Opinion issued November 22, 2016




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00320-CV
                            ———————————
                       GESSNER ENGINEERING, LLC,
                                     Appellant
                                         V.
       ST. PARASKEVI GREEK ORTHODOX MONASTERY, INC.,
                                      Appellee


                     On Appeal from the 21st District Court
                          Washington County, Texas
                         Trial Court Cause No. 35918


                                   OPINION

      In this appeal, we consider whether a trial court’s dismissal for failure to file

a certificate of merit as required by Texas Civil Practice and Remedies Code

section 150.002 must be with prejudice. We agree with the majority of appellate
courts that have addressed the issue and held that dismissal with prejudice is not

mandatory but, rather, a matter left to the trial court’s discretion. Because we

conclude that the trial court did not abuse its discretion by dismissing without

prejudice, we affirm the trial court’s judgment.

                                    Background

      Appellee St. Paraskevi Greek Orthodox Monastery contracted with appellant

Gessner Engineering, LLC to provide professional engineering services in

connection with the Monastery’s construction of a dining hall. In January 2015,

the Monastery sued Gessner and four other defendants for various claims arising

from the construction project in Cause No. 35694. The Monastery served Gessner

with its petition which did not include a certificate of merit, but non-suited Gessner

and another defendant before the answer deadline or any appearance by Gessner.

      A year later, the Monastery filed an amended petition against Gessner and

three other defendants in the same case, Cause No. 35694, this time attaching a

certificate of merit and the declaration of Gary Masterman, which was dated

January 7, 2016.     Before the amended petition was served on Gessner, the

Monastery non-suited its claims.

      A month later, the Monastery filed a new suit against Gessner.             The

Monastery alleged that Gessner’s negligence caused a continuing water infiltration

problem in the Monastery’s dining hall. The Monastery also alleged that Gessner



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made negligent representations and breached contractual and fiduciary duties in

connection with its work on the dining hall. The original petition in this new

cause, Cause No. 35918, reflects the Monastery’s intent to file the same January 7,

2016 certificate of merit required under Texas Civil Practices and Remedies Code

§ 150.002. It states: “Gessner’s multiple breaches of the engineering standard of

care are described in Exhibit A, the Declaration of Gary Masterman and Certificate

of Merit.” However, the attached Exhibit A was not the declaration of Gary

Masterman and certificate of merit but a “Standard Form of Agreement Between

Contractor and Subcontractor for use on a Sustainable Project.” One month later,

before Gessner answered, the Monastery filed a “Corrected Original Petition and

Request for Disclosures,” which attached the declaration of Gary Masterman and

certificate of merit as Exhibit A.

      Gessner answered and moved to dismiss the case under Texas Civil Practice

and Remedies Code § 150.002 based on the Monastery’s failure to file the

certificate of merit with its first-filed petition. Gessner argued that the Monastery’s

failure to file the certificate of merit with its original petition could not be cured by

amendment and, thus, its claims must be dismissed. Gessner requested that the

case be dismissed with prejudice because this was the second original petition that

the Monastery filed that did not comply with the certificate of merit requirement.




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      The Monastery responded that its failure to attach the certificate of merit to

its petition was accidental and due to a clerical error. It also pointed out that it had

previously filed the certificate of merit with its amended petition in Cause No.

35694, but it nonsuited Gessner from that case after a trial court stay to determine

whether the claims against other defendants were subject to arbitration.

      Following a hearing on Gessner’s motion to dismiss, the trial court

dismissed the Monastery’s claims without prejudice. Gessner appealed.

                                      Discussion

      In two related issues Gessner argues that dismissal with prejudice was

mandatory under Texas Civil Practice & Remedies Code § 150.002(e) and the trial

court’s dismissal without prejudice was an abuse of discretion.

A.    Standard of Review

      We review a trial court’s order on a motion to dismiss for failure to file a

certificate of merit in accordance with Texas Civil Practice & Remedies Code

§ 150.002 for an abuse of discretion. Couchman v. Cardona, 471 S.W.3d 20, 23

(Tex. App.—Houston [1st Dist.] 2015, no pet.); Dunham Eng’g, Inc. v. Sherwin-

Williams Co., 404 S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2013, no

pet.). A trial court does not abuse its discretion simply because an appellate court

would decide a discretionary matter differently in a similar circumstance. Id.

Rather, a trial court abuses its discretion when it acts arbitrarily or unreasonably,



                                           4
without reference to any guiding rules and principles, or if it fails to analyze or

apply the law correctly. Couchman, 471 S.W.3d at 23; Dunham, 404 S.W.3d at

789. “[A]n abuse of discretion does not occur as long as some evidence of

substantive and probative character exists to support the trial court’s decision.”

Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434 (Tex.

App.—Fort Worth 2005, no pet.).

      “To the extent we are required to interpret a statute, that aspect of our review

is performed de novo.”       Couchman, 471 S.W.3d at 23; see also Miramar

Petroleum, Inc. v. Cimarron Eng’g, LLC, 484 S.W.3d 214, 217–18 (Tex. App.—

Corpus Christi 2016, pet. denied). “In interpreting statutes, our primary purpose is

to give effect to the legislature’s intent by relying on the plain meaning of the text

adopted by the legislature, unless a different meaning is supplied by statutory

definition or is apparent from the context, or the plain meaning leads to absurd

results.” Couchman, 471 S.W.3d at 23–24 (quoting Better Bus. Bureau of Metro.

Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston

[1st Dist.] 2013, pet. denied)). “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.” Couchman, 471 S.W.3d at 24 (citing TGS-NOPEC

Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)).




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B.    Applicable Law

      Section 150.002(a) of the Texas Civil Practice and Remedies Code requires

a plaintiff to file “an affidavit of a third-party licensed architect, licensed

professional engineer, registered landscape architect, or registered professional

land surveyor”—known as a certificate of merit—with its complaint in any lawsuit

arising out of professional services rendered by a licensed or registered

professional. TEX. CIV. PRAC. & REM. CODE § 150.002(a). Section 150.002(e) sets

forth the consequence for failing to do so:

             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 § 150.002(e). Section 150.002(c) provides an

exception to the contemporaneous filing requirement when the petition is filed

within ten days of the limitations period and the plaintiff alleges that the certificate

of merit could not be prepared because of such time constraints. TEX. CIV. PRAC.

& REM. CODE § 150.002(c).

      The Texas Supreme Court has held that dismissal with prejudice under

section 150.002 is “discretionary.” See CTL/Thompson Tex., L.L.C. v. Starwood

Homeowner’s Ass’n, 390 S.W.3d 299, 301 (Tex. 2013) (per curiam).                     In

CTL/Thompson, the trial court denied a motion to dismiss for failure to comply

with the certificate of merit requirements under section 150.002. 390 S.W.3d at


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300. Before the appeal was decided, the plaintiff nonsuited its claims. Id. The

Court of Appeals held that the nonsuit mooted the appeal, but the Texas Supreme

Court reversed, concluding that section 150.002(e) authorizes further relief than

dismissal without prejudice—namely, dismissal with prejudice. Id. at 301. The

Court noted that granting dismissal with prejudice under section 150.002 is

discretionary so long as the trial court does not “act ‘in an arbitrary or

unreasonable manner without reference to guiding rules or principles.’”         Id.

(quoting Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011)). The Court

explained that while section 150.002 “provides no particular guidance on how the

court should exercise its discretion in deciding whether to dismiss an action with

prejudice rather than without,” “guidance must come instead from the broader

purposes of the statute.” Id. (internal citations omitted). The Court further noted

that the purpose of section 150.002(e) dismissal is to deter meritless claims and

bring them quickly to an end. Id. Accordingly, the Court remanded the case to the

Court of Appeals to determine whether the denial of the defendant’s motion to

dismiss with prejudice was an abuse of discretion. Id.

      Several Texas courts of appeals have similarly held that a trial court has

discretion to determine whether a case should be dismissed with or without

prejudice. See TIC N. Cent. Dall. 3, L.L.C. v. Envirobusiness, Inc., 463 S.W 3d 71,

76 (Tex. App.—Dallas 2014, pet. denied) (“Because the statute states the dismissal



                                         7
‘may’ be with prejudice, it expressly does not require a dismissal with prejudice.”);

Miramar Petroleum, 484 S.W.3d at 217–18 (concluding that section 150.002(e)

grants trial court discretion to dismiss a complaint with or without prejudice);

Palladian, 165 S.W.3d at 436 (noting that “the statute is worded so as to permit but

not require that the dismissal be with prejudice”). They have reasoned that the

plain language of section 150.002 reflects the legislature’s intent to allow trial

courts to determine when a plaintiff should be given another opportunity to comply

with the statute.   See TIC, 463 S.W 3d at 77 (holding trial court abused its

discretion in dismissing refiled suit with prejudice where newly filed petition

complied with § 150.002 and previous lawsuit was dismissed without prejudice,

noting § 150.002 “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”);

Miramar Petroleum, 484 S.W.3d at 217–18 (same); Palladian, 165 S.W.3d at 436

(affirming trial court’s dismissal of plaintiff’s claims without prejudice where

plaintiff’s failure to file certificate of merit under section 150.002 was

unintentional oversight, noting that “[i]f the legislature had intended to mandate

that the trial court only dismiss with prejudice, the statute could easily have been

so worded”).

      1.     Analysis

      Section 150.002(e) provides:



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              [t]he 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 § 150.002(e). The plain text of section 150.002(e)

provides that a complaint shall be dismissed when a plaintiff fails to file the

affidavit in accordance with the statute, but it expressly states that the dismissal

may be with prejudice. TEX. CIV. PRAC. & REM. CODE § 150.002(e) (emphasis

added). Because the statute states that the dismissal “may” be with prejudice, it

does not expressly require dismissal with prejudice. TIC, 463 S.W.3d at 76. Thus,

we conclude that the legislature’s use of the word “may” in 150.002(e) cloaks the

trial court with discretion to determine whether a case should be dismissed with or

without prejudice. See TEX. GOV’T CODE § 311.016 (“May” creates discretionary

authority or grants permission or a power); see also CTL/Thompson, 390 S.W.3d at

301 (dismissal with prejudice under section 150.002(e) is discretionary);

Palladian, 165 S.W.3d at 436 (“[T]he statute is worded so as to permit but not

require that the dismissal be with prejudice.”).

      Gessner relies on a single case reaching a contrary conclusion, Bruington

Eng’g, Ltd. v. Pedernal Energy, L.L.C., 456 S.W.3d 181 (Tex. App.—San Antonio

2014, pet. granted), to argue that dismissal with prejudice was mandatory. In

Bruington, the San Antonio Court of Appeals reviewed the trial court’s dismissal

without prejudice of a lawsuit in which the appellee failed to attach a certificate of

                                           9
merit to its original petition as required by section 150.002. 456 S.W.3d at 184–

85.   In analyzing whether the legislature intended dismissal under section

150.002(e) to be with or without prejudice, the majority wrote that “[a]lthough 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.” Id. at 189 (citations omitted). The Bruington majority held that “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.”         Id. at 190.

Accordingly, the Court of Appeals found that the trial court abused its discretion in

dismissing the plaintiff’s case without prejudice. Id.

      We find Bruington unpersuasive and instead conclude, following

CTL/Thompson and the reasoning of the other courts of appeals that have

considered the question, that the plain language of section 150.002(e) does not

require dismissal with prejudice. Accordingly, we conclude that the trial court had

discretion to determine whether the Monastery’s case should be dismissed with or

without prejudice. See CTL/Thompson, 390 S.W.3d at 301; TIC, 463 S.W 3d at 76;

Miramar Petroleum, 484 S.W.3d at 217–18; Palladian, 165 S.W.3d at 436.

      The only remaining question is whether the trial court’s dismissal without

prejudice was an abuse of discretion under the circumstances. Gessner contends



                                         10
that, while guiding rules and principles may permit a court to give a plaintiff a

“second chance” to comply with the statute, it was an abuse of discretion to give

the Monastery a fifth chance to comply. The Monastery argues that dismissal

without prejudice was warranted because: (1) it had previously filed Masterman’s

certificate of merit in the first-filed suit, Cause No. 35694; (2) the unambiguous

reference to the certificate of merit in its original petition in the second suit, Cause

No. 35918, evidences its intent to comply with the statute; (3) uncontroverted

evidence shows that its failure to attach the certificate of merit to its original

petition in Cause No. 35918 was an accidental clerical error that it promptly cured;

and (4) Gessner was not prejudiced.

      It is undisputed that the Monastery secured the certificate of merit and

declaration of Gary Masterman dated January 7, 2016 over a month before it filed

its original petition in Cause No. 35918, and that the Monastery had filed that same

certificate of merit and declaration in the first-filed suit. Additionally, it filed a

sworn declaration of its counsel’s paralegal, who averred that she was instructed to

and intended to attach the declaration of Gary Masterman and the certificate of

merit to the original petition in Cause No. 35918, but, due to a clerical error,

instead attached an AIA form contract. She further averred that her error was

“purely accidental and unintentional.”




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         Gessner effectively concedes that the Monastery promptly cured its clerical

error.     And Gessner did not controvert the paralegal’s sworn affidavit or

demonstrate how her error prejudiced Gessner.          Rather, Gessner asserts that

dismissal with prejudice was required because the Monastery has had multiple

chances to comply with the statute and failed to do so. Gessner does not cite, nor

do we find, authority requiring dismissal with prejudice under these circumstances.

We conclude that dismissal without prejudice on this record was neither arbitrary

nor unreasonable so as to constitute an abuse of discretion.

         On the contrary, the trial court’s exercise of its discretion was consistent

with our “overarching policy in approaching the unintentional errors of counsel

[which] is that cases should be decided on the merits rather than on a procedural

default, when possible.” Tex. Dep’t of Aging and Disability Servs. v. Mersch, 418

S.W.3d 736, 742 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing Marino v.

King, 355 S.W.3d 629, 634 (Tex. 2011) (“Constitutional imperatives favor the

determination of cases on their merits rather than on harmless procedural

defaults”)). We are especially loath to dismiss a case for a technical defect where,

as here, it was caused by a clerical error related to filing that did not cause

prejudice. See Mersch, 418 S.W.3d at 742 (“filing and service rules should not

become a trap for the unwary when no harm is done”). On this record, which

reflects that the Monastery obtained the required certificate of merit and includes



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uncontroverted proof that the failure to file it with the Monastery’s original petition

was a clerical error that resulted in no harm to Gessner, the trial court’s dismissal

without prejudice was not an abuse of discretion. See Palladian, 165 S.W.3d at

435 (holding no abuse of discretion in dismissing case without prejudice where

plaintiff’s failure to file required affidavit was unintentional oversight); see also

TIC, 463 S.W 3d at 76 (noting that “trial court has discretion to determine whether

a dismissal should be with or without prejudice”).

      We overrule appellant’s first and second issues.

                                     Conclusion

      We affirm the trial court’s judgment.



                                        Rebeca Huddle
                                        Justice

Panel consists of Justices Massengale, Brown, and Huddle.




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