456 S.W.3d 181
Tex. App.
2014

Lead Opinion

OPINION

Opinion by:

PATRICIA 0. ALVAREZ, Justice.

This сase was previously before our court on the issue of non-compliance with the requirement that a plaintiff file an expert’s affidavit contemporaneously with the original complaint pursuant to section 150.002 of the Texas Civil Practices and Remedies Code. See Bruington Eng’g Ltd. v. Pedernal Energy L.L.C. (Bruington I), 403 S.W.3d 523 (Tex.App.-San Antonio 2013, no pet.) (analyzing Tex. Civ. Prac. & Rem.Code Ann. § 150.002 (West 2011)). We reversed and remanded the cause to the trial court (1) with instructions to dismiss the lawsuit and (2) for a determination of whether the dismissal should be with or without prejudice. See id. On remand, the trial court dismissed without prejudice.

In this appeal, we are asked to determine whether the failure to file a section 150.002(a) affidavit, contemporaneously with the original complaint, requires a dismissal with or without prejudice pursuant to section 150.002(e). See Tex. Crv. Prac. & Rem.Code Ann. § 150.002(a), (e). Because Appellee Pedernal Energy L.L.C. failed to file the section 150.002(a) affidavit contemporaneously with its first-filed petition, and the exception of subsection (c) does not apply, the dismissal must be with prejudice. Accordingly, the trial court abused its discretion in dismissing Pedernal’s complaint without prejudice. We reverse the trial court’s judgment and render judgment dismissing Pedernal’s complaint with prejudice.

Background

The procedural and factual history previously set forth in Bruington I is paramount to our determination in this appeal; we, therefore, set forth a brief history. See Bruington I, 403 S.W.3d at 525-26.

Appellant Bruington Engineering, Ltd. was hired to serve as the projеct engineer at a natural gas well in Zapata County. Three Schlumberger companies were hired to perform hydraulic fracturing operations. During the fracking operations, a natural gas well was damaged.

On May 9, 2011, Pedernal1 filed suit against Bruington and the Schlumberger entities for breach of contract, negligence, fraud, common law fraud, fraud by nondisclosure, and negligent misrepresentation. Pedernal also included a cause of action for breach of fiduciary duty against Bruington. Pedernal alleged that the Schlumberger entities were contracted to perform a fracking treatment on a well in Zapata County, and Bruington was hired to supervise the fracking operations. The Schlum-berger entitiеs allegedly did not complete the job due to equipment problems, which damaged the well formation. Bruington allegedly failed to report that the job.was not completed and the well was damaged. All causes of action against Bruington were based on an alleged failure to supervise engineering aspects of the fracking job.

On June 8, 2011, Bruington timely answered the lawsuit. On June 15, 2011, it filed an amended answer with a motion to dismiss on the grounds that a certificate of merit did not accompany the original petition as mandated by section 150.002. Tex. Civ. Prac. & ■ Rem.Code Aun. § 150.002(a). Chapter 150 of the Texas ■ Civil Practice & Remedies Code requires a plaintiff in any suit for damages аrising out of services by licensed and registered professionals or their firms practicing in the areas of engineering, architecture, landscape architecture, or surveying to file, contemporaneously with the original complaint, a certificate of merit in the form of an affidavit by a like professional. Id. § 150.001(1-a), 002(a).2

On July 7, 2011, and before a setting on the motion to dismiss, Pedernal filed a notice of non-suit without prejudice. On August 2, 2011, the trial court signed an order of non-suit without prejudice effective July 7, 2011. Bruington did not object to the non-suit and did not appeal the order granting a non-suit without prejudice.

After the non-suit, the litigation against the Schlumberger entities continued. As part of the discovery, Bruington’s corporate representative, Mike Hunt, was deposed as a non-party. When it came time to designate experts, Pedernal designated a section 150.002 expert, Alfred Jennings, Jr., P.E., who opined that Bruington breached the standard of care by failing to supervise the operations. At the time of the designation, Bruington was not a party. On February 13, 2012, Pedernal amended its petition and included Bruing-ton as a defendant alleging the same causes of action alleged in the original petition. This time, however, Pedernal accompanied the petition with a certificate of merit in the form of Jennings’s affidavit.

On March 12, 2012, Bruington answered the amended petition, and three days later, Bruington filed another motion to dismiss for failure to include the certificate of merit in the original petition as required under section 150.002. Id. § 150.002(e).3 The trial court denied the motion, and Bruington appealed. See Bruington I, 403 S.W.3d at 523.

In Bruington I, we held that all facts and causes of action alleged against Bru-ington, in both the original and amended petitions, arose “out of the provision of professional services by Bruington and [were] within the scope of Chapter 150.” See id. at 529. We held,

... section 150.002 requires a plaintiff to fide a certificate of merit with its first-filed complaint. If a plaintiff fails to do so, the trial court has no discretion but to dismiss the claims, although the court may dismiss without prejudice.

Id. at 532. We remanded the case directing the trial court to determine whether dismissal should be with or without prejudice. Id. (citing Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e)).

On remand, the trial court held a hearing to determine whether the dismissal should be with prejudice or without prejudice. After an evidentiary hearing, on August 22, 2013, the trial court dismissed the lawsuit without prejudice. We are now asked to construe section 150.002(e) to determine if the trial court erred in dismissing the cause without prejudice.

STANDARDS OF REVIEW

A decision to dismiss a case pursuant to a statutory mandate is reviewed under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); Hardy v. Matter, 350 S.W.3d 329, 331 (Tex.App.-San Antonio 2011, pet. dism’d). Where, however, the resolution of the dismissal issue requires an appellate court to construe statutory language, “we first determine the statute’s proper construction under a de novo standard, then determine if the trial court abused its discretion in applying the statute.” Hardy, 350 S.W.3d at 331 (citing Palladian Bldg. Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 436 (Tex.App.-Fort Worth 2005, no pet.)); see also CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex.2013) (citing Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.2011)).

1. Statutory Construction Under a De Novo Standard of Review

In construing section 150.002(e), we are guided by a number of principles, and “our primary objective is to discern and give effect to the Legislature’s intent.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). To discern the legislative intent behind section 150.002(e), “we [first] look to the statute’s plain meaning because we presume that the Legislature intends the plain meaning of its words.” Dunham Eng’g, Inc. v. Sherwin-Williams Co., 404 S.W.3d 785, 789 (Tex.App.-Houston [14th Dist.] 2013, no pet.) (citation omitted). When the Legislature’s intent is not conveyed by the plain language of the statute, “we may resort to additional constructiоn aids, such ‍‌​‌‌‌​​​​‌‌​‌‌‌​​​‌​​‌​‌​​​‌‌​​‌​​​​‌​‌‌‌​​​‌‌‌​‍as the objective of the law, the legislative history, the common law or former statutory provisions, including laws on the same or similar subject, and the consequences of a particular construction.” Seguin v. Bexar Appraisal Dist., 373 S.W.3d 699, 704 (Tex.App.-San Antonio 2012, pet. denied) (citing Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867-68 (Tex.2009)); see also Tex. Gov’t Code Ann. § 311.023 (West 2013). On the other hand, “[w]hen a statute is clear and unambiguous, we need not resort to rules of construction or extrinsic evidence to construe it.” Wickware v. Sullivan, 70 S.W.3d 214, 218 (Tex.App.-San Antonio 2001, no pet.) (citing Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983)). “Instead, we may determine the intent of the Legislature from the plain and ordinary meaning of the words used within the statute.” Id.

When determining the plain meaning of words we “ ‘construe the language according to the rules of grammar and common usage.’ ” Dunham Eng’g, Inc., 404 S.W.3d at 789 (quoting Benchmark Eng’g Corp. v. Sam Houston Race Park, 316 S.W.3d 41, 44-45 (Tex.App.-Houston [14th Dist.] 2010, pet. dism’d by agr.)). “ ‘[W]e must always cоnsider the statute as a whole rather than its isolated provisions.’ ” Seguin, 373 S.W.3d at 704 (quoting Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001)). Further, the plain meaning of words “cannot be determined in isolation but must be drawn from the context in which they are used.” TGS-NOPEC Geophysical Co., 340 S.W.3d at 441; accord Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.2014).

“We presume that every word of a statute was used for a purpose, and every omitted word was purposefully not chosen.” Dunham Eng’g, Inc., 404 S.W.3d at 789 (citation omitted); see also TGS-NO-PEC Geophysical Co., 340 S.W.3d at 439 (“We presume that the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen.”). “When the Legislature uses a term in one section of a statute and excludes it in another, the-'term should not be implied where it was excluded.” Hardy, 350 S.W.3d at 332 (citing Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995)). Finally, “ ‘[w]e should not give one provision a meaning out of harmony or inconsistent with other provisions, although it may be susceptible to such a construction standing alone.’ ” Seguin, 373 S.W.3d at 704 (quoting Helena Chem. Co., 47 S.W.3d at 493).

2. Application of Statutoi"y Construction Under Abuse of Discretion Standard of Review

Once we construe the statute, we determine whether the trial court abused its discretion in applying the statute to the facts before it. Numerous principles likewise guide us when determining whether a trial court abused its discretion. A trial court “abuses its discretion when it renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of the case.” Samlowski, 332 S.W.3d at 410. Even if the law is unsettled, abuse of discretion occurs if a trial court fаils to analyze or apply the law correctly, In re Jorden, 249 S.W.3d 416, 424 (Tex.2008), or “without reference to any guiding rules or principles.” Dunham Eng’g, Inc., 404 S.W.3d at 789; see also CTL/Thompson Texas, LLC, 390 S.W.3d at 301.

DISCUSSION

With the above principles in mind, we first turn to the construction of section 150.002(e) under a de novo review. Only after a determination of the Legislature’s intent regarding the finality of a dismissal following the plaintiffs failure to file the required certificate of merit, do we turn to whether the trial court abused its discretion in dismissing this cause without prejudice.

A. Texas Civil Practice and Remedies Code Chapter 150

Chapter 150 was enacted in 2003 to provide “for a various corrective measure that will help ... reduce the costs of litigation ... [and] addresses many of the root causes of the current situation: non-meritorious lawsuits.” Hоuse Comm, on Civil Practices, Bill Analysis, Tex. H.B. 4, 78th Leg., C.S. (2003); see also Senate Comm, on State Affairs, Bill Analysis, Tex. H.B. 4, 78th Leg., C.S. (2003) (“The authors’ stated intent is to ... reduce litigation costs.... ”). The requirement that an affidavit be filed with the complaint aids that purpose. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). The affidavit “provide[s] a basis for the trial court to conclude that the plaintiffs claims have merit,” Criterium-Farrell Eng'rs v. Owens, 248 S.W.3d 395, 399 (Tex.App.-Beaumont 2008, no pet.), and “to provide a vehicle for dismissal when a claim lacks merit,” see Hardy, 350 S.W.3d at 334. See also Bruington I, 403 S.W.3d at 527. By requiring that a plaintiff file a certificate of merit with the original petition, section 150.002(e) acts as a “sanction ... to deter meritless claims and bring them quickly to an end.” CTL/Thompson Texas, 390 S.W.3d at 301; see also Bruington I, 403 S.W.3d at 527; Found. Assessment, Inc. v. O’Connor, 426 S.W.3d 827, 831 (Tex.App.-Fort Worth, 2014, pet. filed).

Sections 150.002(a) and (b) establish the framework for the affidavit requirements in a complаint involving damages arising out of services by licensed and registered professionals in the area of engineering, architecture and surveying. Tex. Civ. Prac. & Rem.Code Ann. § 150.002.4 Subsection (a) deals with the timing for filing the affidavit of a third-party licensed or registered professional, while subsection (b) with its contents. Id. At issue in this case is subsection (a).

Subsection (a) mandates the affidavit be filed contemporaneously with the complaint. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). Subsection (c) provides the only exception to the contemporaneous filing requirement of subsection (a). Tex. Civ. Prac. & Rem.Code Ann. § 150.002(c). This exception extends the timing for filing the required affidavit if the complaint is filed within ten days of the expiration of the statute of limitations. Id. (c); Bruing-ton I, 403 S.W.3d at 530. When the exception does not apply, subsection (e) mandates dismissal of the complaint. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e).

Subsection (e), however, includes the following permissive language: “This dismissal may be with prejudice.” Id. Our primary focus on this appeal is to determine if the Legislature intended a dismissal under subsection (e) be with prejudice or without prejudice where a claimant failed to file an affidavit contemporaneously with the complaint.

B. Construction of Section 150.002(e)

Section 150.002(e) provides,

(e) The plaintiffs failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice.

Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e). A court, in construing whether a statute is ambiguous, may consider, among other things, the object sought to be attained, the circumstance under which the statute was enacted, the legislative history and the consequences of a particular construction. Tex. Gov’t Code Ann. § 311.023. If the text is clear and unambiguous, to discern and give effect to the Legislator’s intent, we must look to the plain and ordinary meaning of the words used in subsection 150.002(e). Seguin, 373 S.W.3d at 704; Wickware, 70 S.W.3d at 219; see also Tex. Gov’t Code Ann. § 3Íl.011(a).

1. “Failure To File The Affidavit In Accordance With This Section”

The first sentence of section 150.002(e) is clear and unambiguous — “The plaintiffs failure to file the affidavit in ‍‌​‌‌‌​​​​‌‌​‌‌‌​​​‌​​‌​‌​​​‌‌​​‌​​​​‌​‌‌‌​​​‌‌‌​‍accordance with this section shall result in dismissal of the complaint against the defendant.” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e). There are no contradicting terms in the text, and the text provides a clear objective to dismiss the case if a plaintiff fails to file the required affidavit in compliance with the guidelines set out in subsections (a)-(c). Id. (a)-(c). We, therefore, turn to the plain and ordinary meaning of the words. Seguin, 373 S.W.3d at 704; Wickware, 70 S.W.3d at 219.

We must harmonize the plain meaning of the language “failure to file the affidavit in accordance with this section” with the affidavit requirements prescribed by all of the provisions of section 150.002. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e); Se-guin, 373 S.W.3d at 704. Section 150.002 is comprised of parts (a) through (h). Our focus in this appeal is subsection (a).

Pursuant to subsection (a), in “any action or arbitration proceeding for damages arising out of the provision of professional sеrvices by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit-” Id. (a) (emphasis added). The Code Construction Act defines the word “shall” as imposing a mandatory requirement. Tex. Gov’t Code Ann. § 311.016(2). And nothing in section 150.002 suggests otherwise. We, therefore, conclude section 150.002(a) imposes a mandatory duty to contemporaneously file the affidavit with the complaint. See Bruington I, 403 S.W.3d at 530.

As we previously held, in the context of the entire statute, the language of section 150.002(a) further mandates the filing of the affidavit be contemporaneous with the first-filed complaint. See id. A plaintiff will not be allowed to circumvent the first-filed pleading requirement. Id. Accordingly, an affidavit not contemporaneously filed by the plaintiff with the first-filed complaint is not filed in accordance to Section 150.002 and the plain language of the first sentence of section 150.002(e) mandates dismissal. Id. at 532.

Finding section 150.002(e) mandates dismissal, however, still leaves open the question of dismissal with or without prejudice. We, therefore, turn to the Legislature’s intent regarding the finality of the dismissal. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e).

2. “This dismissal may he with prejudice.”

The construction of the second sentence of section 150.002(e), turns on the “[t]his dismissal may be with prejudice.” Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e) (emphasis added).

Citing the Government Code, Pedernal argues that the word “may” gives a trial court discretion to determine whether it is appropriate to dismiss a complaint when the affidavit is not filed contemporaneously with the complaint. Tex. Gov’t Code Ann. § 311.016(1). Both parties argue that, upon a violation of section 150.002(a), a trial court’s statutory discretion to dismiss the lawsuit with or without prejudice pursuant to 150.002(e) depends on the application of guiding rules and principles. Each urge a number of rules and guidelines that may apply to a determination of whether a court abused its discretion, but we do not believe any apply to statutory construction.

The term “may” is defined as creating discretionary authority or granting permission or a power. Tex. Gov’t Code Ann. § 311.016(1). When used in a statute, as it is in section 150.002(e), “may” usually indicates the provision is discretionary, not mandatory. Seguin, 373 S.W.3d at 709 (citing Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex.App.-Texarkana 2005, no pet.)). Thus, the language “dismissal may be with prejudiсe” clearly and unambiguously states that a dismissal with prejudice is permissive.

Although the word “may” implies a degree of discretion, the “plain meaning” principle of statutory construction can be defeated by indications of legislative intent to the contrary. See, e.g., McLaughlin v. Smith, 105 Tex. 330, 148 S.W. 288, 289-90 (1912) (“A direction contained in a statute, though couched in merely permissive language, will not be construed as leaving compliance optional, when the good sense of the entire enactment requires its provisions to be deemed compulsory”); Wickware, 70 S.W.3d at 220 (noting that the plain language of one statutory subsection may remove a trial court’s discretion granted in another subsection when the latter subsection was intended to be read in conjunction with the prior one). Accordingly, we must still harmonize the plain meaning of the language “dismissal may be with prejudice” with affidavit requirements prescribed by all of the provisions of section 150.002. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e); Seguin, 373 S.W.3d at 704.

We limit our analysis to whether “[t]his dismissal may be with prejudice” is clear and unambiguous in the context of subsection (a). A failure to file a section 150.002(a) affidavit contemporaneously with the first-filed petition mandates dismissal with prejudice pursuant to section 150.002(e). Yet, a “plaintiff who does not timely file the certificate of merit should not be allowed to circumvent the unfavorable ruling of a dismissal by nonsuiting and then filing an amended complaint with the appropriatе certificate.” Bruington I, 403 S.W.3d at 532. Unless the exception in subsection (c) applies, a dismissal without prejudice under these circumstances would be contrary to legislative intent.

We, therefore, hold that, as a matter of law, when a plaintiff fails to file an affidavit contemporaneously with the first-filed complaint, and the exception under section 150.002(c) does not apply, the Legislature intended the complaint be dismissed with prejudice. Based on our statutory construction, the trial court abused its discretion in dismissing Pedernal’s complaint without prejudice.

Conclusion

Absent the exception under Section 150.002(c), Section 150.002(e) precludes a plaintiff who fails to file an affidavit contemporaneously with the first-filed complaint from filing an amended complaint with the necessary affidavit and a trial court must dismiss the complaint with prejudice. Here, the trial court abused its discretion in dismissing Pedernal’s complaint without prejudice. We, therefore, reverse the trial court’s judgment dated July 29, 2013, and render judgment that Pedernal’s complaint is dismissed with prejudice.

ORDER DENYING RECONSIDERATION EN BANC

Sitting: SANDEE BRYAN MARION, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice, dissenting by separate opinion to order denying reconsideration en banc, REBECA C. MARTINEZ, Justice, dissenting by separate opinion to order denying reconsideration en banc, PATRICIA O. ALVAREZ, Justice, LUZ ELENA D. CHAPA, Justice, dissenting without opinion to order denying reconsideration en banc.

■ Reconsideration denied.

Notes

. The original owner (Universe) and operator (Petrogas) of the damaged well assigned their claims for damages against Bruington and Schlumberger to Pedernal (a company partially owned by Carlos Zaffirini and formed days before the original petition was filed) in payment for attorneys’ fees incurred in an unrelated litigation.

. Section 150.002 is titled “Certificate of Merit.” Tex. Civ. Prac. & Rem.Code Ann. § 150.002. The body of Section 150.002 refers to an “affidavit.” Id. In this opinion, the terms are used interchangeably.

. The motion also included an allegation that Jennings’s affidavit did not address each cause of action as required by section 150.002(a). Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a).

. Texas Civil Practices and Remedies Code section 150.002, "Certificate of Merit” provides:

(a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to ‍‌​‌‌‌​​​​‌‌​‌‌‌​​​‌​​‌​‌​​​‌‌​​‌​​​​‌​‌‌‌​​​‌‌‌​‍file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who:
(1) is competent to testify;
(2) holds the same professional license or registration as the defendant; and
(3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person’s;
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
(F) practice.
(b) The affidavit shall set forth specifically for each theory of recоvery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.
(c) The contеmporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land survey- or could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires.
(d) The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such affidavit.
(e) The plaintiff’s failure to file the affidavit in accordance with this section shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice.
(f) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.
(g) This statute shall not be construed to extend any applicable period of limitation or repose.
(h) This statute does not apply to any suit or action for the payment of fees arising out of the provision of professional services.
Tex. Civ. Prac. & Rem.Code Ann. § 150.002.



Dissenting Opinion

Dissenting Opinion by:

MARIALYN BARNARD, Justice.

I must dissent to the decision to deny Pedernal Energy, LLC’s motion for en banc reconsideration because contrary to the holding in the panel opinion, it was within the trial court’s discretion to dismiss the complaint without prejudice based on the plain language of the statute. In other words, the plain language of section 150.002(e) does not mandate a dismissal with prejudice. The panel opinion distorts the plain meaning of section 150.002(e) in this case, stepping into the shoes of the Texas Legislature and rewriting the statute. Accordingly, I dissent because I believe the Legislature meant what it wrote when it gave the trial court discretion to dismiss with or without prejudice, particularly when one сonsiders the purpose of section 150.002.

As noted in the panel opinion, this case was previously before this court. See Bruington Eng’g, Ltd. v. Pedernal Energy, L.L.C., 403 S.W.3d 523 (Tex.App.-San Antonio 2013, no pet.) (Bruington I). The issue before the court in Bmington I was whether the trial court abused its discretion by denying a section 150.002 motion to dismiss. Id. at 527. This court held the trial court erred by not dismissing Peder-nal’s claims against Bruington in accordance with section 150.002(e). Id. at 532. Accordingly, we reversed the trial court’s denial of the motion to dismiss, rendering a judgment of dismissal, but we remanded the matter back to the trial court for it to determine whether the case should be dismissed with or without prejudice pursuant to the second sentence of section 150.002(e). Id. On remand, the only issue for the trial court to determine was whether the dismissal should be with or without prejudice. Id. Remand was necessary because section 150.002(e) clearly leaves the determination of whether the dismissal is with or without prejudice to the trial court, i.e., “This dismissal may be with prejudice.” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e) (West 2011) (emphasis added). If the panel believed the statute mandated dismissal with prejudice, there was no need for a remand in the first instance. This is one of the things that confounds me with regard to the panel’s decision in the current appeal. See Bruington Eng’g, Ltd. v. Pedernal Energy, L.L.C., No. 04-13-00558, 456 S.W.3d 181, 2014 WL 4211024 (Tex.App.-San Antonio Aug. 27, 2014, no pet. h.) (Bruington II).

The panel in Bruington II discounts this discretionary portion of the statute, deciding sua sponte that the Legislature did not intend to imbue the trial court with the discretion to determine whether the dismissal should be with or without prejudice when the language is considered in the full context of section 150.002. Id. at 189-90, 2014 WL 4211024, at *7. I wholly disagree with the majority’s reasoning and embrace the plain meaning of the statute, as did our sister court in Dallas, which held:

Under section 150.002(e), a trial court is required to dismiss a complaint if the plaintiff does not file a certificate of merit in compliance with the statute. Tex.Civ. Prac.& Rem. Code Ann. § 150.002(e) (West 2011). Because the statute states the dismissal “may” be with prejudice, it expressly does not require a dismissal with prejudice. Id. Consequently, the trial court has discretion to determine whether a dismissal should be with or without prejudice. CTL/Thompson Tex., L.L.C. v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex.2013) (per curiam). In exercising this discretion, a trial court cannot act “in an arbitrary or unreasonable manner,” and should consider the “broader purposes” of the statute. Id.
Those purposes are to deter and end meritless claims quickly. Id.
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Finally, we agree with TIC that the statutory provision giving trial courts discretion to dismiss without prejudice reflects the legislature’s intent to allow trial courts to determine when a plaintiff should be given a second opportunity to comply with the statute. See Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 495 n. 2 (Tex.App.-Corpus Christi 2009, no pet.) (rather than allow for amendment, the statute permits dismissal without prejudice).

TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13-01021-CV, — S.W.3d —, —, 2014 WL 4724706, at *3-4 (Tex.App.-Dallas Sept. 24, 2014, pets, filed) (emphasis added).

After Bruington I was remanded to the trial court “for a determination of whether the dismissal ‍‌​‌‌‌​​​​‌‌​‌‌‌​​​‌​​‌​‌​​​‌‌​​‌​​​​‌​‌‌‌​​​‌‌‌​‍of Pedernal’s claims should be with or without prejudice,” Bruington Eng’g, 403 S.W.3d at 532, the trial court was entitled to consider all facts as to why Pedernal failed to file the expert affidavit with the original petition. I can envision numerous reasons that the affidavit might not be filed with the original petition— reasons that do not render the plaintiffs suit non-meritorious. Two examples include negligence by the plaintiffs attorney or the attorney’s staff, or negligence by the courier service delivering the petition for filing. Neither of these reasons would justify a dismissal with prejudice given the purpose of section 150.002 is to reduce the costs of litigation by quickly disposing of non-meritorious lawsuits. Hence, the Legislature’s decision to allow the trial court discretion with regard to dismissing with or without prejudice is cоmpletely in line with the ultimate purpose of the statute. If the suit has merit, the technical failure to include the affidavit with the first petition should not mandate that a plaintiff lose his or her day in court. Under the panel’s interpretation of “may” in Bruing-ton II, this is exactly what may occur— meritorious suits dismissed with prejudice on mere technical grounds — in fact all suits dismissed with prejudice, rendering the second sentence of section 150.002(e) utterly meaningless. If the panel is correct, there was no need for the Legislature to include the second sentence of section 150.002(e). Rather, the Legislature could have simply mandated, “The plaintiffs failure to file the affidavit in accordance with the section shall result in dismissal of the complaints against the defendant with prejudice.” Yet, the Legislature specifically chose to allow the trial court to make the decision with regard to the type of dismissal it should render.

The panel opinion not only misinterprets the second part of section 150.002(e), turning “may” into “shall,” but eliminates entirely any possibility of a dismissal without prejudice, thereby negating language implicitly included in the statute by the Legislature. I believe the Legislature fully intended to permit the trial court to take into account any circumstances as to why the required affidavit was not filed with the original petition. The plain meaning of the languаge fulfills the Legislature’s obvious intent, and we should not, as courts interpreting the actions of the Legislature, nullify that intent, thereby inserting ourselves into the legislative process. Accordingly, I dissent.

Dissenting Opinion by:

REBECA C. MARTINEZ, Justice.

For the reasons discussed below, I respectfully dissent to the majority’s denial of Pedernal Energy, L.L.C.’s motion for reconsideration en banc.

The majority recognizes the narrow issue of whether the failure to file a section 150.002(a) affidavit, contemporaneously with the original complaint, requires a dismissal with or without prejudice pursuant to section 150.002(e) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a), (e) (West 2011); Bruington Eng’g, Ltd. v. Pedernal Energy, L.L.C., No. 04-13-00558-CV, 456 S.W.3d 181, 183-84, 2014 WL 4211024, at *1 (Tex.App.-San Antonio Aug. 27, 2014, no pet. h.) (“Bruington II ”). However, although the statute and precedent is clear, the majority would remove аny discretion inherent in the trial court to sanction a plaintiff against refiling, except where a plaintiff first sues a licensed professional within ten days of limitations expiring. To so hold abrogates the intended effect to give meaning to every provision of the statute, and eliminates the discretion clearly conveyed by the legislature’s use of the word “may” and the inclusion of subsections (c), (d) and (g). Tex. Civ. Prac. & Rem. Code Ann. § 150.002(c), (d), (g) (West 2011). For the foregoing reasons, the majority’s decision exceeds the parameters of our authority.

We review the trial court’s dismissal sanction under section 150.002(e) for an abuse of discretion. Bruington Eng’g, Ltd. v. Pedernal Energy, L.L.C., 403 S.W.3d 523, 527 (Tex.App.-San Antonio 2013, no pet.) (“Bruington I ”). In previously remanding this case apprоpriately to the trial court for a determination of whether such dismissal should be with or without prejudice to refiling, we cannot now hold as a matter of law that a trial court can reach only one decision — to dismiss with prejudice. Id. at 532. A separate majority now exceeds the proper scope of review in declaring that the legislature in fact intended a death penalty sanction under section 150.002, except for first-filed suits initiated less than ten days of when the suit becomes time-barred. This conclusion effectively renders the majority of section 150.002’s provisions meaningless. The majority’s expansion of the dismissal sanction to preclude a plaintiff from filing a meritorious suit during the limitations period contradicts the clear language of the statute.

It is not within our purview as an intermediate appellate court to construe a statute as a means to prevent a scenario which might allow a plaintiff “to circumvent the first-filed pleading requirement,” particularly where this objective is neither stated in nor implied from the clear language of the statute. We must presume that the legislature intended the entire statute to be effective. See Tex. Gov’t Code Ann. § 311.021 (West 2013). “‘[I]t is settled that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible.’ ” Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000) (quoting Perkins v. State, 367 S.W.2d 140, 146 (Tex.1963)). Courts should not adopt a construction that renders statutory provisions meaningless. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999).

In Bruington I, we recognized that “[a] dismissal pursuant to section 150.002(e) is a sanction ‘to deter meritless claims and bring them quickly to an end.’ ” Bruington I, 403 S.W.3d at 527 (quoting CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex.2013) (per curiam)). An appeal from the trial court’s refusal to dismiss an action under 150.002(e) is not mooted by the plaintiffs nonsuit. CTL/Thompson, 390 S.W.3d at 301. By analogy, the Supreme Court noted that in a health care liability claim where the plaintiffs expert reports did not satisfy statutory requirements, a dismissal with prejudice and attorney’s fees were sanctions mandated by the statute, the purpose of which is to deter claimants from filing meritless suits. Id. at 300 (citing Villafani v. Trejo, 251 S.W.3d 466, 467 (Tex.2008)). In comparison, a section 150.002(e), dismissal is a sanction with the same purpose (to deter meritless claims and bring them quickly to an end) that specifically authorizes the trial court, in its discretion, to dismiss with prejudice, particularly once limitations has tolled or when it reasonably believes the sanction is appropriate. Id. at 301 (citing Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.2011)). The Supreme Court recognized that section 150.002(e) “ ‘provides no particular guidance on how the court should exercise its discretion’ in deciding whether to dismiss an action with prejudice rather than without. Therefore, ‘[gjuidance must come instead from the broader purposes’ of the statute.” Id. (quoting Samlowski, 332 S.W.3d at 410) (internal citation omitted).

Our sister court in Hоuston determined that section 150.002 focuses on the requirement that a plaintiff file a certificate of merit with the first-filed original complaint that asserts a negligence claim against a professional, not simply the original suit first filed by a plaintiff at any given time within the limitations period minus ten days. Sharp Eng’g v. Luis, 321 S.W.3d 748, 751 (Tex.App.-Houston [14th Dist.] 2010, no pet.). In Sharp, the court determined it was an abuse of discretion to deny a motion to dismiss where the certificate of merit was attached to a second amended complaint, where the allegations of negligence were first raised in the original complaint. Id. at 751-52., In rejecting the appellees’ contention that the absence of “first-filed” before the phrase “the сomplaint” in section 150.002(a) does not prohibit a plaintiff from attaching the re quired certifícate to an amended pleading, the court determined that the absence of this restrictive phrase comports with the statute’s remaining provisions, including section 150.002(c) (providing a plaintiff an extension of time to obtain a certificate of merit when time constraints preclude its preparation for filing with the suit). Id. at 751. It follows, then, that section 150.002(d)’s extension of time to file an answer to the complaint and affidavit until the filing of such affidavit is less inconsequential. Section 150.002(g) is further a necessary corollary of subsections (c) and (d). The majority’s focus on the word “complaint” within seсtion 150.002(a), as was the appellee’s in Sharp, renders these other provisions meaningless.

Similarly, in Pakal, the plaintiff sought an extension to supplement its pleadings under section 150.002(c), arguing that the certificate could be filed with the first-served pleading. Pakal Enterprises, Inc. v. Lesak Enterprises LLC, 369 S.W.3d 224, 228-29 (Tex.App.-Houston [1st Dist.] 2011, pet. denied) (holding first-filed complaint, for purposes of certificate of merit requirement, was plaintiffs initial petition and plaintiff was not entitled to extension). The panel of this court in Bruington I previously agreed with our sister court, concluding that the plain language of the statute does not contemplate amended and supplemental affidavits ‍‌​‌‌‌​​​​‌‌​‌‌‌​​​‌​​‌​‌​​​‌‌​​‌​​​​‌​‌‌‌​​​‌‌‌​‍to avoid a dismissal sanction, other than the exception to subsection (a)’s contemporaneous filing requirement contained in section 150.002(c). Bruington I, 403 S.W.3d at 531 (citing Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 499 (Tex.App.-Corpus Christi-Edinburg 2009, no pet.)). “Instead, the statute permits dismissal without prejudice.” Id. at 532. In the present appeal, after having permitted the trial court to determine the appropriate sanction, the majority now construes the statute to have intended a death penalty sanction by summarily concluding, “[a] failure to file a section 150.002(a) affidavit contemporaneously with the first-filed petition mandates dismissal with prejudice pursuant to 150.002(e).” Bruington II, 456 S.W.3d at 189, 2014 WL 4211024, at *7. Ignoring the statute’s clear and unambiguous language, the majority simply concludes that a death penalty sanction was clearly intended by the legislature. Such a conclusion renders portions of the statute meaningless. I therefore dissent.

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