Bruington Engineering, LTD. v. Pedernal Energy, L.L.C.
2013 Tex. App. LEXIS 5579
Tex. App.2013Background
- Pedernal Energy, L.L.C. sued Bruington Engineering, Ltd. and Schlumberger entities for damages to an oil well and surrounding formation; suit filed May 9, 2011 in Zapata County with trial no. 7,767.
- Pedernal's claims arise from the provision of professional services by a licensed professional, triggering Civ. Proc. and Remedies Code §150.002 (certificate of merit) requirements; Pedernal did not file a certificate with the petition.
- Bruington moved to dismiss with prejudice for failure to file the certificate; the trial court denied the motion and held a hearing.
- Pedernal nonsuited Bruington on July 7, 2011; the trial court granted the nonsuit without prejudice on August 2, 2011, effective as of July 7, 2011.
- Pedernal later amended its petition on February 13, 2012, naming Bruington again and attaching Alfred Jennings, Jr.'s, certificate and affidavit; Bruington challenged the viability of attaching the certificate to an amended petition.
- The issue is whether §150.002 requires the certificate to be filed with the first-filed pleading and whether a nonsuit can cure a failure to file the certificate; court held no, and remanded for prejudice determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §150.002 require a certificate of merit with the first-filed complaint? | Pedernal relies on curing via amended petition. | Bruington argues failure to attach with first filing mandates dismissal. | Yes; certificate must be with first-filed petition. |
| Can a nonsuit cure failure to file the certificate and allow later amendment with the certificate? | Pedernal contends nonsuit allows later attachment. | Bruington contends no cure outside §150.002(c) extension. | No; nonsuit cannot cure the contemporaneous filing requirement. |
| Did Bruington waive its right to appeal by not appealing the Order of Nonsuit? | Pedernal argues Bruington waived. | Bruington argues no waiver. | Bruington did not waive its appellate rights. |
| Should Pedernal's claims be dismissed with prejudice or without prejudice? | N/A (not favorable to Bruington). | §150.002(e) allows dismissal with prejudice as sanction. | Remand to determine prejudice; dismissal due to failure to file certificate. |
Key Cases Cited
- Sharp Eng’g v. Luis, 321 S.W.3d 748 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (contemporaneous certificate required; amendment cannot cure absent time constraints)
- Pakal Enterprises, Inc. v. Lesak Enter. LLC, 369 S.W.3d 224 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (first-filed petition governs certificate of merit; amendment cannot cure)
- CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299 (Tex. 2013) (sanctions to deter meritless claims; effect on nonsuit)
- Villafani v. Trejo, 251 S.W.3d 466 (Tex. 2008) (nonsuit cannot defeat sanctions for meritless claims)
- Crites v. Collins, 284 S.W.3d 839 (Tex. App.—Beaumont 2009) (nonsuit timing and effect on sanctions)
- Gomez, 2007 WL 2846419 () (discussion on whether certain claims implicate professional engineering duties)
- Hardy v. Matter, 350 S.W.3d 329 (Tex. App.—San Antonio 2011) (abuse-of-discretion review; de novo for statutory construction)
- Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (standard of review for statutory construction)
- Pakal Enter., Inc. v. Lesak Enter. LLC, 369 S.W.3d 224 (Tex. App.—Houston [1st Dist.] 2011) (discusses contemporaneous filing requirement)
- Epco Holdings, Inc. v. Chicago Bridge and Iron Co., 352 S.W.3d 265 (Tex. App.—Houston [14th Dist.] 2011) (discusses applicability of §150.002(a))