                            NUMBER 13-10-686-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

GULF ENERGY EXPLORATION CORP.,                                          Appellant,

                                         v.

FUGRO CHANCE, INC.,                                                       Appellee.


                  On appeal from the 267th District Court
                       of Calhoun County, Texas.


                       MEMORANDUM OPINION
               Before Justices Rodriguez, Vela, and Perkes
                  Memorandum Opinion by Justice Vela
      This is an appeal from an order of dismissal entered in favor of appellee, Fugro

Chance, Inc. (“Fugro”), and against appellant, Gulf Energy Exploration Corp. (“Gulf

Energy”). By three issues, Gulf Energy argues that the trial court erred because: (1)

Gulf Energy’s claims against Fugro did not require a certificate of merit to be filed
pursuant to section 150.002 of the Texas Civil Practice and Remedies Code; (2) Fugro’s

res judicata and collateral estoppel claims are groundless; and (3) severance was

inappropriate. We dismiss for lack of jurisdiction.

                                     I. BACKGROUND

       This is the second appeal to come before this Court involving the same issue.

Gulf Energy originally filed suit against Fugro and others on August 18, 2009, seeking

damages against Fugro with respect to the wrongful plugging of an offshore oil and gas

well. Fugro filed a motion to dismiss with prejudice against Gulf Energy pursuant to

section 150.002 of the Texas Civil Practice and Remedies Code for failure to file a

certificate of merit in a case involving licensed or registered professionals. TEX. CIV.

PRAC. & REM. CODE ANN. § 150.002 (West 2011). Fugro asserted that the claims against

it arose from the provision of professional services, thus Gulf Energy was required to file a

certificate of merit. The trial court granted Fugro’s motion to dismiss on December 18,

2009. Gulf Energy attempted to appeal the trial court’s ruling to this Court, but the

appeal was untimely, and this Court dismissed the case for lack of jurisdiction on July 8,

2010. See Gulf Energy Exploration Corp. v. Fugro Chance, Inc., No. 13-10-154-CV,

2010 WL 2697147, at *1 (Tex. App.—Corpus Christi July 8, 2010, no pet.) (Fugro I).

       Meanwhile, while Fugro I was pending before this Court, Gulf Energy filed a

second amended petition against Fugro in the same case. That petition was similar in

content to the first. The only notable difference is language in paragraph 17, where Gulf

Energy added language that Fugro did not contract to do anything that required licensing,

and nothing Fugro agreed to do should require a certificate of merit pursuant to section


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150.002. That issue, however, had already been decided by the trial court in Fugro I and

was on appeal to this Court.

       Fugro then filed its second motion to dismiss with prejudice on the grounds that:

(1) the applicability of section 150.002 had already been decided with finality; (2) the trial

court properly dismissed Fugro from the case in December 2009; (3) the two petitions

filed by Gulf Energy were virtually identical; and (4) collateral estoppel and res judicata

applied. Fugro’s second motion to dismiss was granted on November 22, 2010.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       An order granting or denying a motion to dismiss made pursuant to chapter 150 of

the Texas Civil Practice and Remedies Code is immediately appealable as an

interlocutory order. Landreth v. LasBrisas Council of Co-Owners, Inc., 285 S.W.3d 493,

496 (Tex. App.—Corpus Christi 2009, no pet.). A trial court abuses its discretion when it

acts in an unreasonable manner or without reference to any guiding rules and principles.

CTL/Thompson Texas, LLC v. Morrison Homes, 337 S.W.3d 437, 441 (Tex. App.—Fort

Worth 2011, pet. denied).      If resolution of an issue requires the court to construe

statutory language, we apply a de novo standard of review to the statute’s construction.

Id.

                                        III. ANALYSIS

       Gulf Energy did not file a certificate of merit at any time. It argues in its amended

pleadings as it did in the first case, that none was necessary. There is no dispute,

however, that the subject of Fugro I was the trial court’s determination that Gulf Energy

failed to file a certificate of merit. Thus, the trial court determined that a certificate of


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merit was necessary; otherwise, it would not have dismissed the case.

       Fugro urges, and we agree, that the issue before the Court in this appeal was

previously decided. It cites Morrison Homes, which we follow to the extent applicable.

In that case, Morrison sued Sheffield and CTL, alleging professional negligence against

CTL.   Morrison Homes, 337 S.W.3d at 439.            Unlike Gulf Energy, Morrison filed a

certificate of merit with his original petition.   Id.   CTL moved to dismiss Morrison's

claims. The trial court denied the motion to dismiss, and CTL did not perfect an appeal.

Id. Morrison then amended its petition to allege additional claims against CTL. CTL's

second motion to dismiss asserted that the certificate filed by Morrison—the same one

CTL had challenged in the first motion—was inadequate. Morrison argued that CTL had

waived any further complaints about the certificate because CTL had not appealed the

denial of the first motion. Id. at 440.

       The Fort Worth Court of Appeals opined that an interlocutory order, not timely

appealed, is not reviewable by the appellate court.          Id. at 441.   The Court then

determined that it did not have jurisdiction over the first order denying dismissal because

it had not been appealed. Id. Similarly, this Court has no jurisdiction over the first order,

dated December 18, 2009, because Gulf Energy failed to timely appeal it.

       The Fort Worth court then determined that it did not possess jurisdiction over the

trial court’s July 6, 2010 order denying CTL’s second motion to dismiss, holding “to the

extent the July 6, 2010 order simply rules on the same matter already ruled on by the trial

court in the July 3, 2008 order, it is not an appealable order.” Id. at 442 (citing Denton

County v. Huther, 43 S.W.3d 665, 666–67 (Tex. App.—Fort Worth 2001, no pet.)).


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Similarly, in the second appeal before us now, Gulf Energy is seeking relief from a trial

court ruling on the same matter that the lower court had previously ruled on in Fugro I.

       The purpose of a certificate of merit is to provide a basis to conclude that the

claims have merit.     Morrison Homes, 337 S.W.3d 442.           In Fugro I, the trial court

determined that a certificate of merit should have been filed. The trial court’s decision

whether a certificate of merit was required could have been properly appealed after the

first dismissal order. Because it was not, a second appeal on the same issue cannot

cure the error.    We agree with the Fort Worth court that “nothing in chapter 150

authorizes a defendant to raise successive adequacy challenges to the same certificate

of merit, one challenge at a time or to perfect successive appeals from a trial court’s ruling

on those motions.” Id. The practical effect of the pleading amendment in this case was

to ask the trial court to reconsider its initial ruling. We have no jurisdiction to rule on a

motion to reconsider. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp.

2011) (allowing numerous interlocutory appeals, but not including an appeal from an

order denying a motion to reconsider); see also Morrison Homes, 337 S.W.3d at 443.

       The purpose of a certificate of merit is to allow the trial court to determine if a

plaintiff's claims have merit. Criterium-Farrell Eng'rs v. Owens, 248 S.W.3d 395, 399

(Tex. App.—Beaumont 2008, no pet.). Here, the trial court had the opportunity to review,

in Fugro I, whether a certificate of merit should be filed based upon the pleadings. It did

so, determining that a certificate was required, but not filed. Thus, it was proper under

the statute to dismiss the claims against Fugro. See TEX. CIV. PRAC. & REM. CODE §

150.002(e). After the trial court determined that a certificate was required in Fugro I, but


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not filed, there was no further right to appeal the same issue for a second time. See

Morrison Homes, 337 S.W.3d at 443.

       Because Gulf Energy put this case in somewhat of a procedural quagmire by

asking the trial court to reconsider an issue it had already decided, and that could have

been appealed but was not, Fugro had no choice but to file a second motion to dismiss

and request a severance so that it could be finally extricated from the case.

                                       IV. CONCLUSION

       For the above reasons, we hold that the trial court’s July 18, 2010 order was, in

effect, a decision by the trial court that it would not reconsider its earlier ruling that Fugro

should be dismissed from the case for Gulf Energy's failure to file a certificate of merit.

Because Gulf Energy had no right to appeal from such an order, we dismiss the case for

lack of jurisdiction.




                                                   ROSE VELA
                                                   Justice

Delivered and filed the
23rd day of February, 2012.




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