Affirm in part; Reverse and Remand in part and Opinion Filed February 9,

2024

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05
- 23
- 00662
- CV LOGICAL SYSTEMS, INC . D/B/A LOGICAL SYSTEMS, LLC , Appellant V. EDGAR BERRIOS, INDIV IDUALLY AND AS NEXT FRIEND ON BEHALF OF CA.B., CES AR BERRIOS, AND ESTE LA A. QUINTOS LOPEZ , Appellee s On Appeal from the County Court at Law No. 2

Dallas County, Texas Trial Court Cause No. CC
- 22
- 01109
- B MEMORANDUM OPINION Before Justices Molberg, Reichek, and Smith

Per Curiam More t han eighteen months after a machine used by appellee Edgar Berrios nearly severed one of his arms while he was working , appellees sued appellant Logical Systems, Inc. d/b/a L ogical Systems, LLC (LSI) and others, claiming their defective design of the machine he was using at the time caused his injuries and appellees’ related losses

. Ten months later, after appellees had twice amended their petition, LSI moved to dismiss appel lees’ claims against LSI with prejudice because, LSI argued, appellees failed to submit a certificate of merit as required by Texas– 2

–

Civil Practice and Remedies Code § 150.002

. On June 8, 2023, the trial court granted LSI’s motion in part , dismissing appel lees’ claims against LSI without prejudice and allowing appellees “to amend with the required specific notice to cure the defect, if it can cure.” 1
LSI timely filed this accelerated, interlocutory appeal

. See T EX
. C IV
. P RAC
. &
R EM
. C ODE § 15 0 .002(f) (allowing interlocutory appeal); T EX
. R. A PP
. P. 28.1 (a) (appeals from interlocutory orders when allowed by statute are accelerated appeals)

. Appellees filed no cross

- appeal challenging the dismissal

. See T EX
. R. A PP
. P. 26.1 (d) (process and deadline fo r such). On appeal , L SI argues the trial court abused its discretion by dismissing appellees’ claims without prejudice and allowing appellees to amend “with the required specific notice to cure the defect, if it can cure.” As explained below, we conclud e the trial court did not err by dismissing appellees’ claims without prejudice but did err by allowing appellees “to amend with the required specific notice to cure the defect, if it can cure

. ” Thus, without addressing the propriety , if any, of the

1 The trial court ’s order of dismissal did not state what it considered the “defect” to be , but the record makes it apparent . In LSI’s motion to dismiss , LSI asserted only one basis for dismissal of appellees’ claims against it , namely, that appellees “failed to include a certificate of merit with [their] Petition

. ” During the hearing on the motion, both sides’ counsel acknowledged appellees had filed a certificate of merit naming a separate party, but LSI argued this was not sufficient . According to L SI, to comply with the statute, appellees “had to file a [c]ertificate of [m]erit as to LSI[,]” and “[t] here has to be a different [certificate of merit] against each licensed professional. ” LSI’s counsel explained this as follows: “ So if you have two en gineers. You have engineer A and engineer B in a case, you can’ t just use the certificate against engineer A to cover engineer A and B. You have to have one for engineer A and one for engineer B. ” No individual engineers are named as party defendants in this case.– 3

–

dismi ssal of appellees’ claims against LSI, 2 we affirm the portion of the trial court’s June 8, 2023 order dismissing appellees’ claims against LSI without prejudice , reverse the portion of the order allowing appellees to amend their pleading as to their claims against LSI, and remand this cause to the trial court for further proceedings consistent with this opinion.
I SSUES & A NALYSIS The trial court dismissed appellees’ claims against LSI without prejudice but also allowed appellees to amend “with the required specific notice to cure the defect, if it can cure.” LSI argues the trial court abused its discretion by taking both actions. We review an order granting a Chapter 150 motion to dismiss under an abuse of discretion standard, but if re solution of the issue requires us to interpret or construe the statutory language, we review that issue de novo. TIC N. Cent. Dall

. 3, L.L.C. v. Envirobusiness, Inc. , 463 S.W.3d 71, 76 (Tex. App.

— Dallas 2014, pet. denied). When reading a statute, our go al is to ascertain and give effect to the legislature’s intent. Tex. Mut. Ins. Co. v. Ruttiger , 381 S.W.3d 430, 452 (Tex. 2012). The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the con text or the plain meaning leads to absurd

2 We have grave concerns about the dismissal b ased on the record before us, the design

- defect nature of appellees’ claims against LSI, and the underlying purpose of the certificate of merit requirement, but because no party has appealed the dism issal of appellees’ claims against LSI, we have no way to address these concerns or to consider in this appeal whether the dismissal was error

.– 4

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or nonsensical results. Molinet v. Kimbrell , 356 S.W.3d 407, 411 (Tex. 2011). We consider statutes as a whole rather than their isolated provisions. TGS

– NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 20 11). We “endeavor to read the statute contextually, giving effect to every word, clause, and sentence.” In re Office of Att ’

y Gen. , 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding). Civil p ractice and r emedies c ode § 150.002 , entitled “Certificate of M erit,”
states , in pertinent part: [I] n any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, [ 3 ] a claimant [ 4 ] shall be required to file with the complaint [ 5 ] an affidavit of a third

- party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who [ meets certain criteria as specified in the statute ]

. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 150.00 2(a). A claimant’s failure to file the affidavit in accordance with § 150.002 “ shall result in dismissal of the complaint against the defendant[,]” and “[t]his dismissal may be with prejudice.” See id

. § 150.002(e). Thus, while the statute requires a tr ial court to dismiss a complaint if a claimant does not file a certificate of merit in compliance with the statute , because

3 “ Licensed or re gistered professional” means a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices, including but not limited to a corporation, profess ional corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship, joint venture , or any other business entity. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 150.001(1

- c).
4 “Claimant” is defined as “ a party, including a plaintiff or third

- party plaintiff, seeking recovery for damages, contribution, or indemnification. ” See T EX
. C IV
. P RAC
. & R EM
. C ODE § 150.001(1

- a).
5 “Complaint” is defined as “any petition or other pleading which, for the first time, raises a claim ag ainst a licensed or registered professional for damages arising out of the provision of professional services by the licensed or registered professional.” See T EX
. C IV
. P RAC
. & R EM
. C ODE § 150.001(1

- b).– 5

–

the dismissal “may” be with prejudice, the statute expressly does not require the trial court to dismiss with prejudice , and the tri al court has d iscretion in determining whether to dismiss with or without prejudice

. See TIC N. Cent. Dallas 3 , 463 S.W.3d
at 76

. In exercising this discretion , the trial court cannot act “in an arbitrary or unreasonable manner without reference to guiding rules or principles ” and should
consider the statute’s “broader purposes” of deterring and quickly ending meritless claims

. Id

. ; see CTL/Thompson Tex., L.L.C. v. Starwood Homeowner’s Ass’n., Inc. , 390 S.W.3d 299, 301 (Tex. 2013) (per curiam) (purp ose of a s ection 150.002(e) dismissal is “ to deter meritless claims and bring them quickly to an end ”).
In Pedernal Energy, LLC v. Bruington Eng ’g , Ltd. , 536 S.W.3d 487, 496 (Tex. 2017), the c ourt stated: A plaintiff’ s failure to file an affidavit with an original petition, together with the filing of an amended petition with a deficient affidav it, might support a trial court’ s determination that the claims lack merit. But that determination is within the trial court’ s discretion and is reviewed for abuse of discretion. Here, we need not and do not consider whether the trial court abused its discretion in deciding to dismiss appellees’ claims against LSI because n one of the parties challenge that dismissal

. Instead, we consider only whether the trial court abused its discretion in dismissing app ellees’ claims against LSI without prejudice (LSI’s second issue) and whether the trial court should have allowed appellees to amend “with the required specific notice to cure the defect, if it can cure ” (LSI’s first issue).– 6

–

While LSI acknowledges a Chapter 150 dismissal “may b e with prejudice,”

see T EX
. C IV
. P RAC
. & R EM
. C ODE § 150.002(e), LSI argues , in essence, that under the circumstances here

— where Edgar Berrios’s injuries occurred more t han two years before the dismissal date and thus appellees’ claims could not be re

- filed within the statute of limitations

— the trial court abused its discretion by dismissing appellees’ claims without prejudice and allowing appellees to amend

. Appellees d ispute LSI’s argument s and urge us to affirm the trial court’s order

. We do so, but only in part. Based on the record before us, we conclude the trial court did not abuse its discretion in dismissing appellees’ claims against LSI without prejudice. Secti on 150.002 plainly allows the trial court discretion in deciding whether to dismiss with or without prejudice. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 150.002(e ) (dismissal “may be with prejudice”); TIC N. Cent. Dallas 3 , 463 S.W.3d at 76 (trial court has discr etion in making determination on whether to dismiss with or without prejudice). And there is no indication in the record that the trial court abused that discretion here. As was the case in Pedernal Energy , 536 S.W.3d at 494

– 95, appellees’ failure to fil e an expert affidavit with their original petition was not, by itself, evidence that the allegations in appellees’ petition lacked merit or mandated the sanction of dismissal with prejudice , and nothing in the record as of the time of the dismissal otherwi se leads us to conclude the trial court’s action in dismissing without prejudice violated any guiding rules or principles so that its action as to the dismissal was– 7

–

arbitrary and unreasonable and an abuse of its discretion. While the court may have been a ble to exercise its discretion and reach a different conclusion on this record as to whether appellees’ claims should be dismissed with or without prejudice, we cannot say from the record before us that the trial court abused its discretion in making the d ecision it did on that issue. 6 We reach a different conclusion, however, regarding the trial court’s decision to allow appellees to amend their pleading “with the required specific notice to cure the defect, if it can cure

. ” We conclude the trial court erred by allowing appellees “to amend with the required specific notice to cure the defect, if it can cure” because

a dismissal is equivalent to a suit never having been filed , 7 and t hus, as a result of the dismissal, appellees no longer had any pleading against LSI to amend. Moreover, in practical effect, the portion of the order allowing appellees to amend

6 As to LSI’s contention in its first issue that the trial court was required to dismiss appellees’ claims with prejudice because the statute of limitations on their claims had already passed , we decline, for multiple reasons, to sua sponte determine as a matter of law that any subsequent filing of appel lees’ claims would be barred by the statute of limitations. First, limitations is an affirmative defense on which LSI bears the burden to plead and prove. S ee Epps v. Fowler , 351 S.W.3d 862, 869 n.8 (Tex. 2011) (“Limitations is an affirmative defense tha t must be pleaded and proven .”). LSI has done neither in the record before us

. S econd, on the record before us, we do not know what other proce edings, if any, may be ongoing. F inally, additional considerations regarding limitations may apply in cases in volving claims brought on behalf of a minor

. See, e.g. , T EX
. C IV
. P RAC
. & R EM
. C ODE § 16.003 (two

- year limitations period for personal injury claims, among others) ; id . § 16.001 (stating, “a person younger than 18 years of age, regardless of whether the p erson is married,” is “under a legal disability,” for purposes of that subchapter, and “[i]f a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitati ons period.”); Weiner v. Wasson , 900 S.W.2d 316, 321 (Tex. 1995) ( stating, in reference to sections 16.001 and 16.003, “Taken together, these sections require a minor to file a claim before reaching age twenty for personal injuries sustained during the per iod of minority.”)

. 7 Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd. , 670 S.W.3d 622, 631 (Tex. 2023) (quoting Aguilar v. Morales , 545 S.W.3d 670, 677 (Tex. App.

— El Paso 2017, pet. denied) (“[A] dismissal is equivalent to a suit never having been filed such that the statute of limitations is not tolled for any new pleading filed.”).– 8

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their claims against LSI essentially treated LSI’s Chapter 150 motion to dismiss as a special exception to appellees’ plea ding. See T EX
. R. C IV
. P. 91; Friesenhahn v. Ryan , 960 S.W.2d 656, 658 (Tex. 1998) (“When the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading.”)

. Chapter 150 contains no indication that a trial court may dis miss a claimant’s claims while simultaneously allowing a claimant to amend its pleading to cure the defect that led to dismissal. Those tw o actions are simply incongruous , particularly where, as here, the trial court has not vacated its order of d ismissal

. We sustain LSI’s first issue and overrule its second issue. 8
C ONCLUSION Without addressing the propriety of the dismissal of appellees’ claims against LSI, we affirm the portion of the trial court’s June 8, 2023 order dismissing appellees’ claims against LSI without prejudice, reverse the portion of the order granting appellees leave to amend their pleading a s to their claims against LSI, and remand this cause to the trial court for further proceedings consistent with this opinion. PER CURIAM 230662f.p05 Molberg, J., concurring, joined by Reichek, J.

8 Taken together, our two conclusions should not be interpreted as making any comment upon the viability, if any, of appellees’ claims against LSI should they choose to re

- file them in the current or another trial court. Additionally, we express no opinion on the viability of any claims filed by appell ees against LSI after the trial court’s June 8, 2023 order, our only focus in this accelerated, interlocutory appeal. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 150. 002(f); T EX
. R. A PP
. P. 28.1(a)

.– 9

– 

### Court of Appeals Fifth District of Texas at Dalla s

JUDGMENT
LOGICAL SYSTEMS, INC. D/B/A LOGICAL SYSTEMS, LLC, Appellant No. 05

- 23

- 00662

- CV V. EDGAR BERRIOS, INDIVIDUALLY AND AS NEXT FRIEND ON BEHALF OF CA.B., CESAR BERRIOS, AND ESTELA A. QUINTOS LOPEZ, Appellees On Appeal from the County Court at Law No. 2, Dallas County, Texas Trial Court Cause No. CC

- 22

- 01109

- B. Opinion delivered by Justice Molberg. Justices Reichek and Smith participating.

In accordance with this Court’s opinion of this date, the trial court’s June 8, 2023 order is A FFIRMED in part and REVERSED in part. We AFFIRM that portion of the June 8, 2023 order dismissing appellees’ claims against appellant without prejudice, REVERSE that portion of the June 8, 2023 order allowing appellees to amend their pleading as to their claims against appellant, and REMAND this cause to the trial court for further proceedings consistent with this opinion. It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 9 th day of February, 2024.