CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc.

• Decision Date: 26 March 2015
• Docket Number: NO. 02–14–00236–CV,02–14–00236–CV
• Citation: 461 S.W.3d 627
• Parties: CTL/Thompson Texas, LLC, Appellant v. Starwood Homeowner's Association, Inc., Appellee
• Court: Texas Court of Appeals

461 S.W.3d 627

CTL/Thompson Texas, LLC, Appellant

v.Starwood Homeowner's Association, Inc., Appellee

NO. 02–14–00236–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: March 26, 2015

Bryan Rutherford, Gregory Ziegler, MacDonald Devin, PC, Dallas, TX, for Appellant.

Tommy Holt Cole, Holt Cole Law, PLLC, Grapevine, TX, Daniel Pellar, Pellar Law Firm PLLC, Frisco, TX, for Appellee.

PANEL: WALKER, MEIER, and GABRIEL, JJ.

OPINION

SUE WALKER, JUSTICE

I. Introduction

This is the third time we have addressed issues between these parties in interlocutory certificate-of-merit appeals. For the reasons set forth below, we will affirm the order denying CTL's second motion to dismiss.

II. Background

We dismissed Appellant CTL/Thompson Texas, LLC's first interlocutory appeal because after the 431st District Court of Denton County denied CTL's motion to dismiss Appellee Starwood Homeowner's Association, Inc.'s claims against it for the failure to file an adequate certificate of merit, Starwood nonsuited its claims. We held that CTL's motion to dismiss for failure to file an adequate certificate of merit did not survive Starwood's nonsuit of its claims because under section 150.002(e) of the Texas Civil Practice and Remedies Code, the trial court possessed discretion to dismiss the claims without prejudice— the same relief attained via the nonsuit.¹ CTL filed a petition for review with the Texas Supreme Court. The supreme court granted review and held that CTL's motion to dismiss Starwood's claims against it did survive Starwood's nonsuit of those claims and remanded the case to us.² On remand, we addressed the merits of CTL's contentions that the trial court had abused its discretion by finding Starwood's certificate of merit adequate and by failing to grant CTL's motion to dismiss.³ We held that the trial court had abused its discretion by finding that Starwood's certificate of merit complied with section 150.002(b) of the civil practice and remedies code ; we reversed the trial court's April 18, 2011 order denying CTL's motion to dismiss; and we remanded the case to the trial court, the 431st District Court of Denton County, for entry of an order dismissing Starwood's claims and for a determination of whether the dismissal of the claims should be with or without prejudice.⁴ The trial court signed an order granting CTL's motion to dismiss and ordered that the dismissal be without prejudice.

In the meantime, after nonsuiting its claims against CTL, Starwood refiled them and filed a new certificate of merit; the new suit was assigned to the 16th District Court of Denton County. CTL filed various motions in the new suit, but CTL ultimately filed a motion to transfer the case back to the 431st District Court of Denton County and, alternatively, again sought dismissal of Starwood's claims under section 150.002(e). CTL's second dismissal motion did not challenge the adequacy of the new certificate of merit filed by Starwood in the pending suit but instead again asserted the inadequacy of Starwood's prior certificate of merit filed in the prior suit that had been dismissed without prejudice. The 16th District Court of Denton County granted CTL's motion to transfer the case back to the 431st District Court of Denton County, and that court denied CTL's second motion to dismiss. CTL then perfected this interlocutory appeal from the denial of its second motion to dismiss.

III. The Denial of CTL's Second Motion to Dismiss was not an Abuse of Discretion

CTL raises one issue complaining that “[t]he trial court abused its discretion when it failed to dismiss Starwood's claims, which this Court previously held were not supported by a sufficient Chapter 150 Certificate of Merit when first filed.” But the trial court did dismiss Starwood's claims that this court had held were not supported by a sufficient chapter 150 certificate of merit; the trial court signed a January 21, 2014 order dismissing those claims without prejudice. The crux of CTL's complaint on appeal is that the order dismissing Starwood's claims without prejudice entitles CTL to dismissal of any of those claims subsequently refiled by Starwood.⁵

The plain language of section 150.002(e) provides that a certificate-of-merit dismissal “may be with prejudice.” Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e) (West 2011). “May,” when used in a statute, indicates that the provision is discretionary, not mandatory. Tex. Gov't Code Ann. § 311.016(1) (West 2013).⁶ A dismissal with prejudice is an adjudication of the parties' rights; a dismissal without prejudice is not. In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 653 (Tex.2009) (orig. proceeding). That is, a dismissal with prejudice operates as res judicata to bar the dismissed claims. See, e.g., Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865–66 (Tex.2010). But a dismissal without prejudice means that the same claims may be refiled in an entirely new cause. Cruz v. Morris, 877 S.W.2d 45, 47 (Tex.App.–Houston [14th Dist.] 1994, no writ) (explaining that “[a]ny dismissal order stating it is without prejudice to refile refers to refiling in a new cause of action, not simply filing an amended petition within the same cause”). The plain language of section 150.002(e) authorizes a dismissal without prejudice; we reject CTL's contention that a dismissal without prejudice entitles CTL to an automatic dismissal of subsequently refiled claims.⁷

Our sister court in Dallas recently addressed and rejected CTL's argument that section 150.002(a)'s requirement that a certificate of merit must be filed “with the complaint” really means only the “first-filed complaint,” so that no certificate of merit may be attached to a dismissed-without-prejudice-then-subsequently-refiled claim. See TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05–13–01021–CV, 463 S.W.3d 71, 76–77, 2014 WL 4724706, at *4 (Tex.App.–Dallas Sept. 24, 2014, pets. filed). Based on identical procedural facts and identical arguments to those presented here, the Dallas Court of Appeals framed the issue presented as “whether a plaintiff complies with section 150.002(a) when it files a certificate of merit with the first petition it files in a second action after a dismissal without prejudice.” Id. at *3. After examining the plain language of the statute, the Dallas court concluded that

when a plaintiff files a new action and includes a certificate of merit with the first-filed petition in that action, the plaintiff has complied with the plain language of the statute. This conclusion is not only supported by the text of the statute, but also recognizes the legal effect of a dismissal without prejudice, which places the parties in the position that they were in before the court's jurisdiction was invoked just as if the suit had never been brought.

Finally, we agree with [the plaintiff] that the statutory provision giving trial courts discretion to dismiss without prejudice reflects the legislature's intent to allow trial courts to determine when a plaintiff should be given a second opportunity to comply with the statute.

Id. at *4 (citations omitted). Based on the sound reasoning and rationale of the Dallas Court of Appeals, as set forth above and more fully in its opinion, we likewise reject CTL's contention here that despite section 150.002(e)'s express authorization of a dismissal without prejudice, we should construe that provision as effectuating a dismissal with prejudice because—under CTL's interpretation—no subsequent suit filed after a dismissal without prejudice will ever be a “first-filed complaint.”

We overrule CTL's sole issue.

IV. Conclusion

Having overruled CTL's sole issue, we affirm the trial court's order denying CTL's motion to dismiss.

MEIER, J. filed a dissenting opinion.

BILL MEIER, JUSTICE, dissenting.

I respectfully dissent from the majority opinion because construing civil practice and remedies code section 150.002(e) to permit a dismissal without prejudice improperly reads a remedy into the statute that the legislature did not intend.

A plaintiff's failure to file an affidavit in accordance with section 150.002 “shall result in dismissal of the complaint against the defendant.” Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e) (West 2011). Further, “[t]his dismissal may be with prejudice.” Id. There are several reasons why a dismissal without prejudice cannot be engrafted upon this statute.

First, there is no dispute that legislative intent “remains the polestar of statutory construction” and that we seek that intent “first and foremost” in the statutory text. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex.2011) ; Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). As written, section 150.002(e) says nothing about dismissing without prejudice; it only mentions dismissal with prejudice. If the legislature had intended to permit a trial court to dismiss a plaintiff's complaint without prejudice, then it easily could have said so, but it did not. By reading the remedy of dismissal without prejudice into the statute, the majority improperly expands the statute's plain and unambiguous language beyond the intent of the legislature.

Next, in construing a statute, we must consider the words in context, not in isolation. See Jaster v. Comet II Constr, Inc., 438 S.W.3d 556, 562, 565 (Tex.2014) ; State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002) ; see also Tex. Gov't Code Ann. § 311.011(a) (West 2013) (providing that words and phrases shall be read in context). This is because a court should not assign a meaning to a statutory provision that would be inconsistent with other provisions of the same act, even though it might be susceptible to such a construction standing alone. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). Section 150.002 mandates that the certificate of merit be filed contemporaneously with the first-filed complaint. See Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a), (c) ; Bruington Eng'g, Ltd., v. Pedernal...