Apex Geoscience, Inc. v. Arden Texarkana, LLC, Dornoch Texarkana, LLC, RP Texarkana, LLC, Texarkana Rancho, LLC, and Narden Texarkana, LLC
370 S.W.3d 14
| Tex. App. | 2012Background
- Pavilion developed 27.606 acres for a retail center; underlying substructure issues alleged in paving; Owners sued Pavilion and later joined Apex as a third party.
- Apex provided engineering services; Owners alleged Apex’s guidelines in Apex’s geotechnical report were not followed during construction.
- Owners filed third‑party claims against Apex for negligence and related torts after extending the limitations period under Section 83.004(c).
- Apex moved to dismiss claims for failure to file a § 150.002 affidavit (certificate of merit) as required by § 150.002(a) and (e).
- Trial court denied the motion to dismiss; Apex appealed, arguing the statute compels dismissal when the affidavit is absent and the automatic grace period is misapplied.
- Texas appellate court held that where the time–constraint allegation for the grace period is not timely made, the thirty‑day automatic grace period does not apply and the dismissal under § 150.002(e) is proper; the trial court’s denial was error and the case must be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 150.002(c) provides a thirty‑day grace period for filing the certificate of merit. | Owners allege time constraints justify the thirty‑day grace. | Apex contends the time‑constraint allegation must be timely within thirty days. | Yes, if timely alleged; otherwise no grace period exists. |
| Whether Owners timely alleged the time constraint to qualify for the grace period. | Owners asserted the requirement but did not file before the period expired. | Apex argues no timely allegation, so no grace extension. | Owners failed to timely allege; good‑cause extension not available. |
| Whether the trial court erred by allowing an extension for good cause after the grace period. | Owners sought a discretionary extension for good cause. | Such extension was not permissible when the grace period was not triggered. | Court erred in extending beyond the grace period; § 150.002(e) requires dismissal. |
Key Cases Cited
- Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265 (Tex.App.-Houston [14th Dist.] 2011) (time‑constraint allegation not required in first petition but must be made within thirty days)
- WCM Group, Inc. v. Brown, 305 S.W.3d 222 (Tex.App.-Corpus Christi 2009) (good cause can extend deadlines in some § 150.002 contexts)
- Capital One v. Carter Burgess, Inc., 344 S.W.3d 477 (Tex.App.-Fort Worth 2011) (contemporaneous filing rule and exceptions under § 150.002(c))
- Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728 (Tex.App.-Texarkana 2010) (review of statutory construction and abuse of discretion)