CDI Corporation v. Total Specialities USA, Inc.
528 S.W.3d 802
| Tex. App. | 2017Background
- TOTAL sued CDI for breach of contract, negligence, gross negligence, and fraud arising from construction/engineering services on TOTAL’s hydro de‑aromatization unit.
- Chapter 150 of the Texas Civil Practice & Remedies Code requires a certificate of merit (expert affidavit) to be filed with the complaint for claims arising from professional engineering services; TOTAL did not file one with its original petition.
- CDI moved to dismiss with prejudice under Tex. Civ. Prac. & Rem. Code § 150.002(e); TOTAL later nonsuited its claims and attached a 36‑page certificate of merit to the nonsuit, then refiled the suit in another court.
- The trial court dismissed TOTAL’s original suit without prejudice and denied CDI’s request to dismiss with prejudice and to strike the certificate of merit; CDI appealed the denial of dismissal with prejudice.
- The parties stipulated that TOTAL and its counsel were unaware of the certificate‑of‑merit filing requirement when the original petition was filed and that no certificate had been prepared at that time; the trial court found no abuse of discretion in refusing to dismiss with prejudice.
Issues
| Issue | Plaintiff's Argument (TOTAL) | Defendant's Argument (CDI) | Held |
|---|---|---|---|
| Whether failure to file certificate of merit with the original petition requires dismissal with prejudice under §150.002(e) | N/A (TOTAL sought to cure by nonsuit and refiling; argued nonsuit + certificate removed basis for sanction) | Failure to file as required mandates dismissal with prejudice (no discretion) | Court held trial courts have discretion to dismiss with or without prejudice; failure to file alone does not mandate prejudice |
| Whether trial court abused discretion by denying dismissal with prejudice given counsel’s admitted ignorance of §150.002 | TOTAL: counsel’s mistake was inadvertent; filing certificate with nonsuit and intent to refile show merit and cure | CDI: stipulation of ignorance shows lack of diligence and trial court did not meaningfully exercise discretion; dismissal with prejudice appropriate | Court held the trial court did not abuse its discretion; facts (inadvertence, cure, evidence of merit) justified dismissal without prejudice |
| Whether nonsuit mooted CDI’s pending motion to dismiss with prejudice and affected appellate timeliness/jurisdiction | TOTAL: nonsuit plus attached certificate functioned as response and the March 31 nonsuit order effectively resolved motion, making any appeal untimely | CDI: motion for dismissal with prejudice survived nonsuit as a request for sanction; trial court later ruled, so appeal timely | Court held motion survived nonsuit (sanction request survives) and CDI’s appeal was timely; court has jurisdiction |
| Whether trial court’s denial to strike the certificate of merit was appealable or subject to challenge here | TOTAL: certificate filed with nonsuit and not struck; adequate for purposes here | CDI: moved to strike the certificate and challenged its filing procedurally | Court noted denial of motion to strike was not challenged on appeal and did not disturb trial court’s discretionary denial of dismissal with prejudice |
Key Cases Cited
- CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299 (Tex. 2013) (nonsuit does not moot a pending request for sanctions that would be defeated by allowing nonsuit)
- In re Gen. Elec. Co., 271 S.W.3d 681 (Tex. 2008) (standard for abuse of discretion)
- City of Houston v. Estate of Jones, 388 S.W.3d 663 (Tex. 2012) (untimely interlocutory appeals are not reviewable)
- Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805 (Tex. 1993) (analysis of when nonsuit defeats sanctions)