Thomas A. Lalonde, Jr., P.E., Individually and D/B/A Lee Engineering Co., Lee Engineering Co., Stanley Harold Prather and Prather Engineering Consultants, Inc. v. Paul Gosnell and Kim Gosnell ( 2019 )

IN THE SUPREME COURT OF TEXAS
444444444444
No. 16-0966
444444444444
THOMAS A. LALONDE, JR., P.E., INDIVIDUALLY AND D/B/A LEE ENGINEERING
CO., LEE ENGINEERING CO., STANLEY HAROLD PRATHER AND PRATHER
ENGINEERING CONSULTANTS, INC., PETITIONERS,
V.
PAUL GOSNELL AND KIM GOSNELL, RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
Argued November 1, 2018
JUSTICE GUZMAN delivered the opinion of the Court, in which JUSTICE GREEN, JUSTICE
LEHRMANN, JUSTICE DEVINE, JUSTICE BROWN, and JUSTICE BUSBY joined.
JUSTICE BOYD filed a dissenting opinion, in which CHIEF JUSTICE HECHT and JUSTICE
BLACKLOCK joined.
Chapter 150 of the Texas Civil Practice and Remedies Code requires that a sworn “certificate
of merit” accompany any lawsuit complaining about a licensed professional engineer’s services.1
Failure to contemporaneously file an affidavit from a similarly licensed professional attesting to the
lawsuit’s merits requires dismissal of the suit.2 The certificate-of-merit requirement is a substantive
1
TEX. CIV. PRAC. & REM. CODE § 150.002(a).
2
Id. § 150.002(b), (e).
hurdle that helps ensure frivolous claims are expeditiously discharged.3 To that end, if the plaintiff
fails to file a certificate of merit, the statute obviates the need to litigate the lawsuit altogether, even
to the point of relieving the defendant of any obligation to file an answer until thirty days after a
certificate is filed.4
No certificate of merit has ever been filed in this lawsuit, as required, but the defendant
engineers did not seek dismissal until the eve of trial—1,219 days after suit was filed, nearly two
years after the engineers answered, and long after the limitations periods had expired on the
plaintiffs’ claims. In the interim, the engineers participated in discovery until all discovery deadlines
had expired, filed motions seeking to shift responsibility to third parties, and—rather than invoking
the absolute statutory right to dismissal—chose to participate in alternative methods for terminating
the lawsuit. As we affirmed in Crosstex Energy Services, L.P. v. Pro Plus, Inc., a defendant can
waive Chapter 150’s certificate-of-merit requirement by litigating inconsistently with claiming the
right to dismissal.5 Considering the totality of the circumstances, we agree with the court of appeals
that the defendant engineers’ engagement of the judicial process implies they intended to waive the
statute’s requirements.6 Accordingly, we affirm the court of appeals’ judgment and remand the case
to the trial court for further proceedings.
3
CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n Inc., 390 S.W.3d 299, 301 (Tex. 2013) (“Section
150.002(e) dismissal is a sanction . . . to deter meritless claims and bring them quickly to an end.”); cf. Spectrum
Healthcare Res., Inc. v. McDaniel, 306 S.W.3d 249, 253 (Tex. 2010) (discussing an analogous expert-report requirement
under the Texas Medical Liability Act).
4
TEX. CIV. PRAC. & REM. CODE § 150.002(d).
5
430 S.W.3d 384, 386, 393-95 (Tex. 2014).
6
559 S.W.3d 559, 568 (Tex. App.—Fort Worth 2016).
2
I. Background
Paul and Kim Gosnell hired Thomas A. LaLonde d/b/a Lee Engineering Co.; TAL Industries,
Inc. d/b/a Lee Engineering Co.; Stanley Harold Prather; and Prather Engineering Consultants Inc.
(collectively, the Engineers) to evaluate and stabilize their home’s foundation. The Gosnells allege
the Engineers’ work exacerbated the foundation problems, causing significant damage to their home.
Exactly two years later, the Gosnells sued the Engineers, alleging contract and tort claims, but they
did not contemporaneously file a certificate of merit as required by section 150.002 of the Texas
Civil Practice and Remedies Code.
Twenty months later, the Engineers filed their original answer, denying the allegations and
requesting attorney’s fees. Though a certificate of merit still had not been filed, the parties agreed
to a scheduling order establishing discovery and expert-designation deadlines and setting a trial date.
Shortly thereafter, the parties voluntarily participated in mediation to resolve the case without further
litigation.
When settlement efforts failed, the parties began litigating the case in accordance with the
scheduling order. Over the course of the next eighteen months, the Engineers successfully moved
to withdraw and substitute counsel; supplemented their answer with specific denials and affirmative
defenses; propounded and responded to discovery requests; designated expert witnesses; and moved
to designate responsible third parties under Chapter 33 of the Texas Civil Practice and Remedies
Code. A second agreed scheduling order extended the discovery and expert-witness designation
deadlines and also reset the trial, which had been continued by agreement at the defendants’ request.
3
The day discovery closed, the Engineers produced a final batch of documents. A few days after that,
the parties participated in an unsuccessful court-ordered mediation.
Two days later—and mere weeks before trial—the Engineers filed a motion to dismiss with
prejudice because the Gosnells had not included a certificate of merit when they filed their original
petition forty months earlier. The dismissal hearing was delayed for an additional five months as
the parties engaged in further settlement negotiations, but the trial court ultimately granted the
motion and dismissed the Gosnells’ lawsuit with prejudice.
The court of appeals reversed, holding the Engineers impliedly waived section 150.002’s
requirements.7 Considering the totality of the circumstances, the court concluded that “the
Engineers’ engagement in the judicial process indicated their intention to litigate and amounted to
waiver.”8
We granted the Engineers’ petition for review, which asserts the court of appeals applied the
wrong waiver standard and the wrong standard of review. The Engineers argue that implied waiver
of a statutory right (1) is not determined under a totality-of-the-circumstances test, (2) should not
be reviewed de novo because it involves a question of intent, (3) always begins with a presumption
against waiver, and (4) requires a showing of prejudice. We reject the first two arguments. As to
the third, we hold that the undisputed evidence satisfies the burden of proof under our intent-based
7
Id.
8
Id.
4
waiver standard.9 We need not decide whether prejudice—a conceptually distinct concept from
waiver—is required to effect a waiver because prejudice is established on this record.
II. Discussion
In Crosstex Energy Services, L.P. v. Pro Plus, Inc., we held that section 150.002’s
certificate-of-merit requirement is mandatory but not jurisdictional, so notwithstanding the absence
of a statutory deadline for dismissal, it can be waived.10 The Gosnells concede they failed to file the
affidavit section 150.002 requires, but assert the Engineers impliedly waived that requirement by
substantially invoking the judicial process contrary to their statutory right to dismissal. The court
of appeals agreed with the Gosnells but the Engineers say this was error because the court applied
the “totality of the circumstances” waiver test instead of the “traditional” waiver test. Perceiving
a distinction between judicial articulations of the waiver standard, the Engineers maintain that the
“totality of the circumstances” test is limited to determining waiver of contractual rights, such as
9
In cases involving contractual arbitration and forum-selection clauses, we have noted that a “strong
presumption against waiver” exists and that the presumption “should govern” in “close cases,” Perry Homes v. Cull, 258
S.W.3d 580, 593 (Tex. 2008), such that “doubts” as to waiver are “resolved in favor of arbitration,” In re Poly-Am., L.P.,
262 S.W.3d 337, 348 (Tex. 2008); see also, e.g., RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 430 (Tex. 2016)
(arbitration); In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 718 & n.1 (Tex. 2016) (forum-selection clauses, which
are “analogous to arbitration clauses”); In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006) (arbitration); EZ
Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex. 1996) (“The FAA [Federal Arbitration Act] disfavors waiver, and there
is a strong presumption against waiver.” (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24
(1983), and Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex. 1995))). We have not recognized a similar
presumption outside these contexts, and the public policies favoring arbitration and contract rights are not implicated
here. We note, however, that the party asserting waiver bears the burden of proving intent by a preponderance of the
evidence. Proving intent is an inherently high standard, and the necessity of preponderating evidence of subjective intent
means that a claim of waiver in a close case would fail. The FAA’s “strong presumption” also seems to refer to the
requirement, in the arbitration context, that waiver be accompanied by prejudice, a matter we do not reach here because
the record establishes prejudice. See In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006); In re Bruce
Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998).
10
430 S.W.3d 384, 393 (Tex. 2014). Though we settled the matter in Crosstex, the American Council of
Engineering Companies of Texas, as amicus curiae, argues that section 150.002’s requirements cannot be waived. For
the reasons articulated in Crosstex, we disagree.
5
arbitration and forum selection, while the “traditional” test applies to waiver of statutory rights, like
those in section 150.002.
We disagree that the waiver tests are different in the way the Engineers assert. The nature
of the right at issue might make a difference in whether a showing of prejudice or detriment is
required,11 a matter we need not consider in this case, but we cannot agree that the standard for
determining implied waiver differs.
A. Waiver Standard
Waiver is the “intentional relinquishment of a known right or intentional conduct
inconsistent with claiming that right.”12 Waiver “results as a legal consequence from some act or
conduct of the party against whom it operates” and is “essentially unilateral in character,” meaning
“no act of the party in whose favor it is made is necessary to complete it.”13 Prejudice, in
comparison, is an estoppel-based requirement that focuses on detriment or prejudice to the other
party.14
11
See Nationwide, 494 S.W.3d at 712-13 (observing that for waiver of forum-selection clauses, “we have
borrowed a different standard from the jurisprudence applicable to arbitration clauses” that requires prejudice); Perry
Homes, 258 S.W.3d at 593, 595 (describing the test for implied waiver of arbitration rights as “quite similar” to the test
for “estoppel,” where the question is “not so much when waiver occurs as when a party can no longer take it back” and
noting that, in some contexts, “prejudice is an element of the normal contract rules”).
12
Crosstex, 430 S.W.3d at 391 (quoting Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex.
1987)).
13
Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 485 (Tex. 2017) (quotation marks omitted).
14
Perry Homes, 258 S.W.3d at 593, 595; see also Nationwide, 494 S.W.3d at 712-13 (noting the implied waiver
test “borrowed” from the arbitration context is “different” from traditional waiver principles because the former includes
the estoppel-based requirements of detriment or prejudice).
6
Though waiver is a question of intent, it need not be explicit.15 A party’s conduct sufficiently
demonstrates intent to waive a right if, in light of the “surrounding facts and circumstances,” it is
“unequivocally inconsistent with claiming” that right.16 As we explained in Crosstex, “[s]ubstantial
invocation of the judicial process” implies waiver when it “clearly demonstrat[es]” an intent to
abandon a known right.17 Intentional relinquishment is “clearly demonstrate[d]” when litigation
conduct is manifestly inconsistent with the right at issue.18 To effect waiver by litigation conduct
in the arbitration and forum-selection cases, we have also required a showing of prejudice but only
in addition to an intent to abandon those rights.19 Under Texas law, implied waiver and prejudice
are distinct concepts.20 That does not mean, however, that evidence bearing on one is irrelevant to
the other, because conduct inconsistent with claiming a right can evince intent while also working
a prejudice to the opposing party.
Our description of the type of litigation conduct that can establish an implied waiver has
varied in articulation, but not in substance. While our arbitration and forum-selection cases refer
15
Crosstex, 430 S.W.3d at 393.
16
Id.; Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex. 2005).
17
Crosstex, 430 S.W.3d at 394.
18
Id.
19
See In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d 404, 405, 410-11 (Tex. 2011) (both conduct
evidencing intent to waive contractual appraisal right and prejudice were required); Perry Homes v. Cull, 258 S.W.3d
580, 593, 595 (Tex. 2008) (holding a party’s litigation conduct established both intentional abandonment of arbitration
rights and prejudice in the form of “substantial direct benefits” and “advantage” from engaging “in the pretrial litigation
process”).
20
See Perry Homes, 258 S.W.3d at 595 (“Under Texas law, waiver may not include a prejudice requirement,
but estoppel does. In cases of waiver [of arbitration rights] by litigation conduct, the precise question is not so much
when waiver occurs as when a party can no longer take it back.”).
7
to implied waiver arising when a party “substantially invokes the litigation process,”21 some
statutory-right cases refer to waiver implied by “engagement in the judicial process” that “clearly
demonstrates” an intent to waive the right.22 To the extent these linguistic variations have caused
confusion, we clarify here that the universal test for implied waiver by litigation conduct is whether
the party’s conduct—action or inaction—clearly demonstrates the party’s intent to relinquish,
abandon, or waive the right at issue—whether the right originates in a contract, statute, or the
constitution.23 This is a high standard.
In determining whether a party’s conduct clearly demonstrates an intent to waive a right,
courts must consider the totality of the circumstances.24 This is a “case-by-case” approach that
necessitates consideration of all the facts and circumstances attending a particular case.25 That is
precisely the standard the court of appeals applied in correctly concluding the Engineers waived the
21
See, e.g., id. at 589-90 (arbitration); In re Automated Collection Techs., Inc., 156 S.W.3d 557, 559 (Tex.
2004) (forum selection).
22
See Crosstex, 430 S.W.3d at 394.
23
See Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 6 (Tex. 2014) (“In general, parties may waive
statutory and even constitutional rights.”); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996) (“Silence
or inaction, for so long a period as to show an intention to yield the known right, is also enough to prove waiver.”).
24
In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 713 (Tex. 2016) (“Whether litigation conduct is
‘substantial’ depends on context and is determined on a case-by-case basis from the totality of the circumstances.”);
Crosstex, 430 S.W.3d at 393 (“To find waiver through conduct, such intent ‘must be clearly demonstrated by the
surrounding facts and circumstances.’”); Perry Homes, 258 S.W.3d at 591 (“We agree waiver must be decided on a
case-by-case basis, and that courts should look to the totality of the circumstances.”).
25
See supra note 24.
8
right to dismissal based on the Gosnells’ failure to file an expert’s threshold assurance that their
claims are not frivolous.26
The Engineers also complain about the standard of review the court of appeals applied, but
as the Engineers concede, we have long and consistently held that waiver is a question of law.27
Appellate courts do not defer to the trial court on questions of law.28 Deference must be afforded
to the trial court’s disposition of disputed facts, but when there are none, as here, our review is
entirely de novo.
B. Implied Waiver of the Certificate-of-Merit Requirement
The rights at issue here arise under section 150.002 of the Texas Civil Practice and Remedies
Code. Section 150.002 gives certain professionals, including licensed engineers, the right to a
professional certification that any complaint about their services has merit before any litigation may
be undertaken at all.29 Absent a properly filed certificate of merit, professionals have the right to
avoid litigation entirely.30 By enabling defendants to quickly jettison meritless lawsuits, the
certificate-of-merit requirement saves parties the expense of protracted litigation.31
26
559 S.W.3d at 561, 566-68 (Tex. App.—Fort Worth 2016) (concluding that “the totality of the circumstances
here paints the picture of defendants who did not intend to take advantage of their right to dismissal”).
27
Perry Homes, 258 S.W.3d at 598 & n.101.
28
Id. at 598 & n.102.
29
TEX. CIV. PRAC. & REM. CODE § 150.002(a), (b), (d).
30
Id § 150.002(d), (e).
31
CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n Inc., 390 S.W.3d 299, 300-01 (Tex. 2013).
9
To that end, unlike the analogous expert-report requirement in the Texas Medical Liability
Act, the right to dismissal under section 150.002 ordinarily arises immediately when a “complaint”
has been filed without an expert’s sworn certification of merit.32 Also unlike the Medical Liability
Act, the case must be dismissed under section 150.002 without the defendant ever having to file an
answer.33 Though Chapter 150 does not include any deadline for seeking dismissal, it quite plainly
provides ample opportunity to do so without the need to engage in any other litigation activity, at
least when no certificate has been filed, as in this case.34 Our precedents affirm that the absence of
a deadline for asserting a right—whether arising under a statute, a contract, or the constitution—does
not preclude implied waiver by conduct inconsistent with claiming the right.35 We thus begin our
32
TEX. CIV. PRAC. & REM. CODE § 150.002(a), (c), (e).
33
Compare id.§ 150.002(a), (b), (d) (requiring an expert certification to be filed contemporaneously with the
petition and tolling the defendant’s answer filing date until 30 days after a compliant certificate is filed), with
id. § 74.351(a) (requiring service of an adequate expert report within 120 days after the original answer is filed, absent
a statutorily permitted extension).
34
Cases involving a missing certificate are analytically different than those in which a certificate has been filed
but is later challenged as defective or otherwise noncompliant. In the latter case, one might reasonably expect some
litigation activity would be essential to “learn more about the case” and avoid being disadvantaged if a dismissal motion
challenging the adequacy of a expert certification is denied. Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003).
35
See, e.g., Crosstex Energy Services, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 394-95 (Tex. 2014) (section
150.002’s requirement of a timely certificate of merit and right to dismissal as a remedy for noncompliance may be
waived); Perry Homes v. Cull, 258 S.W.3d 580, 593 (Tex. 2008) (finding waiver of a contractual right to arbitration);
Jernigan, 111 S.W.3d at 156 (“Although there is no statutory deadline to file a motion to dismiss [under a superseded
version of the Medical Liability Act], we must decide whether [the defendant] nevertheless waived the right . . . .”); Fort
Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 843-44 (Tex. 2000) (constitutional rights can be waived
by conduct inconsistent with claiming that right, and a party’s “conduct for more than fifty years,” including agreeing
to pay the taxes, was inconsistent with his complaint that the assessed taxes violated the Texas Constitution); Tenneco
Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996) (“[O]ver a period of three years, from the date of the First
Transfer until the filing of this lawsuit, no owner complained about Tenneco Natural Gas Liquids’ failure to comply with
Section 12.2 [of the parties’ contract]. This extended inaction by the plant owners, coupled with their acceptance of
Tenneco Natural Gas Liquids as a plant co-owner, establishes an intentional waiver of any rights concerning the First
Transfer.”).
10
implied-waiver analysis with the observation that all of the Engineers’ conduct in this case was
inconsistent with their rights under section 150.002.
As we explained in Crosstex, however, not all litigation conduct is necessarily so
inconsistent with a party’s rights under section 150.002 to imply an intent to relinquish those
rights.36 For example, conduct that is merely defensive or responsive to litigation initiated and
carried on by the other party does not in and of itself give rise to waiver.37 Hence, filing an answer
“out of an abundance of caution” is “inconsequential”38 and “attempting to learn about the case”
when the defect in an expert’s certification may not be evident would not be “inconsistent with the
intent to assert the right to dismissal.”39 Nor is mere delay, like the eight-month time frame in
Crosstex, ordinarily sufficient to imply waiver.40
36
See Crosstex, 430 S.W.3d at 394-95 (filing an answer, engaging in limited discovery, and waiting a few
months to move for dismissal did not indicate an intent to waive the certificate-of-merit requirement and the right to
dismissal for noncompliance).
37
See RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 430 (Tex. 2016) (“[A]sserting defensive claims—even
if such claims seek affirmative relief—does not waive arbitration.”); G.T. Leach Builders, LLC v. Sapphire V.P., LP,
458 S.W.3d 502, 513 (Tex. 2015) (“A party’s litigation conduct aimed at defending itself and minimizing its litigation
expenses, rather than at taking advantage of the judicial forum, does not amount to substantial invocation of the judicial
process.”).
38
Crosstex, 430 S.W.3d at 394; see, e.g., Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430,
433-35 (Tex. App—Fort Worth 2005, no pet.) (finding that filing original and amended answers constituted “no action
that would preclude it from seeking dismissal . . . .”).
39
Jernigan, 111 S.W.3d at 157 (expert-report filed as required under the Texas Medical Liability Act, but
subsequently challenged as defective).
40
430 S.W.3d at 387 (eight months with limited activity); see also Jacobs Field Servs. N. Am., Inc. v. Willeford,
No. 01-17-00551-CV, 2018 WL 3029060, at *5 (Tex. App.—Houston [1st Dist.] June 19, 2018, no pet.) (mem. op.) (six-
and-a-half months); Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 501 (Tex. App.—Corpus
Christi 2009, no pet.) (eight days after learning the plaintiff’s certificate of merit was fatally deficient).
11
Yet, in affirming that section 150.002’s requirements can be waived by substantially
engaging the judicial process, Crosstex also recognizes that, at some point, the right to a threshold
certification of merit will be so obviated by a party’s litigation conduct as to clearly evince an intent
to abandon that requirement and proceed with the litigation.41 Whether that is the case here depends
on the totality of the circumstances.
C. Totality of the Circumstances
The jurisprudence reflects several factors that bear on whether a party’s litigation conduct
clearly demonstrates an intent to repudiate a known right. For the most part, those factors have
received attention in the arbitration and forum-selection contexts,42 but they must necessarily be
weighed differently here because the right at issue is materially different. Arbitration and
forum-selection cases involve rights that do not terminate the litigation; rather, those rights—at
best—change the arena of dispute and, in doing so, may change the rules of engagement. Here, in
comparison, the rights arising under section 150.002 eliminate the obligation to litigate at all based
on the plaintiff’s failure to raise a preliminary fact issue on merit. The right to dismissal under
section 150.002(e) arises solely and exclusively from the requirements in sections 150.002(a) and
(b) that an engineer certify the merit of each theory of recovery before the case may proceed. This
requirement can be waived, and if it is, the right to dismissal under section 150.002(e) is as well.
In focusing only on the dismissal right in section 150.002(e), the dissent ignores waiver of the
41
430 S.W.3d at 386, 393-95.
42
Perry Homes v. Cull, 258 S.W.3d 580, 591 (Tex. 2008) (arbitration); In re Nationwide Ins. Co. of Am., 494
S.W.3d 708, 718 & n.1 (Tex. 2016) (forum selection).
12
condition precedent to that right, misstates the right at issue, and asserts—contrary to clear
precedent—that the absence of a statutory deadline for dismissal is essentially controlling.
Fixating on the absence of a statutory deadline for dismissal, the dissent frames the right at
issue as the right to seek and obtain dismissal at “any . . . point in the litigation process,” the
“unlimited” right to seek dismissal at any time, “the right to seek dismissal at any time,” the “right
to ever obtain dismissal at any point in the process,” and “the right to obtain dismissal of the
homeowners’ claims at any time during this litigation process.”43 The statute says no such thing.
The dissent adds those words to a statute that is simply silent on the matter. The dissent’s
augmented view of the statute and root analysis conflict with our holding in Crosstex that
substantially invoking the litigation process can waive section 150.002’s requirements when that
conduct demonstrates intent to waive those requirements.
Jernigan involves (1) a substantively different statute that does not excuse the defendant
from litigating and (2) a timely filed, but allegedly defective, expert report. Nevertheless, we held
the same thing there—even without a statutory deadline for dismissal, rights may be waived through
a party’s actions “inconsistent with the intent to assert the right to dismissal.”44 As we held in
Jernigan, and as we do here, merely waiting to move for dismissal is insufficient to establish waiver
“unless the defendant’s silence or inaction shows an intent to yield the right to dismissal based on
the report’s insufficiency” and “to establish an intent to waive the right to dismissal under [the
43
Post at 6-9, 11 & 14 (BOYD, J., dissenting) (emphases added).
44
Jernigan v. Langley, 111 S.W.3d 153, 156-57 (Tex. 2003) (“Although there is no statutory deadline to file
a motion to dismiss, we must decide whether [the defendant] nevertheless waived the right . . . .”).
13
statute], the defendant’s silence or inaction must be inconsistent with the intent to rely upon the right
to dismissal.”45 Consistent with Crosstex, we also made clear that delay is only one of the
surrounding facts and circumstances to be considered.46 An objective reading of Jernigan does not
support the dissent’s characterization of its disposition as turning on the absence of statutory
deadline.
Given the true nature of the rights at issue here, the proper focus is on the degree to which
a party has chosen to litigate despite the plaintiff’s noncompliance with the statutory requirement
of a threshold merits certification and the availability of a mandatory dismissal right. We do not
focus on a single factor, so conduct that may seem negligible in isolation may nonetheless
unequivocally demonstrate an intent to abandon section 150.002’s requirements when the party’s
conduct is cumulatively considered in light of the surrounding facts and circumstances.
45
Id. at 157 (citing Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996), and Martinez v.
Lakshmikanth, 1 S.W.3d 144 (Tex. App.—Corpus Christi 1999, pet. denied)).
46
Id. at 156 (intent to waive “must be clearly demonstrated by the surrounding facts and circumstances”); id.
at 157 (considering the defendant’s delay, participation in discovery, pleading practice, and affirmative request for relief
in determining whether the defendant’s actions were “so inconsistent with an intent to assert the [statutory] right to
dismissal”).
14
1. Discovery Participation
One factor is whether and to what extent the defendant has participated in pretrial
discovery.47 If all the defendant does is parry a plaintiff’s attacks48 or attempt to learn more about
the case to determine eligibility for dismissal,49 engaging in such discovery has little bearing on the
defendant’s intent to waive the right. But actively pursuing discovery oriented toward a resolution
on the merits strongly indicates the defendant intends to litigate and, thus, waive the statute’s
threshold requirements. This is especially so in a case like this where the fatal defect—the lack of
a certificate of merit—exists at the outset of litigation.
The import discovery activities bear depends considerably on the right at issue. In the
forum-selection context, for example, engaging in initial discovery says little about waiver,
especially when the same discovery would be available in the other forum.50 Discovery will happen
one way or the other, so any discovery that occurs retains value even after the right to litigate in
another forum has been exercised. In contrast, seeking discovery when the absolute right to
dismissal clearly and unequivocally exists at the suit’s inception would, in the ordinary case, be
47
Id. at 157; Crosstex, 430 S.W.3d at 394; Found. Assessment, Inc. v. O’Connor, 426 S.W.3d 827, 833 (Tex.
App.—Fort Worth 2014, pet. denied); Murphy v. Gutierrez, 374 S.W.3d 627, 633 (Tex. App.—Fort Worth 2012, pet.
denied); DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 411 (Tex. App.—Dallas 2010, pet. denied); Ustanik v. Nortex
Found. Designs, Inc., 320 S.W.3d 409, 414 (Tex. App.—Waco 2010, pet. denied); Palladian Bldg. Co., Inc. v. Nortex
Found. Designs Inc., 165 S.W.3d 430, 434 (Tex. App.—Fort Worth 2005, no pet.); see also Perry Homes, 258 S.W.3d
at 593 (“How much litigation conduct will be ‘substantial’ depends very much on the context; three or four depositions
may be all the discovery needed in one case, but purely preliminary in another.”) (footnotes omitted).
48
Jernigan, 111 S.W.3d at 157 (“[T]he defendant’s participation was in response to discovery initiated by the
plaintiff.”).
49
Id.; Crosstex, 430 S.W.3d at 394.
50
See In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (finding no waiver after the defendant moved
to compel arbitration after only filing an answer and propounding one set of interrogatories and requests for production).
15
manifestly inconsistent with that right. Thus, in the certificate-of-merit context, discovery may be
pointless unless the defendant intends to waive the right to dismissal.
Still, one could envision scenarios in which some discovery would be useful, such as when
the discovery could help persuade the trial court to dismiss with prejudice, which is entirely in the
trial court’s discretion under section 150.002(e), or when a certificate is filed but later challenged
as inadequate.51 An implication of intent depends on the nature, degree, and extent of discovery
activities under the circumstances. Not just quantity but also quality. Discovery that would be
inconsistent with exercising one’s rights under section 150.002 in a relatively straightforward case
might be inconsequential in a more complex case.
2. Stage of Litigation and Elapsed Time
Another factor to consider is the point in the litigation process that the defendant first
attempts to seek dismissal.52 As is evident from the statute’s express language—which essentially
abates all litigation if no preliminary evidence of merit is offered—the expert-affidavit requirement
serves to weed out frivolous claims before litigation commences, not to dispose of those that are
potentially meritorious.53 So the more developed a case is, and the closer it is to trial, the stronger
51
TEX. CIV. PRAC. & REM. CODE § 150.002(e).
52
Murphy, 374 S.W.3d at 634-35; Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 501
(Tex. App.—Corpus Christi 2009, no pet.); see Perry Homes, 258 S.W.3d at 591.
53
Cf. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).
16
the implication becomes that the defendant intended to abandon the certificate-of-merit requirement
and, accordingly, the remedy for noncompliance.54
The time elapsed in the litigation should also be taken into consideration.55 Indeed,
“[s]ilence or inaction, for so long a period as to show an intention to yield the known right, is . . .
enough to prove waiver.”56 It certainly takes a long time to be “enough,” but every day a defendant
has an absolute procedural right to dismissal yet does not exercise it is another small but cumulative
indication of the defendant’s intent to waive that right.
3. Seeking Affirmative Relief and Alternative Dispute Resolution
The right to dismissal under section 150.002 is clear and unequivocal. But dismissal for
noncompliance with the certificate-of-merit requirement may be with or without prejudice,57 a matter
within the trial court’s discretion.58 Seeking and obtaining affirmative relief from the trial court,
especially summary judgment, eschews the discretion-based remedy that arises from a procedural
54
Perry Homes, 258 S.W.3d at 591 & n.57 (citing two federal circuit cases for the same proposition); In re
Vesta Ins. Group, Inc., 192 S.W.3d 759, 764 (Tex. 2006) (finding no waiver of a right to arbitration after the finding the
party did not “conduct full discovery, file motions going to the merits, and seek arbitration only on the eve of trial”).
55
Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003); Found. Assessment, Inc. v. O’Connor, 426 S.W.3d
827, 833 (Tex. App.—Fort Worth 2014, pet. denied); Murphy, 374 S.W.3d at 635; Ustanik v. Nortex Found. Designs,
Inc., 320 S.W.3d 409, 414 (Tex. App.—Waco 2010, pet. denied); Landreth, 285 S.W.3d at 500-01.
56
Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996); see Jernigan, 111 S.W.3d at 157
(paraphrasing Tenneco); Motor Vehicle Bd. of Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1
S.W.3d 108, 111 (Tex. 1999) (quoting Tenneco); see also Crosstex, 430 S.W.3d at 391 (parties may waive the
section 150.002 expert-report requirement “by failing to object timely”).
57
TEX. CIV. PRAC. & REM. CODE § 150.002(e); see Pedernal Energy, LLC v. Bruington Eng’g, Ltd., 536 S.W.3d
487, 493-94 (Tex. 2017) (rejecting a party’s argument that section 150.002(e) requires dismissal with prejudice).
58
Pedernal Energy, 536 S.W.3d at 495-96 (failure to file the required affidavit with the original petition coupled
with filing of an amended petition with a deficient affidavit “might support a trial court’s determination that the claims
lack merit[,] [b]ut that determination is within the trial court’s discretion and is reviewed for abuse of discretion”).
17
defect in favor of substantive relief on the merits.59 In short, electing to litigate the case to a
merits-based disposition is conduct inconsistent with the right to dismissal of the case without
litigation, without regard to the merits, and on terms that are within the trial court’s discretion.60
In a similar vein, strategically waiting to seek dismissal until after limitations has
expired—thus procuring a de facto dismissal with prejudice—is also conduct that may be considered
in determining intent to waive the right to dismissal under section 150.002(e). It is, in effect, a
repudiation of the remedy on the terms the Legislature has provided.
Whether the defendant participated in mediation is also a factor, but it may be of limited
value.61 Consistent with the state’s strong public policy favoring the peaceable resolution of
disputes, mediation is an effective tool for resolving claims outside of litigation.62 We encourage
it. At the same time, we recognize that attempting to terminate litigation in this manner is both
consistent and inconsistent with the right to dismissal under section 150.002. As the multiple failed
settlement negotiations in this case prove, mediation is obviously a less certain dispute-resolution
method than mandatory dismissal under section 150.002 and is definitely contrary to that relief.
59
Found. Assessment, 426 S.W.3d at 832-33; Murphy, 374 S.W.3d at 634; Ustanik, 320 S.W.3d at 414.
60
See Jernigan, 111 S.W.3d at 157 (a defendant’s failure to object to an expert report’s inadequacy “until after
the case is disposed of on other grounds” is an “example” of implied waiver of the report requirement in a Medical
Liability Act case); compare Pedernal Energy, 536 S.W.3d at 496 (even if a case appears to lack merit due to
noncompliance with the certificate-of-merit requirement, the trial court has discretion to dismiss without prejudice), with
e.g., TEX. R. CIV. P. 166a(i) (a summary-judgment movant is entitled to judgment as a matter of law when no evidence
supports the plaintiff’s claims).
61
Found. Assessment, 426 S.W.3d at 833; Murphy, 374 S.W.3d at 634.
62
TEX. CIV. PRAC. & REM. CODE § 154.002.
18
But because dismissal may or may not be with prejudice to refiling the suit, if refiling would
not be time barred, mediating would not be a particularly strong indicator of intent. Engaging in
mediation certainly tends to suggest an intent to contest the merits of the case notwithstanding the
plaintiff’s failure to comply with a precondition to suit, but on its own does not clearly demonstrate
an intent to forgo the right to dismissal. The fact that the parties have engaged in mediation is thus
probative but not dispositive of intent.
4. Case-By-Case Analysis Required
Although we have recognized that a single factor might be sufficient to establish waiver in
unusual cases, intent to waive will often require much more because “substantially invoking the
judicial process” means the defendant has engaged in litigation conduct that is manifestly
incompatible with the rights section 150.002 affords.63
Crosstex is typical of no-waiver cases. The defendant in Crosstex moved for dismissal only
eight months into the suit, with six months to go before the close of discovery and more than seven
months until the docket call.64 Substantively, the defendant had only filed an answer, exchanged
some discovery to “wrap [its] mind[] around the case,” agreed to a continuance, and entered a Rule
63
Jernigan, 111 S.W.3d at 157 (noting that, other than a single set of interrogatories and a request for
production a few weeks into the suit, the defendant had moved for summary judgment eighteen months into the litigation
on charitable-immunity grounds followed quickly by dismissal for a defective expert report under a prior version of the
Medical Liability Act); see Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 387 (Tex. 2014) (the
defendant also joined a motion for a continuance and entered a limited Rule 11 agreement); Cimarron Eng’g, LLC v.
Miramar Petroleum, Inc., No. 13-14-00163-CV, 2014 WL 2937012, at *2 (Tex. App.—Corpus Christi June 26, 2014,
no pet.) (mem. op.); DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 411 (Tex. App.—Dallas 2010, pet. denied) (the
only evidence of waiver the plaintiff pleaded was that the defendant waited fifteen months to move for dismissal).
64
Crosstex, 430 S.W.3d at 387.
19
11 agreement.65 Such little activity over a relatively short period of time that was so temporally and
procedurally distant from any resolution on the merits did not establish the defendant’s implied
intent to waive or abandon the dismissal right.
In contrast, when the defendant throws itself into the vortex of the merits, either explicitly66
or implicitly by its unmistakable conduct,67 waiver is established. In Murphy v. Gutierrez, the Fort
Worth Court of Appeals considered some of the same factors we discuss here in concluding the facts
established the defendant’s intent to abandon its rights.68 The court held that the defendant had
“substantially invoked the judicial process and that he waived his right to pursue dismissal.”69 The
court arrived at this conclusion only by “considering the totality of the circumstances”—the
defendant’s three-and-a-half-year delay in seeking dismissal, “extensive[]” participation in
discovery, requests for affirmative relief, and participation in mediation—which demonstrated the
defendant’s “intention to litigate the case . . . and waive[] his right to pursue dismissal . . . .”70
Likewise, in Perry Homes, we examined several of the preceding factors in concluding the
plaintiffs voluntarily relinquished their contractual arbitration rights.71 The plaintiffs had actively
65
Id. at 394.
66
Frazier v. GNRC Realty, LLC, 476 S.W.3d 70, 73-74 (Tex. App.—Corpus Christi 2014, pet. denied).
67
Murphy v. Gutierrez, 374 S.W.3d 627, 633-36 (Tex. App.—Fort Worth 2012, pet. denied); see Perry Homes
v. Cull, 258 S.W.3d 580, 590-93 (Tex. 2008) (finding waiver of a mandatory-arbitration provision).
68
374 S.W.3d at 633-36.
69
Id. at 635.
70
Id.
71
258 S.W.3d at 589-95. The only factor not considered was participation in alternative dispute resolution.
20
opposed arbitration, conducted extensive discovery, and then moved “very late” (fourteen months
had elapsed) in the process and on “the eve of trial” (one month from the trial date72) after “most of
the discovery in the case had already been completed.”73 In particular, the plaintiffs had filed five
motions to compel with 76 requests for production, designated at least six people for depositions
with a request for 67 categories of documents, noticed depositions of three of the defendant’s
experts, and requested each expert produce 24 categories of documents.74 Unsurprisingly, such
extensive discovery carried out until such a late point in the litigation—without any indication the
plaintiffs had intended to preserve the right to compel arbitration—implied an intent to relinquish
that right. This was true even though there, like here, the parties were not operating under an
express deadline for asserting their rights.
Just as in Murphy and Perry Homes, every fact in this case other than the motion for
dismissal itself demonstrates an intent to litigate contrary to the Engineers’ statutory dismissal right.
D. The Engineers’ Litigation Conduct
To say that the Engineers’ motion to dismiss was filed late in the game is an understatement.
The defect in the Gosnells’ pleadings existed from day one. It was open and obvious. The right to
dismissal was manifest, and the dispute was relatively uncomplicated. Yet, the Engineers actively
brought discovery to a close, even after agreeing to an extension of the discovery and
72
Id. at 596 (finding one month from trial to be the “eve of trial,” which “is not limited to the evening before
trial; it is a rule of proportion . . . .”); see 3 C.R. at 496, Perry Homes, 258 S.W.3d 580 (Tex. 2008) (No. 05-0882) (listing
the date of filing the motion to compel arbitration as November 15, 2001); 18 C.R. at 3536-37, Perry Homes, 258 S.W.3d
580 (Tex. 2008) (No. 05-0882) (identifying the trial setting as December 10, 2001).
73
Perry Homes, 258 S.W.3d at 596.
74
Id. at 595-96.
21
expert-designation deadlines. They served interrogatories and requested disclosures and production,
responded to requests for disclosures and production, designated two experts, filed two motions to
designate third parties, amended their discovery responses, and filed an amended answer asserting
affirmative defenses but not the right to dismissal. The Engineers’ pretrial discovery activity reflects
preparation of the case for disposition on the merits contrary to their statutory right to a certificate
of merit before commencing litigation activity and the related right to dismissal for noncompliance
with that requirement.
What’s more, the Engineers advanced the litigation past the close of discovery to within one
month of trial—a trial date that had already been extended to accommodate the Engineers’ counsel.
The defendant in Perry Homes waited until the same exact point: one month before trial. As we said
there, “[t]he rule that one cannot wait until ‘the eve of trial’ to request arbitration is not limited to
the evening before trial; it is a rule of proportion that is implicated here.”75 At the point the
Engineers filed their dismissal motion, there was very little left of the judicial process to invoke
except for an actual disposition on the merits. While the dissent summarily concludes this
circumstance is relevant only to estoppel,76 it most directly demonstrates the Engineers’ intentional
conduct inconsistent with claiming its rights under section 150.002.
Even without a deadline for asserting the right at issue, a significant delay can suffice to
establish waiver.77 The Engineers waited 1,219 days after the Gosnells filed the initial petition to
75
Id. at 596.
76
Post at 12 (BOYD, J., dissenting).
77
See supra n.56 and accompanying text.
22
move for dismissal, every day of which the Gosnells’ procedural mistake was apparent.78 Even if
the Engineers had been unaware of the lawsuit until the day they filed their original answer (and
they were not), twenty months elapsed before they exclaimed, “King’s X!” In finding waiver, only
one appellate case has considered a longer time period, and that was only an additional month.79 The
time elapsed here thus easily falls on the “too long” end of the spectrum.
The Engineers also waited 492 days after the first unsuccessful mediation to seek
dismissal—eighteen months after they knew enough of the merits to believe mediation could resolve
the dispute. Neither the delay of 1,219 days from the petition nor 492 days from the first mediation
can be reconciled with an intent to seek dismissal. Such lengthy time periods might not be
ineluctably conclusive, but they are strong indicators of intent to waive.
This is especially so given that the parties had engaged in yet another mediation a mere two
days before the Engineers finally invoked their statutory rights. Although the Engineers attempt to
draw a distinction between court-ordered and voluntary mediation, we are not persuaded there is
merit to that distinction here. The trial court had similarly set a trial date by court order, but that did
not prevent the Engineers from filing a motion to dismiss and deferring the trial date. Had the
Engineers intended to rely on their dismissal right, they could have done the same with respect to
the mediation order. They chose not to do so. The Engineers’ continual efforts to resolve the
78
The date the Engineers were served does not appear to be in the record, but it appears they were served by
consent and do not now contest they were served properly.
79
Murphy v. Gutierrez, 374 S.W.3d 627, 628-29 (Tex. App.—Fort Worth 2012, pet. denied).
23
dispute in ways other than by dismissal under section 150.002 demonstrates an intent to abandon
that right.
The Engineers did not file any summary-judgment motions, but their request for attorney’s
fees is an affirmative claim for relief.80 Moreover, they twice filed motions to shift liability to
responsible third parties. This litigation conduct is yet another unequivocal sign that the Engineers
did not just intend to, but were in fact, litigating the merits of the claim.
Finally, regardless of whether prejudice is required—as both parties assume—prejudice
exists. While the Engineers were sitting on their rights, limitations expired on the Gosnells’ contract
claims. For two years after filing suit and in the four months after the Engineers had filed their
original answer, the Gosnells could have cured the pleading defect by refiling the lawsuit. Due to
unexplainable, and unexplained, delay, they are now time-barred from doing so. Though defendants
are not expected to bend over backwards to save the plaintiffs’ claims, allowing limitations to expire
before asserting a right that significantly pre-existed the time bar provides some indication they
intended to waive the pleading defect and the remedy.
Even assuming none of the above factors is dispositive on its own—not the extent of
discovery, not the proximity to trial, not the nearly unprecedented length of delay—all point in the
same direction: the Engineers intended to litigate the case on the merits despite their right not to do
so. Considering the totality of the circumstances, the Engineers impliedly waived the right to seek
dismissal under section 150.002.
80
See Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008) (an independent claim for attorney’s fees is an
affirmative claim for relief that survives a nonsuit).
24
III. Conclusion
Under Chapter 150, both a certificate of merit and the consequence for failing to file one are
mandatory. But as our analysis in Crosstex tacitly recognizes, when defendants have so engaged
the judicial process that a certificate of merit ceases to serve its intended function, the requirement
of its filing is waived. And when the right to a threshold affirmation of merit has been waived, the
consequence for failing to file one dissipates. In other words, because the Engineers’ substantial
invocation of the judicial process implied an intent to waive the certificate-of-merit requirement, the
statutory basis for dismissal has likewise been waived. We therefore affirm the court of appeals’
judgment finding waiver of the statutory right to dismissal and remand the case to the trial court.
___________________________
Eva M. Guzman
Justice
OPINION DELIVERED: June 14, 2019
25