Chapter 150 “Certificate of Merit” Can Be Cured by a Later Petition After Dismissal Without Prejudice

Scope note: The provided text is Justice Sullivan’s dissent in Studio E. Architecture and Interiors, Inc. v. Emily Lehmberg (Tex. May 29, 2026). The dissent describes—and criticizes—the Court’s contrary holding. This commentary therefore explains (i) the rule the dissent attributes to the Court and (ii) the dissent’s statutory and procedural critique.

I. Introduction

This case arises from a residential construction dispute in which homeowner Emily Lehmberg sued Studio E. Architecture and Interiors, Inc. (“Studio”), an architectural firm. Studio invoked Texas Civil Practice and Remedies Code Chapter 150, which requires a claimant suing certain licensed professionals (including architects) for damages arising from professional services to file a certificate of merit—an expert affidavit—“with the complaint.”

The central issue is procedural but high-stakes: if a plaintiff fails to attach the certificate to the first petition asserting a covered claim, can the plaintiff later cure that omission by filing an amended petition (even years later) after the earlier petition has been dismissed without prejudice?

Procedurally, the dispute produced multiple pleadings and interlocutory appeals. The court of appeals first required dismissal for noncompliance. After the trial court dismissed without prejudice, Lehmberg filed a later amended petition that included a certificate, and the lower courts allowed the suit to proceed. The Texas Supreme Court granted review; Justice Sullivan dissented from the Court’s approach.

II. Summary of the Opinion (Dissent and the Holding It Describes)

Justice Sullivan’s dissent advances a strict reading of Chapter 150: because the statute defines “complaint” as the pleading that, “for the first time,” raises a covered claim against a licensed professional, the certificate must be filed with the first-filed petition in the action asserting such a claim. In his view:

  • Lehmberg’s original petition asserted claims against Studio but lacked the certificate.
  • Later attaching a certificate to a third amended petition did not satisfy the statute, because that later petition was not the “complaint” as defined by § 150.001(1-b).
  • A dismissal without prejudice does not “forgive” statutory noncompliance; it only avoids res judicata.
  • The statutory design links the certificate requirement to timeliness—especially statutes of limitation—and the Court’s approach undermines that design.

The dissent states that the Court nonetheless “concludes that the certificate of merit can be filed with the second (or even third or fourth) petition … so long as the previous petition was dismissed without prejudice.” Justice Sullivan would reject that rule and would require plaintiffs to satisfy Chapter 150 at the outset (or, if dismissed, to file a new action within limitations, rather than “curing” within the same case by later amendment).

III. Analysis

A. Precedents Cited (and How They Shape the Competing Interpretations)

1. Intermediate appellate consensus on “first-filed petition”

The dissent emphasizes that Texas courts of appeals had previously read Chapter 150 uniformly to require the certificate with the first petition:

  • TIC N. Cent. Dall. 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 77 (Tex. App.—Dallas 2014, pet. denied) (quoted for the “uniform” construction requiring the certificate with the “first-filed petition”).

This “uniform construction” matters in the dissent’s telling because it frames the Supreme Court’s approach as a significant doctrinal pivot away from settled lower-court practice.

2. Trial-court discretion to dismiss without prejudice

The dissent treats the Court’s prior decision as establishing only the remedial consequence of noncompliance—not a cure-by-amendment mechanism:

  • Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 492-94 (Tex. 2017) (held § 150.002(e) gives trial courts discretion to dismiss without prejudice).

Justice Sullivan reads Pedernal Energy as preserving a plaintiff’s ability to bring a new action after a without-prejudice dismissal, not as authorizing an amended pleading in the same cause to retroactively satisfy a requirement tied to the “first time” a claim is raised.

3. Limitations consequences of nonsuit/dismissal and refiling

The dissent’s core structural argument is that Chapter 150’s “with the complaint” requirement is designed to front-load expert screening within limitations. To show how refiling differs from amending, the dissent relies on limitations precedent:

  • Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd., 670 S.W.3d 622, 631 (Tex. 2023) (“the 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 limitations).

These authorities underpin the dissent’s point that requiring a new lawsuit (after dismissal without prejudice) meaningfully enforces timeliness—whereas allowing amendment in the same case can allow late compliance that effectively sidesteps Chapter 150’s screening function.

4. Relation-back doctrine limits, especially for added parties

Justice Sullivan anticipates that limitations may ultimately dispose of the case on remand and highlights a key relation-back constraint:

  • Univ. of Tex. Health Sci. Ctr. at S.A. v. Bailey, 332 S.W.3d 395, 400 (Tex. 2011) (cited for the proposition that “an amended pleading adding a new party does not relate back”).

The dissent uses Bailey to question any assumption that an amended petition re-adding Studio (after dismissal) could relate back to earlier pleadings for limitations purposes—especially if the post-dismissal pleading is treated as “new” for Chapter 150 but “continuing” for limitations.

5. Dismissal “with” vs. “without” prejudice; res judicata

The dissent agrees with baseline procedural principles but argues they cannot rewrite a specific statutory prerequisite:

  • Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 358 (Tex. 1998) (dismissal with prejudice adjudicates claims and triggers res judicata).
  • Miramar Petrol., Inc. v. Cimarron Eng'g, LLC, 484 S.W.3d 214, 218 (Tex. App.—Corpus Christi-Edinburg 2016, pet. denied) (quoted by the Court, per the dissent, for the effect of dismissal without prejudice on res judicata).

6. Post-dismissal amended petition treated as “new lawsuit” (res judicata line)

Justice Sullivan identifies a doctrine (in res judicata contexts) that sometimes treats an amended petition after dismissal as a “new lawsuit,” but he disputes importing it into Chapter 150:

  • Aguilar v. Morales, 545 S.W.3d 670, 678 (Tex. App.—El Paso 2017, pet. denied).
  • Cunningham v. Fox, 879 S.W.2d 210, 212 (Tex. App.—Houston [14th Dist.] 1994, writ denied).
  • 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).

He further cites persuasive federal authority for the proposition that a without-prejudice dismissal can be effectively fatal once limitations has run:

  • 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).

The dissent’s “no cake-and-eat-it-too” warning is doctrinal: a plaintiff cannot characterize the post-dismissal petition as a “new lawsuit” to satisfy Chapter 150, yet as the “same suit” to obtain relation-back benefits.

7. Statutory interpretation methodology: context and common sense

To address the majority’s concern about an overly literal “first time” reading, the dissent relies on contextualist interpretive canons:

  • Brown v. City of Houston, 660 S.W.3d 749, 754 (Tex. 2023) (meanings must be drawn from context; quoted).
  • TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011) (quoted within Brown).

The dissent uses these cases to argue that “for the first time” should be read as “first in this action,” not “first in all of human history,” and that the majority can accept contextualism without authorizing late-in-the-same-case cures.

8. Background references to pleading terminology

  • Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009) (noted for the usage of “complaint” to refer to amended pleadings in some contexts).
  • Tex. R. Civ. P. 22 (Texas uses “petition” rather than “complaint”).

B. Legal Reasoning

1. Text: “with the complaint” + defined “complaint”

The dissent’s interpretive foundation is the statutory definition:

  • § 150.002(a): the claimant “shall be required to file” the affidavit “with the complaint.”
  • § 150.001(1-b): “complaint” means the pleading that, “for the first time,” raises a claim against a covered professional for damages arising out of professional services.

From this, the dissent derives a bright line: the certificate must accompany the initial pleading in the action that first asserts covered claims against the professional. Amended pleadings are, by definition, not “for the first time.”

2. Structure: Chapter 150 is designed for early screening within limitations

Justice Sullivan argues that Chapter 150’s function is defeated if plaintiffs may litigate for years and only later supply an expert affidavit. He ties the timing requirement to statutory limits:

  • § 150.002(g): Chapter 150 “shall not be construed to extend any applicable period of limitation or repose.”
  • § 150.002(c): a narrow grace period allowing up to 30 days after filing when limitations is about to run and the certificate cannot be prepared in time.

On this view, allowing a post-dismissal amended petition to serve as “the complaint” creates a de facto grace period far beyond the statute’s explicit 30-day allowance.

3. Remedy: dismissal without prejudice is not a statutory “cure”

The dissent insists that “without prejudice” affects only claim preclusion (res judicata) and does not erase noncompliance with statutory prerequisites. In other words, absence of res judicata is not the same as satisfaction of Chapter 150.

4. Response to the majority’s “first means first” objection

The dissent acknowledges the Court’s rhetorical point: if “first time” were read globally, then refiling could never fix the problem. But he answers with contextualism: “first” means first within the relevant frame—the action. Thus, refiling a new action can produce a new “first” pleading in that action; amending within the same action cannot.

5. Rejection of “ordinary rule” and “judicial efficiency” as overrides

The dissent characterizes Chapter 150 as an express departure from ordinary pleading-amendment norms. Therefore, ordinary civil-procedure instincts (amend freely; fix defects; keep the same cause number) cannot override the statute’s specific sequencing requirement.

C. Impact

1. Practical litigation effects

The dissent predicts that the Court’s rule encourages extended litigation before statutory screening occurs—potentially including discovery—contrary to Chapter 150’s protective purpose for licensed professionals.

2. Shift from “front-end” gatekeeping to “curable defect”

By allowing the certificate to be filed with a later petition after a without-prejudice dismissal (as the dissent describes), the decision reframes Chapter 150 from a strict entry condition into a curable procedural defect—at least in cases where the plaintiff can keep the dispute alive long enough to supply the affidavit.

3. Heightened importance of limitations strategy

Even under the Court’s approach, the dissent underscores that limitations may still defeat late compliance. The interplay among § 150.002(g), § 16.068 (relation back), and cases like Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd. suggests that, in many cases, a plaintiff who misses the certificate requirement may later find the claims time-barred anyway—especially if dismissal and “re-adding” parties occur after limitations expires.

IV. Complex Concepts Simplified

  • Certificate of merit (Chapter 150): An expert affidavit from a similarly situated licensed professional explaining the factual basis of the claim and identifying the alleged professional error. It is a statutory gatekeeping device for suits against architects, engineers, and surveyors.
  • Dismissal “without prejudice” vs. “with prejudice”:
    • With prejudice ends the claim on the merits for future litigation (res judicata applies).
    • Without prejudice does not bar refiling, but it does not stop the statute of limitations from running.
  • Res judicata: A doctrine preventing relitigation of claims that have been finally adjudicated (typically after a dismissal with prejudice or final judgment).
  • Relation back (Tex. Civ. Prac. & Rem. Code § 16.068): A rule that can treat some amended pleadings as if filed on the date of the original petition—helping avoid limitations—so long as they do not introduce a wholly new transaction/occurrence; however, adding a new party generally does not relate back (as cited via Univ. of Tex. Health Sci. Ctr. at S.A. v. Bailey).
  • Interlocutory appeal: An appeal taken before final judgment, authorized in certain circumstances (Chapter 150 dismissals commonly generate such appeals).

V. Conclusion

Justice Sullivan’s dissent frames the case as a statutory-timing dispute with major practical consequences. He reads Chapter 150 to require strict compliance at the outset: the certificate must be filed with the first petition in the action raising covered claims. He criticizes the Court’s approach (as he describes it) for allowing plaintiffs to supply the certificate in later pleadings after a without-prejudice dismissal, thereby weakening Chapter 150’s front-end screening function and potentially allowing prolonged litigation before compliance.

Even so, the dissent anticipates that limitations law may often be the ultimate check: § 150.002(g) and cases like Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd. and CHCA Woman's Hosp., L.P. v. Lidji mean that late procedural “cures” may still fail if limitations has run and relation-back is unavailable—particularly when parties are effectively being added back after dismissal.