

Opinion issued April 28, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-01038-CV
———————————
Pakal Enterprises, Inc. and Rene Dominguez, Appellants
V.
Lesak
Enterprises LLC d/b/a Pro Surv and Toby P. Couchman, Appellees

 

 
On Appeal from the 281st District Court
Harris County, Texas

Trial Court Case No. 2009-14633
 

 
O P I N I O N
          Appellants,
Pakal Enterprises, Inc. (“Pakal”) and Rene Dominguez, appeal the trial court’s
dismissal of their suit against appellees, Lesak Enterprises LLC d/b/a Pro Surv
and Toby P. Couchman (collectively, “Lesak”), for failure to comply with Chapter
150 of the Texas Civil Practice and Remedies Code.  In three issues, Pakal and Dominguez argue
that the trial court erred in (1) determining that their original petition was
filed on March 6, 2009 and that they were not entitled to the 30-day extension
of the deadline provided for by section 150.002(b); (2) determining that
Pakal and Dominguez were not entitled to an extension for “good cause” under
section 150.002(b); and (3) dismissing their claims against Lesak because a
certificate of merit was included with the only petition that they served on
Lesak.
          We
affirm.
Background
Dominguez, the owner of property at
1001 Herkimer Street in Harris County, hired Pakal as a contractor to complete improvements
to the property.  In the process of
carrying out the improvements, Pakal and Dominguez contracted with Lesak, doing
business as Pro Surv, and its employee, Couchman, for a survey. 
The survey furnished by Lesak and
Couchman, dated February 20, 2007, was allegedly inaccurate, as discovered upon
the completion of a second survey, dated June 20, 2007.  The inaccurate February 20, 2007 survey allegedly
caused expense to Pakal and Dominguez when corrections to the construction
became necessary.
          On March
6, 2009, Pakal and Dominguez (collectively, “Pakal”) filed their original
petition asserting claims for negligence, negligent misrepresentation, various
violations of the DTPA, and breach of contract.  This petition named “Pro-Surv, Inc. dba Pro-Surv
Surveying Company” and Couchman as defendants and stated that “Pro-Surv Inc.”
was “not in good standing with the Texas Secretary of State’s Office.”  Lesak Enterprises was not named in the
original petition, and the original petition was never served on either Pro-Surv
Inc. or on Lesak.  Couchman was served on
March 11, 2009.  
By a letter dated April 24, 2009,
the attorney for Lesak and Couchman contacted counsel for Pakal and stated in
his letter, “Please allow this correspondence to confirm our conversation
regarding the above-referenced matter.  I
will be representing Defendants Lesak Enterprises, L.C. d/b/a Pro-Surv
(incorrectly named Pro-Surv, Inc. d/b/a Pro Surv Surveying Company) and Toby P.
Couchman.”  The letter also discussed the
parties’ agreement to extend various discovery deadlines. 
On June 1, 2009, Pakal amended its
petition, naming “Lesak Enterprises, LLC dba Pro-Surv” instead of “Pro-Surv,
Inc. dba Pro-Surv Surveying Company” as a defendant.  This petition asserted for the first time that
Pakal “did not obtain an affidavit from a professional surveyor for the
purposes of supporting the acts of negligence alleged herein because the
applicable statute of limitation may expire within ten days of the filing of
this petition.”  Again, this amended
petition was not served on Lesak.
On June 3, 2009, Lesak and Couchman
filed a motion to dismiss for failure to file a certificate of merit.  On June 19, 2009, Pakal amended its petition
again and, for the first time, included a certificate of merit.  On August 21, 2009, the trial court conducted
a hearing on Lesak and Couchman’s motion to dismiss, and Pakal moved to extend
the deadline to file the certificate of merit. 
On August 27, 2009, Lesak was served with a petition—Pakal’s second amended petition—for the first time.
On September 2, 2009, the trial
court granted Lesak and Couchman’s motion to dismiss without ruling on Pakal’s
motion to extend time to file a certificate of merit, and it dismissed all of
Pakal’s claims without prejudice.  Pakal
filed a motion to reconsider and a motion for new trial, both of which the
trial court denied.  This appeal
followed.
Dismissal Under Chapter 150 of the Civil Practice and
Remedies Code
In three issues, Pakal argues that
the trial court erred in dismissing the case against Lesak.[1]
 
A.  
Standard of Review
Pakal argues that we should review
the trial court’s ruling on the motion to dismiss de novo.  However, the standard for conducting such a
review has already been established by this Court.  We review a trial court’s ruling on a motion
to dismiss for failure to file a certificate of merit under an abuse of
discretion standard.  Curtis & Windham Architects, Inc. v.
Williams, 315 S.W.3d 102, 106 (Tex. App.—Houston [1st Dist.] 2010, no pet.).  A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner without reference to guiding rules
or principles.  Id.  A trial court does not
abuse its discretion merely because it decides a discretionary matter
differently than this Court would in a similar circumstance, and we may not
substitute our own judgment for that of the trial court.  Id.  However, a trial court has no discretion
in determining what the law is or in applying the law to the facts.  Id.
(quoting Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992)).
To the extent our review requires
us to construe statutory language, we review such construction de novo.  Id.
(citing City of San Antonio v. City of
Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). 
In construing statutes, our primary goal is to determine and give effect
to the legislature’s intent, and we begin with the plain language of the
statute and apply its common meaning.  Id. 
Where the statutory text is unambiguous, we adopt a construction
supported by the statute’s plain language, unless that construction would lead
to an absurd result.  Id. (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.
1999)).
B.  
Analysis
The applicable version[2] of section 150.002 of the
Civil Practice and Remedies Code provides:
(a)     In any action or arbitration proceeding for damages arising out
of the provision of professional services by a licensed or registered
professional,[3]
the plaintiff shall be required to file with the complaint an affidavit of a
third-party registered architect, registered professional land surveyor, or
licensed professional engineer competent to testify, holding the same professional
license as, and practicing in the same area of practice as the defendant, which
affidavit shall set forth specifically at least one negligent act, error, or
omission claimed to exist and the factual basis for each such claim.  The third-party professional engineer,
registered professional land surveyor, or registered architect shall be
licensed in this state and actively engaged in the practice of architecture,
surverying, or engineering.
 
(b)     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 registered architect, registered
professional land surveyor, or professional engineer 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.
 
(c)      The defendant shall not be required to file an answer to the
complaint and affidavit until 30 days after the filing of such affidavit.
 
(d)     The plaintiff’s failure to file the affidavit in accordance with
Subsection (a) or (b) shall result in dismissal of the complaint against the
defendant.  This dismissal may be with
prejudice.
 
See Act of May
18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended
2009) and Act of May 27, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen.
Laws 348, 350 (amended 2009) (hereinafter “Former Tex. Civ. Prac. & Rem. Code Ann. § 150.002”)
(current version at Tex. Civ. Prac.
& Rem. Code Ann. § 150.002(a)–(e) (Vernon Supp. 2010)).
          Thus,
section 150.002 requires a plaintiff to file a certificate of merit with the
first-filed complaint asserting a negligence claim against a professional.  Sharp
Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex. App.—Houston [14th Dist.] 2010, no
pet.); see also Ashkar Eng’g Corp. v.
Gulf Chem. & Metallurgical Corp., No. 01-09-00855-CV, 2010 WL 376076,
at *1, *3 (Tex. App.—Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) (holding
that plaintiff failed to timely file certificate of merit when it did not file
certificate with its first petition alleging causes of action against
engineering firm), op. supplemented, No. 01-09-00855-CV, 2010 WL 1509287
(Tex. App.—Houston [1st Dist.] April 15, 2010, no pet.).  Section 150.002(d) requires dismissal of the
complaint against the defendant if the plaintiff fails to file a certificate of
merit in accordance with subsection (a) or (b) and allows the trial court to
dismiss with or without prejudice.  Sharp Eng’g, 321 S.W.3d at 752 (citing
Former Tex. Civ. Prac. & Rem. Code
Ann. § 150.002(d)).
In its first issue, Pakal asserts
numerous arguments in support of its contention that the trial erred in
dismissing its claims against Lesak. 
First, it argues that it did not file suit against Lesak until June 1,
2009—the date it filed its first
amended petition changing the named defendant from “Pro-Surv, Inc. dba Pro-Surv
Surveying Company” to “Lesak Enterprises, LLC dba Pro-Surv.”  Lesak, however, argues that Pakal’s first
petition alleging causes of action for damages arising out of professional
services by a licensed or registered professional was the original petition,
filed March 6, 2009.  We agree with Lesak.
The original petition, filed March
6, 2009, was a suit filed against professional land surveyor Couchman and the company
for which he worked, identified in the petition as “Pro-Surv,” the name under
which Lesak had been doing business.  See Tex.
R. Civ. P. 28 (providing that “[a]ny partnership, unincorporated
association, private corporation, or individual doing business under an assumed
name may sue or be sued in its partnership, assumed or common name for the
purpose of enforcing for or against it a substantive right, but on a motion by
any party or on the court’s own motion the true name may be substituted.”).  It alleged causes of action for damages
arising out of Couchman and Lesak’s provision of services as registered
professional land surveryors, including allegations that Couchman’s inaccurate
survey formed the basis of causes of action for negligence, negligent
misrepresentation, violations of the DTPA, and breach of contract.  Pakal failed to file a certificate of merit
when it filed this petition.  Thus, the
trial court did not abuse its discretion in determining that Pakal failed to
file the certificate of merit in accordance with section 150.002(a).  See Former
Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002(d); Sharp Eng’g, 321 S.W.3d
at 751; Ashkar Eng’g Corp., 2010 WL
376076, at *3.
Pakal also argues that it was entitled to section 150.002(b)’s
exception to contemporaneous filing, applicable when a complaint is filed
within ten days of the expiration of the limitation period, and that its
certificate of merit was therefore timely filed.  However, Pakal was not entitled to the 30-day extension under section 150.002(b),
because the limitations period did not expire within ten days of the date it
filed its petition.  See Former Tex. Civ. Prac.
& Rem. Code Ann. § 150.002(b). 
As we have already determined, Pakal filed its suit on March 6, 2009.  Assuming, without deciding, that the
limitations period on its claims expired on June 11, 2009, as it argues in its
appellate brief, the petition was filed more than ten days before the
limitations period expired.  See id. 
We also note that, even if Pakal had been entitled to the 30-day
extension, it did not file a certificate of merit until June 19, 2009, or 95
days after it filed its original petition.  See
Ashkar Eng’g Corp., 2010 WL 376076, at *3.  Therefore, the trial court
did not abuse its discretion in determining that Pakal failed to file the
certificate of merit in accordance with section 150.002(b).  See Former
Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002(d); Ashkar Eng’g Corp.,
2010 WL 376076, at *3.  Because we have
determined that Pakal failed to file a certificate of merit in compliance with
either subsection (a) or (b), we conclude that the trial court did not abuse
its discretion in dismissing the claims against Lesak.  See Former
Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002(d) (requiring dismissal of claims against defendant when plaintiff
fails to file certificate of merit in compliance with subsection (a) or (b)).
Also in its first issue, Pakal
argues that, to the extent it did so, the trial court erred in applying the
“relation-back” doctrine to conclude that the first amended petition was filed
on the date of the original complaint.  Pakal
also argues that the trial court incorrectly applied the law of misnomer and
the relation-back doctrine in determining the applicability of section
150.002(b)’s extension provision and that the trial court “should not have
treated the first amended complaint as filed on March 6, 2009 . . . because
[Dominguez and Pakal] never served
Pro-Surv, Inc. with the original complaint,” and thus, “the trial court never
had jurisdiction over Pro-Surv, Inc.”  However, the record does not reflect
what legal theory the trial court relied on in deciding to grant Lesak and
Couchman’s motion to dismiss, and analysis of the law of misnomer or the
relation-back doctrine was not necessary to reach our determination that the
trial court did not err in dismissing the claims against Lesak.  Therefore, we do not address these arguments.
We overrule Pakal’s first issue.
In its second issue, Pakal argues,
alternatively, that even if the 30-day extension provision of section
150.002(b) did not apply to this case, it was entitled to an extension “because
good cause exists and justice required an extension of the deadline for filing
a certificate of merit on or before June 19, 2009.”  It argues that the language in section
150.002(b) providing that “[t]he trial court may, on motion, after hearing and
for good cause, extend such time as it shall determine justice requires”
creates an additional “good faith” exception to the contemporaneous filing
requirement, and it cites two opinions from the Corpus Christi Court of Appeals
to support that argument.  See WCM Group, Inc. v. Camponovo, 305
S.W.3d 214 (Tex. App.—Corpus Christi
2009, pet. dism’d); WCM Group, Inc. v.
Brown, 305 S.W.3d 222 (Tex. App.—Corpus Christi 2009, pet. dism’d). 
Without determining whether we
agree with the Corpus Christi Court of Appeals’s analysis of section
150.002(b), we conclude that the trial court did not abuse its discretion on
this ground either.  First, the language
of the statute is permissive—“[t]he
trial court may, on motion, after
hearing and for good cause, extend such time as it shall determine justice
requires.” 
See Former Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b) (emphasis added); Williams, 315 S.W.3d at 106 (holding
that we adopt construction supported by statute’s plain language, unless that
construction would lead to absurd result). 
Furthermore, Pakal did not move the court to consider granting an
extension “for good cause” until the date of the hearing on Lesak’s motion to
dismiss, and the record does not reflect that a hearing on the matter of
Pakal’s good cause was conducted.  See Ashkar Eng’g Corp., 2010 WL 376076,
at *3 (“Nothing in Section 150.002 allows a plaintiff to cure a failure to
timely comply.”) (citing Landreth v. Las
Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500 (Tex. App.—Corpus
Christi 2009, no pet.) (refusing to consider attempts to cure defective
certificate of merit)).  Finally, this
case is factually distinguishable from both Camponovo
and Brown.  
In Camponovo, the court of appeals affirmed the trial court’s denial
of the defendant’s motion to dismiss under chapter 150.  305 S.W.3d at 216.  It was undisputed that the plaintiffs’ suit
was filed less than ten days before the statute of limitations would expire,
and the plaintiffs also presented arguments and substantial supporting evidence
that they were unaware that the defendant was an engineering firm until the
firm filed its motion to dismiss.  Id. at 216–17.  The plaintiffs requested that the trial court
apply the 30-day exception for suits filed within ten days of the date the
limitations period would expire, and it also promptly requested a hearing for
the trial court to consider whether to further extend the deadline for “good
cause.”  Id. at 216.  The court of
appeals considered what constituted “good cause” under section 150.002(b) and determined
that the trial court did not abuse its discretion in granting the extension and
denying the defendant’s motion to dismiss. 
Id. at 220–21.
In Brown, the court of appeals determined that although the plaintiffs
failed to file a certificate of merit with their original petition and the
original petition was filed more than ten days before the expiration of the
limitations period, the trial court still did not abuse its discretion in
granting an extension for “good cause” under section 150.002(b).  305 S.W.3d at 230.  The Brown court again relied on the fact that the plaintiffs were
unaware that the defendants were an engineering firm at the time they filed
their original petition.  Id.  The
court also considered the fact that the plaintiffs’ retained expert experienced
family problems that prevented him from timely signing his report.  Id. at
230–31.
Here, however, Pakal’s petition was
not filed within ten days of the expiration of the limitations period, and Pakal
did not timely move for or request a hearing on its motion for extension of
time for filing the certificate of merit. 
Thus, Pakal never properly invoked the exception in section
150.002(b).  Nor would the 30-day
exception under section 150.002(b) have authorized Pakal’s filing its
certificate of merit 95 days after the date it filed its original
petition.  Furthermore, Pakal does not
argue, as the plaintiffs in both Camponovo
and Brown did, that it was unaware or
uninformed that the parties it sued were licensed or registered professionals
within the purview of section 150.002, and Pakal’s pleadings indicate that it
was aware that Couchman was a registered land surveyor and that “Pro-Surv” was
the land surveying company that employed him.[4]
          We overrule Pakal’s second issue.
In its third issue, Pakal argues
that the trial court erred in granting the motion to dismiss Lesak because the
certificate of merit was attached contemporaneously to the only complaint
served on Lesak.  However, the statute
does not make any requirements regarding what is served on a particular
party.  The defendant’s right to a
dismissal is triggered by the plaintiff’s failure to file with the trial court
a certificate of merit contemporaneously with the complaint or petition.  See Former Tex. Civ.
Prac. & Rem. Code Ann. § 150.002(d) (“The plaintiff’s failure to file the affidavit in accordance with
Subsection (a) or (b) shall result in
the dismissal of the complaint against the defendant.”) (emphasis added); see also Williams, 315 S.W.3d at 106
(holding that we adopt construction supported by statute’s plain language,
unless that construction would lead to absurd result).  As we have already discussed, Pakal failed to
file its affidavit or certificate of merit in accordance with section
150.002(a) or (b), and the trial court did not abuse its discretion in
dismissing its suit.
We overrule Pakal’s third issue.
Conclusion
          We
affirm the judgment of the trial court.
 
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Sharp, and Massengale.
 




[1]
          We note that Pakal does not
challenge on appeal the trial court’s dismissal of Couchman.  Therefore, we only address the trial court’s
ruling as it relates to Lesak.
 


[2]
          The Legislature amended section
150.002, effective for cases filed or commenced on or after September 1,
2009.  See Act of June 19, 2009, 81st Leg., R.S., ch. 789, §§ 3–4, 2009
Tex. Gen. Laws 1989–90 (effective Sept. 1, 2009).  Because this suit was filed or commenced on
March 6, 2009, these amendments to not apply to this case, and all citations in
this opinion are to the version of section 150.002 in effect prior to the 2009
amendments.
 


[3]
          A “design professional” was
defined to also include “any firm in which such licensed professional
practices, including but not limited to a corporation, professional
corporation, limited liability corporation, partnership, limited liability
partnership, sole proprietorship, joint venture, or any other business
entity.”  Act of May 18, 2005, 79th Leg., R.S., ch.
208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009).


[4]
          We also note that appellate
courts review a trial court’s ruling on a motion to dismiss for failure to file
a certificate of merit under an abuse of discretion standard.  Curtis
& Windham Architects, Inc. v. Williams, 315 S.W.3d 102, 106 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). 
In both Brown and Camponovo, the Corpus Christi Court of
Appeals affirmed the trial court’s denial of a motion to dismiss.  See WMC
Group, Inc. v. Camponovo, 305 S.W.3d 214, 216 (Tex. App.—Corpus Christi
2009, pet. dism’d); WCM Group, Inc. v.
Brown, 305 S.W.3d 222, 230 (Tex. App.—Corpus Christi 2009, pet.
dism’d).  Here, we are being asked to
review an order granting such a dismissal, and we would have to conclude that
the trial court abused its discretion before we could conclude that a denial of
the motion to dismiss was proper in this case.


