Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-22-00857-CV
STUDIO E. ARCHITECTURE AND INTERIORS, INC.,
Appellant
v.
Emily LEHMBERG,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-CI-10649
Honorable David A. Canales, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: February 28, 2024
AFFIRMED
This is the second interlocutory appeal between the parties. For the reasons set forth below,
we affirm the trial court’s order denying appellant Studio E. Architecture and Interiors, Inc.’s
(“Studio E.”) second motion to dismiss.
BACKGROUND
Previously, we reversed Studio E.’s first interlocutory appeal after determining the trial
court erred in denying Studio E.’s motion to dismiss appellee Emily Lehmberg’s lawsuit pursuant
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to Texas Civil Practice and Remedies Code section 150.002. See Studio E. Architecture &
Interiors, Inc. v. Lehmberg, 2019 WL 3229194 (Tex. App.—San Antonio Apr. 17, 2019, pet.
denied) (“Studio E. I”); see also TEX. CIV. PRAC. & REM. CODE ANN. § 150.002. We held that
“[b]ecause Lehmberg failed to attach a certificate of merit to her original pleading[,] and Studio
E. did not waive its right to seek dismissal under section 150.002,” the trial court erred in denying
Studio E.’s motion to dismiss. See Studio E. I, 2019 WL 3229194, at *5; see also TEX. CIV. PRAC.
& REM. CODE ANN. § 150.002. However, we remanded the cause to the trial court to determine
whether the dismissal should be with or without prejudice to refiling. See Studio E. I, 2019 WL
3229194, at *5; see also TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e). Lehmberg filed a
petition for review with the Texas Supreme Court.
Prior to the trial court’s decision that Lehmberg’s action against Studio E. was dismissed
without prejudice, Lehmberg filed her third amended petition against Studio E. and included a
certificate of merit. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002. After the trial court
dismissed Lehmberg’s action without prejudice, she filed a motion requesting the trial court clarify
which pleading it dismissed without prejudice pursuant to Studio E. I because she had filed her
third amended pleading and the requisite certificate of merit. Studio E. responded arguing this
court did not specify which pleading to dismiss in Studio E. I, but rather ordered Lehmberg’s action
against Studio E. be dismissed. Studio E. emphasized that section 150.002 does not permit
Lehmberg to cure her failure to comply with the statute by “merely filing an amended pleading in
this same action.” The trial court clarified its order, stating “the pleading dismissed without
prejudice in [its prior order] was [Lehmberg’s] Second Amended Petition[.]”
Subsequently, Studio E. filed a motion to dismiss Lehmberg’s third amended petition.
Studio E. argued the trial court’s clarification order did not give appropriate effect to the dismissal
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required by this court’s decision in Studio E. I, thereby allowing Lehmberg to amend her petition
to revive causes of action Studio E. I instructed be dismissed. Studio E. claimed its dismissal was
appropriate because the certificate of merit was not attached “contemporaneously” with her “first-
filed petition” but instead was attached to an amended pleading. Thus, according to Studio E.,
Lehmberg’s action against Studio E. must be dismissed pursuant to section 150.002.
The trial court denied Studio E.’s motion to dismiss Lehmberg’s third amended petition.
Studio E. filed this interlocutory appeal.
STUDIO E. APPELLATE COMPLAINTS
Studio E. contends the trial court erred in denying its motion to dismiss because (1)
Lehmberg failed to attach a certificate of merit to her “first-filed petition,” and (2) Lehmberg
cannot resume the dismissed action by amending her pleading. While acknowledging that pursuant
to subsection 150.002(e), a prior dismissal of a suit for failure to comply with the certificate-of-
merit requirement can result in a dismissal without prejudice, Studio E. argues Lehmberg must
refile in a new cause and cannot “merely amend her pleading in the same existing cause.” See TEX.
CIV. PRAC. & REM. CODE ANN. § 150.002(a), (e).
STANDARD OF REVIEW AND APPLICABLE LAW
Generally, we review a trial court’s orders on Chapter 150 motions to dismiss under an
abuse of discretion standard. Miramar Petroleum, Inc. v. Cimarron Eng’g, LLC, 484 S.W.3d 214,
217 (Tex. App.—Corpus Christi–Edinburg 2016, pet. denied) (citing TIC N. Cent. Dallas 3, L.L.C.
v. Envirobusiness, Inc., 463 S.W.3d 71, 76 (Tex. App.—Dallas 2014, pet denied)); see also TEX.
CIV. PRAC. & REM. CODE ANN. § 150.001–150.004. However, if its resolution requires us to
interpret or construe the statutory language, we conduct a de novo review of the issues.
Envirobusiness, 463 S.W.3d at 76; see also Pedernal Energy, LLC v. Bruington Eng’g, Ltd., 536
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S.W.3d 487, 491–92 (Tex. 2017). Because the issues of whether the trial court erred in denying a
motion to dismiss under section 150.002—brought after claims have been refiled following a
dismissal without prejudice—pertain to our interpretation of the language in section 150.002, we
will engage in a de novo review. See Envirobusiness, 463 S.W.3d at 76.
Subsection 150.002(a) provides that “in any action … for damages arising out of the
provision of professional services by a licensed or registered professional, a claimant shall be
required to file with the complaint [a certificate of merit].” TEX. CIV. PRAC. & REM. CODE ANN. §
150.002(a). “A claimant’s failure to file the [certificate of merit] in accordance with [section
150.002] shall result in dismissal of the complaint against the defendant.” Id. § 150.002(e). The
Texas Supreme Court has unequivocally determined this dismissal can be with or without
prejudice to refiling and has directed that the trial court make this determination. Pedernal Energy,
536 S.W.3d at 492–94; CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc. 390
S.W.3d 299, 301 (Tex. 2013) (“Starwood I”); see also TEX. CIV. PRAC. & REM. CODE ANN. §
150.002(e).
The “first-filed petition” or “contemporaneous filing requirement” has been interpreted to
mean:
the certificate of merit [must] be filed with the first petition filed in a
particular “action” or suit raising claims subject to the statute.
....
[Stated differently,] 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.”
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Envirobusiness, 463 S.W.3d at 77 (internal citations omitted) (emphasis added). Several of our
sister courts of appeals agree that this interpretation recognizes “the legislature’s intent to allow a
plaintiff to re-file a suit, not otherwise barred, in compliance with the statute.” Id. at 78; see also
Miramar, 484 S.W.3d at 218; CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc.,
461 S.W.3d 627, 630 (Tex. App.—Fort Worth 2015, pet. denied) (“Starwood II”).
ANALYSIS
Studio E.’s issues on appeal do not revolve around a claimant’s right to refile an action
against a defendant after a court has dismissed the action without prejudice to refiling. Rather, we
must decide whether Lehmberg may refile her action against Studio E. by amending her petition
and including the requisite certificate of merit in the same cause in which Studio E. was previously
dismissed. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002.
To support its proposition that Lehmberg could not amend her pleading here, Studio E.
focuses on a statement made in Cruz v. Morris, wherein the court stated “[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.” 877 S.W.2d 45, 47 (Tex. App.—Houston [14th Dist.]
1994, no writ). The Fort Worth Court of Appeals referred to Cruz when explaining that “a dismissal
without prejudice means that the same claims may be refiled in an entirely new cause.” Starwood
II, 461 S.W.3d at 630. But we consider the legal effect of a dismissal without prejudice as discussed
above—that is, placing the parties in the position they were in before the court’s jurisdiction was
invoked just as if the suit had never been brought—and the intent of the legislature to allow a party
to refile complaints after it has been dismissed without prejudice. Whether a party refiles in a new
cause number or amends its pleadings does not run afoul of section 150.002(e)’s purpose “‘to deter
meritless claims and bring them quickly to an end.’” Pedernal Energy, 536 S.W.3d at 494 (quoting
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Starwood I, 390 S.W.3d at 301); Envirobusiness, 463 S.W.3d at 77; see also TEX. CIV. PRAC. &
REM. CODE ANN. § 150.002(e).
Moreover, several section 150.002 cases have involved the refiling of the claimant’s action
in either amended pleadings or in new cause numbers that were subsequently consolidated into the
original case. See, e.g., Pedernal Energy, 536 S.W.3d at 488–89 (following a nonsuit, claims were
refiled in an amended petition); Miramar, 484 S.W.3d at 218 (concluding a certificate of merit
with Miramar’s sixth amended petition was in compliance with section 150.002); Envirobusiness,
463 S.W.3d at 75 (explaining claims were refiled in a different district court but transferred and
consolidated into original case); Starwood II, 461 S.W.3d at 629 (explaining after plaintiff
nonsuited claims but refiled them in a different district court, the suit was transferred back to the
original court); see also TEX. CIV. PRAC. & REM. CODE ANN. § 150.002; Envirobusiness, 463
S.W.3d at 77 n.2 (“The first-filed petition that raises claims subject to the statute may or may not
be the Original Petition. See, e.g., Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421, 423
(Tex. App.—Dallas 2012, no pet.) (plaintiff filed certificate of merit with amended petition adding
architect as party)).
On April 17, 2019, this court reversed the denial of Studio E.’s first motion to dismiss
Lehmberg’s claims because Lehmberg failed to file the requisite certificate of merit with her first-
filed petition against Studio E. See Studio E. I, 2019 WL 3229194, at *5. This court further
remanded the cause to the trial court to determine whether the dismissal should be with or without
prejudice to refiling. See id. On June 11, 2020, the trial court dismissed the action against Studio
E. without prejudice. Subsequently, on July 6, 2021, the trial court clarified its June 11, 2020 order,
stating, “[T]he pleading at issue and considered by the Honorable Fourth Court of Appeals [in
Studio E. I] was the ‘second amended petition,’” and thus the order dismissed Lehmberg’s second
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amended petition without prejudice. As a result, the parties were placed in the position as if
Lehmberg had never sued Studio E., and Lehmberg was not prejudiced from refiling her action
against Studio E. See Envirobusiness, 463 S.W.3d at 77. Therefore, Lehmberg’s third amended
petition operated as if she were filing her “first-filed petition” against Studio E. in that action. See
id.
Based on this record, we cannot conclude the trial court erred by denying Studio E.’s
motion to dismiss Lehmberg’s third amended petition. We overrule Studio E.’s appellate issues.
CONCLUSION
Because we conclude the trial court did not err in its December 6, 2022 order denying
Studio E.’s motion to dismiss pursuant to Texas Civil Practice and Remedies Code section
150.002, we affirm the trial court’s order. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a).
Irene Rios, Justice
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