NUMBER 13-10-686-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GULF ENERGY EXPLORATION CORP., Appellant,
v.
FUGRO CHANCE, INC., Appellee.
On appeal from the 267th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Vela
This is an appeal from an order of dismissal entered in favor of appellee, Fugro
Chance, Inc. (“Fugro”), and against appellant, Gulf Energy Exploration Corp. (“Gulf
Energy”). By three issues, Gulf Energy argues that the trial court erred because: (1)
Gulf Energy’s claims against Fugro did not require a certificate of merit to be filed
pursuant to section 150.002 of the Texas Civil Practice and Remedies Code; (2) Fugro’s
res judicata and collateral estoppel claims are groundless; and (3) severance was
inappropriate. We dismiss for lack of jurisdiction.
I. BACKGROUND
This is the second appeal to come before this Court involving the same issue.
Gulf Energy originally filed suit against Fugro and others on August 18, 2009, seeking
damages against Fugro with respect to the wrongful plugging of an offshore oil and gas
well. Fugro filed a motion to dismiss with prejudice against Gulf Energy pursuant to
section 150.002 of the Texas Civil Practice and Remedies Code for failure to file a
certificate of merit in a case involving licensed or registered professionals. TEX. CIV.
PRAC. & REM. CODE ANN. § 150.002 (West 2011). Fugro asserted that the claims against
it arose from the provision of professional services, thus Gulf Energy was required to file a
certificate of merit. The trial court granted Fugro’s motion to dismiss on December 18,
2009. Gulf Energy attempted to appeal the trial court’s ruling to this Court, but the
appeal was untimely, and this Court dismissed the case for lack of jurisdiction on July 8,
2010. See Gulf Energy Exploration Corp. v. Fugro Chance, Inc., No. 13-10-154-CV,
2010 WL 2697147, at *1 (Tex. App.—Corpus Christi July 8, 2010, no pet.) (Fugro I).
Meanwhile, while Fugro I was pending before this Court, Gulf Energy filed a
second amended petition against Fugro in the same case. That petition was similar in
content to the first. The only notable difference is language in paragraph 17, where Gulf
Energy added language that Fugro did not contract to do anything that required licensing,
and nothing Fugro agreed to do should require a certificate of merit pursuant to section
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150.002. That issue, however, had already been decided by the trial court in Fugro I and
was on appeal to this Court.
Fugro then filed its second motion to dismiss with prejudice on the grounds that:
(1) the applicability of section 150.002 had already been decided with finality; (2) the trial
court properly dismissed Fugro from the case in December 2009; (3) the two petitions
filed by Gulf Energy were virtually identical; and (4) collateral estoppel and res judicata
applied. Fugro’s second motion to dismiss was granted on November 22, 2010.
II. STANDARD OF REVIEW AND APPLICABLE LAW
An order granting or denying a motion to dismiss made pursuant to chapter 150 of
the Texas Civil Practice and Remedies Code is immediately appealable as an
interlocutory order. Landreth v. LasBrisas Council of Co-Owners, Inc., 285 S.W.3d 493,
496 (Tex. App.—Corpus Christi 2009, no pet.). A trial court abuses its discretion when it
acts in an unreasonable manner or without reference to any guiding rules and principles.
CTL/Thompson Texas, LLC v. Morrison Homes, 337 S.W.3d 437, 441 (Tex. App.—Fort
Worth 2011, pet. denied). If resolution of an issue requires the court to construe
statutory language, we apply a de novo standard of review to the statute’s construction.
Id.
III. ANALYSIS
Gulf Energy did not file a certificate of merit at any time. It argues in its amended
pleadings as it did in the first case, that none was necessary. There is no dispute,
however, that the subject of Fugro I was the trial court’s determination that Gulf Energy
failed to file a certificate of merit. Thus, the trial court determined that a certificate of
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merit was necessary; otherwise, it would not have dismissed the case.
Fugro urges, and we agree, that the issue before the Court in this appeal was
previously decided. It cites Morrison Homes, which we follow to the extent applicable.
In that case, Morrison sued Sheffield and CTL, alleging professional negligence against
CTL. Morrison Homes, 337 S.W.3d at 439. Unlike Gulf Energy, Morrison filed a
certificate of merit with his original petition. Id. CTL moved to dismiss Morrison's
claims. The trial court denied the motion to dismiss, and CTL did not perfect an appeal.
Id. Morrison then amended its petition to allege additional claims against CTL. CTL's
second motion to dismiss asserted that the certificate filed by Morrison—the same one
CTL had challenged in the first motion—was inadequate. Morrison argued that CTL had
waived any further complaints about the certificate because CTL had not appealed the
denial of the first motion. Id. at 440.
The Fort Worth Court of Appeals opined that an interlocutory order, not timely
appealed, is not reviewable by the appellate court. Id. at 441. The Court then
determined that it did not have jurisdiction over the first order denying dismissal because
it had not been appealed. Id. Similarly, this Court has no jurisdiction over the first order,
dated December 18, 2009, because Gulf Energy failed to timely appeal it.
The Fort Worth court then determined that it did not possess jurisdiction over the
trial court’s July 6, 2010 order denying CTL’s second motion to dismiss, holding “to the
extent the July 6, 2010 order simply rules on the same matter already ruled on by the trial
court in the July 3, 2008 order, it is not an appealable order.” Id. at 442 (citing Denton
County v. Huther, 43 S.W.3d 665, 666–67 (Tex. App.—Fort Worth 2001, no pet.)).
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Similarly, in the second appeal before us now, Gulf Energy is seeking relief from a trial
court ruling on the same matter that the lower court had previously ruled on in Fugro I.
The purpose of a certificate of merit is to provide a basis to conclude that the
claims have merit. Morrison Homes, 337 S.W.3d 442. In Fugro I, the trial court
determined that a certificate of merit should have been filed. The trial court’s decision
whether a certificate of merit was required could have been properly appealed after the
first dismissal order. Because it was not, a second appeal on the same issue cannot
cure the error. We agree with the Fort Worth court that “nothing in chapter 150
authorizes a defendant to raise successive adequacy challenges to the same certificate
of merit, one challenge at a time or to perfect successive appeals from a trial court’s ruling
on those motions.” Id. The practical effect of the pleading amendment in this case was
to ask the trial court to reconsider its initial ruling. We have no jurisdiction to rule on a
motion to reconsider. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp.
2011) (allowing numerous interlocutory appeals, but not including an appeal from an
order denying a motion to reconsider); see also Morrison Homes, 337 S.W.3d at 443.
The purpose of a certificate of merit is to allow the trial court to determine if a
plaintiff's claims have merit. Criterium-Farrell Eng'rs v. Owens, 248 S.W.3d 395, 399
(Tex. App.—Beaumont 2008, no pet.). Here, the trial court had the opportunity to review,
in Fugro I, whether a certificate of merit should be filed based upon the pleadings. It did
so, determining that a certificate was required, but not filed. Thus, it was proper under
the statute to dismiss the claims against Fugro. See TEX. CIV. PRAC. & REM. CODE §
150.002(e). After the trial court determined that a certificate was required in Fugro I, but
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not filed, there was no further right to appeal the same issue for a second time. See
Morrison Homes, 337 S.W.3d at 443.
Because Gulf Energy put this case in somewhat of a procedural quagmire by
asking the trial court to reconsider an issue it had already decided, and that could have
been appealed but was not, Fugro had no choice but to file a second motion to dismiss
and request a severance so that it could be finally extricated from the case.
IV. CONCLUSION
For the above reasons, we hold that the trial court’s July 18, 2010 order was, in
effect, a decision by the trial court that it would not reconsider its earlier ruling that Fugro
should be dismissed from the case for Gulf Energy's failure to file a certificate of merit.
Because Gulf Energy had no right to appeal from such an order, we dismiss the case for
lack of jurisdiction.
ROSE VELA
Justice
Delivered and filed the
23rd day of February, 2012.
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