NUMBER 13-12-00490-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LUIS MEDINA AND
STEPHANIE MEDINA, Appellants,
v.
HATCH ASSOCIATES
CONSULTANTS, INC., Appellee.
On appeal from the 267th District Court
of Calhoun County, Texas.
DISSENTING MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Dissenting Memorandum Opinion by Justice Perkes
The majority erroneously allows the Medinas to use Texas Rule of Civil Procedure
162 (regarding non-suit) “to prejudice the right of an adverse party,” Hatch, “to be heard
on a pending claim for affirmative relief.” See TEX. R. CIV. P. 162. Specifically, the
majority’s holding allows the Medinas to use a non-suit to circumvent the plain language
of section 150.002(a) of the Texas Civil Practice and Remedies Code which required the
Medinas to contemporaneously file a certificate of merit with their first petition against
Hatch. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e) (West, Westlaw through
2013 3d C.S.).1 As such, I dissent.
The Medinas initially brought suit against Hatch and CCC Group, Inc. Hatch is an
engineering firm. After the Medinas sued Hatch alleging deficient pipe design,
installation, and/or maintenance, Hatch moved to dismiss the Medinas’ claims with
prejudice for failure to file a certificate of merit under section 150.002(a). The Medinas
did not file any response to Hatch’s motion to dismiss. However, days before a
scheduled hearing on Hatch’s motion to dismiss, the Medinas moved to non-suit their
claims against Hatch without prejudice, and the trial court entered an order of non-suit
without prejudice. The record is wholly devoid of any discussion or consideration
regarding Hatch’s motion to dismiss prior to the Medinas’ non-suit, and no express ruling
was made thereon.
The Medinas, however, continued their lawsuit against CCC Group, Inc. Shortly
thereafter, CCC Group, Inc. moved to designate Hatch as a responsible third party, see
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (West 2008), and the trial court granted CCC
Group, Inc.’s motion. Though the statute of limitations had expired, the Medinas sued
Hatch again, re-alleging the same claims that they previously non-suited. To sue Hatch
1 In their briefing, the parties correctly note that the outcome of this appeal is the same whether
the version of section 150.002 enacted in 2005 or the version enacted in 2009 is applied. See Act of May
12, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348; Act of May 18, 2005, 79th Leg.,
R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at TEX. CIV. PRAC. &
REM. CODE ANN. § 150.002 (West, Westlaw through 2013 3d C.S.)).
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again after limitations expired, the Medinas purported to use the savings-clause in the
responsible-third party statute in existence at the time, see id. § 33.004(e).2 This time,
the Medinas attached to their petition the affidavit of a licensed professional engineer in
an attempt to comply with the certificate-of-merit statute. See TEX. CIV. PRAC. & REM.
CODE ANN. § 150.002(a).3
After answering the Medinas’ re-filed lawsuit, Hatch filed an amended motion to
dismiss for lack of a certificate of merit. In its amended motion, Hatch described the
Medinas’ non-suit as a “blatant attempt to evade” the certificate-of-merit statute. Hatch
moved the trial court to dismiss the Medinas’ claims against it with prejudice for failure to
file the certificate of merit contemporaneously with their initial lawsuit against Hatch. At
the conclusion of the hearing on Hatch’s amended motion, the trial court granted Hatch’s
amended motion to dismiss. This interlocutory appeal ensued.
The plain text of section 150.002 requires that, “in any action . . . for damages
arising out of the provision of professional services by a licensed or registered
professional, the plaintiff shall be required to file with the complaint an affidavit of a . . .
third-party licensed professional engineer.” See id. §150.002(a).
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.
2 See also Acts of May 30, 2011, 82nd Leg., R.S., ch. 203, §5.02, 2011 Tex. Sess. Law Serv. ch.
203 (repealing former TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(e), which allowed claimants to join
responsible third parties within sixty days of designation, “even though such joinder would otherwise be
barred by limitations”).
3 Approximately two weeks after Hatch was designated as a responsible third party, the trial court
signed an order dismissing the Medinas’ claims against CCC Group, Inc. with prejudice.
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Id. §150.002(b). Subsection (c) calls the affidavit requirement a “contemporaneous filing
requirement” and sets forth one exception to the contemporaneous filing requirement for
cases in which “the period of limitation will expire within 10 days of the date of filing suit.”
Id. §150.002(c). “The plaintiff’s failure to file the affidavit in accordance with this section
shall result in dismissal of the complaint against the defendant.” Id. §150.002(e). “This
dismissal may be with prejudice.” Id.
The majority incorrectly holds that “the trial court . . . implicitly granted [Hatch’s
motion to dismiss] without prejudice” when it granted the Medinas’ non-suit without
prejudice. To reach its conclusion, the majority cites Texas Rule of Appellate Procedure
33.1 (“Preservation of Appellate Complaints”) for the general proposition that a trial court
may rule on a motion expressly or implicitly. In this case, however, there is simply a
complete absence of any discussion, consideration, and ruling of Hatch’s pending motion
in the trial court. There is simply no support in the record for this forced overextension
of Rule 33.1, and it runs afoul of allowing the trial court to actually exercise its discretion
in determining whether to dismiss with or without prejudice under section 150.002(e).
See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e).
Texas Rule of Civil Procedure 162 provides that a plaintiff may non-suit a case
before “the plaintiff has introduced all of his evidence . . . .” TEX. R. CIV. P. 162.
However, the dismissal under Rule 162 “shall not prejudice the right of an adverse party
to be heard on a pending claim for affirmative relief.” Id. For example, a defendant’s
motion to transfer venue filed before a plaintiff takes a non-suit has been considered as
a claim for affirmative relief, and establishes venue in the county of the defendant’s choice
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if the uncontradicted venue facts compel venue in that county. See GeoChem Tech
Corp. v. Verseckes, 962 S.W2d 541 543–44 (Tex. 1998).
While not all defensive claims are claims for affirmative relief, the Texas Supreme
Court has held that a defendant’s motion to dismiss for lack of a certificate of merit is a
defensive claim for affirmative relief that survives a plaintiff’s non-suit under Rule 162.
CTL/Thompson, LLC v. Starwood Homeowners Ass’n, 390 S.W.3d 299, 300–01 (Tex.
2013) (per curiam). In CTL/Thompson, LLC, a plaintiff non-suited its claims against an
engineering firm during the pendency of the firm’s interlocutory appeal of the trial court’s
denial of its motion to dismiss with prejudice for lack of a sufficient affidavit under the
certificate-of-merit statute. 4 Id. at 299. The Texas Supreme Court held that a trial
court’s decision to grant a dismissal under section 150.002(e) is “a sanction . . . to deter
meritless claims and bring them quickly to an end.” Id. at 301. In exercising its
discretion to grant a dismissal with or without prejudice under section 150.002(e), a trial
court must act reasonably and be guided by applicable rules and principles. Id. at 301.
The Court explained that the availability of the sanction—dismissal with prejudice—
cannot be mooted by a plaintiff’s decision to seek a non-suit without prejudice. Id.
In summary, a non-suit cannot be used to frustrate section 150.002’s requirement
that a plaintiff file a certificate of merit contemporaneously with its petition against an
engineer. See CTL/Thompson, LLC, 390 S.W.3d 299, 300–01.5 Nor can a non-suit be
4 Unlike CTL Thompson, LLC v. Starwood Homeowner’s Ass’n, in this case, the trial court had not
ruled on Hatch’s motion to dismiss under the certificate-of-merit statute when it allowed the Medinas to non-
suit their claims against Hatch. See 390 S.W.3d 299, 300 (Tex. 2013) (per curiam).
5 Texas law disfavors “non-suits that are filed to circumvent unfavorable legal restrictions or
rulings.” Epps v. Fowler, 351 S.W.3d 862, 869–70 (Tex. 2011).
5
used to remove the trial court’s discretion to dismiss a lawsuit with prejudice for failure to
timely file a certificate of merit. See id.
In the case at bar, the majority allows the Medinas to evade the contemporaneous-
filing requirement of section 150.002(a) and to moot the availability of dismissal with
prejudice under section 150.002(e). The facts that form the basis of Hatch’s amended
motion to dismiss for lack of a timely certificate of merit are undisputed and entitle Hatch
to the relief granted. The trial court’s order should be affirmed.
Because the majority reverses the trial court’s order, I respectfully dissent.
GREGORY T. PERKES
Justice
Delivered and filed the
20th day of March, 2014.
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