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CTL/Thompson Texas LLC v. Starwood Homeowner's Association Inc.

The respondent sued the petitioner, alleging the petitioner provided deficient geotechnical engineering services. The trial court denied a motion for dismissal with prejudice on the ground that the Texas Civil Practice and Remedies Code §150.002 affidavit was deficient. The court of appeals held that a subsequent non-suit mooted the appeal. A defendant's appeal from a trial court's refusal to dismiss an action under §150.002(e) is not mooted by the plaintiff's non-suit. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 11-0920, 01-25-2013.

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Section 150.002 of the Texas Civil Practice and Remedies Code requires that in actions for damages arising from the provision of professional services by a licensed or registered architect, engineer, or surveyor, the plaintiff must file an affidavit attesting to the claim’s merit. Section 150.002(e) states: “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.” The issue here is whether a defendant’s appeal from a trial court’s refusal to dismiss an action under Section 150.002(e) is mooted by the plaintiff’s non-suit. We hold it is not and consequently reverse the judgment of the court of appeals and remand the case to that court. ___ S.W.3d ___ (Tex. App.– Fort Worth 2011).

Respondent Starwood Homeowner’s Association sued petitioner CTL/Thompson Texas for providing deficient geotechnical engineering services. Starwood attached to its petition an affidavit that it believed complied with Section 150.002. CTL moved for dismissal with prejudice on the ground that the affidavit was deficient. The trial court denied CTL’s motion, and CTL brought an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 150.002(f). But before the appeal could be decided, Starwood nonsuited its claims against CTL. The court of appeals held that the non-suit mooted the appeal, depriving the court of jurisdiction. 352 S.W.3d 854, 856 (Tex. App.– Fort Worth 2011). CTL then brought a petition for review. Ordinarily, this Court has limited jurisdiction over interlocutory appeals. See TEX. GOV’T CODE § 22.225(b)(3). But we always have jurisdiction to determine whether the court of appeals had jurisdiction. Austin State Hosp. v. Graham, 347 S.W.3d 298, 300 (Tex. 2011); Univ. of Tex. Sw. Med. Ctr. v. Margulis, 11 S.W.3d 186, 187 (Tex. 2000) (per curiam).

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