Pakal Enterprises, INC. and Rene Dominguez v. Lesak Enterprises, L.L.C. DBA Pro Surv and Toby P. Couchman
369 S.W.3d 224
| Tex. App. | 2011Background
- Pakal Enterprises, Inc. and Rene Dominguez hired Pakal to perform improvements on property at 1001 Herkimer Street, Harris County.
- Pakal and Dominguez contracted with Lesak Enterprises LLC d/b/a Pro Surv and its employee Couchman for a survey; the February 20, 2007 survey was allegedly inaccurate, leading to additional construction costs after a second survey on June 20, 2007.
- On March 6, 2009, Pakal filed an original petition asserting negligence, negligent misrepresentation, DTPA violations, and breach of contract against Pro-Surv, Inc. d/b/a Pro Surv Surveying Company and Couchman; Lesak was not named and was not served.
- On June 1, 2009, Pakal amended its petition to name Lesak Enterprises, LLC dba Pro-Surv, but this petition was not served on Lesak.
- Lesak and Couchman moved to dismiss for failure to file a certificate of merit on June 3, 2009; Pakal amended again on June 19, 2009 to include a certificate of merit; Lesak was served with Pakal’s second amended petition on August 27, 2009; the trial court dismissed on September 2, 2009 without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the original petition date and 30-day extension were properly applied | Pakal contends March 6, 2009 is the filing date and a 30-day extension applies. | Lesak asserts the original petition date for purposes of 150.002 and that extension does not apply. | The March 6, 2009 date governs; no 30-day extension applied. |
| Whether good cause extended the certificate filing deadline under 150.002 | Pakal argues good cause supports an extension leading to timely certificate filing. | Lesak contends no proper invocation or hearing established good cause. | No abuse of discretion; good-cause extension not properly invoked. |
| Whether the certificate of merit attached with served petition sufficed to avoid dismissal | Pakal argues contemporaneous certificate attached to served petition suffices. | Lesak maintains failure to file a certificate of merit under §150.002(a) or (b) warrants dismissal. | Dismissal affirmed; certificate of merit was not filed in compliance with §150.002(a)/(b). |
Key Cases Cited
- Sharp Eng’g v. Luis, 321 S.W.3d 748 (Tex. App.—Houston [14th Dist.] 2010) (requires timely certificate of merit; governs dismissal standard)
- Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102 (Tex. App.—Houston [1st Dist.] 2010) (abuse of discretion standard in cert. of merit rulings; de novo if statutory interpretation)
- WCM Group, Inc. v. Camponovo, 305 S.W.3d 214 (Tex. App.—Corpus Christi 2009) (discusses extension for suits filed within ten days of limitation; good cause)
- WCM Group, Inc. v. Brown, 305 S.W.3d 222 (Tex. App.—Corpus Christi 2009) (good cause extension analysis; awareness of defendant's professional status)