Toby Paul Couchman and Pro-Surv v. Elizabeth Cardona
01-14-01000-CV
Tex. App.May 8, 2015Background
- Appellants Couchman and Pro-Surv appeal an order denying their Motion to Dismiss in Cause No. 2014-29414 in Harris County, Texas.
- Prior case 2014-12614 was dismissed without prejudice after a severance order, with no appeal or reconsideration by Appellants.
- Cardona filed suit 2014-29414 with a contemporaneous Certificate of Merit under Tex. Civ. Prac. Rem. Code §150.002.
- Appellants moved to dismiss arguing the §150.002 requirements were not satisfied and that the prior dismissal should have been with prejudice.
- Trial court denied the motion, ruling Cardona’s Certificate of Merit satisfied §150.002 and that the current case is properly governed by §150 following the prior dismissal.
- Court decision: Cardona may pursue the current action; §150.002(e) discretion allows dismissal with or without prejudice; Certificate of Merit timely filed; contract claims may not be governed by §150.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether collateral attack on prior dismissal is permissible | Cardona argues such collateral attack is not allowed | Couchman/Pro-Surv argue collateral attack is permissible in the current suit | Collateral attack not allowed; prior dismissal without prejudice stands |
| Whether §150.002(e) requires dismissal with prejudice | Cardona asserts discretionary dismissal with or without prejudice is permitted | Couchman/Pro-Surv contend §150.002(e) does not allow non-prejudicial dismissals | §150.002(e) grants discretion; not mandatory to dismiss with prejudice |
| Whether the Certificate of Merit met §150.002(b) requirements | Cardona's affidavit identifies actionable errors and supports claims | Appellants dispute sufficiency of the factual basis for the claims under §150.002(b) | Affidavit timely and sufficiently states the action, error, or omission and factual basis under §150.002(b) |
| Whether breach of contract claims fall within §150.002 scope | Contract claims may lie outside §150.002 when not based on professional conduct | All claims tied to professional service should be within §150.002 | §150.002 does not apply to purely contractual breaches not based on professional conduct |
Key Cases Cited
- City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003) (statutory construction and proper interpretation of discretionary provisions)
- Spence v. Fenchler, 180 S.W. 597 (Tex. 1915) (statutory construction principles; avoid superfluous language)
- Garza v. Carmona, 390 S.W.3d 391 (Tex.App.—Corpus Christi 2012) (affirming interpretation of §150.002 timing/requirements)
- TDIndustries Inc. v. Rivera, 339 S.W.3d 749 (Tex.App.—Houston [1st Dist.] 2011) (affidavit-based approach not limited to professional negligence claims)
- Bruington Eng'g, Ltd. v. Pedernal Energy, L.L.C., 403 S.W.3d 523 (Tex. App. San Antonio 2013) (affidavit requirement context and timing considerations)