Affirmed and Opinion filed February 26, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00146-CV

               TEXAS SOUTHERN UNIVERSITY, Appellant
                                        V.
  KIRKSEY ARCHITECTS, INC.; PARADIGM CONSULTANTS, INC.;
 NATHELYNE KENNEDY & ASSOCIATES, L.P. F/K/A NATHELYNE
KENNEDY & ASSOCIATES L.P.; AND HAYNES WHALEY ASSOCIATES
          INC. STRUCTURAL ENGINEERING, Appellees

                    On Appeal from the 80th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2017-50516

                                OPINION

      Texas Southern University (“TSU”) appeals the trial court’s orders dismissing
with prejudice its claims against appellees Kirksey Architects, Inc., (“Kirksey”),
Paradigm Consultants, Inc. (“Paradigm”), Nathelyne Kennedy & Associates, L.P.
(“NKA”), and Haynes Whaley Associates, Inc. (“Haynes Whaley”). TSU’s claims
arise from allegedly defective design and construction of a building on TSU’s
campus. Appellees sought dismissal on the grounds that TSU failed to comply with
the certificate of merit requirement in Texas Civil Practice and Remedies Code
chapter 150. Tex. Civ. Prac. & Rem. Code §§ 150.001-.004. TSU contends the trial
court abused its discretion by failing to provide an extension of time to file the
required certificates of merit and, separately, by dismissing its claims with prejudice
instead of without prejudice.

       For the reasons explained below, we conclude that the trial court did not abuse
its discretion in either respect. Accordingly, we affirm the trial court’s dismissal
orders.

                                       Background

       Kirksey, Paradigm, NKA, and Haynes Whaley (collectively, “Appellees”)
were involved in the design and construction of TSU’s Barbara Jordan/Mickey
Leland School of Public Affairs Building (the “SOPA building” or the “project”).
Kirksey was the architect of record; Paradigm was the geotechnical engineer; and
NKA and Haynes Whaley were structural engineers.                  Satterfield & Pontikes
Construction, Inc. (“S&P Construction”) was the general contractor.1

       Construction on the project began in mid-October 2005. On July 31, 2007,
Kirksey declared the project to be substantially complete. In the certificate of
completion, Kirksey stated that the work was “sufficiently complete in accordance
with the Contract Documents so that [TSU] can occupy or utilize the Work for its
intended use.” Nearly six months later, on December 21, 2007, TSU notified
Appellees and S&P Construction of “various material cracks” in the building’s
masonry. TSU requested Appellees to determine and provide information regarding


       1
        S&P Construction is not a party to this appeal; TSU’s claims against S&P Construction
remain pending in the trial court.

                                             2
the cracking’s root cause, a detailed scope of necessary corrective work, the
contractor responsible for performing repairs, and an estimated completion date.

      Kirksey, on behalf of all Appellees, responded on March 7, 2008. Appellees
acknowledged that the moisture content under the SOPA building was “greater than
expected” and was the “root cause” of the building’s distress. Appellees could not
identify the excess moisture’s source without “destructive demolition and additional
testing.” However, Appellees informed TSU that the distress had stabilized and that
they would cover repair costs. TSU hired McGinty Architectural Consultants, LLC
(“McGinty”) to inspect the SOPA building and evaluate Appellees’ repair proposal.
McGinty recommended that TSU proceed with Appellees’ recommendations but
suggested that TSU obtain an extended warranty from Appellees. According to
TSU, Appellees paid approximately $31,000 for “repair work.”

      Problems persisted subsequent to the McGinty recommendations. According
to Kirksey, another structural engineering firm, Walter P. Moore and Associates,
Inc., drafted a report in October 2010, which concluded that the most likely cause of
the observed distress was differential movement of the structure caused by heaving
of subgrade soils due to increased moisture. The Moore report proposed specific
courses of action to address the building distress. Again according to Kirksey, TSU
took no action in response to the Moore report and never notified any Appellees that
TSU attributed any problems identified by Moore as being any Appellees’
responsibility. It is unclear from the record when the Moore report was finalized,
but it may have been as late as 2012.

      In February 2014, TSU requested that the Texas Office of the Attorney
General (the “OAG”) assign counsel to represent it on its claims related to the SOPA
building. The OAG assigned an assistant attorney general to represent TSU, and the
assistant attorney general directed TSU to engage consultants to fully assess the

                                         3
condition of the building and prepare an estimate of costs to repair all observed
defects in the building.

       TSU again hired McGinty to spearhead this effort; McGinty assembled a team
of consultants to fully evaluate the building issues. McGinty delivered its report in
February 2015, estimating the cost of correcting all defects in the building to be
nearly $5 million. TSU provided the McGinty report to the assistant attorney general
in charge of the case.

       In January 2017, the assistant attorney general informed TSU that, due to other
commitments, the OAG would not be able to file a lawsuit on TSU’s behalf. TSU’s
in-house counsel immediately began looking to retain private counsel. TSU was
unable to reach acceptable terms with one firm in January and was unable to obtain
OAG approval to hire a second firm in April. In May, TSU met with another firm;
TSU’s administration approved retention of this firm in June, and the OAG’s office
approved the hiring of this firm on July 14, 2017.

       Meanwhile, TSU’s newly retained counsel discovered that none of the
professionals who were involved in preparing McGinty’s 2015 report was able to
provide affidavits pursuant to the certificate of merit statute.                  Ordinarily, the
certificate of merit must be in affidavit form and filed simultaneously with the
original petition.2 On July 24, 2017, TSU’s counsel sent a written notice of claim to
Appellees, offering to postpone filing suit if they agreed that the written notice
extended the ten-year statute of repose period stated in Texas Civil Practice and

       2
          See Tex. Civ. Prac. & Rem. Code § 150.002. For the types of claims asserted here, TSU
was required to file with the petition affidavits of third-party licensed professionals holding the
same professional license or registration as the defendants and setting forth specifically for each
theory of recovery “the negligence, if any, or other action, error, or omission of the licensed or
registered professional in providing the professional service, including any error or omission in
providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual
basis for each such claim.” Id. § 150.002(a), (b).

                                                 4
Remedies Code section 16.008(a) and (c).3 Under section 16.008(c), if the claimant
presents a written claim for damages to the professionals within the 10-year period,
the period in which to file suit is extended for two years from the day the claim is
presented. Tex. Civ. Prac. & Rem. Code § 16.008(c). None of the Appellees agreed,
and TSU filed suit against Appellees (and S&P) without the certificates of merit
required by section 150.002.

       In its petition, filed July 31, 2017, TSU alleged the following facts relevant to
the certificate of merit requirement:

       TSU would show that suit is being filed within 10 days of the expiration
       of 10 years from the July 31, 2007 issuance of the Certificate of
       Substantial Completion of the SOPA Building, and that TSU is filing
       suit at this time only because Defendants refused to acknowledge that
       the 10 year limitations period set forth in sections 16.008 and 16.009
       does not expire on July 31, 2017. TSU contends that such 10 year
       limitations period did not begin to run on July 31, 2007 because the
       building was not, in fact, substantially complete on that date.
       Moreover, TSU alleges that it presented a written claim for damages to
       Defendants, as required by CPRC sections 16.008(c) and 16.009(c),
       thus extending the 10 year limitations period for an additional two
       years. Nonetheless, out of an abundance of caution and in accordance
       with section 150.002(c) of the Texas Civil Practice and Remedies Code,
       TSU is filing suit at this time and avers that the contemporaneous
       Certificate of Merit filing requirement is not applicable to this case.
       TSU will supplement this petition with the required Certificates of Merit
       in accordance with section 150.002(c).

(Emphasis added). Each Appellee answered TSU’s suit in October 2017. From
November 2017 to early January 2018, Appellees filed motions to dismiss TSU’s
claims against them because TSU failed to file certificates of merit.


       3
        See id. § 16.008(a) (providing that, in suit against certain licensed professionals, a party
must bring suit for damages “not later than 10 years after the substantial completion of the
improvement”).

                                                 5
       On January 30, 2018, TSU responded to Appellees’ motions to dismiss. By
that time, TSU still had not filed any certificates of merit, and it sought an extension
of at least sixty days from January 30 to file them. According to TSU, it was entitled
to an “automatic” thirty-day extension from July 31, 2017, because the ten-year
filing period would have expired within ten days of the date TSU filed its petition.
See id. § 150.002(c). Additionally, TSU argued it was entitled to a further extension
of approximately seven months for “good cause,” under section 150.002(c). TSU
contended that the above-described delays in filing suit, the unavailability of
McGinty and others to provide the required affidavits, and the impact of Hurricane
Harvey,4 together constituted good cause to file certificates of merits eight months
after TSU filed its petition. TSU stated that, as of the filing of its motion to extend
time, it had “located and retained . . . consultants, who are in the process of re-doing
the investigative work previously done by the McGinty team.” TSU further urged
that, although the McGinty report, which it attached to its motion, did not qualify as
a certificate of merit, the report “provides a solid foundation for the conclusion that
TSU’s claims are far from frivolous.”

       After a hearing on February 2, 2018, the trial court signed three separate
orders dismissing with prejudice TSU’s claims against Kirksey, Paradigm, and
NKA, respectively. On February 21, the court signed an order dismissing TSU’s
claims against Haynes Whaley, but the order does not indicate whether it is with or
without prejudice.5 TSU timely filed this interlocutory appeal.6

       4
        TSU asserted that Hurricane Harvey struck the Houston area on August 26, 2017, “mere
days” before the thirty-day contemporaneous filing exception deadline under section 150.002(c),
to which TSU claimed entitlement.
       5
         According to their briefs, both TSU and Haynes Whaley consider the order a dismissal
with prejudice.
       6
         See Tex. Civ. Prac. & Rem. Code § 150.002(f) (“An order granting or denying a motion
for dismissal is immediately appealable as an interlocutory order.”).

                                              6
                                 Standard of Review

      Generally, we review a trial court’s order granting a motion to dismiss under
section 150.002 for an abuse of discretion. Eng’g & Terminal Servs., L.P. v.
TARSCO, Inc., 525 S.W.3d 394, 397 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied). A trial court abuses its discretion when it acts unreasonably or without
reference to any guiding rules or principles or fails to analyze or apply the law
correctly. See id.; Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex. App.—Houston
[14th Dist.] 2010, no pet.).

      TSU never filed a certificate of merit and argues it was entitled to an extension
of time to do so under section 150.002(c). That section allows the court to consider
matters outside the pleadings, including evidence bearing on whether good cause
supports an extension to file the necessary affidavits. Because we review the trial
court’s ruling for abuse of discretion, we consider any evidence the parties presented
in addition to the allegations in the plaintiff’s petition. See Natex Corp. v. Paris
Indep. Sch. Dist., 326 S.W.3d 728, 732 (Tex. App.—Texarkana 2010, pet. dism’d
w.o.j.). No party requested findings of fact or conclusions of law. We therefore
imply all necessary findings of fact to support the trial court’s dismissal orders, and
we will sustain those orders on any reasonable theory that is consistent with the
evidence and the applicable law, considering only the evidence favorable to the
decision. See id. (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)); see
also In re Estate of Guerrero, 465 S.W.3d 693, 701 (Tex. App.—Houston [14th
Dist.] 2015, pet. denied) (“When a party does not request findings of fact or
conclusions of law and the trial court files none, it is implied that the trial court made
all findings of fact necessary to support its ruling.”). An abuse of discretion does
not occur as long as some evidence of substantive and probative character supports
the trial court’s decision. Gessner Eng’g, LLC v. St. Paraskevi Greek Orthodox

                                            7
Monastery, Inc., 507 S.W.3d 865, 867 (Tex. App.—Houston [1st Dist.] 2016, pet.
denied).

      To the extent our review requires statutory interpretation, we conduct that
portion of our review de novo. See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556,
562 (Tex. 2014). “In construing statutes, we ascertain and give effect to the
Legislature’s intent as expressed by the language of the statute.” City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We presume that the legislature
“deliberately and purposefully selects words and phrases it enacts, as well as
deliberately and purposefully omits words and phrases it does not enact.” Tex. Mut.
Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012).

                                      Analysis

A.    Extension of Time

      Texas Civil Practice and Remedies Code section 150.002 generally requires
that a certificate of merit affidavit be filed contemporaneously with a petition
asserting claims against design professionals such as Appellees. See Tex. Civ. Prac.
& Rem. Code § 150.002(a). However, the contemporaneous filing requirement does
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 [professional] could not be prepared.” Id.
§ 150.002(c). In that situation, a plaintiff “shall” be granted a thirty-day extension
to file a certificate of merit and may obtain further extensions for good cause and as
the trial court determines “justice requires.” See id.

      In its first issue, TSU contends that the trial court abused its discretion in
refusing to provide TSU with more time to file its certificates of merit pursuant to
section 150.002(c). In response, Appellees make three arguments. Appellees


                                           8
contend TSU was not entitled to an initial thirty-day extension because the exception
applies only to statutes of “limitations” and not periods of “repose,” such as the one
applicable to TSU’s claims.7 Alternatively, TSU was not entitled to a thirty-day
extension because it failed to allege that the certificates could not be prepared in time
to file them simultaneously with the original petition because the limitations period
expired within ten days of the date of filing. Finally, to the extent TSU was entitled
to a thirty-day extension, Appellees say TSU failed to demonstrate good cause for a
further seven-month extension. We conclude the trial court could have acted within
its discretion in dismissing the claims based on Appellees’ second or third
arguments.

       Section 150.002(c) grants a plaintiff thirty days after filing the petition to
supplement the pleadings with the certificate of merit affidavit if the plaintiff
(1) files suit within ten days of the date the applicable limitations period expires, and
(2) alleges that a certificate of merit could not be prepared because of such time
constraints. Id. Securing the additional thirty-day period to supplement the petition
with a certificate of merit requires the plaintiff to satisfy both requirements,
including alleging “that its near-limitations filing prevented the preparation of a
certificate of merit.” Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384,
391 (Tex. 2014).

       Here, TSU filed suit on July 31, 2017, and it is undisputed that it did not attach
certificates of merit to its petition.             TSU stated in its petition that the
contemporaneous certificate of merit filing requirement was not applicable to this
case and that it would supplement the petition with the required certificates “in

       7
         TSU contends it timely filed suit against Appellees pursuant to Texas Civil Practice and
Remedies Code section 16.008, which is a statute of repose. See Galbraith Eng’g Consultants,
Inc. v. Pochucha, 290 S.W.3d 863, 865 (Tex. 2009) (“Section 16.008 of the Civil Practice and
Remedies Code is a statute of repose.”).

                                               9
accordance with section 150.002(c).”             But TSU did not allege that its near-
limitations filing prevented the preparation of the certificates of merit. See Civ. Prac.
& Rem. Code § 150.002(c); Crosstex, 430 S.W.3d at 390-91. Moreover, TSU did
not allege that the relevant statute of limitations or repose expired on July 31, 2017;
quite the contrary, TSU alleged that the ten-year filing period set forth in sections
16.008 and 16.009 did not expire on July 31, 2017.8 Therefore, TSU’s allegations
did not trigger the thirty-day extension under section 150.002(c). See Crosstex, 430
S.W.3d at 390-91; see also Barron, Stark & Swift Consulting Eng’rs, LP v. First
Baptist Church, 551 S.W.3d 320, 323-24 (Tex. App.—Beaumont 2018, no pet.)
(allegation of plaintiff’s inability to obtain certificate of merit under 150.002(c) must
be made contemporaneously with filing of original petition); Emerald Waco Invs.,
Ltd. v. Petree, No. 05-15-00863-CV, 2016 WL 4010056, at *5 (Tex. App.—Dallas
July 25, 2016, no pet.) (mem. op.) (same); Jordan & Assocs. v. Wells, No. 01-14-
00992-CV, 2015 WL 4591786, at *2-3 (Tex. App.—Houston [1st Dist.] 2015, no
pet.) (mem. op.).

       Consequently, the trial court would have lacked discretion to grant any further
extension in excess of thirty days for good cause under the last sentence of section
150.002(c) because that sentence applies only if the two conditions in the first
sentence are met. See Crosstex, 430 S.W.3d at 390-91 (“[W]e read the good cause
exception of section 150.002(c) as flowing from compliance with the remainder of
the subsection; it does not stand alone.”); see also Apex Geoscience, Inc. v. Arden
Texarkana, LLC, 370 S.W.3d 14, 20 (Tex. App.—Texarkana 2012, pet. granted,


       8
          As excerpted supra, TSU stated in its petition that “such 10 year limitations period did
not begin to run on July 31, 2007 because the building was not, in fact, substantially complete on
that date. Moreover, TSU alleges that it presented a written claim for damages to Defendants, as
required by CPRC sections 16.008(c) and 16.009(c), thus extending the 10 year limitations period
for an additional two years.”

                                               10
judgm’t vacated w.r.m.) (“Here, the Owners failed to qualify for the thirty-day
automatic grace period and, therefore, cannot qualify for the good-cause extension
thereof.”). As those two conditions are not met here, TSU was not entitled to any
extension for reasons of good cause.

      Thus, the trial court did not abuse its discretion by refusing to grant TSU an
extension of time to file its certificates of merit and dismissing TSU’s claims against
Appellees. We overrule TSU’s first issue.

B.    Dismissal with Prejudice

      In its second issue, TSU asserts that the trial court abused its discretion in
dismissing its claims with prejudice rather than without prejudice.

      If a plaintiff fails to comply with the certificate of merit requirement, the trial
court must dismiss the action, and the dismissal “may be with prejudice.” Tex. Civ.
Prac. & Rem. Code § 150.002(e). While trial courts may dismiss claims with
prejudice, the legislature’s use of the word “may” does not permit courts to apply
their discretion arbitrarily or unreasonably. See Pedernal Energy, LLC v. Bruington
Eng’g, Ltd., 536 S.W.3d 487, 492 (Tex. 2017) (citing CTL/Thompson Tex., LLC v.
Starwood Homeowner’s Ass’n, 390 S.W.3d 299, 301 (Tex. 2013)). Section 150.002
provides no guidance concerning how a court should exercise its discretion to
dismiss with or without prejudice. We thus consider “various factors, . . . given the
facts and circumstances of the particular case,” bearing in mind that a section
150.002(e) dismissal is a remedy “to deter meritless claims and bring them quickly
to an end.” Id. at 494 (internal citations omitted); CDI Corp. v. TOTAL Specialties
USA, Inc., 528 S.W.3d 802, 807 (Tex. App.—Houston [14th Dist.] 2017, no pet.);
CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 461 S.W.3d 627,
631 (Tex. App.—Fort Worth 2014, pet. denied)).


                                          11
      In arguing that a dismissal with prejudice was an abuse of discretion, TSU
relies largely on Pedernal. See Pedernal, 536 S.W.3d at 489, 491-94. There,
Pedernal sued Bruington Engineering and others for negligence in providing
substandard engineering services in connection with a fracturing operation on
Pedernal’s gas well. Id. at 488. Pedernal failed to file a certificate of merit with its
original petition, and Bruington moved to dismiss. Id. Pedernal non-suited, then re-
filed its claims against Bruington by amended petition, this time accompanied by a
certificate of merit. Id. at 488-89. The trial court denied Bruington’s motion to
dismiss, but the San Antonio Court of Appeals reversed and remanded with
instructions to dismiss. Id. at 489. The trial court then dismissed Pedernal’s claim
without prejudice; Bruington again appealed. Id. The San Antonio Court of Appeals
held that, under section 150.002(e), Pedernal’s claims should have been dismissed
with prejudice because Pedernal failed to file an expert affidavit with its original
petition. Id. The Supreme Court of Texas reversed the San Antonio Court of
Appeals and reinstated the trial court’s dismissal without prejudice. Id. at 488.

      Since Pedernal, at least two intermediate courts of appeals, including this
court, have affirmed dismissals without prejudice when a plaintiff fails to file a
certificate of merit with its original claim. See CDI Corp., 528 S.W.3d at 806-07
(trial court did not abuse its discretion in dismissing claims without prejudice when
plaintiff’s counsel was unaware that certificate was required and obtained and filed
it within four months after opposing counsel notified plaintiff of mistake);
TDIndustries, Inc. v. United Nat’l Ins. Co., No. 07-16-00231-CV, 2017 WL
2334234, at *2 (Tex. App.—Amarillo May 23, 2017, pet. denied) (mem. op.). As
these cases have held, a trial court does not abuse its discretion when dismissing
claims without prejudice for failing to comply with the certificate of merit
requirements.


                                          12
       TSU has not directed us to any cases holding that a dismissal with prejudice
under section 150.002(e) was an abuse of discretion. We are aware of three courts
that have held a dismissal with prejudice was error, but each of those cases is
factually or circumstantially distinguishable.9 The Second Court of Appeals has
affirmed a dismissal with prejudice, but it does not appear that disposition was
challenged. Thomas v. EFI Global, Inc., No. 02-16-00379-CV, 2017 WL 549424,
at *2-4 (Tex. App.—Fort Worth Nov. 16, 2017, no pet.) (mem. op.). None of these
decisions is particularly illuminating here. As Pedernal instructs, we look to the
facts and circumstances of this case, bearing in mind that a section 150.002(e)
dismissal is a remedy to deter meritless claims and bring them quickly to an end.
Pedernal, at 536 S.W.3d at 494.

       TSU relies on the following assertions in support of its argument:

 TSU notified Appellees in December 2007 of issues with the building; Appellees
   responded that they had “worked together collaboratively to determine the cause
   and solution to the building distress.” They performed additional work on the
   building in 2008 and created a “remediation plan that addresses current
   conditions.”




       9
           Miramar Petroleum, Inc. v. Cimarron Eng’g, LLC, 484 S.W.3d 214, 215, 218 (Tex.
App.—Corpus Christi 2016, pet. denied) (trial court erred in dismissing with prejudice when
plaintiff re-filed previously dismissed suit via amended petition and complied with section
150.002(c) by filing certificate within thirty days after re-filing); JJW Dev., L.L.C. v. Strand Sys.
Eng’g, Inc., 378 S.W.3d 571, 574, 581 (Tex. App.—Dallas 2012, pet. denied) (holding that trial
court erred in dismissing with prejudice for failure to file certificate because amended petition
bringing only breach-of-contract claim did not contain any claims that required certificate of merit
under prior version of section 150.002); JNY, L.P. v. Raba-Kistner Consultants, Inc., 311 S.W.3d
584, 588 (Tex. App.—El Paso 2010, no pet.) (holding, under previous version of section 150.002,
that trial court erred in dismissing with prejudice negligence claims for plaintiff’s failure to file
certificate because corporate entities were not subject to certificate-of-merit requirement).


                                                 13
 After having accepted TSU’s request to assign counsel in March 2014, the OAG
   notified TSU in January 2017 that it would be unable to file suit.

 TSU engaged current counsel in May 2017, but the OAG did not approve
   counsel’s retention until mid-July.

 By then, TSU had roughly two weeks before the ten-year anniversary of
   Kirksey’s certification of substantial completion. TSU’s counsel discovered that
   McGinty was no longer in business, and the experts retained by McGinty to
   evaluate TSU’s building were likewise unable or unavailable to provide
   certificates of merit.

 Because it was unable to obtain certificates of merit before the ten-year statute of
   repose period expired, TSU sent a written claim notice to Appellees on July 24,
   2017, offering to postpone filing suit if Appellees would agree that the written
   claim extended the ten-year period.10 Appellees did not agree, and TSU filed suit
   on July 31, 2017 without the certificates of merit rather than face what it
   described as “a limitations battle.” According to TSU, it intended “to supplement
   the petition within the [certificate-of-merit] statute’s 30-day contemporaneous
   filing exception deadline or, with the Court’s permission, sometime thereafter ‘as
   justice required.’” That deadline fell on August 31.”11

 TSU could not meet that deadline because Hurricane Harvey struck the Houston
   area on August 26, 2017. In the following months, TSU “contacted at least 9




       10
            See Tex. Civ. Prac. & Rem. Code § 16.008(c).
       11
            The thirty-day deadline actually fell on August 30, rather than August 31, as TSU
alleged. However, TSU did not file the certificates of merit or seek an extension of time to do so
before either date; TSU first sought an extension on January 30, 2018, almost six months after it
filed suit.

                                               14
   potential consultants that declined or were otherwise unable to serve as experts
   for TSU in this matter.”

 As of late January 2018, TSU had located and retained consultants who were in
   the process of “re-doing the investigative work previously done by the McGinty
   team.” TSU requested an extension of at least 60 days so that these consultants
   would have time to finish their investigations and prepare certificates of merit.

      However, other circumstances, some undisputed, support the trial court’s
decision to dismiss TSU’s claims with prejudice. First, TSU became aware in 2007
that there were, at a minimum, cosmetic problems with the SOPA building. In early
2008, investigations by one or more Appellees, which were confirmed by TSU’s
retained consultant McGinty, highlighted soil moisture issues. Thereafter, when the
SOPA building problems either reappeared or remained unresolved, TSU hired
additional consultants. Surveys and studies, including the Moore report, showed
that moisture levels remained problematic, which likely caused building distress.
The record does not indicate that TSU took any action in response to the Moore
report.

      TSU did not contact the OAG about pursuing litigation until February 2014,
and there is no explanation for this delay in our record. The OAG agreed to represent
TSU in March 2014, and TSU commissioned new studies and surveys to detail the
building’s issues and estimate costs for repair. McGinty prepared and delivered its
report in February 2015. Our record does not indicate why the necessary affidavits
were not obtained during the nearly two-year period between that date and January
2017, when the OAG’s office notified TSU that it would be unable to pursue
litigation on TSU’s behalf.

      Despite more than one unexplained pre-filing delay, TSU filed suit within ten
years of Kirksey’s certification of substantial completion of the SOPA building
                                         15
project. TSU stated in its petition that it would supplement with the required
certificates of merit “in accordance with section 150.002(c)”; thus, TSU cannot
claim it was unaware of a need to file certificates of merit in conjunction with its
suit. Cf. CDI Corp., 528 S.W.3d at 806-07. TSU failed to comply with section
150.002(c).

       As TSU now contends, it believed when it filed its petition that it potentially
had another thirty days from the date of filing to supplement with the required
certificates of merit. To the extent Hurricane Harvey hindered TSU’s ability to
obtain the certificates after the hurricane made landfall on August 26, 2017, TSU
offered no explanation for why it made no progress on securing affidavits between
the date it filed suit and the date of the hurricane. There exists no indication in the
record that, for the twenty-five days between the petition’s filing and Hurricane
Harvey, TSU was in contact with any potential professionals. TSU failed to move
for an extension of time to file its certificates of merit until almost six months after
it filed suit.

       Critically, TSU still has never supplemented its petition with any affidavits.
This fact alone distinguishes TSU’s situation from the cases discussed above, in
which the appellate courts affirmed the trial courts’ dismissals without prejudice. In
each instance, the plaintiffs supplemented the record with the required affidavits
before the trial courts’ dismissal orders. See Pedernal, 536 S.W.3d at 490; CDI
Corp., 528 S.W.3d at 807 (“A certificate of merit was obtained and filed with
TOTAL’s notice of nonsuit within four months after CDI’s motion to dismiss
notified TOTAL’s counsel of the mistake.”); TDIndustries, Inc., 2017 WL 2334234
at *2 (“United’s ability to produce an expert’s affidavit at the hearing is a factor the
trial court could have considered in its decision whether to dismiss the case with
prejudice.”).

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       That TSU has never supplemented with a certificate of merit undermines its
argument that its claims in fact have merit and thus should not be dismissed with
prejudice. Instead, TSU refers to Kirksey’s March 7, 2008 letter concerning leaks
and the 2015 McGinty report. These documents point to excessive moisture as
causing the building distress.           But neither document provides any basis for
concluding that any Appellee violated applicable professional standards, which is a
certificate of merit’s fundamental purpose.12 Absent any affidavits, the trial court
had no way of evaluating whether TSU’s claims against Appellees had merit. Cf.
CDI Corp., 528 S.W.3d at 807 (“TOTAL’s notice of nonsuit attached the 36-page
certificate of merit and indicated that TOTAL intended to refile its lawsuit to remedy
the mistake [of failing to provide a certificate of merit with its original claims], which
is some evidence that the claims have merit.”); M-E Eng’rs, Inc. v. City of Temple,
365 S.W.3d 497, 504 (Tex. App.—Austin 2012, pet. denied) (noting that certificate-
of-merit statute’s text “reflects a legislative goal of requiring . . . that plaintiffs make
a threshold showing that their claims have merit”). As the Supreme Court observed
in Pedernal, “[a] plaintiff’s failure to file an affidavit with an original petition,
together with the filing of an amended petition with a deficient affidavit, might
support a trial court’s determination that the claims lack merit.” Pedernal, 536
S.W.3d at 496. In today’s case, TSU did not file certificates of merit with its original
petition and never supplemented with any certificates before dismissal. A dismissal
with prejudice under those circumstances is consistent with the statute’s goal to deter
meritless claims and bring them quickly to an end. See id. at 494.



       12
           Tex. Civ. Prac. & Rem. Code § 150.002(b) (“The affidavit shall set forth specifically for
each theory of recovery for which damages are sought, the negligence, if any, or other action, error,
or omission of the licensed or registered professional in providing the professional service,
including any error or omission in providing advice, judgment, opinion, or a similar professional
skill claimed to exist and the factual basis for each such claim.”).

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      In sum, on the present record and considering the facts and circumstances of
this case, we conclude the trial court’s decision to dismiss with prejudice was neither
unreasonable nor arbitrary, nor did the trial court fail to analyze or apply the law
correctly. Accordingly, the trial court did not abuse its discretion in dismissing
TSU’s claims with prejudice.

      We overrule TSU’s second issue.

                                     Conclusion

      Having overruled TSU’s issues, we affirm the trial court’s orders dismissing
TSU’s claims.




                                        /s/    Kevin Jewell
                                               Justice


Panel consists of Justices Christopher, Jewell, and Hassan.




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