Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00310-CV 1836 Surveying & Mapping, Mapping Campbell Land Services, Xavier Sandoval, and Chris Campbell, Appellants v. Stephen Godinich and Triple Outdoors Ranch, LLC, Appellees On appeal from the 12th District Court of Walker County, Texas Judge David W. Moorman, presiding Trial Court Cause No. 2531746 JUSTICE HARRIS delivered the opinion of the Court. MEMORANDUM OPINION In this accelerated interlocutory appeal, Appellants 1836 Surveying & Mapping, Mapping Campbell Land Services, Xavier Sandoval, and Chris Campbell appeal from the trial court’s order denying their motion to dismiss the claims that Stephen Godinich and Triple Outdoors Ranch, LLC brought against them because Appellees failed to file a certificate of merit with their original petition as Section 150.002 of the Texas Civil Practice and Remedies Code requires. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002. We reverse and remand. Factual and Procedural Background Appellees filed their original petition on March 3, 2025 asserting claims against Appellants for breach of contract, professional negligence, gross negligence, fraud and fraudulent misrepresentation, and violations of the Deceptive Trade Practices Act. Appellees alleged these claims arose from Appellants’ provision of services as professional, licensed surveyors on Appellees’ land. A certificate of merit pursuant to Section 150.002 was not attached to the original petition. Id. In response, Appellants filed an original answer on March 31, 2025, and a motion to dismiss on April 1, 2025. The motion to dismiss asserted that Civil Practice and Remedies Code Section 150.002 required the trial court to dismiss the petition because Appellees failed to comply with Section 150.002 by not attaching a certificate of merit to their original petition. See id. § 150.002(e). Also on April 1, 2025, but after Appellants filed the motion to dismiss, Appellees filed a first-amended petition that claimed to invoke an exception under Civil Practice and Remedies Code Section 150.002(c) and requested leave to amend in order to file the certificate of merit. See id. § 150.002(c). Appellees’ first amended petition contends that the invocation of the Section 1836 Surveying & Mapping v. Godinich Page 2 150.002(c) exception was due to an imminent statute of limitations deadline that placed the earliest accrual date on March 21, 2025, and led Appellees to file their original petition on March 3, 2025, before this deadline. This pleading did not have a certificate of merit attached. On April 2, 2025, Appellees filed a second amended petition that included a certificate of merit for the first time. On May 13, 2025, the trial court signed an order granting Appellees leave to amend their petition and attach a certificate of merit. Appellants filed a motion to set this order aside. The trial court conducted a hearing and denied Appellants’ motion to set aside the order granting leave to amend. The trial court later signed an order denying Appellants’ motion to dismiss. Appellants timely filed this interlocutory appeal in response to the order denying the motion to dismiss. Authority This case involves two standards of review. We review de novo any question that requires the Court to construe statutory language; we review a trial court’s order denying a motion to dismiss under Section 150.002 for an abuse of discretion. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (citing F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007)). 1836 Surveying & Mapping v. Godinich Page 3 Section 150.002, titled “Certificate of Merit,” governs the issue presented in this case. The relevant statutory provisions include subsections (a), (b), (c), (e), (f), and (g), which provide: (a) Except as provided by Subsection (i), in any action or arbitration proceeding 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 an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who: (1) is competent to testify; (2) holds the same professional license or registration as the defendant; and (3) practices in the area of practice of the defendant and offers testimony based on the person's: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice. (b) The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying. (c) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time 1836 Surveying & Mapping v. Godinich Page 4 constraints, a claimant has alleged that an affidavit of a third- party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor could not be prepared. In such cases, the claimant shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires. (e) A claimant'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. (f) An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order. (g) This statute shall not be construed to extend any applicable period of limitation or repose. TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)–(c), (e)–(g) (emphasis added). Issue Presented Appellants’ sole issue on appeal is whether the trial court erred in denying their motion to dismiss, which we review as an abuse of discretion. Barron, Stark & Swift Consulting Engineers, LP v. First Baptist Church, Vidor, 551 S.W.3d 320, 322 (Tex. App.—Beaumont 2018, no pet.). Appellees contend that we do not have jurisdiction because the issue was moot at the time the trial court denied Appellants’ motion to dismiss. Before addressing the merit of Appellants’ sole issue, we must first address Appellees’ argument relating to jurisdiction. 1836 Surveying & Mapping v. Godinich Page 5 I. Jurisdiction Appellees argue the issue of dismissal was moot when the trial court entered judgment because the petition was amended prior to the hearing. Because mootness implicates this Court’s jurisdiction, we must address it first. See Matthews, ex rel. M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). Appellate courts have jurisdiction to consider immediate interlocutory appeals only where a statute expressly confers jurisdiction. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (citing Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998)). Here, Section 150.002(f) states that “an order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.” TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(f). Appellees contend that their second amended petition, which included a certificate of merit, cured the defect and rendered this appeal moot, leaving no relief for this Court to grant. This specific question of jurisdiction, as presented here, requires the Court to construe statutory language and is accordingly reviewed de novo. See Entergy, 282 S.W.3d at 437. Section 150.002(f) makes “an order granting or 1836 Surveying & Mapping v. Godinich Page 6 denying a motion for dismissal” immediately appealable, with no exception listed. TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(f). To conclude we lack jurisdiction would require us to find an exception to Section 150.002(f) that the statute does not contain. See id. When the language of a statute is clear, no further inquiry remains. See Brown v. City of Houston, 660 S.W.3d 749, 752 (Tex. 2023). In addition, we read the statute under the presumption that the Legislature chose this language with care, purposefully including each word and omitting those not included. Third Coast Servs., LLC v. Castaneda, 726 S.W.3d 201, 206 (Tex. 2025) (quoting Rogers v. Bagley, 623 S.W.3d 343, 352 (Tex. 2021)). Because the Legislature did not include language limiting appellate review to certain denials of a motion to dismiss, we presume this was done with intention. Additionally, the Supreme Court of Texas has held that an interlocutory appeal survives as long as a claim for affirmative relief still exists. See CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 390 S.W.3d 299, 300 (Tex. 2013). In CTL, an interlocutory appeal under Section 150.002 survived where the plaintiff nonsuited its original claims against the defendant because a defendant’s motion for sanctions is affirmative relief that survives a nonsuit. Id. The Supreme Court of Texas held that dismissal with prejudice is a statutorily mandated sanction, which allowed the defendant’s 1836 Surveying & Mapping v. Godinich Page 7 interlocutory appeal to survive the nonsuit. Id. The Court also held that the nonsuit did not moot the appeal because of the possibility that the denial of affirmative relief was an abuse of discretion. Id. at 301. In this case, the possibility that the denial of relief was an abuse of discretion, from which Appellants sought dismissal with prejudice, prevents this appeal from becoming moot, as the issue of with or without prejudice remains. Accordingly, we find that this Court has jurisdiction. II. Discussion Having found that this Court has jurisdiction, this Court must now decide whether the trial court erred in denying Appellants’ motion to dismiss. The fact that Appellants are registered professional surveyors under Section 150.002 is undisputed. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 150.001(1-c), 150.002(a). Because Appellants are registered professional surveyors, and Appellees’ claims arise from the provision of those professional services, Section 150.002(a) required Appellees to file a certificate of merit with their original petition. Id. § 150.002(a). Appellees failed to do so. Under Section 150.002(e), a claimant’s failure to file the certificate of merit with the complaint shall result in dismissal of the complaint against the defendant, with discretion left to the trial court to decide if dismissal is with or without prejudice. Id. § 150.002(e) (emphasis added). For purposes of Section 150.002, a “complaint” 1836 Surveying & Mapping v. Godinich Page 8 is defined as “any petition or other pleading which, for the first time, raises a claim against a licensed or registered professional for damages arising out of the provision of professional services by the licensed or registered professional.” Id. § 150.001(1-b) (emphasis added). Therefore, the first-filed pleading that raises a claim against a professional under Section 150.002 constitutes the “complaint” and requires a plaintiff attach a certificate of merit to that pleading. Id. § 150.002(a); See TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 76 (Tex. App.—Dallas 2014, pet. denied) (noting that courts of appeals “have uniformly construed this language as requiring the plaintiff to file the certificate of merit with the first-filed petition” (internal quotation marks omitted)). Appellees’ original petition is the “complaint” because it was the first pleading to raise claims under Section 150.002 against Appellants. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 150.001(1-b), 150.002(a). Appellees’ subsequent amended petitions do not change this status. Appellees also contend that the trial court was correct in denying the motion to dismiss because of the exception carved out in Subsection (c) relating to the statute of limitations. See id. § 150.002(c). Subsection (c) is a two-part, limited exception that excuses the contemporaneous filing requirement in Subsection (a) when: (1) the statute of limitations expires within 10 days of the 1836 Surveying & Mapping v. Godinich Page 9 date of filing the complaint as set forth above; and (2) the claimant alleges the certificate of merit could not be prepared because of such time constraints. Id. § 150.002(c); Crosstex Energy Services, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014). If both prongs are satisfied, the plaintiff shall receive an extension of thirty days. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(c). Upon motion, the trial court has discretion to extend the thirty days for good cause as justice may require. Id. § 150.002(c). The “good cause” exception does not stand alone and may only protect plaintiffs who satisfy the preliminary requirements of Subsection (c). Crosstex, 430 S.W.3d at 391. This is because of Subsection (g), which states that the statute “shall not be construed to extend any applicable period of limitation or repose.” See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(g). The initial complaint was the original petition filed on March 3, 2025. That date was more than 10 days prior to the statute of limitations expiration. Accordingly, Subsection (c) does not apply and cannot protect Appellees under the “good cause” exception or offer additional time to cure their filing defect. See Crosstex, 430 S.W.3d at 391. Any additional time offered by the trial court was an abuse of discretion under the statutory requirements of Section 150.002. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(c). 1836 Surveying & Mapping v. Godinich Page 10 Appellees also rely heavily on Studio E. Architecture & Interiors, Inc. v. Lehmberg, 741 S.W.3d 67, 70 (Tex. 2026). In Studio E, the Supreme Court of Texas held that Section 150.002 claims dismissed without prejudice may be reasserted against defendants through an amended petition when a “plaintiff has asserted claims against other defendants that have not been dismissed.” Id. at 72 (emphasis added). This case is distinguishable from Studio E because Appellees did not assert claims against other defendants. Appellees also argue that their claims for breach of contract, fraud and fraudulent misrepresentation, and violations of the Deceptive Trade Practices Act are outside the scope of Section 150.002. However, Subsection (a) provides that a certificate of merit is required “in any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional.” TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a) (emphasis added). The language “arising out of the provision of professional services” replaced the statute’s earlier language, “for damages alleging professional negligence.” Act of May 27, 2005, 79th Leg., R.S., ch. 189, § 2, 2005 Tex. Gen. Laws 348, 348 (amended 2005, 2009, 2019, 2023) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)). We presume the Legislature did this with intention. See Third Coast, 726 S.W.3d at 206. This revision statutorily expanded the claims that Section 150.002 encompasses beyond 1836 Surveying & Mapping v. Godinich Page 11 professional negligence. In addition to the statute, this Court has held that the determination of whether a claim is subject to Section 150.002 is not based upon labels. Instead, we look at “whether the underlying complaint alleges an injury caused by a breach of the duty owed to the plaintiff as a result of the defendant's engagement as a professional.” Geotel Eng'g, Inc. v. Hyde, No. 10- 10-00153-CV, 2010 WL 5419018, at *2 (Tex. App.—Waco Dec. 29, 2010, no pet.) (mem. op.). Because each of Appellees’ claims arise from Appellants’ provision of professional services as land surveyors, we conclude that each is subject to Section 150.002. TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a); See Geotel Eng'g, 2010 WL 5419018, at *2. Accordingly, the trial court abused its discretion in denying Appellants’ motion to dismiss. Appellants’ sole issue is sustained. Conclusion We reverse the trial court’s order denying Appellants’ motion to dismiss and remand this proceeding to the trial court for further proceedings. Appellees’ motion to expedite submission and disposition is dismissed as moot. LEE HARRIS Justice 1836 Surveying & Mapping v. Godinich Page 12 OPINION DELIVERED and FILED: November 12, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Reversed and remanded Motion dismissed as moot CV06 1836 Surveying & Mapping v. Godinich Page 13