Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-13-00558-CV
BRUINGTON ENGINEERING, LTD.,
Appellant
v.
PEDERNAL ENERGY, L.L.C.,
Appellee
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 7,767
Honorable Jose A. Lopez, Judge Presiding
OPINION DISSENTING FROM ORDER DENYING RECONSIDERATION EN BANC
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice, dissenting by separate opinion to order denying
reconsideration en banc
Rebecca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice, dissenting without opinion to order denying
reconsideration en banc
Delivered and Filed: January 28, 2015
For the reasons discussed below, I respectfully dissent to the majority’s denial of Pedernal
Energy, L.L.C.’s motion for reconsideration en banc.
The majority recognizes the narrow issue of 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) of the Texas Civil Practice and Remedies Code. TEX.
Dissenting Opinion 04-13-00558-CV
CIV. PRAC. & REM. CODE ANN. § 150.002(a), (e) (West 2011); Bruington Eng’g, Ltd. v. Pedernal
Energy, L.L.C., No. 04-13-00558-CV, 2014 WL 4211024, at *1 (Tex. App.—San Antonio Aug.
27, 2014, no pet. h.) (“Bruington II”). However, although the statute and precedent is clear, the
majority would remove any discretion inherent in the trial court to sanction a plaintiff against
refiling, except where a plaintiff first sues a licensed professional within ten days of limitations
expiring. To so hold abrogates the intended effect to give meaning to every provision of the statute,
and eliminates the discretion clearly conveyed by the legislature’s use of the word “may” and the
inclusion of subsections (c), (d) and (g). TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(c), (d),
(g) (West 2011). For the foregoing reasons, the majority’s decision exceeds the parameters of our
authority.
We review the trial court’s dismissal sanction under section 150.002(e) for an abuse of
discretion. Bruington Eng’g, Ltd. v. Pedernal Energy, L.L.C., 403 S.W.3d 523, 527 (Tex. App.—
San Antonio 2013, no pet.) (“Bruington I”). In previously remanding this case appropriately to
the trial court for a determination of whether such dismissal should be with or without prejudice
to refiling, we cannot now hold as a matter of law that a trial court can reach only one decision—
to dismiss with prejudice. Id. at 532. A separate majority now exceeds the proper scope of review
in declaring that the legislature in fact intended a death penalty sanction under section 150.002,
except for first-filed suits initiated less than ten days of when the suit becomes time-barred. This
conclusion effectively renders the majority of section 150.002’s provisions meaningless. The
majority’s expansion of the dismissal sanction to preclude a plaintiff from filing a meritorious suit
during the limitations period contradicts the clear language of the statute.
It is not within our purview as an intermediate appellate court to construe a statute as a
means to prevent a scenario which might allow a plaintiff “to circumvent the first-filed pleading
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Dissenting Opinion 04-13-00558-CV
requirement,” particularly where this objective is neither stated in nor implied from the clear
language of the statute. We must presume that the legislature intended the entire statute to be
effective. See TEX. GOV’T CODE ANN. § 311.021 (West 2013). “‘[I]t is settled that every word in
a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction
is that each sentence, clause and word is to be given effect if reasonable and possible.’” Tex.
Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000) (quoting Perkins
v. State, 367 S.W.2d 140, 146 (Tex. 1963)). Courts should not adopt a construction that renders
statutory provisions meaningless. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284
(Tex. 1999).
In Bruington I, we recognized that “[a] dismissal pursuant to section 150.002(e) is a
sanction ‘to deter meritless claims and bring them quickly to an end.”’ Bruington I, 403 S.W.3d
at 527 (quoting CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299,
301 (Tex. 2013) (per curium)). An appeal from the trial court’s refusal to dismiss an action under
150.002(e) is not mooted by the plaintiff’s nonsuit. CTL/Thompson, 390 S.W.3d at 301. By
analogy, the Supreme Court noted that in a health care liability claim where the plaintiff’s expert
reports did not satisfy statutory requirements, a dismissal with prejudice and attorney’s fees were
sanctions mandated by the statute, the purpose of which is to deter claimants from filing meritless
suits. Id. at 300 (citing Villafani v. Trejo, 251 S.W.3d 466, 467 (Tex. 2008)). In comparison, a
section 150.002(e) dismissal is a sanction with the same purpose (to deter meritless claims and
bring them quickly to an end) that specifically authorizes the trial court, in its discretion, to dismiss
with prejudice, particularly once limitations has tolled or when it reasonably believes the sanction
is appropriate. Id. at 301 (citing Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011)). The
Supreme Court recognized that section 150.002(e) “‘provides no particular guidance on how the
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Dissenting Opinion 04-13-00558-CV
court should exercise its discretion’ in deciding whether to dismiss an action with prejudice rather
than without. Therefore, ‘[g]uidance must come instead from the broader purposes’ of the statute.”
Id. (quoting Samlowski, 332 S.W.3d at 410) (internal citation omitted).
Our sister court in Houston determined that section 150.002 focuses on the requirement
that a plaintiff file a certificate of merit with the first-filed original complaint that asserts a
negligence claim against a professional, not simply the original suit first filed by a plaintiff at any
given time within the limitations period minus ten days. Sharp Eng’g v. Luis, 321 S.W.3d 748,
751 (Tex. App.—Houston [14th Dist.] 2010, no pet.). In Sharp, the court determined it was an
abuse of discretion to deny a motion to dismiss where the certificate of merit was attached to a
second amended complaint, where the allegations of negligence were first raised in the original
complaint. Id. at 751-52. In rejecting the appellees’ contention that the absence of “first-filed”
before the phrase “the complaint” in section 150.002(a) does not prohibit a plaintiff from attaching
the required certificate to an amended pleading, the court determined that the absence of this
restrictive phrase comports with the statute’s remaining provisions, including section 150.002(c)
(providing a plaintiff an extension of time to obtain a certificate of merit when time constraints
preclude its preparation for filing with the suit). Id. at 751. It follows, then, that section
150.002(d)’s extension of time to file an answer to the complaint and affidavit until the filing of
such affidavit is less inconsequential. Section 150.002(g) is further a necessary corollary of
subsections (c) and (d). The majority’s focus on the word “complaint” within section 150.002(a),
as was the appellee’s in Sharp, renders these other provisions meaningless.
Similarly, in Pakal, the plaintiff sought an extension to supplement its pleadings under
section 150.002(c), arguing that the certificate could be filed with the first-served pleading. Pakal
Enterprises, Inc. v. Lesak Enterprises LLC, 369 S.W.3d 224, 228-29 (Tex. App.—Houston [1st
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Dissenting Opinion 04-13-00558-CV
Dist.] 2011, pet. denied) (holding first-filed complaint, for purposes of certificate of merit
requirement, was plaintiff’s initial petition and plaintiff was not entitled to extension). The panel
of this court in Bruington I previously agreed with our sister court, concluding that the plain
language of the statute does not contemplate amended and supplemental affidavits to avoid a
dismissal sanction, other than the exception to subsection (a)’s contemporaneous filing
requirement contained in section 150.002(c). Bruington I, 403 S.W.3d at 531 (citing Landreth v.
Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 499 (Tex. App.—Corpus Christi-
Edinburg 2009, no pet.)). “Instead, the statute permits dismissal without prejudice.” Id. at 532.
In the present appeal, after having permitted the trial court to determine the appropriate sanction,
the majority now construes the statute to have intended a death penalty sanction by summarily
concluding, “[a] failure to file a section 150.002(a) affidavit contemporaneously with the first-filed
petition mandates dismissal with prejudice pursuant to 150.002(e).” Bruington II, 2014 WL
4211024, at *7. Ignoring the statute’s clear and unambiguous language, the majority simply
concludes that a death penalty sanction was clearly intended by the legislature. Such a conclusion
renders portions of the statute meaningless. I therefore dissent.
Rebeca C. Martinez, Justice
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Bruington Engineering, Ltd. v. Pedernal Energy, LLC
Combined Opinion