
    CTL/THOMPSON TEXAS, LLC, Appellant v. STARWOOD HOMEOWNER’S ASSOCIATION, INC., Appellee
    NO. 02-14-00236-CV
    Court of Appeals of Texas, Fort Worth.
    DELIVERED: March 26, 2015
    
      Bryan Rutherford, Gregory Ziegler, MacDonald Devin, PC, Dallas, TX, for Appellant.
    Tommy Holt Cole, Holt Cole Law, PLLC, Grapevine, TX, Daniel Pellar, Pel-lar Law Firm PLLC, Frisco, TX, for Ap-pellee.
    PANEL: WALKER, MEIER, and GABRIEL, JJ.
   OPINION

SUE WALKER, JUSTICE

I. Introduction

This is the third time we have addressed issues between these parties in interlocutory certificate-of-merit appeals. For the reasons set forth below, we will affirm the order denying CTL’s second motion to dismiss.

II. Background

We dismissed Appellant CTL/Thompson Texas, LLC’s first interlocutory appeal because after the 431st District Court of Denton County denied CTL’s motion to dismiss Appellee Starwood Homeowner’s Association, Inc.’s claims against it for the failure to file an adequate certificate of merit, Starwood nonsuited its claims. We held that CTL’s motion to dismiss for failure to file an adequate certificate -of merit did not survive Starwood’s nonsuit of its claims because under section 150.002(e) of the Texas Civil Practice and Remedies Code, the trial court possessed discretion to dismiss the claims without prejudice— the same relief attained via the nonsuit. CTL filed a petition for review with the Texas Supreme Court. The supreme court granted review and held that CTL’s motion to dismiss Starwood’s claims against it did survive Starwood’s nonsuit of those claims and remanded the case to us. On remand, we addressed the merits of CTL’s contentions that the trial court had abused its discretion by finding Starwood’s certificate of merit adequate and by failing to grant CTL’s motion to dismiss. We held that the trial court had abused its discretion by finding that Starwood’s certificate of merit complied with section 150.002(b) of the civil practice and remedies code; we reversed the trial court’s April 18, 2011 orderdenying CTL’s motion to dismiss; and we remanded the case to the trial court, the 431st District Court of Denton County, for entry of an order dismissing Starwood’s claims and for a determination of whether the dismissal of the claims should be with or without prejudice. The trial court signed an order granting CTL’s motion to dismiss and ordered that the dismissal be without prejudice.

In the meantime, after nonsuiting its claims against CTL, Starwood refiled them and filed a new certificate of merit; the new suit was assigned to the 16th District Court of Denton County. CTL filed various motions in the new suit, but CTL ultimately filed a motion to transfer the case back to the 431st District Court of Denton County and, alternatively, again sought dismissal of Starwood’s claims under section 150.002(e). CTL’s second dismissal motion did not challenge the adequacy of the new certificate of merit filed by Starwood in the pending suit but instead again asserted the inadequacy of Starwood’s prior certificate of merit filed in the prior suit that had been dismissed without prejudice. ■ The 16th District Court of Denton County granted CTL’s motion to transfer the case back to the 431st District Court of Denton County, and that court denied CTL’s' second motion to dismiss. CTL then perfected this interlocutory appeal from the denial of its second motion to dismiss.

III. The Denial of CTL’s Second Motion to Dismiss was not an Abuse of Discretion

CTL raises one issue complaining that “[t]he trial court abused its discretion when it failed to dismiss Starwood’s claims, which this Court previously held were not supported by a sufficient Chapter 150 Certificate of Merit when first filed.” But the trial court did dismiss Starwood’s claims that this court had held were not supported by a sufficient chapter 150 certificate of merit; the trial court signed a January 21, 2014 order dismissing those claims without prejudice. The crux of CTL’s complaint on appeal is that the order dismissing Starwood’s claims without prejudice entitles CTL to dismissal of any of those claims subsequently refiled by Starwood.

The plain language of section 150.002(e) provides that a certificate-of-merit dismissal “may be with prejudice.” Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e) (West 2011). “May,” when used in a statute, indicates that the provision is discretionary, not mandatory. Tex. Gov’t Code Ann. § 311.016(1) (West 2013). A dismissal with prejudice is an adjudication of the parties’ rights; a dismissal without prejudice is not. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 653 (Tex.2009) (orig. proceeding). That is, a dismissal with prejudice operates as res judicata to bar the dismissed claims. See, e.g., Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865-66 (Tex.2010). But a dismissal without prejudice means that the same claims may be refiled in an entirely new cause. Cruz v. Morris, 877 S.W.2d 45, 47 (Tex.App.-Houston [14th Dist.] 1994, no writ) (explaining that “[a]ny dismissal order stating it is without prejudice to refile refers to refiling in a new cause of action, not simply filing an amended petition within the same cause”). The plain language of section 150.002(e) authorizes a dismissal without prejudice; we reject CTL’s contention that a dismissal without prejudice entitles CTL to an automatic dismissal of subsequently refiled claims.

Our sister court in Dallas recently addressed and rejected CTL’s argument that section 150.002(a)’s requirement that a certificate of merit must be filed “with the complaint” really means only the “first-filed complaint,” so that no certificate of merit may be attached to a dismissed-without-prejudice-then-subsequently-refiled claim. See TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., No. 05-13-01021-CV, 463 S.W.3d 71, 76-77, 2014 WL 4724706, at *4 (Tex.App.-Dallas Sept. 24, 2014, pets, filed). Based on identical procedural facts and identical arguments to those presented here, the Dallas Court of Appeals framed the issue presented as “whether a plaintiff complies with section 150.002(a) when it files a certificate of merit with the first petition it files in a second action after a dismissal without prejudice.” Id. at *3. After examining the plain language of the statute, the Dallas court concluded that

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, but also recognizes the legal effect of a dismissal without prejudice, which places the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought.
Finally, we agree with [the plaintiff] that the statutory provision giving trial courts discretion to dismiss without prejudice 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.

Id. at *4 (citations omitted). Based on the sound reasoning and rationale of the Dallas Court of Appeals, as set forth above and more fully in its opinion, we likewise reject CTL’s contention here that despite section 150.002(e)’s express authorization of a dismissal without prejudice, we should construe that provision as effectuating a dismissal with prejudice because — under CTL’s interpretation — no subsequent suit filed after a dismissal without prejudice will ever be a “first-filed complaint.”

We overrule CTL’s sole issue.

IV. Conclusion

Having overruled CTL’s sole issue, we affirm the trial court’s order denying CTL’s motion to dismiss.

MEIER, J. filed a dissenting opinion.

BILL MEIER, JUSTICE,

dissenting.

I respectfully dissent from the majority opinion because construing civil practice and remedies code section 150.002(e) to permit a dismissal without prejudice improperly reads a remedy into the statute that the legislature did not intend.

A plaintiffs failure to file an affidavit in accordance with section 150.002 “shall result in dismissal of the complaint against the defendant.” Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e) (West 2011). Further, “[t]his dismissal may be with prejudice.” Id. There are several reasons why a dismissal without prejudice cannot be engrafted upon this statute.

First, there is no dispute that legislative intent “remains the polestar of statutory construction” and that we seek that intent “first and foremost” in the statutory text. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex.2011); Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). As written, section 150.002(e) says nothing about dismissing without prejudice; it only mentions dismissal with prejudice. If the legislature had intended to permit a trial court to dismiss a plaintiffs complaint without prejudice, then it easily could have said so, but it did not. By reading the remedy of dismissal without prejudice into the statute, the majority improperly expands the statute’s plain and unambiguous language beyond the intent of the legislature.

Next, in construing a statute, we must consider the words in context, not in isolation. See Jaster v. Comet II Constr, Inc., 438 S.W.3d 556, 562, 565 (Tex.2014); State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); see also Tex. Gov’t Code Ann. § 311.011(a) (West 2013) (providing that words and phrases shall be read in context). This is because a court should npt assign a meaning to a statutory provision that would be inconsistent with other provisions of the same act, even though it might be susceptible to such a construction standing alone. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). Section 150.002 mandates that the certificate of merit be filed contemporaneously with the first-filed complaint. See Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a), (c); Bruington Eng’g, Ltd., v. Pedernal Energy, L.L.C., 403 S.W.3d 523, 530 (Tex.App.-San Antonio 2013, no pet.); Pakal Enters., Inc. v. Lesak Enters. LLC, 369 S.W.3d 224, 228-29 (Tex.App.-Houston [1st Dist.] 2011, pet. denied); Sharp Eng’g v. Luis, 321 S.W.3d 748, 751-52 (Tex.App.-Houston [14th Dist.] 2010, no pet.). Reading into the statute that dismissal may be without prejudice frustrates section 150.002’s first-filed complaint requirement because, simply, it permits plaintiffs to file a second complaint and a second certificate and trial courts to review that second certificate. Construing section 150.002(e) to permit a dismissal without prejudice thus disregards the context in which the legislature expressed its intent vis-a-vis the first-filed complaint requirement.

Additionally, in construing a statute, we may consider the object sought to be attained by the legislature. See Tex. Gov’t Code Ann. § 311.023(1) (West 2013). This court has previously explained that the purpose of the certificate of merit statute is to deter and quickly end nonmeritorious claims. Foundation Assessment, Inc. v. O’Connor, 426 S.W.3d 827, 833 (Tex.App.-Fort Worth 2014, pet. denied). Reading into section 150.002(e) that dismissal may be without prejudice frustrates this purpose because a party that is awarded a dismissal without prejudice may file another lawsuit and certificate, thus extending the life of the litigation. This, of course, has the opposite effect of bringing the litigation to a speedy resolution. Nowhere is this more apparent than in this litigation.

Starwood sued CTL and a number of other defendants in November 2010. That cause was assigned to the 393rd District Court. In December 2010, Starwood non-suited its claims against CTL but re-filed the suit and included a certificate of merit. That suit was assigned to the 158th District Court but later transferred and consolidated with the suit that had remained pending in the 393rd District Court. In January 2011, CTL moved to dismiss Star-wood’s claims for failure to comply with chapter 150’s certificate of merit requirement. In March 2011, the case was administratively transferred to the 431st District Court, which denied CTL’s motion to dismiss on April 18, 2011. A few weeks after CTL filed an interlocutory appeal of the order denying the motion to dismiss, Starwood nonsuited its claims against CTL; on May 27, 2011, the trial court signed an order granting CTL’s nonsuit of its claims that were pending in the 431st District Court. In light of the nonsuit, Starwood moved to dismiss CTL’s interlocutory appeal on the ground that the appeal was moot. See CTL/Thompson Tex., LLC v. Starwood Homeowner’s Assoc., Inc., 352 S.W.3d 854, 855 (Tex.App.-Fort Worth 2011), rev’d, 390 S.W.3d 299 (Tex.2013). This court agreed with Starwood and dismissed the appeal, but the supreme court later reversed, holding that Starwood’s nonsuit did not moot CTL’s appeal. CTL/Thompson, 390 S.W.3d at 301. On remand, this court concluded that Star-wood’s certificate of merit failed to comply with section 150.002, so we reversed the trial court’s April 18, 2011 order denying CTL’s motion to dismiss and remanded the “case to the trial court for entry of an order dismissing Starwood’s claims ... and for a determination of whether the dismissal of the nonsuited claims should be with or without prejudice.” CTL/Thompson Tex., LLC v. Starwood Homeowner’s Assoc., Inc., No. 02-11-00160-CV, 2013 WL 3968021, at *1 (Tex.App.-Fort Worth Aug. 1, 2013, no pet.) (mem.op). On January 21, 2014, the 431st District Court signed an order dismissing Starwood’s claims against CTL without prejudice.

On May 27, 2011, while CTL’s interlocutory appeal was first pending in this court, Starwood filed another petition against CTL that contained a certificate of merit and that was assigned to the 16th Judicial District Court. That suit was abated, reinstated, and ultimately transferred to the 431st District Court. CTL moved to dismiss the claims that Starwood had alleged against CTL in that suit, but the trial court denied the motion, and this interlocutory appeal followed. It is the certificate of merit filed with the suit in the 16th District Court that was then transferred to the 431st District Court that is at issue in this interlocutory appeal.

Thus, this case has involved no less than four different district courts, two different appellate courts, three different plaintiffs petitions, and over four years of litigation. The legislature could not have intended section 150.002 to operate in such an inefficient manner.

Because reading section 150.002(e) to permit a dismissal without prejudice conflicts with well-established rules of statutory construction, and because the majority concludes otherwise, I would sustain CTL’s sole issue and reverse the trial court’s order. 
      
      . See CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass’n, Lnc., 352 S.W.3d 854 (Tex.App.-Fort Worth 2011), rev’d, 390 S.W.3d 299 (Tex.2013) (CTL/Thompson II).
      
     
      
      . CTU/Thompson II, 390 S.W.3d at 301.
     
      
      . CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass’n, Inc., No. 02-11-00160-CV, 2013 WL 3968021, at *1 (Tex.App.-Fort Worth Aug. 1, 2013, no pet.) (mem. op. on remand) (CTL/Thompson III).
      
     
      
      
        .Id. at *1 (“We remand this case to the trial court for entry of an order dismissing Star-wood's claims — the same claims that Star-wood nonsuited on May 26, 2011 — and for a determination of whether the dismissal of the nonsuited claims should be with or without prejudice”).
     
      
      . CTL's specific arguments are that because section 150.002(a) requires a claimant to file a certificate of merit complying with certain requirements “with the complaint,” this must mean only the "first-filed complaint.” Therefore, CTL claims that Starwood's "first-filed complaint” was the complaint previously dismissed without prejudice, not the complaint filed in the pending suit. CTL thus concludes that the trial court abused its discretion by not dismissing the pending suit based on the lack of an adequate certificate of merit in the previously dismissed-without-prejudice suit.
     
      
      
        . See, e.g., Seguin v. Bexar Appraisal Dist., 373 S.W.3d 699, 709 (Tex.App.-San Antonio 2012, pet. denied) (construing "may” as used in provision of the tax code as permissive, not mandatory); Cheng v. Wang, 315 S.W.3d 668, 672 (Tex.App.-Dallas 2010, no pet.) (construing "may” as used in statute allowing appointment of interpreter as permissive, not mandatory).
     
      
      . We cannot agree with the dissent's unapologetic eisegesis of civil practice and remedies code section 150.002(e). If the legislature had intended for section 150.002(e) to mandate a dismissal with prejudice, it would have used the words "must” or "shall” in the statute instead of "may.” See, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b) (West Supp.2014) (providing that a trial court “shall" dismiss a health care liability claim with prejudice when a plaintiff fails to timely file an expert report).
     