Opinion issued November 22, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00320-CV

———————————

GESSNER ENGINEERING, LLC, 

Appellant

V.

ST. PARASKEVI GREEK ORTHODOX MONASTERY, INC., 

Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 35918

O P I N I O N

In this appeal, we consider whether a trial court’s dismissal for failure to file 

a certificate of merit as required by Texas Civil Practice and Remedies Code 

section 150.002 must be with prejudice. We agree with the majority of appellate 
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courts that have addressed the issue and held that dismissal with prejudice is not 

mandatory but, rather, a matter left to the trial court’s discretion. Because we

conclude that the trial court did not abuse its discretion by dismissing without

prejudice, we affirm the trial court’s judgment.

Background

Appellee St. Paraskevi Greek Orthodox Monastery contracted with appellant 

Gessner Engineering, LLC to provide professional engineering services in 

connection with the Monastery’s construction of a dining hall. In January 2015, 

the Monastery sued Gessner and four other defendants for various claims arising 

from the construction project in Cause No. 35694. The Monastery served Gessner 

with its petition which did not include a certificate of merit, but non-suited Gessner 

and another defendant before the answer deadline or any appearance by Gessner. 

A year later, the Monastery filed an amended petition against Gessner and 

three other defendants in the same case, Cause No. 35694, this time attaching a 

certificate of merit and the declaration of Gary Masterman, which was dated 

January 7, 2016. Before the amended petition was served on Gessner, the 

Monastery non-suited its claims.

A month later, the Monastery filed a new suit against Gessner. The 

Monastery alleged that Gessner’s negligence caused a continuing water infiltration 

problem in the Monastery’s dining hall. The Monastery also alleged that Gessner 
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made negligent representations and breached contractual and fiduciary duties in 

connection with its work on the dining hall. The original petition in this new 

cause, Cause No. 35918, reflects the Monastery’s intent to file the same January 7, 

2016 certificate of merit required under Texas Civil Practices and Remedies Code 

§ 150.002. It states: “Gessner’s multiple breaches of the engineering standard of 

care are described in Exhibit A, the Declaration of Gary Masterman and Certificate 

of Merit.” However, the attached Exhibit A was not the declaration of Gary 

Masterman and certificate of merit but a “Standard Form of Agreement Between 

Contractor and Subcontractor for use on a Sustainable Project.” One month later, 

before Gessner answered, the Monastery filed a “Corrected Original Petition and 

Request for Disclosures,” which attached the declaration of Gary Masterman and 

certificate of merit as Exhibit A. 

Gessner answered and moved to dismiss the case under Texas Civil Practice 

and Remedies Code § 150.002 based on the Monastery’s failure to file the 

certificate of merit with its first-filed petition. Gessner argued that the Monastery’s

failure to file the certificate of merit with its original petition could not be cured by 

amendment and, thus, its claims must be dismissed. Gessner requested that the 

case be dismissed with prejudice because this was the second original petition that 

the Monastery filed that did not comply with the certificate of merit requirement.
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The Monastery responded that its failure to attach the certificate of merit to 

its petition was accidental and due to a clerical error. It also pointed out that it had

previously filed the certificate of merit with its amended petition in Cause No. 

35694, but it nonsuited Gessner from that case after a trial court stay to determine 

whether the claims against other defendants were subject to arbitration. 

Following a hearing on Gessner’s motion to dismiss, the trial court 

dismissed the Monastery’s claims without prejudice. Gessner appealed. 

Discussion

In two related issues Gessner argues that dismissal with prejudice was 

mandatory under Texas Civil Practice & Remedies Code § 150.002(e) and the trial 

court’s dismissal without prejudice was an abuse of discretion. 

A. Standard of Review

We review a trial court’s order on a motion to dismiss for failure to file a 

certificate of merit in accordance with Texas Civil Practice & Remedies Code 

§ 150.002 for an abuse of discretion. Couchman v. Cardona, 471 S.W.3d 20, 23 

(Tex. App.—Houston [1st Dist.] 2015, no pet.); Dunham Eng’g, Inc. v. SherwinWilliams Co., 404 S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2013, no 

pet.). A trial court does not abuse its discretion simply because an appellate court 

would decide a discretionary matter differently in a similar circumstance. Id. 

Rather, a trial court abuses its discretion when it acts arbitrarily or unreasonably, 
5

without reference to any guiding rules and principles, or if it fails to analyze or 

apply the law correctly. Couchman, 471 S.W.3d at 23; Dunham, 404 S.W.3d at 

789. “[A]n abuse of discretion does not occur as long as some evidence of 

substantive and probative character exists to support the trial court’s decision.”

Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434 (Tex. 

App.—Fort Worth 2005, no pet.).

“To the extent we are required to interpret a statute, that aspect of our review 

is performed de novo.” Couchman, 471 S.W.3d at 23; see also Miramar 

Petroleum, Inc. v. Cimarron Eng’g, LLC, 484 S.W.3d 214, 217–18 (Tex. App.—

Corpus Christi 2016, pet. denied). “In interpreting statutes, our primary purpose is 

to give effect to the legislature’s intent by relying on the plain meaning of the text 

adopted by the legislature, unless a different meaning is supplied by statutory 

definition or is apparent from the context, or the plain meaning leads to absurd 

results.” Couchman, 471 S.W.3d at 23–24 (quoting Better Bus. Bureau of Metro. 

Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston 

[1st Dist.] 2013, pet. denied)). “We presume that the legislature chooses a statute’s 

language with care, including each word chosen for a purpose, while purposefully 

omitting words not chosen.” Couchman, 471 S.W.3d at 24 (citing TGS-NOPEC 

Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)). 
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B. Applicable Law

Section 150.002(a) of the Texas Civil Practice and Remedies Code requires 

a plaintiff to file “an affidavit of a third-party licensed architect, licensed 

professional engineer, registered landscape architect, or registered professional 

land surveyor”—known as a certificate of merit—with its complaint in any lawsuit 

arising out of professional services rendered by a licensed or registered 

professional. TEX. CIV. PRAC. & REM. CODE § 150.002(a). Section 150.002(e) sets 

forth the consequence for failing to do so:

The plaintiff’s failure to file the affidavit in accordance 

with this section shall result in dismissal of the complaint 

against the defendant. This dismissal may be with 

prejudice.

TEX. CIV. PRAC. & REM. CODE § 150.002(e). Section 150.002(c) provides an 

exception to the contemporaneous filing requirement when the petition is filed 

within ten days of the limitations period and the plaintiff alleges that the certificate 

of merit could not be prepared because of such time constraints. TEX. CIV. PRAC.

& REM. CODE § 150.002(c). 

The Texas Supreme Court has held that dismissal with prejudice under 

section 150.002 is “discretionary.” See CTL/Thompson Tex., L.L.C. v. Starwood 

Homeowner’s Ass’n, 390 S.W.3d 299, 301 (Tex. 2013) (per curiam). In 

CTL/Thompson, the trial court denied a motion to dismiss for failure to comply 

with the certificate of merit requirements under section 150.002. 390 S.W.3d at 
7

300. Before the appeal was decided, the plaintiff nonsuited its claims. Id. The 

Court of Appeals held that the nonsuit mooted the appeal, but the Texas Supreme 

Court reversed, concluding that section 150.002(e) authorizes further relief than 

dismissal without prejudice—namely, dismissal with prejudice. Id. at 301. The 

Court noted that granting dismissal with prejudice under section 150.002 is 

discretionary so long as the trial court does not “act ‘in an arbitrary or 

unreasonable manner without reference to guiding rules or principles.’” Id.

(quoting Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011)). The Court 

explained that while section 150.002 “provides no particular guidance on how the 

court should exercise its discretion in deciding whether to dismiss an action with 

prejudice rather than without,” “guidance must come instead from the broader 

purposes of the statute.” Id. (internal citations omitted). The Court further noted

that the purpose of section 150.002(e) dismissal is to deter meritless claims and 

bring them quickly to an end. Id. Accordingly, the Court remanded the case to the

Court of Appeals to determine whether the denial of the defendant’s motion to 

dismiss with prejudice was an abuse of discretion. Id. 

Several Texas courts of appeals have similarly held that a trial court has 

discretion to determine whether a case should be dismissed with or without 

prejudice. See TIC N. Cent. Dall. 3, L.L.C. v. Envirobusiness, Inc., 463 S.W 3d 71, 

76 (Tex. App.—Dallas 2014, pet. denied) (“Because the statute states the dismissal 
8

‘may’ be with prejudice, it expressly does not require a dismissal with prejudice.”); 

Miramar Petroleum, 484 S.W.3d at 217–18 (concluding that section 150.002(e) 

grants trial court discretion to dismiss a complaint with or without prejudice); 

Palladian, 165 S.W.3d at 436 (noting that “the statute is worded so as to permit but 

not require that the dismissal be with prejudice”). They have reasoned that the 

plain language of section 150.002 reflects the legislature’s intent to allow trial 

courts to determine when a plaintiff should be given another opportunity to comply 

with the statute. See TIC, 463 S.W 3d at 77 (holding trial court abused its 

discretion in dismissing refiled suit with prejudice where newly filed petition 

complied with § 150.002 and previous lawsuit was dismissed without prejudice,

noting § 150.002 “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”); 

Miramar Petroleum, 484 S.W.3d at 217–18 (same); Palladian, 165 S.W.3d at 436 

(affirming trial court’s dismissal of plaintiff’s claims without prejudice where 

plaintiff’s failure to file certificate of merit under section 150.002 was 

unintentional oversight, noting that “[i]f the legislature had intended to mandate 

that the trial court only dismiss with prejudice, the statute could easily have been 

so worded”). 

1. Analysis

Section 150.002(e) provides:
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[t]he plaintiff’s failure to file the affidavit in accordance 

with this section shall result in dismissal of the complaint 

against the defendant. This dismissal may be with 

prejudice. 

TEX. CIV. PRAC. & REM. CODE § 150.002(e). The plain text of section 150.002(e)

provides that a complaint shall be dismissed when a plaintiff fails to file the 

affidavit in accordance with the statute, but it expressly states that the dismissal 

may be with prejudice. TEX. CIV. PRAC. & REM. CODE § 150.002(e) (emphasis 

added). Because the statute states that the dismissal “may” be with prejudice, it 

does not expressly require dismissal with prejudice. TIC, 463 S.W.3d at 76. Thus, 

we conclude that the legislature’s use of the word “may” in 150.002(e) cloaks the 

trial court with discretion to determine whether a case should be dismissed with or 

without prejudice. See TEX. GOV’T CODE § 311.016 (“May” creates discretionary 

authority or grants permission or a power); see also CTL/Thompson, 390 S.W.3d at 

301 (dismissal with prejudice under section 150.002(e) is discretionary); 

Palladian, 165 S.W.3d at 436 (“[T]he statute is worded so as to permit but not 

require that the dismissal be with prejudice.”). 

Gessner relies on a single case reaching a contrary conclusion, Bruington 

Eng’g, Ltd. v. Pedernal Energy, L.L.C., 456 S.W.3d 181 (Tex. App.—San Antonio 

2014, pet. granted), to argue that dismissal with prejudice was mandatory. In 

Bruington, the San Antonio Court of Appeals reviewed the trial court’s dismissal

without prejudice of a lawsuit in which the appellee failed to attach a certificate of 
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merit to its original petition as required by section 150.002. 456 S.W.3d at 184–

85. In analyzing whether the legislature intended dismissal under section 

150.002(e) to be with or without prejudice, the majority wrote that “[a]lthough the 

word ‘may’ implies a degree of discretion, the ‘plain meaning’ principle of 

statutory construction can be defeated by indications of legislative intent to the 

contrary.” Id. at 189 (citations omitted). The Bruington majority held that “when 

a plaintiff fails to file an affidavit contemporaneously with the first-filed 

complaint, and the exception under section 150.002(c) does not apply, the 

Legislature intended the complaint be dismissed with prejudice.” Id. at 190. 

Accordingly, the Court of Appeals found that the trial court abused its discretion in 

dismissing the plaintiff’s case without prejudice. Id. 

We find Bruington unpersuasive and instead conclude, following 

CTL/Thompson and the reasoning of the other courts of appeals that have 

considered the question, that the plain language of section 150.002(e) does not 

require dismissal with prejudice. Accordingly, we conclude that the trial court had 

discretion to determine whether the Monastery’s case should be dismissed with or 

without prejudice. See CTL/Thompson, 390 S.W.3d at 301; TIC, 463 S.W 3d at 76; 

Miramar Petroleum, 484 S.W.3d at 217–18; Palladian, 165 S.W.3d at 436. 

The only remaining question is whether the trial court’s dismissal without 

prejudice was an abuse of discretion under the circumstances. Gessner contends
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that, while guiding rules and principles may permit a court to give a plaintiff a 

“second chance” to comply with the statute, it was an abuse of discretion to give

the Monastery a fifth chance to comply. The Monastery argues that dismissal 

without prejudice was warranted because: (1) it had previously filed Masterman’s

certificate of merit in the first-filed suit, Cause No. 35694; (2) the unambiguous 

reference to the certificate of merit in its original petition in the second suit, Cause 

No. 35918, evidences its intent to comply with the statute; (3) uncontroverted 

evidence shows that its failure to attach the certificate of merit to its original 

petition in Cause No. 35918 was an accidental clerical error that it promptly cured; 

and (4) Gessner was not prejudiced. 

It is undisputed that the Monastery secured the certificate of merit and 

declaration of Gary Masterman dated January 7, 2016 over a month before it filed 

its original petition in Cause No. 35918, and that the Monastery had filed that same 

certificate of merit and declaration in the first-filed suit. Additionally, it filed a 

sworn declaration of its counsel’s paralegal, who averred that she was instructed to 

and intended to attach the declaration of Gary Masterman and the certificate of 

merit to the original petition in Cause No. 35918, but, due to a clerical error, 

instead attached an AIA form contract. She further averred that her error was

“purely accidental and unintentional.” 
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Gessner effectively concedes that the Monastery promptly cured its clerical 

error. And Gessner did not controvert the paralegal’s sworn affidavit or 

demonstrate how her error prejudiced Gessner. Rather, Gessner asserts that 

dismissal with prejudice was required because the Monastery has had multiple 

chances to comply with the statute and failed to do so. Gessner does not cite, nor 

do we find, authority requiring dismissal with prejudice under these circumstances. 

We conclude that dismissal without prejudice on this record was neither arbitrary 

nor unreasonable so as to constitute an abuse of discretion.

On the contrary, the trial court’s exercise of its discretion was consistent 

with our “overarching policy in approaching the unintentional errors of counsel

[which] is that cases should be decided on the merits rather than on a procedural 

default, when possible.” Tex. Dep’t of Aging and Disability Servs. v. Mersch, 418 

S.W.3d 736, 742 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing Marino v. 

King, 355 S.W.3d 629, 634 (Tex. 2011) (“Constitutional imperatives favor the 

determination of cases on their merits rather than on harmless procedural 

defaults”)). We are especially loath to dismiss a case for a technical defect where, 

as here, it was caused by a clerical error related to filing that did not cause 

prejudice. See Mersch, 418 S.W.3d at 742 (“filing and service rules should not 

become a trap for the unwary when no harm is done”). On this record, which 

reflects that the Monastery obtained the required certificate of merit and includes 
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uncontroverted proof that the failure to file it with the Monastery’s original petition 

was a clerical error that resulted in no harm to Gessner, the trial court’s dismissal 

without prejudice was not an abuse of discretion. See Palladian, 165 S.W.3d at 

435 (holding no abuse of discretion in dismissing case without prejudice where 

plaintiff’s failure to file required affidavit was unintentional oversight); see also

TIC, 463 S.W 3d at 76 (noting that “trial court has discretion to determine whether 

a dismissal should be with or without prejudice”). 

We overrule appellant’s first and second issues. 

Conclusion

We affirm the trial court’s judgment. 

Rebeca Huddle

Justice

Panel consists of Justices Massengale, Brown, and Huddle.