Emerald Waco Investments, Ltd. v. David Randolph Petree, RPLS
05-15-00863-CV
| Tex. App. | Jul 25, 2016Background
- Emerald Waco Investments (EWI) sued surveyor David Petree for negligence and breach of contract arising from a topographical survey dated April 15, 2013. EWI filed suit on April 15, 2015 (the two-year anniversary of the survey).
- Section 150.002 of the Texas Civil Practice & Remedies Code requires a plaintiff to file a certificate of merit (an affidavit by a similarly licensed professional) with the complaint in professional-services suits; failure to do so mandates dismissal.
- EWI’s original petition stated only that it “will file a certificate of merit in conjunction with this suit” and did not attach an affidavit.
- Twenty-two days later EWI filed a supplemental petition attaching an affidavit and explaining it filed the original petition without the affidavit because of limitations-period timing concerns; Petree moved to dismiss for failure to comply with the contemporaneous-filing rule and argued EWI did not invoke the subsection (c) exception in its initial pleading.
- The trial court granted Petree’s motion to dismiss. On appeal EWI argued subsection 150.002(c) does not require the limitations/time-constraint allegation to appear in the first-filed pleading; Petree relied on Texas Supreme Court precedent interpreting subsection (c) as requiring that allegation in the first pleading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §150.002(c)’s 30‑day extension applies when the plaintiff did not allege in the initial petition that the limitations period prevented preparing a certificate of merit | EWI: statute does not require the allegation to be in the first-filed pleading; attaching the affidavit within 30 days satisfied §150.002(c) | Petree: subsection (c) requires the plaintiff both to file within 10 days of limitations and to allege in the first-filed pleading that time constraints prevented preparing the affidavit; EWI failed to do so | Held: Court affirmed dismissal — §150.002(c) requires the time-constraint allegation in the first pleading; EWI did not comply and was not entitled to the 30‑day extension |
| Whether dismissal should have been with prejudice | EWI: even if dismissal was warranted, dismissal with prejudice was an abuse of discretion | Petree: trial court properly dismissed with prejudice and appellant offered no proof of abuse of discretion | Held: The appellate court concluded the written order did not state dismissal with prejudice and therefore is presumed without prejudice (affirming dismissal on merits but treating the order as without prejudice) |
Key Cases Cited
- Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014) (interpreting §150.002(c) as requiring both filing within ten days of limitations and alleging that the time constraint prevented preparing the certificate)
- Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 352 S.W.3d 265 (Tex. App.—Houston [14th Dist.] 2011) (concluded the statute does not require the time‑constraint allegation in the first-filed pleading)
- Nangia v. Taylor, 338 S.W.3d 768 (Tex. App.—Beaumont 2011) (upheld timeliness where amended petition filed within 30 days contained the §150.002(c) explanation and the affidavit)
- TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71 (Tex. App.—Dallas 2014) (discussing statutory construction principles and that courts should give effect to every word of the statute)