Opinion
05-24-00541-CV 05-24-00599-CV
08-27-2024
PROFESSIONAL SERVICE INDUSTRIES, INC., Appellant v. TAMARA LYNN IBEY, INDIVIDUALLY AND AS HEIR AT LAW OF THE ESTATE OF PETER G. IBEY, DECEASED; CODY G. IBEY; KALEENA NICHOLAS; AND PEGASUS LINK CONSTRUCTORS-LBJ EAST PROJECT, Appellees ANDRABA KISTNER, INC., Appellant v. PEGASUS LINK CONSTRUCTORS-LBJ EAST PROJECT, Appellee
On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-03222
Before Justice Molberg, Justice Pedersen, III, and Justice Carlyle
ORDER
BILL PEDERSEN, III USTICE
In these accelerated companion appeals, arising from an underlying wrongful death suit, Professional Services Industries, Inc. (PSI) and Raba Kistner, Inc. (RKI), both professional engineering firms, complain of the trial court's April 23 and March 18, 2024 orders, respectively, denying their motions to dismiss Pegasus Link Contractors-LBJ East Project's claims against them for failure to file the certificate of merit required by section 150.002 of the Texas Civil Practice and Remedies Code. See Civ. Prac. & Rem. Code § 150.002(a),(f). Additionally, PSI complains of the trial court's May 1, 2024 order denying its motion to dismiss Tamara Lynn Ibey, Cody G. Ibey, and Kaleena Nicholas's (collectively, the Ibeys) claims against it for also failing to file a certificate. PSI's appeal was timely filed. RKI's appeal is timely only if the trial court finds that RKI did not acquire knowledge of the March 18 order denying its motion to dismiss until thirty-eight days after the order was signed as RKI alleges in a rule 306a(5) motion that has been pending since May 14, the same day the trial court inactivated the case. See Tex. R. Civ. P. 306a(4),(5) (together providing that, when knowledge of judgment or order is acquired between twenty-one and ninety days from date of signing, post-judgment deadlines run, upon proof, from date of knowledge); Tex.R.App.P. 4.2 (same, appellate deadlines).
Before the Court are (1) PSI's motion to stay all trial court proceedings, including discovery, pending disposition of the appeal; (2) RKI's requests, in response to PSI's motion to stay and in jurisdictional briefing filed at our request, to abate its appeal and order the trial court to rule on its motion, heard in January 2024, to dismiss the Ibeys' claims against it for lacking a merit certificate as well as its rule 306a(5) motion; (3) the Ibeys' and Pegasus's responses in opposition to PSI's motion; and (4) PSI's reply. We GRANT the requested relief.
We ORDER the trial court, no later than September 10, 2024, to determine and sign written orders on RKI's pending motion to dismiss the Ibeys' claims against it and pending 306a(5) motion. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f) (providing for order granting or denying section 150.002 motion to dismiss); Tex.R.App.P. 4.2(c) (requiring trial court, after hearing 306a(5) motion, to sign written order finding date knowledge was acquired), 29.6 (providing, in pending interlocutory appeal, for review of further appealable interlocutory order concerning same subject matter). We STAY all other trial court proceedings. See Civ. Prac. & Rem. Code § 150.002(d) (providing that defendant need not file answer until merit certificate is filed); LaLonde v. Gosnell, 593 S.W.3d 212, 216 (Tex. 2019) (certificate-of-merit requirement "obviates the need to litigate the lawsuit altogether").
A copy of the trial court's orders disposing of RKI's motion to dismiss the Ibeys' claims and finding the date RKI acquired knowledge of the March 18 order shall be filed in a supplemental clerk's record no later than September 13, 2024.
We DIRECT the Clerk of the Court to send a copy of this order to the Honorable Staci Williams, Presiding Judge of the 101st Judicial District Court; Dallas County District Clerk Felicia Pitre; Official Court Reporter Terri Etekochay; and the parties.
We ABATE the appeal to allow the trial court an opportunity to comply with this order. The appeal shall be reinstated no later than September 20, 2024.
Molberg, J., would deny the requested relief.