plaintiff’s “complaint” in a case that
“aris[es] out of the provision of professional services by a licensed or registered
professional[]” named in the statute. See Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002(a). Chapter 150 defines “complaint” as the “petition or other pleading
which, for the first time, raises a claim against a licensed or registered professional
for damages arising out of the provision of professional services by the licensed or
registered professional.” Id. § 150.001(1-b) (emphasis added). The sworn certificate
or affidavit must be from a licensed professional who meets certain qualifications
and attests to the lawsuit’s merit. Id. As this Court has previously stated, “Courts
have consistently interpreted [section 150.002] as requiring plaintiffs to file a
certificate of merit with a ‘first-filed petition’ as to the defendants in which a section
150.002 claim applies.” Barron, Stark & Swift Consulting Eng’rs LP, 551 S.W.3d
at 322 (citing TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71,
77 (Tex. App.—Dallas 2014, pet. denied); JJW Dev., L.L.C. v. Strand Sys. Eng’g,
Inc., 378 S.W.3d 571, 576 (Tex. App.—Dallas 2012, pet. denied); Sharp Eng’g v.
Luis, 321 S.W.3d 748, 752 (Tex. App.—Houston [14th Dist.] 2010, no pet.)). The
“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.” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e); see also Crosstex
13
Energy Servs., L.P., 430 S.W.3d at 393 (describing the filing requirement as
“mandatory[]”).
“The trial court ‘shall’ dismiss a complaint where a plaintiff fails to comply
with the statute.” See Barron, Stark & Swift Consulting Eng’rs, LP, 551 S.W.3d at
324 (citing Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e)). This Court has
previously explained that “if a trial court chooses to dismiss a complaint without
prejudice, and a plaintiff files a new action which includes the appropriate
certificates of merit with the first-filed petition in that action, the plaintiff has
complied with the statute.” Id. (citing TIC N. Cent. Dallas 3, L.L.C., 463 S.W.3d at
77) (emphasis added).
That said, if a trial court chooses to dismiss a complaint without prejudice,
and a plaintiff files a new action which does not include the appropriate certificates
of merit with the first-filed petition in that action, the plaintiff has not complied with
the statute. And the failure to file a certificate of merit with the first-filed petition
cannot be cured by amendment. See Crosstex Energy Servs., L.P., 430 S.W.3d at
395 (“failure to file a certificate of merit with the original petition cannot be cured
by amendment”); see also Fluor Enters., Inc. v. Maricelli, No. 09-19-00121-CV,
2020 WL 2070257, at *6 (Tex. App.—Beaumont Apr. 30, 2020, pet. denied) (mem.
op.) (“[T]he plain language of the statute does not permit amendments or
supplemental affidavits to correct a failure to comply with Section 150.002’s
14
contemporaneous filing requirement.”); Tex. S. Univ. v. Kirksey Architects, Inc., 577
S.W.3d 570, 576 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (explaining that a
plaintiff is not entitled to an extension of time to file a certificate of merit when the
plaintiff did not allege in its petition that its filing near the statute of limitations
prevented the preparation of a compliant certificate of merit); see also Hydrotech
Eng’g, Inc. v. OMP Dev., LLC, 438 S.W.3d 895, 901-03 (Tex. App.—Dallas 2014,
pet. denied) (when third amended petition was first pleading to include claim
alleging professional negligence, failure to file accompanying certificate of merit
required dismissal, and even if that failure was from an alleged clerical error and a
certificate was filed one day later with another amended petition, the failure to
comply with the contemporaneous filing requirement cannot be cured by
amendment); Pakal Enters., Inc. v. Lesak Enters. LLC, 369 S.W.3d 224, 228-29
(Tex. App.—Houston [1st Dist.] 2011, pet. denied) (because first petition stated
claims subject to certificate of merit requirement, filing certificate with later
amended pleading was insufficient even though amended petition changed name of
defendant); Sharp Eng’g, 321 S.W.3d at 750-52 (certificate of merit must be filed
with initial petition, and failure to do so could not be cured by filing certificate with
amended petition when plaintiff never sought extension of time to file the
certificate); Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492,
499-500 (Tex. App.—Corpus Christi 2009, no pet.) (because statute does not allow
15
opportunity to cure by amendment or supplementation, a trial court should look only
to the initial certificate).
To determine whether a court abuses its discretion in dismissing with or
without prejudice under section 150.002, courts must consider the facts and
circumstances of each case. See Pedernal Energy, LLC, v. Bruington Eng’g, Ltd.,
536 S.W.3d 487, 494-96 (Tex. 2017) The statute gives trial courts discretion to
dismiss with prejudice, which reflects “‘the legislature’s intent to allow trial courts
to determine when a plaintiff should be given a second opportunity to comply with
the statute.’” CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 461
S.W.3d 627, 631 (Tex. App.—Fort Worth 2015, pet. denied) (quoting TIC N. Cent.
Dallas 3, 463 S.W.3d at 76-77) (emphasis added). If a plaintiff’s claim is dismissed
without prejudice, and then the plaintiff refiles an amended or subsequent petition
that also fails to meet the certificate of merit requirement, such facts may support a
subsequent dismissal with prejudice. See Pedernal Energy, LLC, 536 S.W.3d at
4996. While it is true that the parties verbally agreed on the record at the hearing that
preceded the April Order that the first dismissal could be without prejudice and the
trial court set a sixty-day deadline for Pipkins to refile a claim against LaBiche, that
does not support a finding by the Majority that the trial court and the parties agreed
to “expand the certificate of merit’s contemporaneous filing requirement” under
section 150.002(a). The same trial court that entered the April Order also entered the
16
September Order.8 And the trial court entered its September Order after both parties
filed their briefs and after holding a hearing on the Second Motion to Dismiss.
In this case, the trial court had already dismissed Pipkins’s claims against
LaBiche without prejudice in April 2021 because Pipkins failed to file a certificate
of merit with her Third Amended Petition. The trial court considered and
implemented lesser sanctions when it entered the April 2021 Order. The trial court
had no obligation to grant Pipkins successive dismissals without prejudice. So, I
reject Pipkins’s argument that the trial court erred because it failed to consider a
lesser sanction and grant another dismissal without prejudice.
I disagree with the Majority’s application of Texas Rule of Civil Procedure
65 as a basis for its decision in this case. Rule 65 is a rule of civil procedure that
generally provides that an amended pleading supersedes an earlier pleading. See
Tex. R. Civ. P. 65; Lake Jackson Medical Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 839
n.7 (Tex. 2022). Rule 65 does not override the specific requirements in the statute
that requires the certificate of merit to be filed contemporaneously with the first-
filed petition. “Both our precedent and the Government Code instruct that the more
8
Pipkins filed a motion to clarify the April Order with the trial court. The
motion to clarify was filed after Pipkins had already filed her Fifth Amended
Petition, and after LaBiche had already filed its Second Motion to Dismiss. The trial
court tacitly rejected Pipkins’s request to modify or clarify the April Order after
holding a hearing, and thereafter it entered its September Order dismissing the
claims with prejudice.
17
specific statute controls” when conflicting with general rules unless the general
provision is the later enactment and the manifest intent is that the general provision
prevail. S.C. v. M.B., No. 20-0552, 2022 WL 2192167, at *24 (Tex. June 17, 2022)
(citing Tex. Gov’t Code Ann. § 311.026(b); In re Mem’l Hermann Hosp. Sys., 464
S.W.3d 686, 716 (Tex. 2015)); Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000)
(“[W]hen a rule of procedure conflicts with a statute, the statute prevails unless the
rule has been passed subsequent to the statute and repeals the statute as provided by
Texas Government Code section 22.004.”); In re United Parcel Serv., Inc., No. 09-
18-00002-CV, 2018 WL 753503, at *4 (Tex. App.—Beaumont Feb. 8, 2018, no pet)
(mem. op.) (“Generally, when a rule of procedure conflicts with a statute, the statute
prevails.”); see also Tex. Gov’t Code Ann. § 22.004 (procedural rules “may not
abridge, enlarge, or modify the substantive rights of a litigant.”).
Rule 65 provides that an amended petition supersedes the previously filed
petition, but it does not nullify the fact that the Fourth Amended Petition, which was
the first-filed petition after the dismissal without prejudice, lacked a compliant
certificate of merit. As noted by the Texas Supreme Court in University of Texas
Health Science Center at Houston v. Rios, 542 S.W.3d 530, 538 (Tex. 2017),
wherein the Court concluded that Rule 65 did not control in the context of employees
who were entitled to a dismissal under Section 101.106(e) of the Texas Tort Claims
Act, “[a]mendments do not always avoid the consequences of filing.” Rule 65 has
18
been in effect since 1941, and section 150.002, was last amended in 2019. The
certificate of merit statute prevails over Rule 65.
The Majority acknowledges the statute requires the certificate of merit to be
filed contemporaneously with the first-filed petition. Rather than apply the statute,
the Majority broadly construes the language of the April Order (propped up by a
“straw man” oral agreement) to find the statute does not control. We are told by the
Majority that the trial court’s April Order of dismissal “in effect expanded” the
contemporaneous filing requirement, but the result here is that it completely
removed not only the contemporaneous requirement but also the requirement that
the certificate must accompany the “first-filed” petition. Under the Majority’s
reasoning, Pipkins could have filed a limitless number of successive petitions during
the sixty-day window without a certificate of merit or with a clearly deficient
certificate of merit, and then she could have simply filed a compliant certificate of
merit on the 60th day and she would avoid any dismissal. I find this construction of
the so-called “oral agreement” and of the plain language in the trial court’s April
Order to be completely unreasonable.
The Majority criticizes the trial court for “failing to consider Rule 65 and
Pipkins’s Fifth Amended Petition” at the time it entered the September Order
dismissing the claims with prejudice. The record before us shows both parties
acknowledged the Fourth Amended Petition did not comply with section 150.002,
19
and that plaintiff had filed a Fifth Amended Petition with two certificates of merit.
In my opinion, the trial court reasonably considered these facts, along with the
procedural history in this case, and the wording of the April Order, when it reached
the conclusion that a dismissal was warranted.
By statute, LaBiche was not required to file an answer to the Fourth Amended
Petition until thirty days after Pipkins had filed the certificate of merit required by
the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(d). And special
exceptions were not required.9 Appellant does not contend that LaBiche waited too
long to file the Second Motion to Dismiss.
Under the applicable statutory provision, the trial court had no discretion but
to dismiss the Fourth Amended Petition. And the only question on appeal is whether
the trial court abused its discretion when it dismissed the claims with prejudice.
Under an abuse of discretion standard of review, a court of appeals cannot
substitute its judgment for the trial court’s reasonable judgment even if it would have
reached a contrary conclusion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211
9
As noted in Crosstex:
However, failure to file a certificate of merit with the original petition
cannot be cured by amendment. Landreth [], 285 S.W.3d [at] 499 []. If
a defect in the pleadings is incurable by amendment, a special exception
is unnecessary. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998).
We agree with the court of appeals that Pro Plus was not required to file
a special exception to the lack of a certificate of merit.
Crosstex Energy Servs., L.P., 430 S.W.3d at 395.
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(Tex. 2002). Here, the Majority has substituted its judgment for the trial court’s
judgment.10
Having already given Pipkins one dismissal without prejudice and having
duly warned Pipkins that if she failed to include a certificate of merit with “any
subsequent pleadings,” I cannot say that the trial court abused its discretion in
dismissing Pipkins’s claims against LaBiche with prejudice. The trial court followed
the law applicable to this case as stated in Texas Civil Practice & Remedies Code,
Chapter 150. Finding no abuse of discretion, I would overrule Pipkins’s issue, and
affirm the trial court’s order, even though the result may seem harsh.
________________________________
LEANNE JOHNSON
Justice
Dissent Delivered
August 31, 2022
10
The Majority also fails to consider that a trial court has broad discretion in
carrying out its duty to interpret and enforce its judgments and its pretrial orders.
See, e.g., In re Akin Gump Strauss Hauer & Feld, LLP, 252 S.W.3d 480, 493 (Tex.
App.—Houston [14th Dist.] 2008, orig. proceeding) (referencing trial court’s
discretion and duty to interpret its judgments in context of order enforcing arbitration
award).
21