TIC N. Central Dallas 3, L.L.C. v. Envirobusiness, Inc.
463 S.W.3d 71
| Tex. App. | 2014Background
- TIC sued Envirobusiness (EBI) and Perkins & Will for fraud, negligent misrepresentation, aiding and abetting, and conspiracy arising from an investment in a building and a Property Condition Report by EBI.
- TIC did not file certificates of merit with its original petition; EBI and Perkins & Will moved to dismiss under Texas Civil Practice and Remedies Code §150.002, which requires a merit affidavit with the complaint for claims arising from licensed professionals.
- The trial court dismissed TIC's claims against EBI without prejudice; it partially dismissed TIC's negligent misrepresentation claim against Perkins & Will but allowed fraud claims to proceed.
- TIC re-filed against EBI with a certificate of merit in a new petition filed in a different district court; EBI sought dismissal transfers/consolidation arguing TIC attempted to circumvent the prior dismissal.
- The trial court transferred the re-filed case and dismissed it with prejudice; TIC appealed arguing §150.002(e) permits dismissal without prejudice and permits re-filing with a new certificate of merit.
- The court held TIC's certificate of merit in the second suit complied with the statute because it was filed with the first petition in the new action; it also held TIC's claims against Perkins & Will did not arise from the provision of professional services, so §150.002 did not require a merit for those claims; the court reversed the dismissals against EBI and the negligent misrepresentation claim against Perkins & Will, but affirmed denial as to the fraud claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a second suit's first petition with a certificate satisfy §150.002(a)? | TIC: second suit complies by filing merit with its first petition. | EBI: no; the prior dismissal cannot be cured by re-filing; must arise from first petition in the original action. | Yes; filing with the first petition in the new action satisfies the statute. |
| Did the trial court properly dismiss TIC's claims against EBI under §150.002? | TIC: the merits certificate cured the deficiency upon re-filing. | EBI: dismissal appropriate if no merit affidavit with original petition or improper re-filing. | No; the claims against EBI were not properly dismissed; reverse. |
| Do TIC's negligent misrepresentation claims against Perkins & Will arise from the provision of professional services? | TIC: claims do not arise from architectural services; Perkins & Will's holdings did not render them professional-service claims. | Perkins & Will: claims arise from professional services due to architectural knowledge and tenancy. | No; claims did not arise from the provision of professional services; reverse dismissal of negligent misrepresentation. |
| Can the legislature's discretion to dismiss without prejudice permit re-filing to cure §150.002 noncompliance? | TIC: statute contemplates second opportunities via dismissal without prejudice. | EBI: discretion cannot be used to circumvent first-petition merit filing. | Yes; dismissal without prejudice allows re-filing to comply with §150.002. |
| Should the entire action be dismissed if one claim requires a certificate of merit? | TIC: not required to dismiss entire action if only some claims require merit. | Perkins & Will: §150.002 requires dismissal of the entire complaint if any claim requires a certificate. | No; the statute permits dismissal of individual claims, and the second suit can proceed if compliant. |
Key Cases Cited
- JJW Dev., L.L.C. v. Strand Sys. Eng’g, Inc., 378 S.W.3d 571 (Tex. App.—Dallas 2012) (interpretation of first-filed petition requirement and §150.002(a))
- Sharp Eng’g v. Luis, 321 S.W.3d 748 (Tex. App.—Houston [14th Dist.] 2010) (first petition filed in action governs merit filing)
- Belvedere Condos. at State Thomas, Inc. v. Meeks Design Grp, Inc., 329 S.W.3d 219 (Tex. App.—Dallas 2010) (Merit filing and dismissal standards in §150.002 context)
- Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421 (Tex. App.—Dallas 2012) (statutory interpretation standards for §150.002)
- Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex. 1962) (dismissal without prejudice effect and retroactivity)
- KT Bolt Mfg. Co. v. Tex. Elec. Coops., Inc., 837 S.W.2d 273 (Tex. App.—Beaumont 1992) (statutory interpretation and first-petition concept in context)
- Found. Assessment, Inc. v. O’Connor, 426 S.W.3d 827 (Tex. App.—Fort Worth 2014) (determines how to analyze whether claims arise from professional services)
- Pelco Constr., Inc. v. Dannenbaum Eng’g Corp., 404 S.W.3d 48 (Tex. App.—Houston [1st Dist.] 2013) (origin of §150.002 applicability to professional-service claims)
- TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (statutory construction and contextual reading of texts)