Burns Surveying LLC v. Robert H. Burns and Jacob G. Pleasant, 06-25-00092-CV, March 20, 2026.
On appeal from the 336th District Court of Fannin County, Texas.
Synopsis
The Sixth Court of Appeals held that a claimant cannot cure the failure to file a contemporaneous Chapter 150 certificate of merit by simply filing an amended petition within the same cause of action, even following a dismissal without prejudice. To revive such professional liability claims, the claimant must initiate an entirely new lawsuit accompanied by the required affidavit, as the statutory “first-filed” requirement applies to the initial pleading in a specific case number.
Relevance to Family Law
While Chapter 150 is often associated with construction or commercial litigation, it is a latent landmine in complex property division. Texas family law litigators frequently engage registered professional land surveyors to resolve boundary disputes, partition large acreage, or create metes and bounds descriptions for a Decree of Divorce. If a surveyor’s negligence results in an incorrect property division or cloud on title, any subsequent malpractice claim—even if brought within a pending family law matter or as a related cross-claim—must strictly adhere to these certificate of merit requirements. A failure to file the affidavit with the very first petition asserting the claim is a fatal procedural error that cannot be “patched” with an amendment.
Case Summary
Fact Summary
Robert H. Burns and Jacob G. Pleasant purchased property and subsequently alleged that the survey provided to them was incorrect. They sued Burns Surveying LLC, a registered professional land surveyor, alleging trespass and negligence in the performance of professional services. Crucially, the plaintiffs failed to attach a certificate of merit to their original petition.
In response, the surveyor moved to dismiss under Texas Civil Practice and Remedies Code Section 150.002. Because dismissal is mandatory when the certificate is omitted, the trial court dismissed all claims against the surveyor without prejudice on July 15, 2024. Rather than filing a brand-new lawsuit, the plaintiffs filed an amended petition in the same cause number, re-adding the surveyor as a defendant and attaching a certificate of merit. The surveyor moved to dismiss the amended petition, arguing that the “first-filed” petition in that cause did not have the affidavit. The trial court denied the motion, and the surveyor filed this interlocutory appeal.
Issues Decided
The court addressed whether a plaintiff can satisfy the contemporaneous filing requirement of Chapter 150 by filing an amended petition containing a certificate of merit in the same cause of action from which the professional had previously been dismissed without prejudice.
Rules Applied
- Texas Civil Practice and Remedies Code § 150.002(a): Requires that in any action for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff must file an affidavit of a third-party professional with the complaint.
- Texas Civil Practice and Remedies Code § 150.001(1-b): Defines “complaint” as the petition or pleading which, for the first time, raises a claim against a licensed or registered professional.
- Texas Civil Practice and Remedies Code § 150.002(e): Mandates dismissal for failure to comply with the filing requirement.
- Supreme Court Precedent (Pedernal Energy, LLC v. Bruington Eng’g, Ltd. and Crosstex Energy Servs., L.P. v. Pro Plus, Inc.): Establishes that the failure to file a certificate of merit with the original petition cannot be cured by amendment.
- The “New Action” Rule: A dismissal without prejudice permits a party to refile the claims in an entirely new cause of action, but not as an amendment within the same cause of action.
Application
The court’s analysis centered on the statutory definition of a “complaint.” Because the statute defines a complaint as the petition that raises the claim “for the first time,” there can be only one such petition in any given cause of action. In this case, the “first-filed” petition against the surveyor was the original petition, which lacked the certificate.
The court rejected the plaintiffs’ attempt to use an amended petition to circumvent the “contemporaneous filing” requirement. While the Sixth Court acknowledged that some other courts (like the San Antonio Court of Appeals) had previously allowed such cures, it held that it was bound by Texas Supreme Court precedent and the plain language of the statute. The court emphasized that a dismissal “without prejudice” refers to the right to refile in a new cause of action. Within the existing cause of action, the procedural defect remained incurable because the very first petition in that specific case number was defective.
Holding
The court held that the surveyor was entitled to dismissal because the plaintiffs failed to file the certificate of merit with their first-filed petition in the action.
The court further held that filing an amended petition in the same cause number is legally insufficient to satisfy the requirements of Section 150.002. Consequently, the trial court’s order was reversed, and the court rendered judgment dismissing the claims against the surveyor without prejudice.
Practical Application
For the Texas family law practitioner, this case serves as a stern warning regarding the “how” and “where” of refiling after a procedural hiccup. If you are forced to nonsuit or face a dismissal without prejudice for a missing certificate of merit, do not attempt to “fix” the existing case by amending. You must initiate a new suit with a new cover sheet, a new filing fee, and—most importantly—the certificate of merit attached to that brand-new original petition.
Furthermore, if you are defending a surveyor or engineer brought into a divorce case (perhaps by a spouse claiming the professional helped hide assets or mis-valued land), this case provides the blueprint for a permanent dismissal within that specific litigation.
Checklists
Suing a Professional in a Property Dispute
- Identify the Professional: Confirm if the defendant is a licensed or registered professional (surveyor, engineer, architect) covered by Chapter 150.
- Verify the Claim: Determine if the damages “arise out of the provision of professional services.”
- Secure the Expert: Engage a third-party professional in the same field prior to filing.
- Draft the Affidavit: Ensure the affidavit sets forth specifically at least one negligent act, error, or omission.
- The “First-File” Rule: Attach the affidavit to the very first petition that mentions the professional. Do not file the petition first with the intent to “supplement” later.
Responding to a Dismissal Without Prejudice
- Avoid the Amendment Trap: Do not file an amended petition in the current cause number.
- Initiate a New Action: Prepare a new Original Petition.
- Contemporaneous Filing: Attach the certificate of merit to the new Original Petition.
- Service of Process: Formally serve the professional in the new suit; do not rely on e-service from the old, dismissed matter.
Citation
Burns Surveying LLC v. Robert H. Burns and Jacob G. Pleasant, 06-25-00092-CV (Tex. App.—Texarkana Mar. 20, 2026, no pet. h.).
Full Opinion
Family Law Crossover
In high-conflict divorces, parties often look for “deep pockets” or third-party scapegoats when property valuations or boundaries go awry. If a spouse joins a surveyor to a divorce action alleging negligence in a partition survey, the opposing spouse can weaponize Burns Surveying LLC to simplify the litigation. If the complaining spouse fails to attach the certificate of merit to their first-filed cross-claim or third-party petition, the professional is entitled to a mandatory dismissal.
If the professional is a “friendly” witness to your client, ensuring that the opposing side’s claims are dismissed—and cannot be cured via amendment—removes a significant distraction and cost-driver from the property division phase. Moreover, if the statute of limitations is nearing, forcing the opponent to file a brand-new lawsuit rather than amending the current one may result in the claim being time-barred, effectively ending the professional liability threat entirely.
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