Melden and Hunt, Inc. v. Deanira Cantu, Pablo Rubalcaba, Domingo Pena Jr., Janet Pena, Monica Cavazos, Juanita 'Janie' and Roman Rodriguez, Felicitas and Jose Garza, Norma Suarez, Cassandra Ayala, Gerardita Garza, Benito Huerta, Magdalena Rodriguez, Evangelina and Rogelio Melchor, Lidia Hernandez, Alfredo and Esperanza Salinas, and Juan Lopez.

NUMBER 13-25-00266-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MELDEN & HUNT, INC., Appellant,

v.

DEANIRA CANTU, PABLO
RUBALCABA, DOMINGO PENA
JR., JANET PENA, MONICA
CAVAZOS, JUANITA “JANIE”
AND ROMAN RODRIGUEZ,
FELICITAS AND JOSE GARZA,
NORMA SUAREZ, CASSANDRA
AYALA, GERARDITA GARZA,
BENITO HUERTA, MAGDALENA
RODRIGUEZ, EVANGELINA AND
ROGELIO MELCHOR, LIDIA
HERNANDEZ, ALFREDO AND
ESPERANZA SALINAS, AND
JUAN LOPEZ, Appellees.

ON APPEAL FROM THE 206TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS
OPINION

Before Justices Silva, Cron, and Fonseca
Opinion by Justice Silva

Appellant Melden & Hunt, Inc. (M & H) appeals the trial court’s order denying its

motion to dismiss in favor of appellees Deanira Cantu, Pablo Rubalcaba, Domingo Pena

Jr., Janet Pena, Monica Cavazos, Juanita “Janie” and Roman Rodriguez, Felicitas and

Jose Garza, Norma Suarez, Cassandra Ayala, Gerardita Garza, Benito Huerta,

Magdalena Rodriguez, Evangelina and Rogelio Melchor, Lidia Hernandez, Alfredo and

Esperanza Salinas, and Juan Lopez. In two issues, M & H argues that the trial court

abused its discretion when it denied its motion to dismiss because (1) appellees failed to

file a certificate of merit with their original petition, and (2) the certificate of merit appellees

filed with their amended petition is insufficient. We reverse and remand.

I. BACKGROUND

On October 9, 2024, appellees filed their original petition against Texas Cordia

Construction, LLC (TCC), M & H, and Ruben James de Jesus. 1 Appellees identified

themselves as residents of the Lull subdivision in Edinburg, TCC as the general contractor

that performed work for the City of Edinburg’s (City) “Lull Street Improvement Project,

#2021-24” (the Project), M & H “as the business that contracted with the City or others to

perform design and other work in connection with the Project,” and Ruben as “an engineer

or architect . . . associated with [M & H] in connection with the Project.” According to

appellees, the Project included paving improvements and reconstruction of existing

1 Texas Cordia Construction, LLC and Ruben James de Jesus are not parties to this appeal.

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streets, plus curb and gutter installation on specific streets within the Lull subdivision.

TCC’s work on the Project included “site grading, excavating subgrade, installation of

utilities and storm drainage systems, street paving, curbing and other improvements.”

Appellees alleged that TCC “performed its work on the Project without any regard for

[appellees] or for its agreement with the City” and claimed, among other things, that they

sustained damages to their persons, homes, vehicles, and other property as a result of

TCC’s activities in attempting to complete the Project. Appellees also alleged that M & H

and Ruben unreasonably delayed responding to several requests for information by TCC

in connection with the Project.

Appellees asserted negligence claims against TCC, M & H, and Ruben. Appellees

also raised gross negligence, breach of contract, subrogation, nuisance, and breach of

warranty claims against TCC, but claimed that TCC, M & H, and Ruben were jointly liable

for all damages sustained by appellees. Appellees requested declaratory relief, actual

damages, exemplary damages, pre- and post-judgment interest, court costs, and

attorney’s fees. The original petition stated in relevant part:

With respect to all causes of action for damages asserted herein arising out
of the provision of professional services by licensed architects, engineers,
land surveyors, landscape architects, or the firm in which such licensed or
registered professional practices, under [Texas Civil Practice and
Remedies Code] § 150.001, et. seq., and any similar statutes or laws, the
[appellees] will supplement their pleading with an affidavit from a licensed
professional engineer or other third party licensee or registrant who holds
the same professional license or registration in Texas as the relevant
defendant or licensed professional and is knowledgeable in the same area
of practice and actively engaged in practice of that filed in this state. Such
affidavit or “Certificate of Merit” offers testimony based on the affiant’s
knowledge, skill, experience, education, training, and practice and
addresses each theory of recovery, setting forth specifically, for each
relevant theory of recovery for which damages are sought: the negligence,

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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 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. Such affidavit
shall be executed by John Metting, a third party licensed professional
engineer in Texas, and it shall be filed within 30 days after the filing of this
Petition, per [Texas Civil Practice and Remedies Code] § 150.002[(c)].

On November 7, 2024, appellees filed an amended petition which removed Ruben as a

party but included the certificate of merit by Metting.

On December 3, 2024, M & H filed its motion to dismiss pursuant to the Texas Civil

Practice and Remedies Code Section 150.002(e). See id. § 150.002(e). In its motion, M

& H identified itself as an engineering firm authorized and licensed to practice engineering

in Texas. It argued that appellees failed to file a certificate of merit contemporaneously

with its complaint against M & H as required by the statute. See id. § 150.002(a). M & H

also argued that the exception to the contemporaneous filing requirement contained in

Section 150.002(c) does not apply because appellees failed to allege that “the period of

limitation would expire within 10 days of the original filing date and . . . [that] an affidavit

by a professional could not be prepared due to any time constraint.” See id. § 150.002(c).

On February 21, 2025, appellees filed a response to M & H’s motion to dismiss

combined with a motion for leave to supplement pleadings. Appellees argued that their

original petition “referenced the applicable statute and exception, and the very reason for

citing the statute was to notify [M & H] that a [c]ertificate of [m]erit was forthcoming.”

Appellees requested the trial court to find that their pleadings “substantially complied with

the statute,” find that their certificate of merit was timely, and deny M & H’s motion to

dismiss accordingly. Appellees requested in the alternative that the trial court “find ‘good

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cause’ and grant them leave to supplement their petition with the necessary allegations

regarding the [c]ertificate of [m]erit by March 6, 2025, because [appellees] mistakenly

failed to alleged the limitations period would expire within ten days and that an affidavit

could not be prepared due to time constraints, even though such was the case.”

On December 5, 2025, the trial court signed its order denying M & H’s motion to

dismiss. 2 This accelerated interlocutory appeal followed. See id. § 150.002(f).

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court’s order on a motion to dismiss under Texas Civil Practice

and Remedies Code Section 150.002 for abuse of discretion. Miramar Petroleum, Inc. v.

Cimarron Eng’g, LLC, 484 S.W.3d 214, 217 (Tex. App.—Corpus Christi–Edinburg 2016,

pet. denied) (citing TIC N. Cent. Dall. 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71,

76 (Tex. App.—Dallas 2014, pet. denied)). However, if resolution of the issues requires

us to interpret or construe statutory language, we conduct a de novo review.

Envirobusiness, 463 S.W.3d at 76; see also Pedernal Energy, LLC v. Bruington Eng’g,

Ltd., 536 S.W.3d 487, 491 (Tex. 2017). Section 150.002, entitled “Certificate of Merit,”

states:

[I]n 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 of a third-party licensed
architect, licensed professional engineer, registered landscape architect, or
registered professional land surveyor [who meets certain requirements as
set forth in the statute].

TEX. CIV. PRAC. & REM. CODE § 150.002(a). “[F]or each theory of recovery for which

2 The trial court did not rule on appellees’ motion for leave to supplement their pleadings.

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damages are sought,” the certificate of merit must set forth “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.” Id. § 150.002(b). A claimant’s failure to file the affidavit in accordance with Section

150.002 “shall result in dismissal of the complaint against the defendant,” which “may be

with prejudice.” Id. § 150.002(e). A “[c]laimant” is defined as “a plaintiff . . . seeking

recovery for damages, contribution, or indemnification” and a “[c]omplaint” is defined as

“any petition or other pleading which, for the first time, raises a claim against a licensed

or registered professional for damages arising out of the provision of professional services

by the licensed or registered professional.” Id. § 150.001(1-a), (1-b). “Licensed or

registered professional” is defined, in relevant part, as a “licensed professional

engineer. . . or any firm in which such licensed . . . professional practices, including but

not limited to a corporation, professional corporation, . . . or any other business entity.” Id.

§ 150.001(1-c). “Absent a properly filed certificate of merit, professionals have the right

to avoid litigation entirely.” LaLonde v. Gosnell, 593 S.W.3d 212, 220 (Tex. 2019).

As shown above, Section 150.002 generally requires that a certificate of merit be

filed contemporaneously with a petition asserting claims against licensed professional

engineers such as M & H. See TEX. CIV. PRAC. & REM. CODE § 150.002(a). However, the

contemporaneous filing requirement does 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, a claimant has alleged that an affidavit of a third-party

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licensed . . . professional engineer . . . could not be prepared.” Id. § 150.002(c). In that

situation, a claimant “shall” be granted a thirty-day extension to file a certificate of merit

and may obtain further extensions for “good cause” and as the trial court determines

“justice requires.” See id.

III. ANALYSIS

In its first issue, M & H argues that the trial court abused its discretion when it

denied its motion to dismiss because appellees “failed to attach a certificate of merit with

their original petition and failed to properly invoke the exception in Section 150.002(c).”

Appellees do not dispute that they failed to attach a certificate of merit to their original

petition but argue that said petition “satisfied all requirements imposed by [S]ection

150.002(c)” because it “alleged facts giving rise to a potential October 12, 2024 limitations

deadline” and “expressly recognized the need for a certificate of merit and explained not

only that [appellees] would be filing one imminently,” but identified the third-party licensed

professional by name.

As previously discussed, Section 150.002(c) grants a plaintiff thirty days after filing

the petition to supplement the pleadings with the certificate of merit affidavit if the claimant

(1) files suit within ten days of the date the applicable limitations period expires, and

(2) alleges that a certificate of merit could not be prepared because of such time

constraints. Id. Securing the additional thirty-day period to supplement the petition with a

certificate of merit requires the claimant to satisfy both requirements, including alleging

“that its near-limitations filing prevented the preparation of a certificate of merit.” Crosstex

Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014) (citing TEX. CIV.

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PRAC. & REM. CODE § 150.002(c)). Appellees failed to allege in their original petition that

filing so close to the limitations deadline prevented them from preparing a statutorily

compliant certificate of merit. See Tex. S. Univ. v. Kirksey Architects, Inc., 577 S.W.3d

570, 576 (Tex. App.—Houston [14th] 2019, no pet.) (holding that a plaintiff was not

entitled to a thirty-day extension when it did not allege in its petition that its filing near the

statute of limitations prevented the preparation of a certificate of merit); Barrientos v.

Jacobs Eng’g Grp. Inc., No. 13-20-00092-CV, 2021 WL 3411869, at *3 (Tex. App.—

Edinburg–Corpus Christi Aug. 5, 2021, no pet.) (mem. op.) (same).

Appellees argue that they “expressly invoked [S]ection 150.002(c) in the section

of their petition discussing the certificate of merit” and argue that “no conceivable reason

exists for doing so other than to indicate why, consistent with that section’s terms, a

certificate of merit was not being filed with the original petition.” Appellees further suggest

that its “invocation of [S]ection 150.002(c) at a minimum substantially complied with the

contemporaneous filing exception.” The phrase “substantial compliance” generally means

that “one has performed the ‘essential requirements’ of a statute, and it excuses

deviations which do not seriously hinder the legislature’s purpose in imposing such

requirements.” Endeavor Energy Res., LP v. Trudy Jane Anderson Testamentary Tr. ex

rel. Anderson, 644 S.W.3d 212, 220 (Tex. App.—Eastland 2022, pet. denied). However,

we conclude that an original petition’s mere reference to Section 150.002(c) and assertion

that a certificate of merit is forthcoming, without explicitly making the allegations required

by that section, does not substantially comply with that section’s time constraint allegation

requirement. See Crosstex Energy Servs., L.P., 430 S.W.3d at 391; Endeavor Energy

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Res., LP, 644 S.W.3d at 220. Therefore, the trial court abused its discretion when it denied

M & H’s motion to dismiss. We sustain M & H’s first issue. 3

IV. CONCLUSION

Because the trial court abused its discretion in denying M & H’s motion to dismiss

pursuant to Texas Civil Practice and Remedies Code Section 150.002, we reverse the

trial court’s order and remand this cause to the trial court to determine whether dismissal

should be with or without prejudice to refiling. See TEX. CIV. PRAC. & REM. CODE

§ 150.002(e); Studio E Architecture & Interiors, Inc. v. Lehmberg, No. 04-19-00026-CV,

2019 WL 3229194, at *2 (Tex. App.—San Antonio Apr. 17, 2019, pet. denied) (mem. op.)

(reversing trial court’s order denying a Section 150.002 motion to dismiss and remanding

for determination whether dismissal should be with or without prejudice).

CLARISSA SILVA
Justice

Delivered and filed on the
4th day of June, 2026.

3 Having sustained M & H’s first issue, which is dispositive of this appeal, we decline to address its

second issue. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as
brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

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