Preview
FILED
12/2/2022 1:39 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
CAUSE NO. DC-21-l7449
REYES GROUP, LTD., IN THE DISTRICT COURT
§§§§§§§
Plaintiff,
VS. 101ST JUDICIAL DISTRICT
ELK ENGINEERING ASSOCIATES, INC.,
Defendants. DALLAS COUNTY, TEXAS
DEFENDANT ELK ENGINEERING ASSOCIATES, [NC.’S
MOTION TO OUASH AND MOTION FOR PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant ELK Engineering Associates, Inc. (“ELK”) and file this Motion
for Protective Order from Reyes Group, LTD.’s (“Reyes”) First Set of Interrogatories, First
Request for Production, Request for Admissions and Request for Disclosure (collectively
“Discovery Requests”) and would respectfully show the court the following:
SUMMARY
Reyes has asserted a breach of contract claim against ELK stemming from a subcontract
agreement Reyes and ELK entered into, in which ELK agreed to perform corrosion engineering
services for the Lewisville Damn Project (“Project”). Reyes filed its Original Petition on
December 6, 2021, asserting its claims, which arose out of the professional engineering services
ELK performed. Because Reyes’ claims against ELK are for damages arising out of the provision of
professional services by an engineering firm, Reyes was required to comply with Section 150.002 of
the TEXAS CIVIL PRACTICE & REMEDIES CODE, which requires a claimant to file a Certificate of Merit
DEFENDANT ELK ENGINEERING ASSOCIATES, INC. ’S
MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER — PAGE 1
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with its original petition.1 Under the statute, failure to file the Certificate of Merit results in a dismissal
of the complaint against the defendant?
ELK filed a Motion to Dismiss with the Court on May 24, 2022, for Reyes’ failure to comply
with Section 150.002. On November 4, 2022, Reyes filed its response to the Motion to Dismiss but
to date the Court has not ruled on the motion. Simultaneously, on November 4, 2022, Reyes served
ELK with Discovery Requests.
ARGUMENTS AND AUTHORITIES
Failure to file a Certificate of Merit affidavit contemporaneously with the first-filed
complaint requires dismissal of all claims against the engineer and the engineer’s firm. Id. at §
150.002(c), (e). Under the statute, failure of a plaintiff to comply With the statute entitles a
defendant to an absolute and immediate right of dismissal for failure to comply with statutory
requirements. Gonzalez v. Momentum Design & Constr., Inc., 633 S.W.3d 678, 691 (Tex. App.—
El Paso 2021, pet. denied). This unyielding right of dismissal renders engagement in discovery
meaningless and unnecessary unless the defendant in the case intends to waive its statutory right.
Id. Having to respond to written discovery requests or conduct any additional discovery in a case
that will ultimately be dismissed is a waste of time and resources. Additionally, some Courts have
found that when a defendant actively engages in the discovery process it signals that the defendant
intends to litigate the case and waives their right to dismissal under the statute. Id.
The scope of discovery must be evaluated in light of the principles of proportionality set
forth in Tex. R. Civ. P.192.4, which directs the court to limit discovery if the burden or expense
l See TEX. CIV. PRAC. & REM. CODE § 150.002 and ELK Engineering Associates, Inc.’s Motion to
Dismiss filed in this suit.
2
See TEX. CIV. PRAC. & REM. CODE § 150.002(e).
DEFENDANT ELK ENGINEERING ASSOCIATES, INC. ’S
MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER — PAGE 2
11 577308v1
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of the proposed discovery outweighs its likely benefit taking into account the needs of the case,
the amount in controversy and the importance of the proposed discovery in resolving the issue.
Tex. R. Civ. P. 192.4. That last factor re-iterates the relevance requirements placed by Rule
192.3(a) on discovery. To demonstrate relevance, a request “must show a reasonable expectation
of obtaining information that will aid the dispute’s resolution.” In re CSX Corp, 124 S.W.3d 149,
152 (Tex. 2003). This Court is authorized to enter a protective order prohibiting or limiting
discovery when justice requires protection of a party from any undue burden, unnecessary expense,
harassment or invasion of rights. Tex. R. Civ. P. 192.6(b).
The Court should enter a protective order in favor of ELK prohibiting any discovery by
Reyes because it would be unduly burdensome, an unnecessary expense and an invasion of rights
to require ELK to respond to discovery in case that ultimately will be dismissed. A dismissal by
the Court for Reyes’ failure to comply with Section 150.002 of the Texas Civil Practice & Remedies
Code will eliminate any need to further litigate the case at hand and any information obtained through
discovery would be useless and potentially harmfill to ELK. At the very least, the Discovery
Requests should be stayed until the Court has ruled on Elk’s Motion to Dismiss. The Discovery
Requests are not necessary for the Court to rule on Elk’s motion. No prejudice will come to Reyes
because the written discovery can be obtained at a later time, if Elk is denied the relief it seeks
from the Court. In the interest of judicial economy, ELK should not be required to respond to
Reyes’ Discovery Requests until this Court determines whether this matter will be dismissed.
Further, ELK engaging in discovery while its Motion to Dismiss is pending before this
Court could harm ELK by waiving their statutory right to dismissal prior to a decision being
rendered on its motion.
DEFENDANT ELK ENGINEERING ASSOCIATES, INC. ’S
MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER — PAGE 3
11577308v1
03982.671
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant ELK Engineering Associates,
Inc. prays this Honorable Court grant its request for a protective order relieving ELK of the burden
of responding to Reyes Group, LTD.’s Discovery.
Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS, L.L.P.
By: /s/ Angela D. Caffev
Angela D. Caffey
State Bar No. 24062064
acaffev@thompsoncoe.com
Daniel P. Buechler
State Bar No. 24047756
dbuechler@thompsoncoe.com
Lindsey Robison
State Bar No. 2405 8934
lrobison@thompsoncoe.com
700 N. Pearl Street, 25th Floor
Dallas, Texas 75201
Telephone: (214) 871 -8200
Facsimile: (214) 871 -8209
ATTORNEYS FOR ELK ENGINEERING
ASSOCIATES, INC.
CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of December, 2022, a copy of the foregoing document
was served on all counsel of record via e-serve.
Curtis Hubbard
Nixon Jach Hubbard, PLLC
14241 Dallas Parkway, Suite 575
Dallas, TX 75245
/s/Angela Caffev
Angela Caffey
DEFENDANT ELK ENGINEERING ASSOCIATES, INC. ’S
MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER — PAGE 4
11 577308v1
03982.671
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FILED 12/2/2022 1:39 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Terri Kilgore DEPUTY CAUSE NO. DC-21-l7449 REYES GROUP, LTD., IN THE DISTRICT COURT §§§§§§§ Plaintiff, VS. 101ST JUDICIAL DISTRICT ELK ENGINEERING ASSOCIATES, INC., Defendants. DALLAS COUNTY, TEXAS DEFENDANT ELK ENGINEERING ASSOCIATES, [NC.’S MOTION TO OUASH AND MOTION FOR PROTECTIVE ORDER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant ELK Engineering Associates, Inc. (“ELK”) and file this Motion for Protective Order from Reyes Group, LTD.’s (“Reyes”) First Set of Interrogatories, First Request for Production, Request for Admissions and Request for Disclosure (collectively “Discovery Requests”) and would respectfully show the court the following: SUMMARY Reyes has asserted a breach of contract claim against ELK stemming from a subcontract agreement Reyes and ELK entered into, in which ELK agreed to perform corrosion engineering services for the Lewisville Damn Project (“Project”). Reyes filed its Original Petition on December 6, 2021, asserting its claims, which arose out of the professional engineering services ELK performed. Because Reyes’ claims against ELK are for damages arising out of the provision of professional services by an engineering firm, Reyes was required to comply with Section 150.002 of the TEXAS CIVIL PRACTICE & REMEDIES CODE, which requires a claimant to file a Certificate of Merit DEFENDANT ELK ENGINEERING ASSOCIATES, INC. ’S MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER — PAGE 1 11577308v1 03982.671 with its original petition.1 Under the statute, failure to file the Certificate of Merit results in a dismissal of the complaint against the defendant? ELK filed a Motion to Dismiss with the Court on May 24, 2022, for Reyes’ failure to comply with Section 150.002. On November 4, 2022, Reyes filed its response to the Motion to Dismiss but to date the Court has not ruled on the motion. Simultaneously, on November 4, 2022, Reyes served ELK with Discovery Requests. ARGUMENTS AND AUTHORITIES Failure to file a Certificate of Merit affidavit contemporaneously with the first-filed complaint requires dismissal of all claims against the engineer and the engineer’s firm. Id. at § 150.002(c), (e). Under the statute, failure of a plaintiff to comply With the statute entitles a defendant to an absolute and immediate right of dismissal for failure to comply with statutory requirements. Gonzalez v. Momentum Design & Constr., Inc., 633 S.W.3d 678, 691 (Tex. App.— El Paso 2021, pet. denied). This unyielding right of dismissal renders engagement in discovery meaningless and unnecessary unless the defendant in the case intends to waive its statutory right. Id. Having to respond to written discovery requests or conduct any additional discovery in a case that will ultimately be dismissed is a waste of time and resources. Additionally, some Courts have found that when a defendant actively engages in the discovery process it signals that the defendant intends to litigate the case and waives their right to dismissal under the statute. Id. The scope of discovery must be evaluated in light of the principles of proportionality set forth in Tex. R. Civ. P.192.4, which directs the court to limit discovery if the burden or expense l See TEX. CIV. PRAC. & REM. CODE § 150.002 and ELK Engineering Associates, Inc.’s Motion to Dismiss filed in this suit. 2 See TEX. CIV. PRAC. & REM. CODE § 150.002(e). DEFENDANT ELK ENGINEERING ASSOCIATES, INC. ’S MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER — PAGE 2 11 577308v1 03982.671 of the proposed discovery outweighs its likely benefit taking into account the needs of the case, the amount in controversy and the importance of the proposed discovery in resolving the issue. Tex. R. Civ. P. 192.4. That last factor re-iterates the relevance requirements placed by Rule 192.3(a) on discovery. To demonstrate relevance, a request “must show a reasonable expectation of obtaining information that will aid the dispute’s resolution.” In re CSX Corp, 124 S.W.3d 149, 152 (Tex. 2003). This Court is authorized to enter a protective order prohibiting or limiting discovery when justice requires protection of a party from any undue burden, unnecessary expense, harassment or invasion of rights. Tex. R. Civ. P. 192.6(b). The Court should enter a protective order in favor of ELK prohibiting any discovery by Reyes because it would be unduly burdensome, an unnecessary expense and an invasion of rights to require ELK to respond to discovery in case that ultimately will be dismissed. A dismissal by the Court for Reyes’ failure to comply with Section 150.002 of the Texas Civil Practice & Remedies Code will eliminate any need to further litigate the case at hand and any information obtained through discovery would be useless and potentially harmfill to ELK. At the very least, the Discovery Requests should be stayed until the Court has ruled on Elk’s Motion to Dismiss. The Discovery Requests are not necessary for the Court to rule on Elk’s motion. No prejudice will come to Reyes because the written discovery can be obtained at a later time, if Elk is denied the relief it seeks from the Court. In the interest of judicial economy, ELK should not be required to respond to Reyes’ Discovery Requests until this Court determines whether this matter will be dismissed. Further, ELK engaging in discovery while its Motion to Dismiss is pending before this Court could harm ELK by waiving their statutory right to dismissal prior to a decision being rendered on its motion. DEFENDANT ELK ENGINEERING ASSOCIATES, INC. ’S MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER — PAGE 3 11577308v1 03982.671 PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant ELK Engineering Associates, Inc. prays this Honorable Court grant its request for a protective order relieving ELK of the burden of responding to Reyes Group, LTD.’s Discovery. Respectfully submitted, THOMPSON, COE, COUSINS & IRONS, L.L.P. By: /s/ Angela D. Caffev Angela D. Caffey State Bar No. 24062064 acaffev@thompsoncoe.com Daniel P. Buechler State Bar No. 24047756 dbuechler@thompsoncoe.com Lindsey Robison State Bar No. 2405 8934 lrobison@thompsoncoe.com 700 N. Pearl Street, 25th Floor Dallas, Texas 75201 Telephone: (214) 871 -8200 Facsimile: (214) 871 -8209 ATTORNEYS FOR ELK ENGINEERING ASSOCIATES, INC. CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of December, 2022, a copy of the foregoing document was served on all counsel of record via e-serve. Curtis Hubbard Nixon Jach Hubbard, PLLC 14241 Dallas Parkway, Suite 575 Dallas, TX 75245 /s/Angela Caffev Angela Caffey DEFENDANT ELK ENGINEERING ASSOCIATES, INC. ’S MOTION TO QUASH AND MOTION FOR PROTECTIVE ORDER — PAGE 4 11 577308v1 03982.671