Guice Engineering, Inc. v. Sheila Turner, Indiviually and as Next Friend of D. J. T., Jr. and A. T., Minor Children and Danny Earl Cain as Representative of the Estate of David Justin Turner, and as Next Friend of D. J. T., Jr. and A. T.

Opinion issued November 27, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00505-CV
———————————
GUICE ENGINEERING, INC., Appellant
V.
SHEILA TURNER, INDIVIDUALLY AND AS NEXT FRIEND OF D.J.T.,
JR. AND A.T., MINOR CHILDREN, DANNY EARL CAIN AS
REPRESENTATIVE OF THE ESTATE OF DAVID JUSTIN TURNER,
AND AS NEXT FRIEND OF D.J.T., JR. AND A.T., MINOR CHILDREN,
MICHAEL BROWN, JOHNNY MULLINS, ERIC JUAREZ, AND
ARMANDO GONZALES, Appellees
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2015-73209
MEMORANDUM OPINION
This is an interlocutory appeal under Chapter 150 of the Civil Practice and
Remedies Code.1 Sheila Turner, individually and as next friend of D.J.T., Jr. and
A.T., minor children, and Danny Earl Cain as representative of the estate of David
Justin Turner, and as next friend of D.J.T., Jr. and A.T., minor children (“the Turner
appellees”) sued appellant, Guice Engineering, Inc. and others,2 asserting causes of
action for wrongful death, survival, negligence and gross negligence. Michael
Brown, Johnny Mullins, Eric Juarez and Armando Gonzales (“the Brown
appellees”) also sued Guice and others, asserting against Guice claims for
negligence, negligence per se, and gross negligence. In three issues, Guice contends
that the trial court abused its discretion when it (1) allowed appellees to non-suit and
re-file an amended petition and amended certificate of merit; (2) denied Guice’s first
motion to dismiss/motion to strike deficient certificate of merit; and (3) denied
Guice’s second motion to dismiss/motion to strike deficient certificate of merit. We
dismiss Guice’s appeal.
1
Chapter 150 governs suits filed against certain licensed professionals, including
engineers. See TEX. CIV. PRAC. & REM. CODE ANN. §150.001–.004 (West 2011 &
Supp. 2018).
2
The other named defendants—Basic Energy Services, LP, Midstates Petroleum
Company, Inc., Knight Oil Tools, LLC, Stewart Luce, RWDY, Inc., Schwab’s
Tinker Shop Int’l, Inc., and Red’s Satellite Services, Co.—are not parties to this
appeal.
2
Factual and Procedural Background
On July 23, 2015, a work-over rig toppled over during fishing operations3 in
an oil and gas well in Woods County, Oklahoma. David Justin Turner, who was
near the top of the derrick, was killed, and four other Basic Energy Services
employees—Brown, Mullins, Juarez, and Gonzales—sustained serious injuries.
On April 18, 2017, the Turner appellees filed their second amended original
petition,4 asserting causes of action against Guice, among others, for wrongful death,
survival, negligence and gross negligence. To their second amended petition, they
attached a certificate of merit affidavit of Gregg S. Perkin, a registered professional
engineer, dated April 17, 2017. On May 12, 2017, the Brown appellees sued Guice
in their original petition in intervention, attaching the same certificate of merit to
their petition.
On May 25, 2017, Guice filed a motion entitled “Defendant Guice
Engineering, Inc.’s Motion to Strike Denoted Certificate of Merit Affidavit and
Motion to Dismiss.” The motion asked the trial court to strike Perkin’s certificate
of merit affidavit and dismiss the Turner appellees’ and Brown appellees’
3
“Fishing” is a procedure in which a well servicing unit, or “rig,” is used to recover
equipment that is lost or stuck in a well.
4
The Turner appellees did not name Guice or any other licensed professional in their
original petition filed December 7, 2015, so no certificate of merit was included
with that pleading.
3
negligence, negligence per se, and gross negligence claims under Texas Civil
Practice and Remedies Code section 150.002. Guice’s motion was set to be heard
on July 10, 2017.
On July 5, 2017, the Turner appellees and Brown appellees non-suited their
claims against Guice, without prejudice. Later that day, the Turner appellees and
Brown appellees re-filed suit against Guice and attached to their respective pleadings
a second certificate of merit from Perkin.5
On July 11, 2017, Guice filed a supplemental brief in support of its motion to
strike certificate of merit affidavit and motion to dismiss. In its brief, Guice argued
that its motion to strike and motion to dismiss filed on May 25, 2017 survived the
Turner appellees’ and Brown appellees’ non-suit, and that the propriety of the
original certificate of merit affidavit remained before the trial court and necessitated
a ruling.
On July 12, 2017, Guice filed two motions. The first motion, entitled “Subject
to Motion to Strike Certificate of Merit Affidavit and Motion to Dismiss, Motion to
Disregard Plaintiffs’ and Intervenors’ Non-Suits and Motion to Strike Amended
Petitions,” asked the trial court to disregard the Turner appellees’ and Brown
appellees’ non-suits and strike their amended petitions. The second motion, entitled
5
In their brief, the Turner appellees state that the second certificate, which includes
documents dated January 2, 2017 and June 24, 2017, was mistakenly dated July 5,
2016, and should read 2017. Guice does not take issue with the assertion.
4
“Subject to Motion to Strike Original Certificate of Merit Affidavit and Motion to
Dismiss, Guice Engineering, Inc.’s Motion to Strike Second Certificate of Merit
Affidavit and Motion to Dismiss,” asked the trial court to strike Perkin’s second
certificate of merit and dismiss the Turner appellees’ and Brown appellees’
negligence, negligence per se, and gross negligence claims under section 150.002.
Guice’s motions were set to be heard on August 15, 2017.6
On August 10, 2017, the Turner appellees and Brown appellees jointly filed
their responses to Guice’s “Motion to Strike Denoted Certificate of Merit Affidavit
and Motion to Dismiss” and “Motion to Strike Second Certificate of Merit Affidavit
and Motion to Dismiss.” They argued, in part, that the first and second certificate
of merit affidavits satisfied the requirements of section 150.002. That same day,
they also jointly filed their response to Guice’s “Motion to Disregard Plaintiffs’ and
Intervenors’ Nonsuits and to Strike Amended Petitions,” in which they argued that
nothing prohibited them from filing their non-suits and filing amended petitions with
an updated certificate of merit.
On April 2, 2018, the trial court held a hearing on Guice’s (1) Motion to Strike
Denoted Certificate of Merit Affidavit and Motion to Dismiss; (2) Subject to Motion
6
The hearing was ultimately passed after co-defendant Knight Oil Tools advised the
court that it had filed for bankruptcy. The bankruptcy stay was lifted on January 8,
2018.
5
to Strike Original Certificate of Merit Affidavit and Original Motion to Dismiss,
Guice’s Motion to Strike Second Certificate of Merit Affidavit and Motion to
Dismiss; and (3) motions for summary judgment. On April 17, 2018, the trial court
signed an order,7 stating
Came on to be heard Defendant Guice Engineering, Inc.’s Motion to
Strike Denoted Certificate of Merit Affidavit and Motion to Dismiss.
Upon consideration, the Court DENIES Defendant Guice Engineering,
Inc.’s Motion to Strike Denoted Certificate of Merit Affidavit and
Motion to Dismiss.
On April 25, 2018, Guice filed a motion for clarification and set it for hearing
on May 21, 2018. The motion stated that Guice had three motions pending before
the court at the time the trial court signed its April 17, 2018 order: (1) Motion to
Strike Denoted Certificate of Merit and Motion to Dismiss; (2) Subject to Motion to
Strike Original Certificate of Merit Affidavit and Original Motion to Dismiss,
Guice’s Motion to Strike Second Certificate of Merit Affidavit and Motion to
Dismiss; and (3) Motion to Dismiss David Bryan Turner’s Claims Under Section
150 of Texas Civil Practice and Remedies Code.8 Guice asked the court to clarify
to which of the three motions its April 17 order applied.
7
That same day, the trial court denied Guice’s motions for summary judgment against
the Turner appellees’ and the Brown appellees’ negligence, negligence per se, and
gross negligence causes of action.
8
In its third motion, Guice argued that David Bryan Turner’s claims against it should
be dismissed because he did not file a certificate of merit with his first-filed
complaint, as required by section 150.002(a).
6
On May 22, 2018, the trial court signed an order, stating
Came on to be heard Defendant Guice Engineering, Inc.’s Motion to
Strike Second Certificate of Merit Affidavit and Motion to Dismiss.
Upon consideration, the Court DENIES Defendant Guice Engineering,
Inc.’s Motion to Strike Second Certificate of Merit Affidavit and
Motion to Dismiss.
That same day, the trial court signed an order granting Guice’s motion for
clarification. The order stated, in relevant part:
The Court denied both Defendant Guice Engineering, Inc.’s Motion to
Strike Denoted Certificate of Merit Affidavit and Motion to Dismiss
AND Defendant Guice Engineering, Inc.’s Motion to Strike Second
Certificate of Merit Affidavit and Motion to Dismiss, and now has
signed a separate Order on the Motion to Strike Second Certificate of
Merit Affidavit and Motion to Dismiss. In light of the clarification, the
parties have agreed that all appellate deadlines for appeal of these two
orders will begin from the date of the Order on the Motion to Strike
Second Certificate of Merit Affidavit and Motion to Dismiss, which is
May 22, 2018.9
Guice filed its notice of appeal on May 30, 2018. The notice states that “Guice
desires to appeal the 295th District Court’s Orders, dated May 22, 2018, denying its
Motion to Strike Denoted Certificate of Merit Affidavit and Motion to Dismiss (filed
May 25, 2017) and Motion to Strike Second Certificate of Merit Affidavit[] and
Motion to Dismiss (filed July 12, 2017).”
9
The trial court further stated that because Guice’s motion to dismiss David Bryan
Turner’s claims under section 150.002 was not set for hearing on April 2, 2018, that
motion “will be set for hearing at a future date.”
7
Standard of Review
An order granting or denying a motion to dismiss for failure to file a certificate
of merit is immediately appealable. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 150.002(f) (West 2011). We review a trial court’s order denying a motion to
dismiss pursuant to section 150.002 for abuse of discretion. See CBM Eng’rs, Inc.
v. Tellepsen Builders, L.P., 403 S.W.3d 339, 342–43 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied). A trial court abuses its discretion when it acts arbitrarily
or unreasonably, without reference to any guiding rules and principles. See id. at
342; see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985). 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.).
Discussion
In its first issue, Guice contends that the trial court abused its discretion when
it allowed the Turner appellees to non-suit and re-file an amended petition and
amended certificate of merit by the same expert while a motion to dismiss, based on
the deficient certificate of merit, was pending. In its second issue, it argues that the
trial court abused its discretion when it denied Guice’s first motion to dismiss/motion
to strike deficient certificate of merit because the original certificate of merit did not
comply with the statutory requirements of section 150.002. In its third issue, Guice
8
asserts that the trial court abused its discretion when it denied Guice’s second motion
to dismiss/motion to strike deficient certificate of merit because the amended
certificate did not comply with statutory requirements. Alternatively, Guice argues
that even if the second certificate of merit complied, it was a nullity and should not
have been considered because the failure to file a compliant certificate of merit
affidavit may not be cured by amendment in the same proceeding.
As a threshold matter, we must determine whether we have jurisdiction over
Guice’s appeal.
A. Applicable Law
An appeal of an order denying a motion to dismiss under section 150.002 is
an interlocutory, accelerated appeal. See TEX. CIV. PRAC. & REM. CODE
§ 150.002(f); see also TEX. R. APP. P. 28.1(a). “Unless otherwise provided by
statute, an accelerated appeal is perfected by filing a notice of appeal in compliance
with Rule 25.1 within the time allowed by Rule 26.1(b) or as extended by Rule 26.3.”
TEX. R. APP. P. 28.1(b). Rule 26.1(b) states that “in an accelerated appeal, the notice
of appeal must be filed within 20 days after the judgment or order is signed[.]” TEX.
R. APP. P. 26.1(b).
To invoke an appellate court’s jurisdiction over an appealable order, a timely
notice of appeal must be filed. See TEX. R. APP. P. 25.1, 26.1; see also Penny v.
Shell Oil Prods. Co., 363 S.W.3d 694, 697 (Tex. App.–Houston [1st Dist.] 2011, no
9
pet.). An interlocutory order that is not timely appealed is not reviewable by this
court. See CTL/Thompson Tex., LLC v. Morrison Homes, 337 S.W.3d 437, 441
(Tex. App.—Fort Worth 2011, pet. denied); State v. Ruiz Wholesale Co., 901 S.W.2d
772, 775 (Tex. App.—Austin 1995, no writ). Statutes allowing interlocutory appeals
are to be strictly construed. See Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex.
1998).
B. Analysis
On May 25, 2017, Guice filed a motion entitled “Defendant Guice
Engineering, Inc.’s Motion to Strike Denoted Certificate of Merit Affidavit and
Motion to Dismiss.” The motion asked the trial court to strike Perkin’s first
certificate of merit and dismiss the Turner appellees’ and Brown appellees’
negligence, negligence per se, and gross negligence claims under section 150.002.
By written order dated April 17, 2018, the trial court denied “Defendant Guice
Engineering, Inc.’s Motion to Strike Denoted Certificate of Merit Affidavit and
Motion to Dismiss.”
We construe orders under the same rules of interpretation as those applied to
other written instruments. See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402,
404–05 (Tex. 1971); see also Payless Cashways, Inc. v. Hill, 139 S.W.3d 793, 795
(Tex. App.—Dallas 2004, no pet.). “If an order is unambiguous, we must construe
the order in light of the literal meaning of the language used.” Hill, 139 S.W.3d at
10
795 (citing McLeod v. McLeod, 723 S.W.2d 777, 779 (Tex. App.—Dallas 1987, no
writ) and Quanto Int’l Co., v. Lloyd, 897 S.W.2d 482, 486 (Tex. App.—Houston [1st
Dist.] 1995, orig. proceeding)). Here, the trial court’s April 17, 2018 order is
unambiguous, and its literal meaning is clear. The order explicitly denied
“Defendant Guice Engineering, Inc.’s Motion to Strike Denoted Certificate of Merit
Affidavit and Motion to Dismiss.” Therefore, Guice had to file its notice of appeal
of the April 17, 2018 order within twenty days after the order was signed, or by May
7, 2018. See TEX. R. APP. P. 26.1(b). Guice filed its notice of appeal of the April
17, 2018 order on May 30, 2018—forty-three days after the April 17, 2018 order.10
Guice nevertheless contends that it timely filed its notice of appeal of the trial
court’s April 17, 2018 order. In support of its argument, Guice points to the trial
court’s May 22, 2018 order, stating, “In light of the clarification, the parties have
agreed that all appellate deadlines for appeal of these two orders [i.e., the April 17,
2018 order and the May 22, 2018 order denying Guice’s motion to strike second
certificate of merit affidavit and motion to dismiss] will begin from the date of the
10
Guice did not move for an extension of time to file its notice of appeal. Because
Guice filed its notice of appeal more than fifteen days after the date on which it was
due, a motion for extension of time is not implied. See Garza v. v. Hibernia Nat’l
Bank, 227 S.W.3d 233, 233 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(applying Verburgt rule to section 150.002 motion to dismiss and concluding where
motion was not filed by deadline but filed within fifteen days of deadline, motion
for extension was necessarily implied) (citing Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997)).
11
Order on the Motion to Strike Second Certificate of Merit Affidavit and Motion to
Dismiss, which is May 22, 2018.”11 Thus, Guice contends, “the parties and the trial
court unambiguously intended for this Court to have jurisdiction over this appeal.”
“Whether we have jurisdiction is a question of law, which we review de
novo.” Galbraith v. Williams Cos., No. 01-15-01084-CV, 2017 WL 2872306, at *2
(Tex. App.—Houston [1st Dist.] July 6, 2017, pet. denied) (mem. op.) (citing Tex. A
& M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007)). We “have an
independent duty to determine sua sponte whether we have the authority to hear an
appeal; the parties cannot confer jurisdiction by agreement.” Castle & Cooke
Mortg., LLC v. Diamond T Ranch Dev., Inc., 330 S.W.3d 684, 687 (Tex. App.—San
Antonio 2010, no pet.); see Jack M. Sanders Family Ltd. P’ship v. Roger T. Fridholm
Revocable Living Trust, 434 S.W.3d 236, 240 (Tex. App.—Houston [1st Dist.] 2014,
no pet.). “[T]he question whether appellate jurisdiction exists cannot be waived or
settled by agreement of the parties.” Jack M. Sanders Family Ltd. P’ship, 434
S.W.3d at 240; see Anglo-Dutch Energy, LLC v. Crawford Hughes Operating. Co.,
No. 14-16-00635-CV, 2017 WL 4440530, at *4 (Tex. App.—Houston [14th Dist.]
Oct. 5, 2017, pet. filed) (mem. op.) (“[T]he parties’ stipulation cannot create
11
We note that, on May 22, 2018, when the trial court signed the order on Guice’s
motion for clarification, the deadline for Guice to file its notice of appeal from the
April 17, 2018 order denying “Guice’s Motion to Strike Denoted Certificate of
Merit Affidavit and Motion to Dismiss” had already passed.
12
appellate jurisdiction where none exists.”); Kelley v. Brooks, No. 14-13-00399-CV,
2013 WL 3580781, at *1 (Tex. App.—Houston [14th Dist.] July 11, 2013, no pet.)
(mem. op.). Concomitantly, a trial court cannot create appellate jurisdiction by
consent. See Anglo-Dutch Energy, LLC, 2017 WL 4440530, at *4 (quoting Texaco,
Inc. v. Shouse, 877 S.W.2d 8, 11 (Tex. App.—El Paso 1994, no writ)); Welder v.
Fritz, 750 S.W.2d 930, 932 (Tex. App.—Corpus Christi 1988, no writ) (“It is well
settled . . . that appellate jurisdiction cannot be created by consent, stipulation of the
parties, or waiver, either by the court or by the litigants.”).
Guice’s notice of appeal was untimely. Because we have no jurisdiction over
Guice’s appeal from the trial court’s April 17, 2018 order, that order is unreviewable.
See Easton v. Brasch, 277 S.W.3d 558, 559 (Tex. App.—Houston [1st Dist.] 2009,
no pet.).
In its notice of appeal, Guice also challenged the trial court’s May 22, 2018
order denying “Guice Engineering, Inc.’s Motion to Strike Second Certificate of
Merit Affidavit and Motion to Dismiss.” The statute requires only one certificate of
merit. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a). Because the first
certificate of merit was properly filed and has not been ruled deficient, the portion
of Guice’s appeal that challenges the trial court’s order denying its motion to strike
Perkin’s second certificate of merit and motion to dismiss is moot. See James v.
Calkins, 446 S.W.3d 135, 143 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)
13
(quoting Meeker v. Tarrant Cty. Coll. Dist., 317 S.W.3d 754, 759 (Tex. App.—Fort
Worth 2010, pet. denied) (“An issue may become moot when a party seeks a ruling
on some matter that, when rendered, would not have any practical legal effect on a
then-existing controversy.”). “When an appeal is moot, we must dismiss it.” Id.;
see Grant v. Huberty, No. 01-18-00040-CV, 2018 WL 3431803, at *1 (Tex. App.—
Houston [1st Dist.] July 17, 2018, no pet.) (mem. op.) (per curiam) (“Appellate
courts lack jurisdiction to decide moot controversies[.]”) (citing Nat’l Collegiate
Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999)).
Conclusion
Having determined that we lack jurisdiction over the appeal of the trial court’s
April 17, 2018 order denying “Guice Engineering, Inc.’s Motion to Strike Denoted
Certificate of Merit Affidavit and Motion to Dismiss,” we dismiss that portion of
Guice’s appeal. Because the first certificate of merit affidavit is in effect, we dismiss
as moot the portion of Guice’s appeal challenging the trial court’s order denying
“Guice Engineering, Inc.’s Motion to Strike Second Certificate of Merit Affidavit
and Motion to Dismiss.”
Russell Lloyd
Justice
Panel consists of Justices Higley, Lloyd, and Caughey.
14