Affirmed in Part, Reversed and Remanded in Part, and Majority and Dissenting
Opinions filed October 18, 2011.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-10-01226-CV

 EPCO HOLDINGS, INC. AND ENTERPRISE PRODUCTS OPERATING, LLC,
                             Appellants

                                            V.

        CHICAGO BRIDGE AND IRON COMPANY AND HOWE-BAKER
                       ENGINEERS, LTD, Appellees

                       On Appeal from the 270th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2010-18848



                           DISSENTING OPINION

       Under section 150.002(c) of the Texas Civil Practice and Remedies Code, a
plaintiff seeking an exemption from the certificate-of-merit filing requirement must make
the requisite allegation in the first-filed pleading. Because appellants failed to comply
with the statute, the trial court did not abuse its discretion in dismissing their claims
related to the design of catwalks.     This court should affirm the trial court’s order
dismissing these claims. Because it does not, I respectfully dissent.
                                 STANDARD OF REVIEW

       This court reviews an order denying a motion to dismiss under the certificate-of-
merit statute for an abuse of discretion. Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). A trial court abuses its discretion if it fails to
analyze or apply the law correctly. Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005).
Matters of statutory construction are reviewed de novo. City of San Antonio v. City of
Boerne, 111 S.W.3d 22, 25 (Tex. 2003).           When a statutory provision is clear and
unambiguous, as in this case, the court need not resort to extrinsic aids to determine the
meaning of the provision. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505
(Tex. 1997). The court must adopt the interpretation supported by the plain meaning of
the provision’s words. Id.; Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d
937, 939 (Tex. 1993).

                                 STATUTORY ANALYSIS

       Today’s decision turns on the court’s interpretation and application of section
150.002 of the Texas Civil Practice and Remedies Code.            This provision, entitled
―Certificate of Merit,‖ governs the requirements and procedures for filing certificates of
merit in actions against certain licensed or registered professionals, as set forth below in
pertinent part:

      (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 the complaint with 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;
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                 (C)    experience;
                 (D)    education;
                 (E)    training; and
                 (F)    practice.
      ...
      (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 profession 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.
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a), (c) (West 2011).

      A suit triggering section 150.002 is commenced when the original pleading is
filed. S&P Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390, 396–97 (Tex. App.—
Austin 2011, no pet.) (construing whether 2005 or 2009 amendments to section 150.002
applied). Accordingly, the action does not recommence with the filing of a subsequent
amended pleading, even if the amended pleading names a new defendant for the first
time. Id. The action from which this appeal arises commenced on March 24, 2010, with
the filing of the plaintiffs’ original petition. See id.; see also TEX. CIV. PRAC. & REM.
CODE ANN. § 150.002(a) (requiring a certificate of merit to be filed ―[i]n any action‖
against certain licensed professionals). Therefore, under subsection (a), the plaintiffs
should have filed a certificate of merit contemporaneously with the filing of suit. See
TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a). They did not.

      Subsection (c), under limited circumstances, allows for supplementation of the
pleadings with the certificate of merit. This provision contains two requirements: (1) the
limitations period must be about to expire within ten days of filing the case (―Looming
Limitations‖); and (2) the plaintiff has alleged that because of the time constraints
imposed by Looming Limitations, an affidavit of a third-party licensed or registered

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professional could not be prepared (―Inability Allegation‖). See TEX. CIV. PRAC. & REM.
CODE ANN. § 150.002(c); Sharp Eng’g, 321 S.W.3d at 751. Both requirements must be
satisfied for the plaintiff to qualify for an exemption from the contemporaneous-filing
requirement of subsection (a). See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(c).
The statute provides that upon meeting both requirements, ―the plaintiff shall have 30
days after the filing of the complaint to supplement the pleadings with the affidavit.‖ Id.
If either the Looming Limitations requirement or the Inability Allegation requirement is
not satisfied, the trial court must dismiss the claim. Id.

          Appellants, the plaintiffs below, failed to satisfy the Inability Allegation
requirement of subsection (c). See id. They do not dispute that they failed to include the
Inability Allegation in their first-filed pleading. Instead, they argue that the Inability
Allegation under subsection (c) does not need to be made in the first-filed pleading. The
majority agrees. A plain reading of the statute shows both are mistaken on this point.

          The majority’s interpretation of subsection (c) is facially incongruent with the
unambiguous words of the statute. Notably, subsection (c) does not say that a plaintiff
shall have any extension of time to supplement the pleadings with the requisite Inability
Allegation; rather, the plain language of subsection (c) requires the Inability Allegation to
be made in the first-filed pleading. See id.

          The majority relies on a case from the Beaumont Court of Appeals1 that is at odds
with this court’s precedent in Sharp Engineering v. Luis. See Sharp Eng’g, 321 S.W.3d
at 751–52 (noting that the exception to the contemporaneous-filing requirement requires
both an acknowledgement of the Looming Limitations requirement and the Inability
Allegation).      Because the Beaumont case is contrary to this court’s precedent, the
majority errs in following it.

          In reaching its conclusion, the majority relies heavily on the Code Construction
Act.      The majority never says whether it believes the statute to be ambiguous but
1
    Nangia v. Taylor, 338 S.W.3d 768, 772 (Tex. App.—Beaumont 2011, no pet.).
                                                   4
nonetheless reviews the legislative history. Because the statute is unambiguous, there is
no sound reason to consider legislative history and many compelling reasons not to do so.
And, even if the legislative history did support the majority’s interpretation, it would not
be right to give effect to the legislative history if doing so would contradict the
unambiguous language of the statute. See Fleming Foods of Texas, Inc. v. Rylander, 6
S.W.3d 278, 283–84 (Tex. 1999) (holding that, although section 311.023 of the Texas
Government Code states that courts may consider the legislative history of unambiguous
statutes, the legislative history of a statute cannot be used to alter the unambiguous
meaning of a statute, except for the rare instance in which it is used to show a
typographical error); St. Luke’s Episcopal Hosp., 952 S.W.2d at 505 (stating that courts
need not resort to extrinsic aids in construing an unambiguous statute and that courts
must find the legislature’s intent as expressed in the language of the statute). In cases
such as this, in which the Legislature has spoken clearly, legislative history serves no
valid purpose. See Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 621, 111 S. Ct.
2476, 2490, 115 L.Ed.2d 532 (1991) (Scalia, J., concurring in the judgment) (stating that
best practice would be not to use legislative history that cannot affect the result in the
case because it may confuse courts, such as the state supreme court in the case at hand,
into ruling that the legislative history can change the interpretation of an unambiguous
statute).   This court should not consider legislative history when construing an
unambiguous statute.

       The majority concludes that under the statute, a plaintiff can effectively make the
Inability Allegation in an amended pleading. But, the soundness of that interpretation is
belied by the chronology of events contemplated by the statute. Under the majority’s
interpretation, the key event for a subsection (c) exemption for which the plaintiff is to
allege that the limitations period ―will expire within 10 days of the date of filing,‖ already
will have occurred by the time the amended pleading is filed. If this interpretation were
correct, the plaintiff would be permitted to make a prospective statement (―limitations
will expire within 10 days of the filing‖) when the statement is no longer true due to the
                                              5
passage of time. As applied to this case, the appellants/plaintiffs could not have alleged
on April 23, 2010, that ―limitations will expire within 10 days of the filing [on March 24,
2010]‖ because on March 27, 2010, limitations already had expired. The Legislature’s
statutory sequencing in subsection (c) leaves no room for an after-the-fact Inability
Allegation.

       Rather than take subsection (c)’s words at face value, the majority relies on a
provision of the Code Construction Act that states ―words in the present or past tense
include the future tense‖ to conclude that ―has alleged‖ includes the future form of
―allege.‖ But, this strained approach changes the meaning of the statute’s words. The
Code Construction Act is supposed to be a tool to aid in giving effect to the Legislature’s
intent as expressed in the statute, not a tool to alter the Legislature’s chosen chronology
of events or spoil its statutory scheme. The majority’s statutory analysis in this case
exemplifies how erroneous interpretations can result when courts use the Code
Construction Act to seek a provision’s meaning even though the meaning is apparent
from the plain words of the statute.

       Subsection (c) unambiguously requires the Inability Allegation to be made in the
first-filed pleading to qualify for the exception to subsection (a). See TEX. CIV. PRAC. &
REM. CODE ANN. § 150.002(c). The statute states in simple terms what a plaintiff must
do to qualify for supplementation under subsection (c).         The majority erroneously
concludes that neither the provision’s plain language nor the overall purpose of the
statute suggests that the Inability Allegation must be made in the first-filed pleading. The
majority strains to explain its interpretation, first by stating that ―we presume that the
Legislature purposefully omitted [the words ―in the complaint‖]‖ and then by
superimposing the liberal-pleading rule into the text of the statute to arrive at what the
majority deems a ―just and reasonable result.‖ The Legislature, however, did not choose
to provide this measure of grace.       Whether the Legislature’s choice is ―just and



                                             6
reasonable‖ is open to debate but the words in the statute are susceptible to only one
reasonable interpretation. The Inability Allegation must be made when suit is filed.

                                        CONCLUSION

       The majority concludes the appellants satisfied the Inability Allegation
requirement necessary to qualify for subsection (c)’s narrow exception. Under a plain
reading of the statute, appellants failed to comply by filing a certificate of merit or by
making the subsection (c) allegation in their first-filed pleading. The trial court did not
abuse its discretion when it dismissed appellants’ claims under section 150.002. This
court should overrule appellants’ issues and affirm the trial court’s order in its entirety.




                                           /s/       Kem Thompson Frost
                                                     Justice


Panel consists of Justices Frost, Jamison, and McCally. (McCally, J., majority).




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