Studio E. Architecture and Interiors, Inc. v. Emily Lehmberg

Supreme Court of Texas
══════════
No. 24-0286
══════════

Studio E. Architecture and Interiors, Inc.,
Petitioner,

v.

Emily Lehmberg,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════

JUSTICE SULLIVAN, dissenting.

Texas’s “certificate of merit” statute makes it hard to sue an
architect. That’s the point. Chapter 150 of the Civil Practice and
Remedies Code says that “a claimant shall be required to file” an
affidavit from a licensed or registered professional “with the complaint.”
Tex. Civ. Prac. & Rem. Code § 150.002(a). And it defines the “complaint”
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.” Id. § 150.001(1-b) (emphasis
added). Before the court below issued its decision, courts of appeals had
“uniformly construed this language as requiring the plaintiff to file the
certificate of merit with the ‘first-filed petition.’ ” TIC N. Cent. Dall. 3,
L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 77 (Tex. App.—Dallas
2014, pet. denied). This Court, however, concludes that the certificate
of merit can be filed with the second (or even third or fourth) petition
raising claims against a covered professional, so long as the previous
petition was dismissed without prejudice.
Nothing in our precedents suggests that a court’s power to
dismiss without prejudice allows it to forgive noncompliance with a
statutory requirement. Dismissal without prejudice just means that res
judicata won’t apply to future litigation. It doesn’t guarantee that the
plaintiff’s path will be free from other barriers, like a statute of
limitations or like Chapter 150. Because Emily Lehmberg didn’t attach
the statutorily required certificate of merit to her first-filed petition, and
because dismissal without prejudice did nothing to cure that error, I
respectfully dissent.

I
Lehmberg was dissatisfied with a home-construction project, so
she sued Studio E. Architecture and Interiors, Inc. Studio moved to
dismiss her claims for noncompliance with Chapter 150, contending that
she’d failed to file the requisite certificate of merit. Lehmberg then filed
a second amended petition, along with a response to Studio’s motion
arguing that no certificate of merit was needed because her claims didn’t
arise from the provision of professional services.
The district court denied Studio’s motion to dismiss, but the court
of appeals sided with Studio on interlocutory appeal. Studio E.
Architecture & Interiors, Inc. v. Lehmberg, No. 04-19-00026-CV, 2019

2
WL 3229194, at *5 (Tex. App.—San Antonio 2019, pet. denied). The case
was remanded for the district court to decide whether to dismiss with or
without prejudice. Id.
The district court chose to dismiss the claims without prejudice.
Lehmberg filed a motion to clarify which pleading was dismissed
because, in the meantime, she’d filed a third amended petition that now
included a certificate of merit. The district court clarified that it had
dismissed the second amended petition, not the third.
Studio moved to dismiss the third amended petition. As before,
the district court denied the motion, and Studio challenged the order by
interlocutory appeal. This time, the court of appeals affirmed. 690
S.W.3d 725, 729 (Tex. App.—San Antonio 2024). We granted Studio’s
petition for review.

II

A
To reduce the burden of litigation against architects, engineers,
and land surveyors, the Legislature imposed a certificate-of-merit
requirement. See Tex. Civ. Prac. & Rem. Code §§ 150.001–.002. A
“certificate of merit” is an “affidavit of a third-party” expert who
practices in the same industry as the defendant and describes under
oath the factual basis for each theory of recovery and the negligence “or
other action, error, or omission” that the defendant is alleged to have
committed. Id. § 150.002(a), (b). This affidavit must be filed “with the
complaint.” Id. § 150.002(a).
The statute’s reference to “the complaint” might seem a tad
confusing to Texas practitioners. That’s because our state courts refer

3
to the document containing a plaintiff’s pleadings as the “petition,” not
the “complaint.” See, e.g., Tex. R. Civ. P. 22. And the term is at least a
little ambiguous because although “complaint” usually refers to “[t]he
initial pleading that starts a civil action,” Complaint, Black’s Law
Dictionary (11th ed. 2019) (emphasis added), courts sometimes use it to
refer to a plaintiff’s amended pleading as well, see, e.g., Ashcroft v. Iqbal,
556 U.S. 662, 668 (2009). Perhaps anticipating such confusion, the
Legislature defined “complaint” 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.” Tex. Civ. Prac. &
Rem. Code § 150.001(1-b) (emphases added).
The import of this definition should be clear enough. A party
must attach the certificate of merit to the first pleading asserting claims
against her architect. Lehmberg didn’t do that. Her (original) petition
included claims against Studio, but omitted the required certificate of
merit. She attached it for the first time to her third amended petition,
but that was too late because that wasn’t “the complaint”—the first-filed
petition alleging claims against Studio.

B
So what should a party do if she belatedly realizes that she
needed to attach a certificate of merit to her “complaint”? We’ve held
that Section 150.002(e) gives trial courts discretion to dismiss without
prejudice. Pedernal Energy, LLC v. Bruington Eng’g, Ltd., 536 S.W.3d
487, 492–94 (Tex. 2017). As a result, a plaintiff whose case is dismissed

4
without prejudice for failing to include a certificate of merit can still file
a new complaint in a separate action.
Requiring parties to bring a new action rather than simply filing
an amended petition isn’t a meaningless formality. The Legislature’s
choice to make parties attach certificates of merit to the first-filed
petition serves an important function. A party who nonsuits and files a
new action must do so before the statute of limitations expires. See
Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd., 670 S.W.3d 622, 631
(Tex. 2023) (“[T]he running of a limitations period is not tolled when a
suit is dismissed and refiled . . . .”); CHCA Woman’s Hosp., L.P. v. Lidji,
403 S.W.3d 228, 233 (Tex. 2013) (“[A] voluntary nonsuit does not
interrupt the running of the statute of limitations.”). In contrast, when
a party merely files an amended pleading, the new claim will generally
“relate back” to the original petition, “unless the amendment or
supplement is wholly based on a new, distinct, or different transaction
or occurrence.” Tex. Civ. Prac. & Rem. Code § 16.068.
If you put these two rules together—(1) the original petition must
be filed within the limitations period and (2) the certificate of merit must
be filed with the first-filed petition—the Legislature’s design is clear:
Certificates of merit must be filed within the limitations period. This
emphasis on timeliness and prompt dismissal is only made clearer by
the rest of the statute. Section 150.002(g) says that the statute “shall
not be construed to extend any applicable period of limitation or repose.”
Id. § 150.002(g). Section 150.002(c) provides only one narrow exception
to that rule, allowing the certificate of merit to be filed up to 30 days late
if the petition was filed when the limitations period was about to run out

5
and the certificate couldn’t be prepared in time. Id. § 150.002(c). The
Court’s fashioning of a new exception to the timeliness rule blows that
30-day forgiveness period out of the water, permitting Lehmberg to file
the certificate of merit years after the first-filed petition against Studio.
The Court’s failure to heed Chapter 150’s design means that
parties like Lehmberg can engage in years of litigation before complying
with their statutory duty, and parties like Studio may be forced to go
through discovery without the benefit of this statutory protection.

C
The Court makes a powerful retort to my core point, which is that
“first” means the actual first-filed petition, not the first filed after
dismissal without prejudice. If first really meant first, says the Court,
then filing a new lawsuit wouldn’t solve the problem. Recall that
“complaint” means a petition that, “for the first time, raises a claim
against a licensed or registered professional” for covered types of claims.
Id. § 150.001(1-b). The Court reasons that if a party files a new lawsuit,
this time with the certificate of merit attached, that complaint would at
best be the second petition “rais[ing] a claim against a licensed or
registered professional.” Id. Under that logic, refiling would never cure
the failure to attach a certificate of merit, so dismissal would always
have to be with prejudice. Yet that can’t be what the Legislature
intended, because the statute explicitly gives courts the option to
dismiss without prejudice. Id. § 150.002(e).
I agree with the Court this far: Section 150.001(1-b) must be read
in context. Indeed, context is indispensable because without it, the
Court’s objection could be carried to absurdity. If we were to follow the

6
statute’s raw, decontextualized meaning, the result would be silly. The
pleading that, “for the first time, raises a claim against a licensed or
registered professional,” such as an architect, engineer, or surveyor, was
probably made thousands of years ago. The Code of Hammurabi
imposed very strict penalties on architects who built faulty houses. See,
e.g., The Code of Hammurabi King of Babylon §§ 229–33 (Robert Francis
Harper trans., 2d ed. 1904). And someone surely sued a licensed
professional not long after these amendments went into effect in 2019.
But whether the pleading that “for the first time, raises a claim against
a licensed or registered professional” was made in 1753 B.C. or 2019
A.D., the point remains: We have to inject some common sense. “First”
can’t mean first of all time in any case whatsoever. While that reading
is semantically possible, no reasonably competent user of the English
language would read it that way. See, e.g., Brown v. City of Houston,
660 S.W.3d 749, 754 (Tex. 2023) (“[M]eanings cannot be determined in
isolation but must be drawn from the context in which they are used.”
(quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441
(Tex. 2011))). And common sense provides a handy rejoinder to the
Court’s rhetorical move. It is most natural to read the statute’s
reference to “first” to mean the first-filed petition in that action, not the
first-filed petition of all time.

D
Ultimately, my point of divergence from the Court is its reliance
on the “ordinary rule,” which is that if a petition is dismissed without
prejudice, the plaintiff can reassert her claims by filing an amended
petition in the same case rather than filing a whole new action. See Ante

7
at 8. I don’t quibble with the Court’s summary of the difference between
dismissal with and without prejudice. In short, dismissal with prejudice
adjudicates the claims, meaning res judicata bars the parties from
relitigating them. See, e.g., Martin v. Martin, Martin & Richards, Inc.,
989 S.W.2d 357, 358 (Tex. 1998). Dismissal without prejudice doesn’t
trigger res judicata. See Ante at 18 (quoting Miramar Petrol., Inc. v.
Cimarron Eng’g, LLC, 484 S.W.3d 214, 218 (Tex. App.—Corpus Christi–
Edinburg 2016, pet. denied)). The Court is also quite right that, in
general, parties may freely amend their pleadings. Id.
All of this is basic stuff most lawyers learn in law school. It also
has nothing to do with the meaning of Chapter 150. To be sure, ordinary
principles of law let plaintiffs file amended pleadings if their claims
haven’t been dismissed with prejudice. By design, though, Chapter 150
is not the “ordinary rule.” The process Chapter 150 created ex nihilo,
requiring plaintiffs to file an expert affidavit before they can sue, is a
departure from the normal legal rules. And Chapter 150 is explicit that
the affidavit must be filed with the first-filed petition. See Tex. Civ.
Prac. & Rem. Code § 150.001(1-b). It’s a non sequitur to respond, as the
Court does, that ordinary principles of res judicata permit a party to
address pleading deficiencies by filing an amended petition. Sure,
ordinary principles allow that, but Chapter 150 doesn’t because such a
petition would not raise claims for the “first time.”
Nor is it an answer to pound the drum of “judicial efficiency.”
Ante at 10–11. It’s the Legislature’s prerogative to decide what is most
efficient. Even if that were our job, it’s not at all clear that the Court’s
rewrite is more efficient. This case illustrates why. It took three years

8
and two interlocutory appeals before Studio received the certificate of
merit—a certificate that Chapter 150 said Studio would receive at the
beginning of the lawsuit. If Chapter 150 were followed from the outset,
this litigation might already be over.

E
While I disagree with the Court’s reading of Chapter 150, it
probably won’t make a difference in the end. Everyone agrees that the
district court was right to dismiss Lehmberg’s second amended petition.
The parties also seem to agree that the statute of limitations ran before
Lehmberg filed her third amended petition. So Lehmberg’s claims
against Studio in the third amended petition are time-barred unless she
can claim the benefit of the “relation back” principle.
I agree with the Court’s decision to let the district court decide
this issue. Still, it’s hard to imagine it being resolved against Studio.
The Court suggests as much. Though it doesn’t say outright that the
third amended petition (or “first” petition, according to the Court’s legal
fiction) was time-barred, it does say that Studio shouldn’t have assumed
that Lehmberg’s amended petition would relate back to her original.
Ante at 11–12. The Court notes that Section 16.068, which allows an
amended petition to relate back if it doesn’t “change[] the facts or
grounds of liability or defense,” doesn’t apply here. Tex. Civ. Prac. &
Rem. Code § 16.068. That’s because “an amended pleading adding a new
party does not relate back to the original pleading.” Ante at 11–12
(emphases omitted) (citing Univ. of Tex. Health Sci. Ctr. at S.A. v.
Bailey, 332 S.W.3d 395, 400 (Tex. 2011)). So I agree with the Court that,
at a minimum, Studio shouldn’t have assumed that Lehmberg’s third

9
amended petition would relate back. Indeed, as the Court seems to
agree, Lehmberg’s third amended petition is probably time-barred
because it sought to add (back) in a party after the statute of limitations
had run.
I also understand the Court to be relying on a line of precedent
that says that when a party files an amended petition after the prior one
was dismissed without prejudice, it counts as “a new lawsuit, not an
amendment.” Aguilar v. Morales, 545 S.W.3d 670, 678 (Tex. App.—El
Paso 2017, pet. denied) (citing Cunningham v. Fox, 879 S.W.2d 210, 212
(Tex. App.—Houston [14th Dist.] 1994, writ denied)). That line of cases
dealt with principles of res judicata, and for the reasons discussed above,
I don’t think that legal rule applies to Chapter 150. But if it does, then
Lehmberg can’t have her cake and eat it too. She can’t argue that the
third amended petition was in essence a new lawsuit against Studio for
purposes of Chapter 150, but just a continuation of the old lawsuit when
it comes to the statute of limitations.
Furthermore, as the court below reasoned, dismissal without
prejudice “places the parties in the position they were in before the
court’s jurisdiction was invoked just as if the suit had never been
brought.” 690 S.W.3d at 729. That may be good news if the statute of
limitations hasn’t run, but it’s bad news if it has. If the parties are in
the same position “as if the suit had never been brought,” that means
Lehmberg doesn’t get to benefit from the relation-back doctrine. As we
recognized in Levinson, “the running of a limitations period is not tolled
when a suit is dismissed and refiled.” 670 S.W.3d at 631. Thus,
dismissal without prejudice will have the same effect as dismissal with

10
prejudice if the statute of limitations has since run. See Aguilar, 545
S.W.3d at 677; Delhomme v. Comm’n for Law. Discipline, 113 S.W.3d
616, 621 (Tex. App.—Dallas 2003, no pet.); Clary Corp. v. Smith, 949
S.W.2d 452, 459 (Tex. App.—Fort Worth 1997, pet. denied);
Cunningham, 879 S.W.2d at 212; accord Griggs v. S.G.E. Mgmt., L.L.C.,
905 F.3d 835, 844 (5th Cir. 2018); Foudy v. Indian River Cnty. Sheriff’s
Off., 845 F.3d 1117, 1126 (11th Cir. 2017); Zapata v. City of New York,
502 F.3d 192, 197 (2d Cir. 2007). This logic is particularly inescapable
here, because Section 150.002(g) is explicit that it “shall not be
construed to extend any applicable period of limitation or repose.” Tex.
Civ. Prac. & Rem. Code § 150.002(g). So limitations will probably
resolve this case on remand.
* * *
Chapter 150 is clear: The certificate of merit must be filed with
the pleading that raises claims against an architect, engineer, or
surveyor for the first time. In my view, a plaintiff could never satisfy
this rule by filing an amended petition because that pleading wouldn’t
raise such claims “for the first time.” I respectfully dissent.

James P. Sullivan
Justice

OPINION FILED: May 29, 2026

11

Supreme Court of Texas
══════════
No. 24-0286
══════════

Studio E. Architecture and Interiors, Inc.,
Petitioner,

v.

Emily Lehmberg,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════

JUSTICE HAWKINS, joined by Justice Busby and Justice Young,
concurring.

I join the Court’s opinion. In my view, the Court and the dissent
both offer permissible readings of the key statutory text. I side with the
Court, though, because its view harmonizes Section 150.002 with the
baseline procedural rules that govern other cases. Before we interpret a
statute to depart substantially from the procedural norms of litigation—
and in a way that creates obvious inefficiencies and head-scratching
results—we should demand a clear statement from the Legislature that
it intended as much. This statute offers clues that point in multiple
directions, so I default to the least disruptive interpretation.
Second, although the Legislature has demanded expressly that
certificates of merit be filed in the litigation’s early stages, it put no
requirement on defendants to promptly alert the trial court to a deficient
or missing certificate of merit. That omission invited the situation we
see here, where the defendants waited out the relevant limitations
period, then filed their motion to dismiss predicated on the lack of a
certificate of merit. Because the limitations period has lapsed, the
plaintiff has no meaningful opportunity to cure, and the belated motion
to dismiss becomes dispositive. A deadline for motions to dismiss would
foreclose this procedural gamesmanship.
I
This case presents two plausible views of Section 150.002. The
Court reads the key provision to permit the plaintiff to file an amended
petition, consistent with our standard approach to remedying pleading
deficiencies. See ante at 8, 11 (citing TEX. R. CIV. P. 62-63 and discussing
background principles). The dissent’s view, by contrast, would force the
plaintiff to file a whole new lawsuit. See post at 5 (Sullivan, J.,
dissenting). In my view, we should not read a procedural statute to
displace the ordinary course, absent a clear statement from the
Legislature. No such statement exists here, and ample textual clues
(including ones the Court does not reach) suggest the opposite.
A
I would resolve the statutory debate before us today by applying
a clear-statement rule, a classic “tie-breaker” we use “when the words of
a statute deprive us of confidence one way or the other about the
statute’s meaning.” Miles v. Tex. Cent. R.R. & Infrastructure, Inc., 647

2
S.W.3d 613, 634 (Tex. 2022) (Young, J., concurring) (internal quotations
omitted) (citing Hegar v. Health Care Serv. Corp., 652 S.W.3d 39, 49
(Tex. 2022) (Blacklock, J., dissenting)); cf. S.C. v. M.B., 650 S.W.3d 428,
436 (Tex. 2022) (describing clear-statement rule for jurisdictional
statutes); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 318 (2012) (noting “statutes will not be
interpreted as changing the common law unless they effect the change
with clarity”). When we face an ambiguous statute fairly capable of
multiple meanings, we should prefer the interpretation that best
comports with preexisting practices.
To reveal which of today’s opinions is more disruptive, I will
pressure-test each with the following hypothetical (which, in truth,
differs not much from the actual dispute now before us). Suppose a
landowner hires an architect and a contractor to build a house. The
project goes poorly, and the landowner sues both because the end
product resulted from the confluence of inept design and shoddy
craftsmanship. The claim against the architect requires a certificate of
merit, but the claim against the contractor does not. See TEX. CIV. PRAC.
& REM. CODE §§ 150.001(1-c), .002(a). In filing the action, the plaintiff’s
lawyer experiences some unfortunate miscommunication with the
paralegal, and the petition is filed without the certificate of merit
appended. It is docketed as cause number 26-1234. But it is not
compliant with Section 150.002(a). A week later (and long before
limitations expire), the lawyer spots the mistake.
Under the Court’s approach, the plaintiff simply files his
amended petition under the same cause number with the certificate

3
attached—as would any other plaintiff in a typical case. See TEX. R. CIV.
P. 62-63. The matter would then proceed in the ordinary course to a just
and efficient resolution on the merits.
Under the dissent’s view, however, this case must now proceed on
two tracks. The claim against the contractor moves on as number
26-1234. But the claim against the architect must be dismissed. The
dissent assures us the plaintiff is free to sue the architect again—but he
must do so in an entirely new action—cause number 26-1235. We wind
up with two lawsuits, with different docket numbers, which must
proceed in parallel, even though both will involve overlapping discovery
about the same core injury. We will need two discovery universes, two
sets of post-discovery dispositive motions, two trials, and two appeals—
all for one injury the defendants both caused.
And even more problems may be lurking. What if those trials
produce incompatible results? Suppose the jury in number 26-1234 finds
that the landowner is not actually injured, while the jury in number
26-1235 finds a significant injury and awards substantial damages.
Sure, our law provides procedures and doctrines we can invoke to try to
sort things out—cases can be consolidated (or reconsolidated), various
forms of estoppel and preclusion can be dusted off, and the like. But all
of them cost time and money, and all of them risk gamesmanship or
worse. Why not avoid this mess altogether?
In fact, suggesting that the trial court can solve this problem by
simply consolidating the two actions undermines the dissent’s premise
that the Legislature insisted on dismissal and the refiling of a new
action. Why would the Legislature demand that hoop-jumping if the trial

4
court can undo it at a moment’s notice with a flick of the pen on a
consolidation order? And what if the trial court denies consolidation—
must we coin a new species of mandamus relief for Section 150.002
cases?
This hypothetical makes clear that the Court’s approach is not
only consistent with the ordinary approach to litigation, but efficient
and sensible. Applying a clear-statement rule (and perhaps Occam’s
razor), I would adopt the dissent’s incongruous view only if the
Legislature had clearly demanded it. For all the reasons the Court
identifies, see ante at 7-8, it did not.
B
Section 150.002 provides additional textual evidence supporting
the Court’s view that the Court does not invoke, but that I find
illuminating.
Section 150.002(a) includes two important nouns: “action” and
“the complaint.” The text specifies that “the complaint” must include a
certificate of merit “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 § 150.002(a). The
complaint, then, is just one component of the action. That makes sense:
a “complaint” is one of several “pleading[s]” through which a plaintiff
“raises a claim.” Id. § 150.001(1-b). The “action” is the entirety of the
lawsuit.
Subsection (e), however, invokes just one of those nouns. It is only
“the complaint” that is subject to “dismissal”—not the “action.” Since the
same statute recognizes that an “action” and “complaint” are different,

5
its recognition that only the complaint need be dismissed suggests that
the underlying action may survive. That is exactly what the Court holds:
the plaintiff may simply amend, without filing a new action altogether.
Its approach harmonizes subsections (a) and (e).
Moreover, subsection (e) requires dismissal “of the complaint
against the defendant.” Id. § 150.002(e) (emphasis added). We must
presume those last three words do some work. See KMS Retail Rowlett,
LP v. City of Rowlett, 593 S.W.3d 175, 184 (Tex. 2019) (“Our
interpretation of a statute should ‘giv[e] effect to every word, clause, and
sentence.’ ” (alteration in original) (quoting In re Off. of Att’y Gen., 422
S.W.3d 623, 629 (Tex. 2013))); see also READING LAW at 174 (“If possible,
every word and every provision is to be given effect (verba cum effectu
sunt accipienda).” (footnote omitted)). It seems to me that if the
Legislature wished the action to be terminated root-and-branch, there
would be no need to specify “against the defendant.”
This is noteworthy because there are many situations in which
the Legislature provides for the dismissal of the “action” itself. In the
Civil Practice and Remedies Code alone, I count at least five examples.
See TEX. CIV. PRAC. & REM. CODE § 13.001(a) (“A court . . . may dismiss
the action . . . .”); id. § 27.003(a) (“[A] party may file a motion to dismiss
the legal action.”); id. § 71.051(b) (“In determining whether to grant a
motion to stay or dismiss an action . . . .”); id. § 90.010(d-1) (“[T]he MDL
pretrial court shall dismiss each action . . . .”); id. § 147.046(b) (“The
court shall dismiss the claimant’s action . . . .”). Many more examples

6
abound across other corners of our law. 1
Simply put, the Legislature knows how to dictate the dismissal of
an “action.” That it dictated the dismissal of only the “complaint” here,
while leaving unimpaired the broader “action,” is further evidence that
the Court’s view is correct.
II
I close by calling attention to a structural peculiarity in Section
150.002. The statutory text imposes rigid urgency on plaintiffs, directing
them to file a certificate of merit “with the complaint,” but does not
expressly impose a corresponding deadline on defendants to raise the
plaintiff’s failure to comply. This asymmetry, when paired with the
limitations period, invites strategic gamesmanship inconsistent with
our systemic desire to “resolve cases on the merits” rather than “on
procedural defects.” Bertucci v. Watkins, 709 S.W.3d 534, 541-42 & n.8
(Tex. 2025) (citation omitted) (collecting cases).
The statute seems to expect similarly rapid responses from
defendants, stating that a “defendant shall not be required to file an
answer to the complaint and affidavit until 30 days after the filing of” a
compliant affidavit. TEX. CIV. PRAC. & REM. CODE § 150.002(d). Nothing

1 E.g., TEX. EST. CODE § 751.212(d) (“The court shall dismiss an
action . . . .”); TEX. BUS. ORGS. CODE § 9.156(d) (same); id. § 11.306(d) (same);
TEX. HUM. RES. CODE § 36.113(b) (same); id. § 121.0041(h)(1) (“[T]he claimant
may file a motion to dismiss the action . . . .”); TEX. TAX CODE § 42.08(d) (“[T]he
court shall dismiss the pending action.”); TEX. OCC. CODE § 2035.054(a) (“[A]ny
party may move that the court dismiss the contestant’s action . . . .”); TEX.
HEALTH & SAFETY CODE § 841.147(b) (“A court shall immediately dismiss any
action . . . .”); TEX. GOV’T CODE § 41.312(b) (same); id. § 2272.006(a) (“[T]he
court, arbitrator, or other adjudicating authority shall dismiss the action
without prejudice.”).

7
in the statutory text, however, explicitly prevents a defendant from
instead lying behind the log—participating in discovery, filing
counterclaims, and otherwise litigating for months or even years—
before raising the absence of a certificate of merit for the first time. But
when the applicable limitations period has lapsed, the motion to dismiss
turns into a case-dispositive proposition. In these situations, the
plaintiff’s right to seek relief is extinguished not by any deficiency in the
merits of the claim but by the defendant’s strategic silence during the
limitations window. That reading of the statutory text, in other words,
invites the possibility that a defendant may be rewarded for dilatory
conduct. 2
This problem is compounded by the statute’s own procedural
machinery. Subsection (f) grants an immediate interlocutory appeal
from the trial court’s ruling on a motion to dismiss, and subsection (e)
requires a remand to determine whether the dismissal should be with
or without prejudice. Id. § 150.002(e), (f). These proceedings can take
years, as this case illustrates. And when combined with a defendant’s
strategic delay, plaintiffs often wind up with no meaningful opportunity
to try again.
Our Legislature knows how to put motions to dismiss on a shot
clock. See, e.g., id. § 27.003(b) (“A motion to dismiss a legal action under
this section must be filed not later than the 60th day after the date of
service . . . .”); TEX. R. CIV. P. 91a.3(a) (specifying motion to dismiss must

2 This Court has never addressed whether, and if so at what point, a

defendant can waive, forfeit, or otherwise lose its entitlement to dismissal.
That question remains open, and I express no view on its proper resolution.

8
be “filed within 60 days after the first pleading containing the
challenged cause of action is served”). And, as I have noted, this very
statute already prescribes timing rules for the defendant’s answer. TEX.
CIV. PRAC. & REM. CODE § 150.002(d). I see no reason motions to dismiss
could not be subjected to similar parameters.
III
With these additional considerations, I concur.

Kyle D. Hawkins
Justice

OPINION FILED: May 29, 2026

9

Supreme Court of Texas
══════════
No. 24-0286
══════════

Studio E. Architecture and Interiors, Inc.,
Petitioner,

v.

Emily Lehmberg,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════

Argued November 4, 2025

JUSTICE HUDDLE delivered the opinion of the Court, in which
Chief Justice Blacklock, Justice Lehrmann, Justice Devine, Justice
Busby, Justice Bland, Justice Young, and Justice Hawkins joined.

JUSTICE HAWKINS filed a concurring opinion, in which Justice
Busby and Justice Young joined.

JUSTICE SULLIVAN filed a dissenting opinion.

The plaintiff in this case sued multiple defendants, including one
covered by Civil Practice and Remedies Code Section 150.002, which
required the plaintiff to file a certificate of merit with her original
petition. Because she did not do so, her claims against the covered
defendant were dismissed without prejudice. The question presented is
whether she may reassert her claims against that defendant by filing an
amended petition with a certificate of merit in the same lawsuit. The
defendant here would have us answer no, reasoning that the plaintiff is
required to bring a new and separate suit to reassert the dismissed
claims. We agree with the court of appeals that reasserting the claims
in an amended petition in the existing suit is proper, and we therefore
affirm its judgment.
I. Background
Emily Lehmberg sued Studio E. Architecture and Interiors, Inc.
and others over the defendants’ remodel of Lehmberg’s home. Studio E.
moved to dismiss the claims against it because Lehmberg did not file a
certificate of merit with her petition. See TEX. CIV. PRAC. & REM. CODE
§ 150.002(e). Lehmberg responded that no certificate of merit was
required because her claims did not arise from the provision of
professional services—instead, Lehmberg asserted, her claims arose
solely from Studio E.’s dishonesty and fraud. Lehmberg also argued that
Studio E. waived its right to seek dismissal under Section 150.002 by
waiting over two years to file its motion and substantially invoking the
judicial process in the interim.
The trial court denied the motion, and Studio E. filed an
interlocutory appeal. See id. § 150.002(f) (“An order granting or denying
a motion for dismissal is immediately appealable as an interlocutory
order.”). In the first of two appeals in this case, the court of appeals
reversed, holding that Section 150.002 applied because Studio E. was a
licensed or registered professional and Lehmberg sought damages

2
arising out of the provision of Studio E.’s professional services. Studio
E Architecture & Interiors, Inc. v. Lehmberg, No. 04-19-00026-CV, 2019
WL 3229194, at *2–4 (Tex. App.—San Antonio Apr. 17, 2019, pet.
denied). It also held that Studio E. had not waived its right to seek
dismissal. Id. at *4–5. The court of appeals remanded to the trial court
to determine whether dismissal should be with or without prejudice. Id.
at *5; see TEX. CIV. PRAC. & REM. CODE § 150.002(e) (stating that a
dismissal for failure to file a certificate of merit “may be with prejudice”).
While Lehmberg’s claims against Studio E. were on appeal, her
claims against the other defendants remained pending in the trial court.
During that time, Lehmberg amended her petition to reassert her claims
against Studio E., this time with a certificate of merit. After the court
of appeals remanded, the trial court dismissed without prejudice the
claims asserted against Studio E. in the original petition but allowed
Lehmberg to press the claims she asserted against Studio E. in the
amended petition. Studio E. moved to dismiss the amended petition,
but the trial court denied the motion.
Studio E. then took a second interlocutory appeal, arguing that
Section 150.002 prohibited Lehmberg from amending her pleading to
add the dismissed claims. It contended that, for Lehmberg to press her
claims against Studio E. after their dismissal without prejudice, she
must instead file them in an entirely new suit. 690 S.W.3d 725, 727
(Tex. App.—San Antonio 2024). This time, the court of appeals affirmed.
The court observed that the effect of dismissal without prejudice is to
“plac[e] the parties in the position they were in before the court’s
jurisdiction was invoked just as if the suit had never been brought.” Id.

3
at 729. In this case, the trial court’s dismissal of the original petition
“placed [the parties] in the position as if Lehmberg had never sued
Studio E.” Id. “Therefore, Lehmberg’s . . . amended petition operated
as if she were filing her ‘first-filed petition’ against Studio E. in that
action.” Id. (quoting TIC N. Cent. Dall. 3, L.L.C. v. Envirobusiness, Inc.,
463 S.W.3d 71, 77 (Tex. App.—Dallas 2014, pet. denied)). We granted
Studio E.’s petition for review.
II. Discussion
The question presented is whether Civil Practice and Remedies
Code Section 150.002 requires dismissal of Lehmberg’s amended
petition. “As with any statute, our interpretation begins with the
statute’s text.” Third Coast Servs., LLC v. Castaneda, 726 S.W.3d 201,
206 (Tex. 2025). When the text is clear, it also ends our inquiry. Brown
v. City of Houston, 660 S.W.3d 749, 752 (Tex. 2023). We “presume the
Legislature chooses a statute’s language with care, including each word
chosen for a purpose, while purposefully omitting words not chosen.”
Castaneda, 726 S.W.3d at 206 (quoting Rogers v. Bagley, 623 S.W.3d
343, 352 (Tex. 2021)). Because the question before us is one of statutory
construction, our review is de novo. Marino v. Lenoir, 526 S.W.3d 403,
405 (Tex. 2017).
Section 150.002, entitled “Certificate of Merit,” provides that “in
any action . . . 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” from a third-party
professional that meets certain requirements. TEX. CIV. PRAC. & REM.
CODE § 150.002(a). The statute defines “complaint” as “any petition or

4
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); see Envirobusiness, 463 S.W.3d at 76 (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’”).
Section 150.002 provides only one exception to this “contemporaneous
filing requirement”—it “shall not apply” when “the period of limitation
will expire within 10 days of the date of filing and, because of such time
constraints, a claimant has alleged that an affidavit of a third-party
[professional] could not be prepared.” TEX. CIV. PRAC. & REM. CODE
§ 150.002(c).
“A claimant’s failure to file the affidavit in accordance with this
section,” including the contemporaneous filing requirement, “shall
result in dismissal of the complaint against the defendant.” Id.
§ 150.002(e). The dismissal “may” be with prejudice, id., and we have
held this permissive phrasing affords the trial court discretion to
dismiss the complaint without prejudice, see Pedernal Energy, LLC v.
Bruington Eng’g, Ltd., 536 S.W.3d 487, 492–94 (Tex. 2017). The statute
also provides that it “shall not be construed to extend any applicable
period of limitation or repose.” TEX. CIV. PRAC. & REM. CODE
§ 150.002(g). As this Court has observed, the purpose of the
certificate-of-merit requirement is “to deter meritless claims and bring
them quickly to an end.” Pedernal Energy, 536 S.W.3d at 494 (quoting
CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, 390 S.W.3d
299, 301 (Tex. 2013)).

5
Studio E. argues that the trial court erred in denying its motion
to dismiss because, if Lehmberg wished to press her claims against
Studio E. after the trial court dismissed them without prejudice,
Section 150.002 required Lehmberg to file a new lawsuit rather than
amend her petition. In other words, Studio E. concedes that
Section 150.002 allows Lehmberg to assert her dismissed claims in a
new lawsuit along with a certificate of merit but contends she cannot
amend her existing petition to assert those same claims. Studio E.’s
main premise, embraced more fully in briefing than at oral argument, is
that claims pressed in an amended petition would relate back to the date
of the original petition’s filing while claims asserted in a new suit would
not. Thus, it argues, allowing Lehmberg to file an amended petition
would circumvent Section 150.002(g)’s command that the statute not be
construed to extend applicable limitations periods.
For the reasons discussed below, we disagree and hold that
where, as here, the plaintiff has asserted claims against other
defendants that have not been dismissed, she need not file a new suit to
assert claims subject to Section 150.002 that were previously dismissed
without prejudice. Rather, in this circumstance, the plaintiff can amend
her petition to assert the dismissed claims and append the certificate of
merit, as Lehmberg did here.
Lehmberg did not attach a certificate of merit to her original
petition, so Section 150.002 required dismissal of “the complaint against
the defendant,” i.e., dismissal of her claims against Studio E. TEX. CIV.
PRAC. & REM. CODE § 150.002(e). But Section 150.002 also permits a
trial court to exercise its discretion to dismiss such claims without

6
prejudice, and the trial court did so here. See Pedernal Energy, 536
S.W.3d at 492–94. Thus, the dismissal without prejudice for failure to
comply with the statute did not bar Lehmberg from bringing the claims
anew. The parties agree on this point; their dispute relates only to the
procedure by which Lehmberg could do so.
Dismissal without prejudice does not “prevent[] relitigation of the
same claim against the same party,” In re USAA Gen. Indem. Co., 629
S.W.3d 878, 886 n.26 (Tex. 2021), because it “is in no way an
adjudication of the rights of parties; it merely 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,” id. (quoting Crofts v. Ct. of Civ.
Appeals, 362 S.W.2d 101, 104 (Tex. 1962)). Generally, parties may
“freely amend their pleadings, so long as doing so does not ‘operate as a
surprise to the opposite party.’” Lake Jackson Med. Spa, Ltd. v. Gaytan,
640 S.W.3d 830, 837 (Tex. 2022) (quoting TEX. R. CIV. P. 63). Therefore,
because dismissal without prejudice effectively removed Lehmberg’s
claims against Studio E. from the lawsuit, those claims could be
reasserted according to the ordinary rules, including by repleading in an
amended petition. See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972)
(holding that a plaintiff’s voluntary dismissal by nonsuit was not a
dismissal with prejudice, so the trial court erred by dismissing a later
amended petition that added the previously dismissed defendant).
Studio E. relies on Cruz v. Morris for the proposition that
dismissal without prejudice requires “refiling in a new cause of action,
not simply filing an amended petition within the same cause.” 877
S.W.2d 45, 47 (Tex. App.—Houston [14th Dist.] 1994, no writ). It is true

7
that in certain instances where a trial court dismisses all claims and all
parties without prejudice, and all deadlines for continuing jurisdiction
have passed, a plaintiff cannot file an amended petition in the same
case. That is because the case is closed—there is then no pending case
in which to file an amended petition. But that is not true here. After
Lehmberg’s claims against Studio E. were dismissed, her claims against
the remaining defendants—and thus the underlying lawsuit—remained
pending. Accordingly, Lehmberg was free to amend her pleadings in the
surviving case according to the ordinary rule. See TEX. R. CIV. P. 63.
As relevant here, the ordinary rule permitted Lehmberg to
reassert her claims against Studio E. by, in essence, rejoining Studio E.
by amended petition. This is plain if one imagines that Lehmberg had
not asserted any claim against Studio E. in her original petition. In that
case, no one would dispute that she could have sued Studio E. for the
first time by amending her petition to add claims against it. See, e.g.,
Pro. Serv. Indus., Inc. v. Ibey, No. 05-24-00541-CV, 2025 WL 1737328,
at *4 (Tex. App.—Dallas June 23, 2025, pet. denied) (holding that
plaintiffs were required to attach a certificate of merit to an amended
petition that added claims against professional defendants for the first
time); Macina, Bose, Copeland & Assocs. v. Yanez, No. 05-17-00180-CV,
2017 WL 4837691, at *3 (Tex. App.—Dallas Oct. 26, 2017, pet. dism’d by
agr.) (“In an ordinary case, a plaintiff that has sued other defendants
may bring in additional defendants by amending its petition.” (citing
Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 578 (Tex. 2017))). When
the trial court dismissed Lehmberg’s claims against Studio E., it placed
Lehmberg in exactly this position by effectively removing those claims

8
from the case. Thus, Lehmberg’s amended petition functionally became
the first petition to assert claims against Studio E. in the case.
Our dissenting colleague argues that Section 150.002 is intended
to be a “departure” from the ordinary rule. Post at 8 (Sullivan, J.,
dissenting). The dissent correctly points out that Section 150.002
requires the certificate of merit to be filed with the “first” petition to
raise claims subject to the statute. TEX. CIV. PRAC. & REM. CODE
§§ 150.001(1-b), .002(a). Therefore, the dissent argues, a plaintiff can
never reassert claims dismissed under Section 150.002 in an amended
petition because such a petition is not the “first.” But when claims
against a defendant are dismissed without prejudice, that dismissal has
the effect of removing those claims from the lawsuit as though they had
never been brought. See USAA Gen. Indem. Co., 629 S.W.3d at 886 n.26.
So an amended petition asserting those formerly dismissed claims
effectively asserts the claims for the first time in that lawsuit and thus
satisfies Section 150.002’s contemporaneous filing requirement.
Our dissenting colleague’s interpretation of Section 150.002
might be more compelling if it had the benefit of being literally correct,
but it does not. After a petition raises claims subject to Section 150.002,
no other petition can ever literally be the “first” petition to raise such
claims again, whether it was filed as an amended petition in the same
case or in a new lawsuit. Yet the Legislature allowed dismissed claims
to be refiled by permitting dismissal without prejudice. See Pedernal
Energy, 536 S.W.3d at 492–94. Dismissal of the prior petition without
prejudice “places the parties in the position that they were in before the
court’s jurisdiction was invoked just as if the [petition] had never been

9
brought.” USAA Gen. Indem. Co., 629 S.W.3d at 886 n.26 (quoting
Crofts, 362 S.W.2d at 104). Therefore, claims dismissed without
prejudice for failing to comply with Section 150.002 may be asserted as
if for the first time in an amended petition.
The Thirteenth Court of Appeals has held as much. In Miramar
Petroleum, Inc. v. Cimarron Engineering, LLC, the plaintiff amended its
petition to add a new defendant, Cimarron. 484 S.W.3d 214, 215 (Tex.
App.—Corpus Christi–Edinburg 2016, pet. denied). The trial court
dismissed those claims without prejudice under Section 150.002 because
the plaintiff did not file a certificate of merit. Id. at 216. The plaintiff
then refiled its claims against Cimarron with a certificate of merit in an
amended petition. Id. The court of appeals rejected Cimarron’s
argument that the certificate of merit was untimely, holding that the
plaintiff complied with Section 150.002 when it included a certificate of
merit with its amended petition filed after its claims were dismissed
without prejudice. Id. at 217–18. So too here. After Lehmberg’s claims
were dismissed without prejudice, she could satisfy Section 150.002 by
filing a certificate of merit with an amended petition.
Precedent aside, Studio E.’s argument that Lehmberg was
required to file a new suit finds no support in the statutory text or our
rules. Beyond that, filing a new suit would undercut the streamlined
process the statute contemplates. See Pedernal Energy, 536 S.W.3d at
494. It makes little sense to require a new suit—and payment of another
filing fee—when the case will almost certainly be transferred to the
original court and consolidated with the original case. See, e.g.,
Envirobusiness, 463 S.W.3d at 75. Just as new claims and new parties

10
may be added for the first time to an existing case by pleading
amendment, see TEX. R. CIV. P. 62, claims dismissed without prejudice
for failure to comply with Section 150.002 may be reasserted in an
existing case through an amended petition. In addition to being faithful
to the text and our precedents, this conclusion promotes judicial
efficiency.
At bottom, Studio E.’s contention that Lehmberg was required to
file a new suit stems from its premise that an amended pleading would
automatically relate back to the filing date of her original petition.
According to Studio E., that may violate Section 150.002(g)’s command
that the statute not be construed to extend applicable limitations
periods. Studio E. argues in its briefing that Lehmberg’s amended
petition would “get[] the benefit of tolling,” citing Civil Practice and
Remedies Code Section 16.068. That statute provides that when a
party’s original pleading is not barred by limitations, an amended
pleading that “changes the facts or grounds of liability or defense is not
subject to” limitations unless it “is wholly based on a new, distinct, or
different transaction or occurrence.” TEX. CIV. PRAC. & REM. CODE
§ 16.068. But Section 16.068 does not address Lehmberg’s situation,
which involves an amendment to rejoin a dismissed party. This Court
has held that, “[o]rdinarily, an amended pleading adding a new party
does not relate back to the original pleading.” Univ. of Tex. Health Sci.
Ctr. at S.A. v. Bailey, 332 S.W.3d 395, 400 (Tex. 2011) (alteration in
original) (emphasis added) (quoting Alexander v. Turtur & Assocs., Inc.,
146 S.W.3d 113, 121 (Tex. 2004)). The exceptions are misnomer and
misidentification. Id.

11
For her part, Lehmberg asserts that Section 150.002(e) would be
rendered meaningless if an amended pleading does not automatically
relate back. By establishing that dismissal may be with prejudice,
Section 150.002(e) gives a trial court discretion to dismiss with or
without prejudice. Pedernal Energy, 536 S.W.3d at 492–94. Lehmberg
argues this affords the trial court discretion to determine whether a
plaintiff should have a second bite at the apple, regardless of the
limitations period. Otherwise, she contends, Section 150.002(e) would
be meaningless because a defendant may wait until the limitations
period expires before moving to dismiss, thereby usurping the trial
court’s discretion to render a dismissal without prejudice.
We doubt Lehmberg’s amended pleading, reasserting the same
claims against Studio E., can be understood to change the facts or
grounds of liability within the meaning of Section 16.068. Comparison
of the two pleadings reveals the amendment added the required affidavit
and nothing more. We likewise cannot embrace Lehmberg’s assertion
that Section 150.002(e) would be rendered meaningless absent relation
back. But whether Lehmberg’s amended petition relates back or is
time-barred is not before us, and we therefore reserve the question for
the trial court, should Studio E. plead and press a limitations defense
on remand.
III. Conclusion
When a plaintiff’s claims against a licensed professional are
dismissed without prejudice under Civil Practice and Remedies Code
Section 150.002 but the underlying lawsuit is not dismissed, the plaintiff
may reassert the dismissed claims with the required certificate of merit

12
in an amended petition. We therefore hold that the trial court correctly
denied Studio E.’s motion to dismiss, and we affirm the court of appeals’
judgment.

Rebeca A. Huddle
Justice

OPINION DELIVERED: May 29, 2026

13