STUDIO ARCHITECTURE AND INTERIORS INC v. LEHMBERG (2026)

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 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. 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 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)).

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 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 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, ––– S.W.3d ––––, ––––, 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 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 –––– (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 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 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.

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 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.

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 ––––, –––– (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 –––– (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 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 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 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 –––– – ––––, 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, 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 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 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 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.

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 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 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 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 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 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 at ––––. 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 –––– (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 –––– – ––––. 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 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 –––– – ––––. 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 –––– – –––– (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 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 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.

FOOTNOTES

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.”).

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.

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.