Pro Plus, Inc. v. Crosstex Energy Services, L.P., 388 S.W.3d 689

Crosstex sued Pro Plus for damages from the Godley Station fire (Nov. 15, 2008 gasket failure) and Pro Plus moved to dismiss under §150.002 for failure to file a certificate of merit with the original petition.
Trial court denied dismissal and allowed Crosstex to file a certificate of merit later (deadline extended to Apr. 8, 2011) under §150.002(c).
Crosstex filed the certificate of merit January 6, 2011; Pro Plus appealed the denial of dismissal as a §150.002 issue via interlocutory appeal under §150.002(f).
Statutory backdrop: §150.002 requires a contemporaneous certificate of merit with the complaint; §150.002(c) provides a narrow 30-day extension in certain timing scenarios; §150.002(d)-(e) govern later answers and potential dismissal.
Court addressed whether Crosstex was required to file the certificate with the Original Petition, and whether the trial court abused its discretion in denying dismissal and in granting extensions; majority reverses and remands for dismissal, while a dissent would affirm based on waiver.
Crosstex’s breach of contract claim is analyzed under the 2009 amendment to §150.002, which applies to all damages arising from the provision of professional services.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §150.002(f) grants appellate jurisdiction over the denial of dismissal.	Pro Plus seeks immediate appeal under §150.002(f).	Crosstex argues no interlocutory appeal exists here.	Jurisdiction proper; §150.002(f) permits appeal.
Whether Crosstex was required to file a certificate of merit with the Original Petition.	Crosstex contends extensions permit filing later.	Pro Plus argues contemporaneous filing mandatory; no cure for noncompliance.	Contemporaneous filing required; failure warrants dismissal.
Whether the trial court abused its discretion by extending time under §150.002(c) to file the certificate of merit.	Crosstex relied on Pro Plus’s post-filing conduct to argue good cause.	No good cause shown; extensions cannot save noncompliance.	Abuse of discretion; no good cause exists for extension.
Whether Pro Plus waived its right to seek dismissal by participating in litigation and extending deadlines.	Participation and extensions show waiver.	Waiver requires inconsistent conduct; here no waiver.	No waiver; in this record, waiver not established.
Whether §150.002 applies to Crosstex’s breach of contract claim.	Pro Plus seeks dismissal for all claims under §150.002.	Natex suggests contract claims were not covered.	§150.002 applies to breach of contract claims arising from professional services.

Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (interlocutory appeal limits where extensions would render ban meaningless)
Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009) (limits on extensions, supports interlocutory review of denials of dismissal)
Pokal Enters., Inc. v. Lesak Enterprises LLC, 369 S.W.3d 224 (Tex.App.-Houston [1st Dist.] 2011) (cert. merit filing requirements applied contemporaneously)
Ashkar Eng’g Corp. v. Gulf Chem. & Metallurgical Corp., 2010 WL 376076 (Tex.App.-Houston [1st Dist.] 2010) (hearsay; cited for non-analogous precedent (WL not included); standard not to cure noncompliance)
Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728 (Tex.App.-Texarkana 2010) (2005 version limited to negligence claims; 2009 amendment expands scope to professional services)
Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409 (Tex.App.-Waco 2010) (withdraws waiver when conduct inconsistent with right to seek dismissal not shown in all cases)
DLB Architects, P.C. v. Weaver, 305 S.W.3d 407 (Tex.App.-Dallas 2010) (holding on waiver and timing of dismissal motions)
Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003) (waiver analysis for mandatory statutory requirements)