Summary
The Supreme Court of Texas held that the engineers waived the Texas Civil Practice and Remedies Code section 150.002 certificate-of-merit requirement through litigation conduct that clearly demonstrated an intent to proceed with the lawsuit. The Court adopted a totality-of-the-circumstances approach for determining implied waiver and held that waiver is reviewed de novo when the relevant facts are undisputed. The Court affirmed the court of appeals’ judgment and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- What standard governs implied waiver of a statutory certificate-of-merit requirement and the related statutory right to dismissal?
- Whether implied waiver is determined under a totality-of-the-circumstances test.
- Whether implied waiver is reviewed de novo when the material facts are undisputed.
- Whether the Engineers' litigation conduct clearly demonstrated an intent to waive the certificate-of-merit requirement and the right to dismissal under Texas Civil Practice and Remedies Code section 150.002.
- Whether prejudice is required to establish waiver of the section 150.002 certificate-of-merit requirement.
Holdings
- The universal test for implied waiver by litigation conduct is whether the party's action or inaction, considering the totality of the surrounding facts and circumstances, clearly demonstrates an intent to relinquish, abandon, or waive the right at issue, regardless of whether the right arises from a contract, statute, or constitution.
- Whether a party waived a right is a question of law, and when the material facts are undisputed, appellate review is entirely de novo.
- Texas Civil Practice and Remedies Code section 150.002's certificate-of-merit requirement is mandatory but not jurisdictional and may be waived by litigation conduct that clearly demonstrates an intent to abandon the requirement; waiver of the requirement also waives the statutory right to dismissal for noncompliance.
- The Engineers impliedly waived the section 150.002 certificate-of-merit requirement and the related right to dismissal by substantially and actively engaging in the judicial process, including extensive discovery, expert designation, responsible-third-party motions, affirmative claims for attorney's fees, mediation, and delay until shortly before trial.
- The court did not decide whether prejudice is always required to waive the section 150.002 certificate-of-merit requirement because prejudice was established on the record.
Key quotations
“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.” (7-8)
“Considering the totality of the circumstances, the Engineers impliedly waived the right to seek dismissal under section 150.002.” (24)
“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.” (24)
Factual background
Paul and Kim Gosnell hired the Engineers to evaluate and stabilize their home's foundation and alleged that the work worsened the foundation problems and caused significant property damage. The Gosnells filed contract and tort claims but did not file the certificate of merit required by Texas Civil Practice and Remedies Code section 150.002. Despite the missing certificate, the Engineers answered, participated in discovery and expert designation, sought designation of responsible third parties, participated in mediation, and waited until shortly before trial—1,219 days after suit was filed—to seek dismissal.
Procedural history
The Gosnells sued the Engineers for contract and tort claims arising from foundation-stabilization work without contemporaneously filing the certificate of merit required by Texas Civil Practice and Remedies Code section 150.002. The Engineers answered, participated extensively in discovery, sought designation of responsible third parties, participated in mediation, and moved to dismiss with prejudice shortly before trial. The trial court granted dismissal, the court of appeals reversed on implied-waiver grounds, and the Supreme Court of Texas affirmed the court of appeals and remanded to the trial court.
Remand instructions
The case is remanded to the trial court for further proceedings consistent with the holding that the Engineers waived the section 150.002 certificate-of-merit requirement and related dismissal right.