Opinion
05-23-00662-CV
02-09-2024
LOGICAL SYSTEMS, INC. D/B/A LOGICAL SYSTEMS, LLC, Appellant v. EDGAR BERRIOS, INDIVIDUALLY AND AS NEXT FRIEND ON BEHALF OF CA.B., CESAR BERRIOS, AND ESTELA A. QUINTOS LOPEZ, Appellees
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-22-01109-B
Before Justices Molberg, Reichek, and Smith
MEMORANDUM OPINION
PER CURIAM
More than eighteen months after a machine used by appellee Edgar Berrios nearly severed one of his arms while he was working, appellees sued appellant Logical Systems, Inc. d/b/a Logical Systems, LLC (LSI) and others, claiming their defective design of the machine he was using at the time caused his injuries and appellees' related losses. Ten months later, after appellees had twice amended their petition, LSI moved to dismiss appellees' claims against LSI with prejudice because, LSI argued, appellees failed to submit a certificate of merit as required by Texas Civil Practice and Remedies Code § 150.002. On June 8, 2023, the trial court granted LSI's motion in part, dismissing appellees' claims against LSI without prejudice and allowing appellees "to amend with the required specific notice to cure the defect, if it can cure."
The trial court's order of dismissal did not state what it considered the "defect" to be, but the record makes it apparent. In LSI's motion to dismiss, LSI asserted only one basis for dismissal of appellees' claims against it, namely, that appellees "failed to include a certificate of merit with [their] Petition." During the hearing on the motion, both sides' counsel acknowledged appellees had filed a certificate of merit naming a separate party, but LSI argued this was not sufficient. According to LSI, to comply with the statute, appellees "had to file a [c]ertificate of [m]erit as to LSI[,]" and "[t]here has to be a different [certificate of merit] against each licensed professional." LSI's counsel explained this as follows: "So if you have two engineers. You have engineer A and engineer B in a case, you can't just use the certificate against engineer A to cover engineer A and B. You have to have one for engineer A and one for engineer B." No individual engineers are named as party defendants in this case.
LSI timely filed this accelerated, interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 150.002(f) (allowing interlocutory appeal); TEX. R. APP. P. 28.1(a) (appeals from interlocutory orders when allowed by statute are accelerated appeals). Appellees filed no cross-appeal challenging the dismissal. See TEX. R. APP. P. 26.1(d) (process and deadline for such).
On appeal, LSI argues the trial court abused its discretion by dismissing appellees' claims without prejudice and allowing appellees to amend "with the required specific notice to cure the defect, if it can cure." As explained below, we conclude the trial court did not err by dismissing appellees' claims without prejudice but did err by allowing appellees "to amend with the required specific notice to cure the defect, if it can cure." Thus, without addressing the propriety, if any, of the dismissal of appellees' claims against LSI, we affirm the portion of the trial court's June 8, 2023 order dismissing appellees' claims against LSI without prejudice, reverse the portion of the order allowing appellees to amend their pleading as to their claims against LSI, and remand this cause to the trial court for further proceedings consistent with this opinion.
We have grave concerns about the dismissal based on the record before us, the design-defect nature of appellees' claims against LSI, and the underlying purpose of the certificate of merit requirement, but because no party has appealed the dismissal of appellees' claims against LSI, we have no way to address these concerns or to consider in this appeal whether the dismissal was error.
Issues & Analysis
The trial court dismissed appellees' claims against LSI without prejudice but also allowed appellees to amend "with the required specific notice to cure the defect, if it can cure." LSI argues the trial court abused its discretion by taking both actions.
We review an order granting a Chapter 150 motion to dismiss under an abuse of discretion standard, but if resolution of the issue requires us to interpret or construe the statutory language, we review that issue de novo. TIC N. Cent. Dall. 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 76 (Tex. App.-Dallas 2014, pet. denied).
When reading a statute, our goal is to ascertain and give effect to the legislature's intent. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We consider statutes as a whole rather than their isolated provisions. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We "endeavor to read the statute contextually, giving effect to every word, clause, and sentence." In re Office of Att'y Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding).
Civil practice and remedies code § 150.002, entitled "Certificate of Merit," states, in pertinent part:
[I]n any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, a claimant shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who [meets certain criteria as specified in the statute].See TEX. CIV. PRAC. &REM. CODE § 150.002(a). A claimant's failure to file the affidavit in accordance with § 150.002 "shall result in dismissal of the complaint against the defendant[,]" and "[t]his dismissal may be with prejudice." See id. § 150.002(e). Thus, while the statute requires a trial court to dismiss a complaint if a claimant does not file a certificate of merit in compliance with the statute, because the dismissal "may" be with prejudice, the statute expressly does not require the trial court to dismiss with prejudice, and the trial court has discretion in determining whether to dismiss with or without prejudice. See TIC N. Cent. Dallas 3, 463 S.W.3d at 76. In exercising this discretion, the trial court cannot act "in an arbitrary or unreasonable manner without reference to guiding rules or principles" and should consider the statute's "broader purposes" of deterring and quickly ending meritless claims. Id.; see CTL/Thompson Tex., L.L.C. v. Starwood Homeowner's Ass'n., Inc., 390 S.W.3d 299, 301 (Tex. 2013) (per curiam) (purpose of a section 150.002(e) dismissal is "to deter meritless claims and bring them quickly to an end").
"Licensed or registered professional" means a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices, including but not limited to a corporation, professional corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship, joint venture, or any other business entity. See TEX. CIV. PRAC. & REM. CODE § 150.001(1-c).
"Claimant" is defined as "a party, including a plaintiff or third-party plaintiff, seeking recovery for damages, contribution, or indemnification." See TEX. CIV. PRAC. & REM. CODE § 150.001(1-a).
"Complaint" is defined as "any 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." See TEX. CIV. PRAC. & REM. CODE § 150.001(1-b).
In Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 496 (Tex. 2017), the court stated:
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. But that determination is within the trial court's discretion and is reviewed for abuse of discretion.
Here, we need not and do not consider whether the trial court abused its discretion in deciding to dismiss appellees' claims against LSI because none of the parties challenge that dismissal. Instead, we consider only whether the trial court abused its discretion in dismissing appellees' claims against LSI without prejudice (LSI's second issue) and whether the trial court should have allowed appellees to amend "with the required specific notice to cure the defect, if it can cure" (LSI's first issue).
While LSI acknowledges a Chapter 150 dismissal "may be with prejudice," see TEX. CIV. PRAC. &REM. CODE § 150.002(e), LSI argues, in essence, that under the circumstances here-where Edgar Berrios's injuries occurred more than two years before the dismissal date and thus appellees' claims could not be re-filed within the statute of limitations-the trial court abused its discretion by dismissing appellees' claims without prejudice and allowing appellees to amend. Appellees dispute LSI's arguments and urge us to affirm the trial court's order. We do so, but only in part.
Based on the record before us, we conclude the trial court did not abuse its discretion in dismissing appellees' claims against LSI without prejudice. Section 150.002 plainly allows the trial court discretion in deciding whether to dismiss with or without prejudice. See TEX. CIV. PRAC. &REM. CODE § 150.002(e) (dismissal "may be with prejudice"); TIC N. Cent. Dallas 3, 463 S.W.3d at 76 (trial court has discretion in making determination on whether to dismiss with or without prejudice). And there is no indication in the record that the trial court abused that discretion here. As was the case in Pedernal Energy, 536 S.W.3d at 494-95, appellees' failure to file an expert affidavit with their original petition was not, by itself, evidence that the allegations in appellees' petition lacked merit or mandated the sanction of dismissal with prejudice, and nothing in the record as of the time of the dismissal otherwise leads us to conclude the trial court's action in dismissing without prejudice violated any guiding rules or principles so that its action as to the dismissal was arbitrary and unreasonable and an abuse of its discretion. While the court may have been able to exercise its discretion and reach a different conclusion on this record as to whether appellees' claims should be dismissed with or without prejudice, we cannot say from the record before us that the trial court abused its discretion in making the decision it did on that issue.
As to LSI's contention in its first issue that the trial court was required to dismiss appellees' claims with prejudice because the statute of limitations on their claims had already passed, we decline, for multiple reasons, to sua sponte determine as a matter of law that any subsequent filing of appellees' claims would be barred by the statute of limitations. First, limitations is an affirmative defense on which LSI bears the burden to plead and prove. See Epps v. Fowler, 351 S.W.3d 862, 869 n.8 (Tex. 2011) ("Limitations is an affirmative defense that must be pleaded and proven."). LSI has done neither in the record before us. Second, on the record before us, we do not know what other proceedings, if any, may be ongoing. Finally, additional considerations regarding limitations may apply in cases involving claims brought on behalf of a minor. See, e.g., TEX. CIV. PRAC. & REM. CODE § 16.003 (two-year limitations period for personal injury claims, among others); id. § 16.001 (stating, "a person younger than 18 years of age, regardless of whether the person is married," is "under a legal disability," for purposes of that subchapter, and "[i]f a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period."); Weiner v. Wasson, 900 S.W.2d 316, 321 (Tex. 1995) (stating, in reference to sections 16.001 and 16.003, "Taken together, these sections require a minor to file a claim before reaching age twenty for personal injuries sustained during the period of minority.").
We reach a different conclusion, however, regarding the trial court's decision to allow appellees to amend their pleading "with the required specific notice to cure the defect, if it can cure." We conclude the trial court erred by allowing appellees "to amend with the required specific notice to cure the defect, if it can cure" because a dismissal is equivalent to a suit never having been filed, and thus, as a result of the dismissal, appellees no longer had any pleading against LSI to amend. Moreover, in practical effect, the portion of the order allowing appellees to amend their claims against LSI essentially treated LSI's Chapter 150 motion to dismiss as a special exception to appellees' pleading. See TEX. R. CIV. P. 91; Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998) ("When the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading."). Chapter 150 contains no indication that a trial court may dismiss a claimant's claims while simultaneously allowing a claimant to amend its pleading to cure the defect that led to dismissal. Those two actions are simply incongruous, particularly where, as here, the trial court has not vacated its order of dismissal.
Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 670 S.W.3d 622, 631 (Tex. 2023) (quoting Aguilar v. Morales, 545 S.W.3d 670, 677 (Tex. App.-El Paso 2017, pet. denied) ("[A] dismissal is equivalent to a suit never having been filed such that the statute of limitations is not tolled for any new pleading filed.").
We sustain LSI's first issue and overrule its second issue.
Taken together, our two conclusions should not be interpreted as making any comment upon the viability, if any, of appellees' claims against LSI should they choose to re-file them in the current or another trial court. Additionally, we express no opinion on the viability of any claims filed by appellees against LSI after the trial court's June 8, 2023 order, our only focus in this accelerated, interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 150.002(f); TEX. R. APP. P. 28.1(a).
Conclusion
Without addressing the propriety of the dismissal of appellees' claims against LSI, we affirm the portion of the trial court's June 8, 2023 order dismissing appellees' claims against LSI without prejudice, reverse the portion of the order granting appellees leave to amend their pleading as to their claims against LSI, and remand this cause to the trial court for further proceedings consistent with this opinion.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's June 8, 2023 order is AFFIRMED in part and REVERSED in part. We AFFIRM that portion of the June 8, 2023 order dismissing appellees' claims against appellant without prejudice, REVERSE that portion of the June 8, 2023 order allowing appellees to amend their pleading as to their claims against appellant, and REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 9th day of February, 2024.
CONCURRING OPINION
KEN MOLBERG, JUSTICE
Given the state of the appellate record, I concur in the two conclusions reached by the majority. I write, however, to express my view that the dismissal here was inappropriate in the first instance, considering the design-defect nature of appellees' claims against LSI, the weighty certificate of merit provided LSI and other defendants in the trial court, and the underlying purpose of the certificate of merit requirement.
As it comes to us, this is first and foremost a design-defect case. Its focus is on the alleged defective design of a product that caused injury to Edgar Berrios. Appellees submitted a detailed certificate of merit naming another party identified in a rule 202 deposition as the product's only engineer, and LSI's sole complaint regarding that certificate is that it names the other party, not LSI. Counsel stated:
[T]he Certificate of Merit is only as against [the other party,] Diversified. And so, in terms of talking about the proficiency of the Certificate of Merit. We're not talking about the proficiency. There's an absence in this case. There is no Certificate of Merit that specifically names Logical Systems, Inc., Logical Systems, LLC, LSI Logical. We're not mentioned in any of the Certificate of Merits.
LSI did not challenge the substance of the certificate of merit, only that it did not specifically name LSI. LSI also did not argue it played no role in the design of the allegedly defective machine. LSI had the certificate of merit as long as any other defendant. After suit was filed, LSI filed an answer that did not mention any failure by appellees to comply with the certificate of merit requirement, initiated substantial discovery going to the merits of the case, sought to designate responsible third parties, and generally conducted itself in a manner inconsistent with a claim of entitlement to early dismissal under Texas Civil Practice and Remedies Code § 150.002(e). Then, months later-after limitations had arguably expired-LSI claimed the benefit of § 150.002(e).
See LaLonde v. Gosnell, 593 S.W.3d 212, 223 (Tex. 2019) (litigation conduct may result in waiver of dismissal rights under § 150.002). Among other factors, strategically waiting to file a motion to dismiss until after limitations has run is a factor that may be considered in determining whether waiver has occurred. Id. at 225. Here, appellees' original petition quoted from, but did not attach, the certificate of merit that appellees' expert signed eleven days prior to the lawsuit's filing. Two months after filing the lawsuit-and before the date LSI argues limitations expired-appellees filed their first amended petition, this time attaching the previously-quoted-from certificate of merit. Appellees attached the same certificate of merit to their second amended petition four months later. Throughout this time, and for another two months after the filing of appellees' second amended petition, LSI filed no pleading or motion to dismiss challenging appellees' compliance with the certificate of merit requirement.
Considering the design-defect nature of appellees' claims and the detailed content of the certificate of merit, the dismissal of appellees' claims against LSI disserves the purpose of Texas Civil Practice and Remedies Code § 150.002. Although we cannot reach the question of the propriety of the dismissal of Berrios's claims against LSI, I submit that in a design-defect case, as long as the certificate of merit reflects an expert opinion that the design was defective, and the designer defendant was appropriately provided a copy thereof, it ought not matter, for § 150.002 purposes, which of the designers the certificate specifically names. This is especially true when, as appellees suggest occurred here, discovery points to a single designer at one point in the litigation and to multiple designers at another. The answer to that question is just an interrogatory or deposition away and has nothing to do with the ultimate question of design defect.
To the extent portions of Macina, Bose, Copeland and Associates v. Yanez, No. 05-17-00180-CV, 2017 WL 4837691 (Tex. App.-Dallas Oct. 26, 2017, pet. dism'd) (mem. op.), and DHM Design v. Morzak, No. 05-15-00103-CV, 2015 WL 3823942 (Tex. App.-Dallas June 19, 2015, pet. denied) (mem. op.), are to the contrary on the facts of this case, they should be overruled. Indeed, it is doubtful whether the analysis in either case withstands LaLonde, 593 S.W.3d 212, Pedernal Energy, LLC v. Bruington Eng'g, 536 S.W.3d 487 (Tex. 2017), and Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corporation, 520 S.W.3d 887 (Tex. 2017). See Bratton v. Pastor, Behling & Wheeler, L.L.C., No. 01-23-00015-CV, 2023 WL 8587652 (Tex. App.-Houston [1st Dist.] Dec. 12, 2023, no pet. h.) (mem. op.); AMEC Foster Wheeler USA Corp. v. Maricelli, No. 09-19-00122-CV, 2020 WL 3579567 (Tex. App.-Beaumont July 2, 2020, no pet.) (mem. op.).
Simply put, the dismissal of Berrios's claims against LSI represents an obnoxious example of the law being used to elevate form over substance and early dismissal over reasoned justice.
I concur in the majority's two conclusions but write separately to express my serious concern that in this instance, the dismissal under Texas Civil Practice and Remedies Code § 150.002 elevated form over substance and ultimately thwarted the statute's goal of "weed[ing] out frivolous claims before litigation commences, not to dispose of those that are potentially meritorious." LaLonde, 593 S.W.3d at 224.
Reichek, J. joins in this concurring opinion