                              Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION
                                        No. 04-13-00558-CV

                              BRUINGTON ENGINEERING, LTD.,
                                        Appellant

                                                  v.

                                  PEDERNAL ENERGY, L.L.C.,
                                         Appellee

                    From the 49th Judicial District Court, Zapata County, Texas
                                      Trial Court No. 7,767
                            Honorable Jose A. Lopez, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: August 27, 2014

REVERSED AND RENDERED

           This case 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
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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. CIV. 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 project 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, Pedernal 1 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



1
 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.

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treatment on a well in Zapata County, and Bruington was hired to supervise the fracking

operations. The Schlumberger entities 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

ANN. § 150.002(a). Chapter 150 of the Texas Civil Practice & Remedies Code requires a plaintiff

in any suit for damages arising 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,


2
 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.

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Pedernal amended its petition and included Bruington 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 Bruington, 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 file 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


3
 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).

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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 construction 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.
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       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 consider 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–NOPEC 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 Statutory 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


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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 fails 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 plaintiff’s 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.” HOUSE 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 plaintiff’s 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,



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390 S.W.3d at 301; see also Bruington I, 403 S.W.3d at 527; Found. Assessment, Inc. v. O’Conner,

No. 02-13-00166-CV, 2014 WL 880501, at *2 (Tex. App.—Fort Worth, March 6, 2014, pet. filed).

         Sections 150.002(a) and (b) establish the framework for the affidavit requirements in a

complaint 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).


4
  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 recovery 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 contemporaneous 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 surveyor 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.

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       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); Bruington 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 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.

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. § 311.011(a).




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

    The first sentence of section 150.002(e) is clear and unambiguous—“The plaintiff’s 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); Seguin, 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 services 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



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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 be 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 prejudice” 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, 148 S.W. 288, 289–90 (Tex. 1912) (“A direction contained in a statute,

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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 appropriate 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
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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.


                                                 Patricia O. Alvarez, Justice




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