Bruington Eng'g, Ltd. v. Pedernal Energy, L. L.C.

• Decision Date: 27 August 2014
• Docket Number: No. 04–13–00558–CV.,04–13–00558–CV.
• Citation: 456 S.W.3d 181
• Parties: BRUINGTON ENGINEERING, LTD., Appellant v. PEDERNAL ENERGY, L.L.C., Appellee.
• Court: Texas Court of Appeals

456 S.W.3d 181

BRUINGTON ENGINEERING, LTD., Appellant

v.PEDERNAL ENERGY, L.L.C., Appellee.

No. 04–13–00558–CV.

Court of Appeals of Texas, San Antonio.

Aug. 27, 2014.

Dissenting Opinions on Denial of Reconsideration En Banc Jan. 28, 2015.

Brian C. Miller, Royston, Rayzor, Vickery & Williams L.L.P., Corpus Christi, TX, Ewing E. Sikes, III, Royston, Rayzor, Vickery & Williams, L.L.P., Brownsville, TX, for Appellant.

Carlos M. Zaffirini Sr., Zaffirini & Castillo, Laredo, TX, for Appellee.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION

Opinion by: PATRICIA O. ALVAREZ, Justice.

This case was previously before our court on the issue of non-compliance with the requirement that a plaintiff file an expert's affidavit contemporaneously with the original complaint pursuant to section 150.002 of the Texas Civil Practices and Remedies Code. See Bruington Eng'g Ltd. v. Pedernal Energy L.L.C. (Bruington I), 403 S.W.3d 523 (Tex.App.-San Antonio 2013, no pet.) (analyzing Tex. Civ. Prac. & Rem.Code Ann. § 150.002 (West 2011) ). We reversed and remanded the cause to the trial court (1) with instructions to dismiss the lawsuit and (2) for a determination of whether the dismissal should be with or without prejudice. See id. On remand, the trial court dismissed without prejudice.

In this appeal, we are asked to determine whether the failure to file a section 150.002(a) affidavit, contemporaneously with the original complaint, requires a dismissal with or without prejudice pursuant to section 150.002(e). See Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a), (e). Because Appellee Pedernal Energy L.L.C. failed to file the section 150.002(a) affidavit contemporaneously with its first-filed petition, and the exception of subsection (c) does not apply, the dismissal must be with prejudice. Accordingly, the trial court abused its discretion in dismissing Pedernal's complaint without prejudice. We reverse the trial court's judgment and render judgment dismissing Pedernal's complaint with prejudice.

Background

The procedural and factual history previously set forth in Bruington I is paramount to our determination in this appeal; we, therefore, set forth a brief history. See Bruington I, 403 S.W.3d at 525–26.

Appellant Bruington Engineering, Ltd. was hired to serve as the project engineer at a natural gas well in Zapata County. Three Schlumberger companies were hired to perform hydraulic fracturing operations. During the fracking operations, a natural gas well was damaged.

On May 9, 2011, Pedernal¹ filed suit against Bruington and the Schlumberger entities for breach of contract, negligence, fraud, common law fraud, fraud by nondisclosure, and negligent misrepresentation. Pedernal also included a cause of action for breach of fiduciary duty against Bruington. Pedernal alleged that the Schlumberger entities were contracted to perform a fracking treatment on a well in Zapata County, and Bruington was hired to supervise the fracking operations. The Schlumberger entities allegedly did not complete the job due to equipment problems, which damaged the well formation. Bruington allegedly failed to report that the job was not completed and the well was damaged. All causes of action against Bruington were based on an alleged failure to supervise engineering aspects of the fracking job.

On June 8, 2011, Bruington timely answered the lawsuit. On June 15, 2011, it filed an amended answer with a motion to dismiss on the grounds that a certificate of merit did not accompany the original petition as mandated by section 150.002. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). Chapter 150 of the Texas Civil Practice & Remedies Code requires a plaintiff in any suit for damages arising out of services by licensed and registered professionals or their firms practicing in the areas of engineering, architecture, landscape architecture, or surveying to file, contemporaneously with the original complaint, a certificate of merit in the form of an affidavit by a like professional. Id. § 150.001(1–a), 002(a).²

On July 7, 2011, and before a setting on the motion to dismiss, Pedernal filed a notice of non-suit without prejudice. On August 2, 2011, the trial court signed an order of non-suit without prejudice effective July 7, 2011. Bruington did not object to the non-suit and did not appeal the order granting a non-suit without prejudice.

After the non-suit, the litigation against the Schlumberger entities continued. As part of the discovery, Bruington's corporate representative, Mike Hunt, was deposed as a non-party. When it came time to designate experts, Pedernal designated a section 150.002 expert, Alfred Jennings, Jr., P.E., who opined that Bruington breached the standard of care by failing to supervise the operations. At the time of the designation, Bruington was not a party. On February 13, 2012, Pedernal amended its petition and included Bruington as a defendant alleging the same causes of action alleged in the original petition. This time, however, Pedernal accompanied the petition with a certificate of merit in the form of Jennings's affidavit.

On March 12, 2012, Bruington answered the amended petition, and three days later, Bruington filed another motion to dismiss for failure to include the certificate of merit in the original petition as required under section 150.002. Id. § 150.002(e).³ The trial court denied the motion, and Bruington appealed. See Bruington I, 403 S.W.3d at 523.

In Bruington I, we held that all facts and causes of action alleged against Bruington, in both the original and amended petitions, arose “out of the provision of professional services by Bruington and [were] within the scope of Chapter 150.” See id. at 529. We held,

... section 150.002 requires a plaintiff to file a certificate of merit with its first-filed complaint. If a plaintiff fails to do so, the trial court has no discretion but to dismiss the claims, although the court may dismiss without prejudice.

Id. at 532. We remanded the case directing the trial court to determine whether dismissal should be with or without prejudice. Id. (citing Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e) ).

On remand, the trial court held a hearing to determine whether the dismissal should be with prejudice or without prejudice. After an evidentiary hearing, on August 22, 2013, the trial court dismissed the lawsuit without prejudice. We are now asked to construe section 150.002(e) to determine if the trial court erred in dismissing the cause without prejudice.

Standards of Review

A decision to dismiss a case pursuant to a statutory mandate is reviewed under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003) ; Hardy v. Matter, 350 S.W.3d 329, 331 (Tex.App.-San Antonio 2011, pet. dism'd). Where, however, the resolution of the dismissal issue requires an appellate court to construe statutory language, “we first determine the statute's proper construction under a de novo standard, then determine if the trial court abused its discretion in applying the statute.” Hardy, 350 S.W.3d at 331 (citing Palladian Bldg. Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 436 (Tex.App.-Fort Worth 2005, no pet.) ); see also CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 390 S.W.3d 299, 301 (Tex.2013) (citing Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.2011) ).

1. Statutory Construction Under a De Novo Standard of Review

In construing section 150.002(e), we are guided by a number of principles, and “our primary objective is to discern and give effect to the Legislature's intent.” TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). To discern the legislative intent behind section 150.002(e), “we [first] look to the statute's plain meaning because we presume that the Legislature intends the plain meaning of its words.” Dunham Eng'g, Inc. v. Sherwin–Williams Co., 404 S.W.3d 785, 789 (Tex.App.-Houston [14th Dist.] 2013, no pet.) (citation omitted). When the Legislature's intent is not conveyed by the plain language of the statute, “we may resort to additional construction aids, such as the objective of the law, the legislative history, the common law or former statutory provisions, including laws on the same or similar subject, and the consequences of a particular construction.” Seguin v. Bexar Appraisal Dist., 373 S.W.3d 699, 704 (Tex.App.-San Antonio 2012, pet. denied) (citing Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867–68 (Tex.2009) ); see also Tex. Gov't Code Ann. § 311.023 (West 2013). On the other hand, “[w]hen a statute is clear and unambiguous, we need not resort to rules of construction or extrinsic evidence to construe it.” Wickware v. Sullivan, 70 S.W.3d 214, 218 (Tex.App.-San Antonio 2001, no pet.) (citing Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983) ). “Instead, we may determine the intent of the Legislature from the plain and ordinary meaning of the words used within the statute.” Id.

When determining the plain meaning of words we “ ‘construe the language according to the rules of grammar and common usage.’ ” Dunham Eng'g, Inc., 404 S.W.3d at 789 (quoting Benchmark Eng'g Corp. v. Sam Houston Race Park,

316 S.W.3d 41, 44–45 (Tex.App.-Houston [14th Dist.] 2010, pet. dism'd by agr.) ). “ ‘[W]e must always consider the statute as a whole rather than its isolated provisions.’ ” Seguin, 373 S.W.3d at 704 (quoting Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001) ). Further, the plain meaning of words “cannot be determined in isolation but must be drawn from the context in which they are used.” TGS–NOPEC Geophysical Co., 340 S.W.3d at 441 ; accord Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.2014).

“We presume that every word of a statute was used for a purpose, and every omitted word was purposefully not chosen.” Dunham Eng'g, Inc., 404 S.W.3d at 789 (citation omitted); see also TGS–NOPEC Geophysical Co., 340 S.W.3d at 439 (“We presume that ...