Pedernal Energy, Llc v. Bruington Engineering, Ltd. ( 2017 )

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 15-0123
444444444444
PEDERNAL ENERGY, LLC, PETITIONER,
v.
BRUINGTON ENGINEERING, LTD., RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
Argued September 14, 2016
JUSTICE JOHNSON delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE
GREEN, JUSTICE WILLETT , JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE BOYD , and JUSTICE
BROWN joined.
JUSTICE DEVINE filed a concurring opinion.
Section 150.002 of the Civil Practice and Remedies Code is entitled “Certificate of Merit.”
It 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 professionals. Section 150.002(e)
provides that if an affidavit is not filed in accordance with the statute, the trial court shall dismiss
the claim and the dismissal may be with prejudice. This case involves the application of that
language.
Pedernal Energy, Ltd. sued Bruington Engineering, LLC and others for damages resulting
from a fracturing operation on Pedernal’s gas well. Pedernal alleged that Bruington provided
substandard engineering services in connection with the operation, but failed to file a certificate of
merit expert affidavit with its claim. Bruington moved for dismissal and Pedernal non-suited, then
re-sued Bruington by amended petition accompanied by an expert affidavit. The trial court denied
Bruington’s motion to dismiss, Bruington appealed, and the case was remanded with instructions.
The trial court then dismissed Pedernal’s amended claim without prejudice. Bruington again
appealed. This time the court of appeals held that section 150.002(e) required Pedernal’s claim to
be dismissed with prejudice because an expert affidavit was not filed with the original petition.
We reverse the judgment of the court of appeals and reinstate the judgment of the trial court.
Section 150.002(e) required dismissal of the claims against Bruington, but the statute affords trial
courts discretion to dismiss either with or without prejudice. Under this record the trial court did not
abuse its discretion by dismissing the claims without prejudice.
I. Background
Pedernal’s predecessors in interest hired Schlumberger Technology Corporation,
Schlumberger Services, Inc., and Schlumberger, Ltd. (collectively, Schlumberger) to perform
fracturing operations on a gas well in Zapata County. Bruington was hired as project engineer.
The fracturing operations did not go well, resulting in Pedernal’s suing Schlumberger and
Bruington for damages to the well and the formation. Pedernal did not file a certificate of merit
expert affidavit (affidavit) as to Bruington with its original petition, so Bruington moved for
2
dismissal of the claims against it with prejudice pursuant to section 150.002 of the Civil Practice and
Remedies Code. That section, in relevant part, provides as follows:
Certificate of Merit
(a) In any action or arbitration proceeding for damages arising out of the provision
of professional services by a licensed or registered professional, the plaintiff 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 . . . .
(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. . . .
(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 constraints, the plaintiff 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 plaintiff 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) 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.
(f) An order granting or denying a motion for dismissal is immediately appealable as
an interlocutory order.
TEX . CIV . PRAC. & REM . CODE § 150.002 (emphasis added). Before the trial court heard Bruington’s
motion, Pedernal filed notice of non-suit as to Bruington and requested the trial court to sign an order
of non-suit without prejudice, which it did. Pedernal’s suit against Schlumberger proceeded.
Pedernal amended its petition several months after the non-suit to reassert the same claims
against Bruington that it had asserted in its original petition. This time it attached an affidavit.
3
Bruington moved for dismissal with prejudice of the claims in the amended petition on two grounds.
The first was that Pedernal did not file an expert affidavit with its original petition as required by
section 150.002; the trial court did not hold a hearing on Bruington’s motion to dismiss with
prejudice and did not address the motion in its order dismissing Pedernal’s claims without prejudice,
so the dismissal was “incomplete”; therefore, the claims should be dismissed with prejudice. The
second ground was that even if the claims in the amended petition were not barred because of the
failure to file an affidavit with the original petition, the affidavit filed with Pedernal’s amended
petition failed to address each of Pedernal’s theories of liability as required by section 150.002. That
failure, Bruington contended, also required dismissal with prejudice of all the claims asserted against
it, or at least dismissal of the liability theories not addressed.
The trial court denied the motion and Bruington filed an interlocutory appeal as authorized
by section 150.002(f). The court of appeals construed section 150.002(e) to require a plaintiff to file
an affidavit with the first-filed complaint asserting a claim arising out of the provision of
professional services. Bruington Eng’g, Ltd. v. Pedernal Energy, L.L.C., 403 S.W.3d 523, 532 (Tex.
App.—San Antonio 2013, no pet.) (Bruington I ). Because Pedernal did not file an affidavit with
its first-filed complaint, the court dismissed Pedernal’s claims against Bruington and remanded the
case to the trial court with instructions that it determine whether the dismissal should be with or
without prejudice. 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.
4
On remand, the trial court held a hearing. Evidence at the hearing included testimony from
attorneys representing both parties as well as Pedernal’s certificate of merit. Pedernal’s lawyers
testified that they had not been aware of the certificate of merit requirement and dismissed the
original claims against Bruington once the requirement was brought to their attention. The lawyers
related that they re-filed the claims after submitting newly obtained records to their expert who then
prepared the affidavit.
The trial court made findings of fact, including findings that Pedernal’s claims against
Bruington had merit and Pedernal’s failure to file a certificate of merit with its original petition was
neither intentional nor done with conscious indifference. The court dismissed Pedernal’s suit
without prejudice.
Bruington appealed again, arguing that the trial court abused its discretion by not dismissing
with prejudice. The court of appeals agreed. Its reasoning was similar to that in its Bruington I
opinion: dismissal without prejudice of an amended complaint—one making the same claims as the
first petition filed without the required certificate of merit—would allow a plaintiff to avoid an
unfavorable ruling on the first complaint by non-suiting it and re-filing with a certificate of merit.
456 S.W.3d 181, 189–90 (Tex. App.—San Antonio 2014) (Bruington II). The appeals court
reversed and dismissed the complaint against Bruington with prejudice. Id. at 190. Pedernal moved
for rehearing and en banc reconsideration. The court denied the motions, with three justices
dissenting. Id. at 190.
As an initial matter, Bruington points out that the trial court’s dismissal order does not sever
the claims against it from the claims against Schlumberger, nor does the order limit the dismissal to
5
Pedernal’s claims against Bruington. But neither party questions the finality of the order of
dismissal; Schlumberger is not a party to this appeal; thus no issue is presented, and we express no
opinion, as to the effect of the order on Pedernal’s claims against Schlumberger. Because
Schlumberger is not a party to this appeal, our references to the “claim” or “claims” will be
references only to Pedernal’s claims against Bruington.
In this Court, Pedernal does not dispute that section 150.002(e) required dismissal of its
claims. Rather, it argues that the statute does not require dismissal with prejudice under these
circumstances, but only affords the trial court discretion to do so. Pedernal maintains that the record
from the hearing following Bruington I supported the trial court’s findings that Pedernal had good
cause for failing to file an affidavit with its original petition and that Pedernal was not consciously
indifferent in failing to do so, thus the trial court did not abuse its discretion by dismissing its suit
without prejudice. Pedernal alternatively argues that the court of appeals in Bruington II essentially
imposed a death penalty sanction by dismissing its suit with prejudice, and the sanction is
unconstitutional because it is unjust and excessive. Pedernal prays that we reverse the court of
appeals’ judgment and enter judgment dismissing its claims against Bruington without prejudice.
Bruington counters that the court of appeals correctly concluded that under section 150.002,
Pedernal’s failure to file an affidavit with its original petition required dismissal of its claims with
prejudice. Alternatively, Bruington argues that even if section 150.002(e) is governed by a
good-cause analysis, dismissal with prejudice was still required because (1) Pedernal failed to
demonstrate reasonable diligence, and (2) the content of the untimely filed affidavit is deficient.
Finally, Bruington asserts that Pedernal’s claim that dismissal with prejudice under section 150.002
6
is unconstitutional is misplaced because Pedernal compares a section 150.002 dismissal to a death
penalty sanction for discovery abuse, and the two involve completely different statutes and analyses.
II. Statutory Construction
We construe statutory language de novo. Crosstex Energy Servs., L.P. v. Pro Plus, Inc.,
430 S.W.3d 384, 389 (Tex. 2014). Our goal is to determine and give effect to the Legislature’s
intent. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). We look to and rely on the
plain meaning of a statute’s words as expressing legislative intent unless a different meaning is
supplied, is apparent from the context, or the plain meaning of the words leads to absurd or
nonsensical results. Crosstex Energy Servs., L.P., 430 S.W.3d at 389–90. Words and phrases must
be “read in context and construed according to the rules of grammar and common usage.” TEX .
GOV ’T CODE § 311.011. We construe statutes so that no part is surplusage, but so that each word
has meaning. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008)
(“The Court must not interpret the statute in a manner that renders any part of the statute meaningless
or superfluous.”). We presume “the Legislature chooses a statute’s language with care, including
each word chosen for a purpose, while purposefully omitting words not chosen.” TGS-NOPEC
Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We also take statutes as we find them
and refrain from rewriting text chosen by the Legislature. Entergy Gulf States, Inc. v. Summers, 282
S.W.3d 433, 443 (Tex. 2009).
“May,” when used in a statute, indicates that the provision is discretionary. TEX . GOV ’T
CODE § 311.016(1) (“‘May’ creates discretionary authority or grants permission or a power.”). If
a statute vests trial courts with discretion as to a matter, then we review a trial court’s decision as to
7
that matter for abuse of discretion. See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) (noting
that an abuse of discretion standard of review applies to a decision under a statute vesting a trial
court with discretion to grant a grace period to comply with an expert report requirement). But the
use of “may” does not permit trial courts complete discretionary authority: trial courts do not have
discretion to make decisions in an arbitrary or unreasonable manner, without reference to guiding
rules or principles. CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d
299, 301 (Tex. 2013) (“Section 150.002(e) authorizes further relief—dismissal with prejudice—and
while granting it is discretionary, the trial court cannot act ‘in an arbitrary or unreasonable manner
without reference to guiding rules or principles.’” (quoting Samlowski v. Wooten, 332 S.W.3d 404,
410 (Tex. 2011)). For example, in In re Pirelli Tire, L.L.C., we recognized that a statute providing
that trial courts may decline to exercise jurisdiction under the doctrine of forum non conveniens gave
trial courts “broad discretion.” 247 S.W.3d 670, 676 (Tex. 2007). Nevertheless, we ultimately
concluded that the trial court abused its discretion by denying a forum non conveniens motion
because the denial was “arbitrary, unreasonable, [and] contrary to guiding rules and principles.” Id.
at 679.
III. Analysis
A. The Statute
Section 150.002(e) is comprised of two straightforward sentences:
(e) 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.
8
TEX . CIV . PRAC. & REM . CODE § 150.002(e). The first sentence requires dismissal, but does not
specify whether it is to be with or without prejudice. Read in isolation, the sentence could be
referencing either. That being so, we look to the context of the language being construed.
TGS-NOPEC Geophysical Co., 340 S.W.3d at 441. And reading the first sentence in context with
the second, it is clear that the Legislature intended the dismissal language in the first sentence to
reference dismissal without prejudice. If it were otherwise and the first sentence’s mandate is either
(1) for the complaint to be dismissed with prejudice or (2) for the trial court to have discretion to
dismiss with or without prejudice, then the second sentence is surplusage and meaningless. But we
must interpret the statute in a way that gives meaning to all its words. Columbia Med. Ctr. of Las
Colinas, 271 S.W.3d at 256. It is only if the Legislature intended the first sentence to reference
dismissal without prejudice that the second sentence has meaning by expressly authorizing trial
courts to dismiss with prejudice. See, e.g., Crosstex Energy Servs., L.P., 430 S.W.3d at 390;
TGS-NOPEC Geophysical Co., 340 S.W.3d at 439. On the other hand, neither sentence gives trial
courts guidance about how to determine whether to dismiss with or without prejudice.
CTL/Thompson Tex., LLC, 390 S.W.3d at 301(“[S]ection 150.002(e) ‘provides no particular
guidance on how the court should exercise its discretion . . . .’” (quoting Samlowski, 332 S.W.3d at
410)).
Referencing Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939),
Pedernal urges adoption of a “good cause” standard for section 150.002 requiring trial courts to
dismiss claims without prejudice if the failure to comply with statutory requirements such as timely
filing a certificate was not intentional or the result of conscious indifference. We decline to do so.
9
Section 150.002 contains an express “good cause” requirement, but it is in subsection (c),
not subsection (e). See TEX . CIV . PRAC. & REM . CODE § 150.002(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 . . . . The trial court may, on motion, after hearing and for good
cause, extend such time as it shall determine justice requires.” (emphasis added)). The “good cause”
exception in subsection (c) applies only to filings made within 10 days of limitations expiring.
Crosstex Energy Servs., L.P., 430 S.W.3d at 391.
We were faced with a similar statutory structure and similar language in Samlowski. There
we considered an argument that we should adopt a “good faith” standard in one subsection of a
statute where it did not appear, although that standard appeared in another subsection. Samlowski,
332 S.W.3d at 409. We rejected the argument, concluding that a trial court’s discretion should not
be measured by good faith, but by the broader purposes of the statute. Id. at 410.
As noted above, we presume the Legislature intended to use the words it used, and intended
to omit words it did not use. Here, also, we decline to read “good cause” language into the statute
when the Legislature did not place it there. Cf. TEX . CIV . PRAC. & REM . CODE § 71.051 (providing
for motions to stay or dismiss an action under the doctrine of forum non conveniens and stating that
“[a]ny time limit established by this section may be extended by the court at the request of any party
for good cause shown”); id. § 90.007 (requiring an expert report in claims involving asbestos and
silica-related injuries and providing that “[o]n the motion of a party showing good cause, the court
may shorten or extend the time limits provided in this section for filing or serving motions,
responses, or reports”). Our conclusion is buttressed by the fact that “good cause” language is used
10
elsewhere in the same statutory section, thus the language necessarily was contemplated in
connection with the language adopted by the Legislature, yet it was not included in section
150.002(e). See TEX . CIV . PRAC. & REM . CODE § 150.002(c).
Bruington asserts that the only exception to section 150.002’s requirement that an affidavit
must be filed with the initial complaint is found in subsection (c), which provides that the
contemporaneous filing requirement does not apply when limitations will expire within 10 days of
filing. TEX . CIV . PRAC. & REM . CODE § 150.002(c). It argues that courts cannot imply a second
exception when the Legislature did not place one in the statute, and the claims should be dismissed
with prejudice. However, the argument misses the mark. The question here is not whether
Pedernal’s failure to file a certificate comes within an implied exception to the filing requirement.
Rather, the question is whether the statute precluded the trial court’s dismissal of Pedernal’s claims
without prejudice after Pedernal failed to file a certificate with its original petition. As we point out
above, neither the first nor second sentence of section 150.002(e) requires dismissal with prejudice,
so there is no need to imply an exception.
Bruington argues that failing to file an affidavit with the first-filed complaint is a more severe
violation of the statutory requirements than filing a defective affidavit, thus the more severe sanction
of dismissal with prejudice should apply. But section 150.002 prescribes the same
sanction—dismissal that may be with prejudice—for failure to comply with any of the statutory
requirements. Had the Legislature intended different types of sanctions to apply to failure to comply
with different parts of the statute it easily could have, and presumably would have, said so, but it did
not. Cf. TEX . CIV . PRAC. & REM . CODE § 74.351(b), (c) (requiring dismissal of a health care liability
11
claim with prejudice if a claimant has not filed an expert report, but permitting a 30-day extension
to cure a timely filed deficient report).
In light of the foregoing, and because the language of section 150.002 provides no “guiding
rules or principles” for a trial court’s exercise of discretion, we consider various factors,
CTL/Thompson Tex., 390 S.W.3d at 301 (discussing section 150.002); Pirelli Tire, 247 S.W.3d at
676 (discussing the forum non conveniens doctrine), given the facts and circumstances of the
particular case. Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011) (“While the permissive word ‘may’
imports the exercise of discretion, the court is not vested with unlimited discretion, and is required
to exercise a sound and legal discretion within the limits created by the circumstances of a particular
case.” (quotation omitted)). The Legislature did not explicitly declare its purpose in enacting section
150.002. And although its title, “Certificate of Merit,” does not limit or expand the meaning of the
statutory provisions, see TEX . GOV ’T CODE § 311.024, the title nevertheless gives some indication
of the Legislature’s intent in enacting the section. See In re United Servs. Auto. Ass’n, 307 S.W.3d
299, 307 (Tex. 2010). That indication coincides with our previous explanation that a section
150.002(e) dismissal “is a sanction . . . to deter meritless claims and bring them quickly to an end.”
CTL/Thompson Tex., 390 S.W.3d at 301.
B. Did the Trial Court Abuse its Discretion?
We first address the record that should have been considered by the trial court in exercising
its discretion as to whether to dismiss Pedernal’s claims with prejudice. Bruington urges that the
statute’s focus is on the time the statute was violated—here, when Pedernal filed its original petition
without a certificate—and only the facts in existence at that time are material to whether dismissal
12
should be with prejudice. It points, in part, to our statement in Crosstex Energy Services that “failure
to file a certificate of merit with the original petition cannot be cured by amendment.” 430 S.W.3d
at 395. We agree with Bruington’s position. However, it does not alter the conclusion we reach in
this case.
As explained above, while 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. And Pedernal’s failure to file an expert affidavit
with its original petition was not, by itself, evidence that the allegations in its petition lacked merit
or mandated the sanction of dismissal with prejudice. Nor does the record as of the time of the
dismissal otherwise lead us to conclude that the trial court’s action in dismissing without prejudice
violated any guiding rules or principles so that its actions were arbitrary and unreasonable and an
abuse of its discretion. Thus, the court of appeals erred by reversing the trial court’s dismissal
without prejudice.
The court of appeals did not reach Bruington’s alternative argument that the affidavit
Pedernal filed with its amended petition demonstrated that all or at least most of the claims against
Bruington lacked merit and, therefore, should have been dismissed with prejudice. The parties have
briefed and argued the issue here, so in the interest of judicial economy we will address it rather than
remanding to the court of appeals. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012)
(“The court of appeals did not address the Hospital’s claim of immunity. Rather than remanding the
case to the court of appeals for it to do so, however, we address the issue in the interest of judicial
economy.”).
13
At the trial court hearing held pursuant to the court of appeals’ directive in Bruington I,
Pedernal introduced into evidence an affidavit by Alfred Jennings, Jr., an engineer and expert in well
stimulation. In his affidavit, Jennings described the condition of the well before the fracing
operation, described the operation itself, discussed the difficulties encountered during the operation,
described the documents provided by Bruington and Schlumberger that he reviewed, and noted that
he consulted with a geologist in formulating his opinions. He expressed his opinion that Bruington
was negligent and breached the appropriate engineering standard of care.
After the hearing, the trial court dismissed Pedernal’s suit without prejudice. In its order the
court made findings of fact and concluded that Pedernal’s claims had merit. The court’s findings,
in part, were based on Jennings’s averments that during the fracing operations on May 11 and 12,
Bruington did not have an engineer at the well site, Bruington’s representative failed to raise issues
with Schlumberger generally concerning Schlumberger’s poor performance, Bruington failed to
document or inform Pedernal of the cause of the difficulties, Bruington offered no options to
Pedernal regarding shutting down operations so pumps could be repaired or replaced despite
recurrent pumping difficulties, and Bruington failed to require analysis of water from the well.
Bruington argues that Jennings’s affidavit demonstrates the lack of merit in Pedernal’s claims
by neither specifically addressing nor referencing a factual basis for each theory of recovery. See
TEX . CIV . PRAC. & REM . CODE § 150.002(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 . . . and the
factual basis for each such claim.”). More specifically, Bruington asserts that the certificate was
14
deficient because (1) Jennings only discussed Pedernal’s negligence claim even though Pedernal’s
pleadings expressly alleged breach of contract, fraud, negligent misrepresentation, breach of
fiduciary duty, and negligence as theories of recovery, and (2) the affidavit failed to link any theory
of recovery to the damages Pedernal claimed. Bruington acknowledges that Jennings’s affidavit
specifically mentions negligence as a theory of recovery. But it contends the affidavit does not
specify facts and a causal relationship between the alleged negligence and damages, so the
negligence claim should have been dismissed with prejudice.
Assuming, without deciding, that the affidavit was deficient for the reasons Bruington urges,
those deficiencies were not such that the trial court abused its discretion by not dismissing Pedernal’s
claims with prejudice. A plaintiff’s failure to file an affidavit with an original petition, together with
the filing of an amended petition with a deficient affidavit, 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. Moreover, assuming, again without deciding, that the statute
requires an affidavit addressing each theory of recovery, the failure of Jennings’s affidavit to
specifically address each theory was in substance the filing of a second complaint without a
supporting affidavit. Just as the filing of an original complaint without filing an affidavit might
under some circumstances support a dismissal with prejudice, the filing of a second complaint
without an affidavit might also support a dismissal with prejudice. But, the record does not
conclusively demonstrate that Bruington’s claims lacked merit, or that the trial court’s decision
violated any guiding rules and principles and therefore was an abuse of discretion.
15
Bruington argues that interpreting chapter 150 consistently with its purpose leads to the
conclusion that permitting a dismissal without prejudice under the circumstances before us will
encourage lax attitudes toward the statute’s contemporaneous filing requirement. We acknowledge
the possibility of that effect in a general sense. But Bruington does not advance any reason to
believe such consideration informed the Legislature’s choice of language in section 150.002(e), and
it is not reflected in the language of the statute. Thus, the consideration is immaterial to our inquiry
as to legislative intent reflected by the language the Legislature adopted.
Bruington also asserts that Pedernal’s claims must be dismissed with prejudice because
Bruington was prejudiced by having to put extra work into defending the suit and because Pedernal
did not act diligently to obtain Jennings’s affidavit after it non-suited its first-filed claims. As we
have explained above, the trial court did not abuse its discretion by refusing to dismiss the claims
with prejudice. Whether Bruington has an avenue of relief other than dismissal of Pedernal’s claims
with prejudice for the extra time and expense it has incurred is not a question before us.
IV. Conclusion
We reverse the judgment of the court of appeals and reinstate the judgment rendered by the
trial court.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: April 28, 2017
16