                IN THE SUPREME COURT OF TEXAS
                                          444444444444
                                            NO . 15-0123
                                          444444444444



                          PEDERNAL ENERGY, LLC, PETITIONER,
                                                  v.


                     BRUINGTON ENGINEERING, LTD., RESPONDENT

           4444444444444444444444444444444444444444444444444444
                              ON PETITION FOR REVIEW FROM THE
                     COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444

                                   Argued September 14, 2016



       JUSTICE DEVINE, concurring.

       The certificate-of-merit statute generally provides for the dismissal of a “complaint” against

a licensed professional engineer, among others, when the complaint is not accompanied by an

affidavit from a similarly licensed professional. TEX . CIV . PRAC. & REM . CODE § 150.002(a). The

dismissal may be with or without prejudice. Id. § 150.002(e).

       The Court holds that the statue does not, as a matter of law, require a trial court to dismiss

a complaint with prejudice merely because it was filed without an accompanying certificate of merit.

Ante at ___. I agree with that. The Court also holds that the statute does not require dismissal with

prejudice when the complaint is accompanied by a deficient certificate of merit, although the Court

does not decide whether the certificate here was deficient or not. Id. at ___. I agree that a deficient
certificate, without more, also does not require dismissal with prejudice. Based on those holdings,

the Court reverses the court of appeals’ judgment and reinstates the trial court’s judgment. Id. at

___.

        While I agree that the court of appeals’ judgment must be reversed, I would not merely

reinstate the trial court’s dismissal order. I would instead remand to the trial court for it to consider

Bruington’s motion to dismiss unburdened by what I perceive to be an erroneous, intervening

mandate from the court of appeals. That mandate, which arose from a previous interlocutory appeal

under Chapter 150, directed the trial court to dismiss Pedernal’s amended petition. See Bruington

Eng’g, Ltd. v. Pedernal Energy, L.L.C., 403 S.W.3d 523, 532 (Tex. App.—San Antonio 2013, no

pet.) (Bruington I). The trial court’s order here clearly indicates that the court would not have

dismissed Pedernal’s complaint but for the mandate in Bruington I. Given the passage of time, that

order may now be tantamount to a death-penalty sanction. I would therefore honor Pedernal’s

alternative prayer that seeks a remand to the trial court for the court’s consideration of a lesser

sanction or other relief to which it may be entitled.

        The Bruington I remand left for the trial court to determine only whether the mandated

dismissal should be with or without prejudice. Id. The trial court set the matter for hearing, heard

evidence and counsels’ arguments, and reviewed the entire case file before rendering its order. In

that order, the trial court traces the case’s procedural history, beginning with Pedernal’s original

petition and Bruington’s first motion to dismiss. Bruington’s first motion sought dismissal with

prejudice because Pedernal failed to file a certificate of merit with its original petition.



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        Pedernal was apparently unaware of the certificate-of-merit statute or its requirements. After

being educated by Bruington’s motion, Pedernal took a voluntary nonsuit, and the trial court signed

an “Order of Nonsuit” that purported to dismiss Pedernal’s claims against Bruington “without

prejudice”. At the time, Bruington did not object to the order or ask for a hearing on its motion to

dismiss with prejudice. The underlying case remained on the trial court’s docket, however, because

of Pedernal’s claims against other defendants.

        About six months later, Pedernal amended its petition to bring Bruington back into the case.

This time Pedernal included a certificate of merit. Bruington answered, amended that answer, and,

after a short delay, filed another motion to dismiss with prejudice. The motion asserted two grounds:

(1) Pedernal’s failure to file a certificate of merit with the original petition, and (2) Pedernal’s failure

to file a sufficient certificate of merit with its amended petition. The trial court denied the motion

to dismiss, and Bruington sought an interlocutory appeal.

        At issue in Bruington I was whether Bruington waived the dismissal motion’s first ground

by not objecting to the nonsuit, not demanding a hearing on its motion to dismiss with prejudice, or

not pursuing an earlier appeal of the trial court’s previous dismissal order without prejudice (the

Order of Nonsuit). Id. at 527-28. The court of appeals concluded that Bruington’s failure to pursue

its first motion did not waive its underlying ground—that a complaint filed without the requisite

certificate of merit required dismissal with prejudice. Id. at 528. The court reasoned that

Bruington’s first motion to dismiss survived Pedernal’s nonsuit because it sought affirmative relief

(dismissal with prejudice) that the nonsuit order did not address and thus could be reurged several

months later. See id. at 527-28 (citing Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009) (per

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curiam) (noting that the nonsuit order was not final because it did not address all claims including

a motion for sanctions) and Villafani v. Trejo, 251 S.W.3d 466, 468 (Tex. 2008) (holding that “the

trial court’s denial of Villafani’s motion for sanctions and dismissal and Trejo’s nonsuit collectively

disposed of all the claims between the two parties”)).

        The court of appeals, however, did not remand for the trial court merely to reconsider its

previous dismissal order in light of Bruington’s renewed motion to dismiss. Instead, the appellate

court “conclude[d] that the trial court erred by not dismissing Pedernal’s claims against Bruington,”

and remanded for the trial court to determine whether that dismissal “should be with or without

prejudice.” Bruington I, 403 S.W.3d at 532. Although the trial court had several months earlier

dismissed Pedernal’s original petition without prejudice, the court of appeals concluded that the

earlier, non-compliant petition required dismissal of Pedernal’s amended complaint as well. As

already noted, the court’s mandate then remanded only the issue of whether that dismissal should

be with or without prejudice. Following that mandate, the trial court conducted a hearing and made

findings of fact.

        The trial court found that it had dismissed the original petition without prejudice and that

Pedernal’s failure to file a certificate of merit with its original petition was neither intentional nor

done with conscious indifference. The court further noted that Bruington did not object to, appeal

from, or otherwise indicate its displeasure with, the court’s previous order of dismissal without

prejudice. Moving on to Pedernal’s amended petition, the court found that it had previously

conducted a hearing on Bruington’s motion to dismiss at which Bruington presented no evidence in

support of the motion and after which the court denied the motion. At that previous hearing, the

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court considered the pertinent pleadings, Pedernal’s certificate of merit, and the arguments of

counsel. But Bruington I required the trial court to hear the matter again, and so the court again

reviewed the certificate of merit, finding it to be a “complete report” by an expert who “provid[ed]

more than sufficient meritorious grounds for the lawsuit.” Then, after reciting “particular pertinent

findings” from the report that demonstrated the merit of Pedernal’s lawsuit, the order discordantly

concluded “. . . having made the above and foregoing specific findings . . . IT IS ORDERED THAT

Pedernal’s lawsuit is dismissed, without prejudice to refiling same.” Obviously, that would not have

been the trial court’s order had the matter been left to its own discretion.

        Dissatisfied with that order, Bruington filed a second interlocutory appeal, complaining again

that Pedernal’s amended petition should be denied with prejudice. This time, the court of appeals

agreed with Bruington, effectively disagreeing with itself in Bruington I. See Bruington Eng’g Ltd.

v. Pedernal Energy L.L.C., 456 S.W.3d 181, 190 (Tex. App.—San Antonio 2014) (Bruington II).

        Although Bruington I remanded for the trial court to determine the appropriate dismissal

order under these circumstances, Bruington II concludes that the trial court possessed no such

discretion. Id. at 190 (“hold[ing] that, as a matter of law, when a plaintiff fails to file an affidavit

contemporaneously with the first-filed complaint . . . the complaint [must] be dismissed with

prejudice.” This about-face caused some consternation among the court’s membership. See, e.g.,

id. at 191 (“If the panel believed the statute mandated dismissal with prejudice, there was no need

for a remand in the first instance.) (Barnard, J. dissenting to the order denying reconsideration en

banc); id. at 192 (“In previously remanding this case appropriately to the trial court for a

determination of whether such dismissal should be with or without prejudice to refiling, we cannot

                                                   5
now hold as a matter of law that a trial court can reach only one decision—to dismiss with

prejudice.) (Maritnez, J. dissenting to the order denying reconsideration en banc). And, of course,

this Court disagrees with Bruington II as well. Ante at ___ (“Pedernal’s failure to file an expert

affidavit with its original petition was not, by itself, evidence that the allegations in its petition

lacked merit or mandated the sanction of dismissal with prejudice.”). But Bruington II is not the

only problem.

       Bruington I was also erroneous because it usurped the trial court’s discretion on remand by

requiring the court to dismiss Pedernal’s amended petition. Thus, despite the trial court’s

determination that no basis existed to dismiss the original petition with prejudice and its

determination that the amended petition and supporting affidavit provided “more than sufficient

meritorious grounds for the lawsuit,” the trial court had to dismiss Pedernal’s amended petition or

violate the court of appeals’ mandate. Bruington I is the only reason the trial court dismissed

Pedernal’s amended complaint. If left to its own discretion, the court would have undoubtedly let

stand its previous order dismissing Pedernal’s original petition without prejudice and would have

denied Bruington’s motion to dismiss the amended petition outright. In fact, that is precisely what

the trial court did before Bruington I reversed its decision. Therefore, given the confluence of errors

in the court of appeals, I would not merely reinstate the trial court’s erroneously mandated judgment

but would instead remand for the trial court to reconsider Bruington’s motion to dismiss in light of

our decision and unbound by the court of appeals’ previous mandate in Bruington I.




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                                        ______________________________
                                        John P. Devine
                                        Justice

Opinion Delivered: April 28, 2017




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