                              Fourth Court of Appeals
                                     San Antonio, Texas
                                   DISSENTING 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 DISSENTING FROM ORDER DENYING RECONSIDERATION EN BANC

Dissenting Opinion by: Marialyn Barnard, Justice

Sitting:      Sandee Bryan Marion, Chief Justice
              Karen Angelini, Justice
              Marialyn Barnard, Justice
              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

Delivered and Filed: January 28, 2015

           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
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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 considers 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 Bruington 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 Pedernal’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, 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



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Dissenting Opinion                                                                      04-13-00558-CV


full context of section 150.002. Id. 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.

                                                  *     *   *

        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, 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 plaintiff’s suit non-meritorious.

Two examples include negligence by the plaintiff’s 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 completely in line with

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Dissenting Opinion                                                                        04-13-00558-CV


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 Bruington 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 plaintiff’s 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 language 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.


                                                     Marialyn Barnard, Justice




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