Certificate of Merit - 2017 in Review

Part I: Dismissal With or Without Prejudice?

By Nick Nieto

Section 150.002 of the Civil Practices and Remedies Code, entitled “Certificate of Merit,” requires a plaintiff to file an expert affidavit in a lawsuit or arbitration “for damages arising out of the provision of professional services by licensed or registered professional.” The statute goes on to establish the consequences of failing to do so, stating:

“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 Ann. 150.002(e). On its face, the statute appears relatively straightforward. If the plaintiff fails to file a certificate of merit (i.e., expert affidavit), the court must dismiss the complaint. Further, the court may dismiss the complaint with or without prejudice.

Texas courts have nevertheless reached differing holdings regarding the interpretation of this provision; specifically, whether the court is required to dismiss with prejudice. In CTL/Thompson Texas, LLC v. Starwood Homeowner's Ass'n, Inc., the defendant argued that courts are required to dismiss with prejudice because to do otherwise would circumvent the purpose of the statute. 461 S.W.3d 627, 630-31 (Tex. App.—Fort Worth 2015, pet. denied). In other words, if the complaint was dismissed without prejudice, the plaintiff could simply refile with the requisite certificate of merit. The court disagreed, holding that the plain language of the statute authorizes a dismissal with or without prejudice. Id. at 630 (relying on TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 76 (Tex. App.—Dallas 2014, pet. denied)).

On the other hand, the San Antonio Court of Appeals held that the failure to file a certificate of merit mandates dismissal with prejudice pursuant to Section 150.002(e).  Bruington Eng'g, Ltd. v. Pedernal Energy, L.L.C., 456 S.W.3d 181, 189 (Tex. App.—San Antonio 2014). The court reasoned that a “plaintiff who does not timely file the certificate of merit should not be allowed to circumvent the unfavorable ruling of a dismissal by nonsuiting and then filing an amended complaint with the appropriate certificate.” Id. Furthermore, that a dismissal without prejudice “would be contrary to legislative intent.” Id. 

The Bruington decision created confusion on this issue for nearly three years. This past year, however, the Texas Supreme Court took up the Bruington case for review and ultimately provided a definitive answer to the interpretation of this statute. Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 15-0123, 2017 WL 1737920 (Tex. Apr. 28, 2017), reh'g denied (June 23, 2017). It held, in relevant portion, the following:

"[w]hile section 150.002 requires dismissal if the plaintiff fails to file an affidavit contemporaneously with the complaint, it does not require dismissal with prejudice. Rather, it gives the trial court discretion to do so."

Id. at *6. Accordingly, this decision brings an end to any confusion on the interpretation of Section 150.002(e), confirming that courts have the discretion to dismiss complaints lacking a certificate of merit with or without prejudice.

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