# Fourth Court of Appeals **San Antonio, Texas** OPINION N o. 04

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- 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

. B ACKGROUND Previously , we rev ersed 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 pursuant04

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- to Texas Civil Practice and Remedies Code se c tion 150.002
. See Studio E

. Arch itecture & In teriors, Inc. v. Lehmberg , 2019 WL 3229194 (Tex. App.

— San Antonio Apr. 17, 2019, pet. denied) (“ Studio E. I ”) ; see also T EX . C IV . P RAC . & R EM . C ODE A NN . § 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 322 9194 , at *5; see also T EX . C IV . P RAC . & R EM . C ODE A NN . § 150.002. H owever, 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 T EX . C IV . P RAC . & R EM . C ODE A NN . § 150.002(e). Lehm berg filed a petition for review with the Texas S upreme Cour t. Prior to the trial court’s de cision that Lehmberg’s action against Studio E. w as dismissed without prejudice , Lehmberg filed her third amended petition against Studio E. and included a certificate of merit. See T EX . C IV . P RAC . & R EM . C ODE A NN . § 150.002. After the trial court dismissed Lehmberg’s action without prejudice, she filed a motion requesting the trial court clarif y 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 p ermit Lehmberg to cure her failure to com ply with the statute by “merely filing an amended pleading in this sam e action

. ” T he trial court clarified its order , stating “the pleading dismissed without prejudice in [its prior order] was [ Lehmberg’s ] S econd A mended P etition [
. ] ” Subsequently, Studio E. filed a motion to dismiss L e h mberg’s third amended petition

. S tudio E. argued the trial court’s clarification order did not give appropriate effect to the dismissal04

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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 di smissed

. Studio E. claim ed its dismissal was appropriate because the certificate of merit was not attached “ contemporaneously ” with her “first

filed petition ” but instead was a ttached to an amended pleading . Thus, according to Studio E. , Lehmberg’s action against Studio E. must be dismissed pursuant to section 150.002

. T he trial c ourt denied Studio E.’s motion to dismiss L ehmberg’s third amended petition. Studio E. fil ed t his interlocutory appeal. S TUDIO E. A PPELLATE C OMPLAINT S Studio E. contend s the trial court erred in denying its motion to dismiss because (1) Le hmberg fail ed to attach a certificate of merit to her “first

- filed petition , ” and (2) Lehm berg cannot resume the dismissed action by a mending her pleading. While a cknowledg ing that pursu ant 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 dismiss a l without prejudice , Studio E. argues Lehmberg must refil e in a new cause a nd cann ot “merely amend her pleading in the same existing cause.” See T EX . C IV . P RAC . & R EM . C ODE A NN . § 150.002(a), (e). S TANDARD OF R EVIEW AND A PPLICABLE L AW Generally, w e re view a trial court’s order s on Chapter 150 motions to dismiss under an abuse of discreti on 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 T EX . C IV . P RAC . & R EM . C ODE A NN . § 150.00 1

– 150.004. However, if its resolution requires us to interpret or construe the statutory language , w e conduct a de novo review of the issues

. Envirobusiness , 463 S.W. 3d at 76 ; see also Pedernal En ergy, LLC v. Bruington Eng’g, Ltd. , 53604

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- S.W.3d 487, 491

– 92 (Tex. 2017)

. Because the issue s of whether the trial court erred in denying a motion to dismiss under section 150 .002

— brought after claims ha ve been refiled following a dismiss al 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 o f professional services by a licensed or registered professional, a claimant shall be required to file with the complaint [a certificate of merit] .” T EX . C IV . P RAC . & R EM . C ODE A NN . § 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 T EX . C IV . P RAC . & R EM . C ODE A NN . § 150.002(e)

. T he “first

- fil ed petition ” or “contemporaneous filing requirement” has been int erp reted to
mean : the certificate of merit [must] be filed with the first petition filed in a part icular “action” or suit raising claims subject to the statute

.

. . . . [Stated diff erently ,] 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, b ut also recognizes the legal effect of a dismissal without prejudice, which places the parties in “the position t hat they were in before the court’s jurisdiction was inv oked just as if the suit had never been brought.”04

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- Envirobu s iness , 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; C TL /Thompson Tex., LLC v. Starwood Homeowner’s Ass’n , Inc. , 4 61 S.W.3d 627, 630 (Tex. App.

— Fort Worth 2015 , pet. denied) (“ Starwood II ”). A NALYSIS Studio E.’s issues on appeal do not revolve around a claimant’s right to refile a n 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 amend ing her petition and including the req uisite certificate of merit in the same cause in which Studio E. w as previously dismissed

. See T EX . C IV . P RAC . & R E M . C ODE A NN . § 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 t o 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 d ismissal without prejudice means that the same claims may be refiled in an entirely new cause.” Starwood II

, 461 S.W.3d at 630

. But w e consider the legal effect of a dismissal without prejudice as discussed above

— that is, placing t he parties in the position they were in before the court’s jurisdiction was invo ked just as if the suit had never been brought

— and the intent of the l eg islature to allow a party to refile complaints after it has been dismissed with out prejudice

. Wh ether a party refiles in a new cause number or amend s its pleading s 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 (quoting04

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- Star wood I , 390 S.W.3d at 301); Envirobu s iness , 463 S.W .3d at 77 ; see also T EX . C IV . P RAC . & R EM . C ODE A NN . § 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); Env irobusiness , 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 T EX . C IV . P RAC . & R EM . C ODE A NN . § 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.) (plain tiff filed certificate of merit with amended petition adding architect as party)). On April 17, 2019, this court reversed the de nial of Studio E.’s f irst motion to dismiss Lehm berg’s claims because Lehmberg failed to file the requisite certificate of meri t 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 ref iling

. 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 clarifi ed 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 second04

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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 Le hmberg was not prejudiced from refiling her action against Studio E

. See Envirobu s iness , 463 S.W.3d at 77. Th erefore , Lehmberg’s third amend ed petition operated as if she w ere 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 issu es. C ONCLUSION Because w e 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 T EX . C IV . P RAC . & R EM . C ODE A NN . § 150.002(a).
Irene Rios , Justice