Found. Assessment, Inc. v. O'Connor

• Decision Date: 06 March 2014
• Docket Number: No. 02–13–00166–CV.,02–13–00166–CV.
• Parties: FOUNDATION ASSESSMENT, INC., D/B/A Engineering Design & Assessment, and Suraj K. Choudhury, Appellants v. Suzanne O'CONNOR, Appellee.
• Court: Texas Court of Appeals

426 S.W.3d 827

FOUNDATION ASSESSMENT, INC., D/B/A Engineering Design & Assessment, and Suraj K. Choudhury, Appellants

v.Suzanne O'CONNOR, Appellee.

No. 02–13–00166–CV.

Court of Appeals of Texas,

Fort Worth.

March 6, 2014.

Roger Fuller, Steven L. Eason, Law Offices of Fuller & Eason, Dallas, for Appellants.

Elizabeth P. Ardanowski, Ardanowski Legal Group, Dallas, for Appellee.

Panel: DAUPHINOT, WALKER, and McCOY, JJ.

OPINION

SUE WALKER, Justice.

I. Introduction

The primary issue we address in this interlocutory appeal is whether appellants Foundation Assessment, Inc., d/b/a Engineering Design & Assessment, and Suraj K. Choudhury waived their right to dismissal of the suit brought against them by appellee Suzanne O'Connor by waiting almost two years to move for dismissal. SeeTex. Civ. Prac. & Rem.Code Ann. § 150.002(f) (West 2011). Because we hold that they did not, we will reverse the trial court's order denying appellants' motion to dismiss.

II. Factual and Procedural Background

The facts giving rise to this case concern a rental property located in Fort Worth and owned by O'Connor. She contracted with Perma Pier Foundation Company to perform certain foundation repairs to the property. Under the contract, Perma Pier agreed that initial and final engineering reports would be performed on the property. O'Connor received the engineering reports from Foundation Assessment's owner and engineer, Choudhury. Both reports indicated that someone with Foundation Assessment had personally visited and evaluated O'Connor's property. The initial report indicated that at Perma Pier's request, Foundation Assessment had performed an assessment of the foundation of the property, including “site observations” and verification of the plan of repair and procedure to be employed. The final report stated that Foundation Assessment had “checked the works performed and [had] checked the jacking.”

In April 2011, O'Connor sued Perma Pier and appellants, among others, alleging breach of contract, negligence and gross negligence, fraud, breach of express warranty, breach of implied warranty, violations of the deceptive trade practices act, civil conspiracy, and violations of the occupations code. The bulk of O'Connor's claims do not allege actions by appellants although she names all “Defendants” generally in all but one of her claims. Regarding appellants, O'Connor specifically alleged claims for fraud and civil conspiracy based on their allegedly making false statements in the engineering reports. ¹

Appellants timely filed an answer, and over the next twenty-two months, the parties litigated the case. In February 2013, appellants moved to dismiss the suit against them under civil practice and remedies code section 150.002 because O'Connor did not file a certificate of merit along with her original petition.² O'Connor filed a response and objections to the motion and, alternatively, a motion for additional time to file a certificate of merit. After conducting a hearing and receiving supplemental briefs from the parties, the trial court denied appellants' motion to dismiss.

III. Standard of Review

We review the trial court's order denying a motion to dismiss under an abuse of discretion standard. Murphy v. Gutierrez, 374 S.W.3d 627, 629–30 (Tex.App.-Fort Worth 2012, pet. filed) (citing Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.-Fort Worth 2005, no pet.)). To determine whether a trial court abused its discretion, we must decide whether it acted without reference to any guiding rules or principles; in other words, we must decide whether its act was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.2004). “Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Palladian Bldg. Co., 165 S.W.3d at 433.

IV. Dismissal Under Section 150.002 Was Required

In their sole issue, appellants argue that the trial court abused its discretion by denying their motion to dismiss. They contend that because O'Connor never filed a certificate of merit, the trial court was statutorily required to dismiss the suit against them. O'Connor responds that appellants waived their right to dismissal by litigating the case for almost two years before filing their motion to dismiss, that section 150.002 does not require a certificate of merit to be filed in this case, and that appellants are barred from seeking dismissal based on the doctrine of laches.

A. The Certificate of Merit Statute; No Waiver of Dismissal Right

Section 150.002, entitled “Certificate of Merit,” provides:

In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who:

(1) is competent to testify;

(2) holds the same professional license or registration as the defendant; and

(3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person's:

(A) knowledge;

(B) skill;

(C) experience;

(D) education;

(E) training; and

(F) practice.

Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a). By requiring a plaintiff to file a certificate of merit with her original petition,³section 150.002 deters meritless claims and brings them quickly to an end. CTL Thompson Tex., LLC v. Starwood Homeowner's Ass'n, 390 S.W.3d 299, 301 (Tex.2013); Criterium–Farrell Eng'rs v. Owens, 248 S.W.3d 395, 399 (Tex.App.-Beaumont 2008, no pet.) (“[T]he purpose of the certificate of merit is to provide a basis for the trial court to conclude that the plaintiff's claims have merit.”); see also House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 4, 78th Leg., C.S. (2003) (“In summary, [House Bill 4, including section 150.002] provides for a various corrective measure that will help ... reduce the costs of litigation ... [and] addresses many of the root causes of the current situation: non-meritorious lawsuits.”).

If a certificate of merit does not accompany the petition, a trial court must grant dismissal on a defendant's motion. Tex. Civ. Prac. & Rem.Code Ann. § 150.002(e). The statute does not impose a deadline by which a defendant must file its motion to dismiss. See id. § 150.002. Several intermediate appellate courts have held that a defendant's delay in moving for dismissal does not, alone, strip the defendant of the right to dismissal. See Pro Plus, Inc. v. Crosstex Energy Servs., L.P., 388 S.W.3d 689, 703 (Tex.App.-Houston [1st Dist.] 2012, pet. granted); Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409, 414 (Tex.App.-Waco 2010, pet. denied); DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 411 (Tex.App.-Dallas 2010, pet. denied). But courts have recognized that a defendant can waive its right to dismissal in some instances. Murphy, 374 S.W.3d at 631 (discussing cases that indicate a defendant's dismissal right can be waived).

Waiver is “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.” See Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003) (quoting Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987)); Palladian Bldg. Co., 165 S.W.3d at 434. Waiver is ordinarily a question of fact but becomes a question of law when the facts are admitted or clearly established. See Jernigan, 111 S.W.3d at 156–57;Palladian Bldg. Co., 165 S.W.3d at 434. Because waiver is largely based on intent, there can be no waiver of a right unless a litigant says or does something inconsistent with an intent to rely on such right. See Jernigan, 111 S.W.3d at 156;Palladian Bldg. Co., 165 S.W.3d at 434. Thus, silence by a litigant traditionally does not constitute waiver, but waiver can be established if “the defendant's silence or inaction shows an intent to yield the right to dismissal.” Jernigan, 111 S.W.3d at 157.

This court first addressed the issue of waiver in relation to section 150.002's dismissal right in Palladian Bldg. Co., where we held that the defendant did not waive its right to dismissal by filing an original and amended answer before moving to dismiss. See165 S.W.3d at 434–35. Since Palladian Bldg. Co., only five intermediate appellate courts have directly addressed the issue. See Pro Plus, Inc., 388 S.W.3d at 703–06;Murphy, 374 S.W.3d at 633–36;Ustanik, 320 S.W.3d at 413–14;DLB Architects, P.C., 305 S.W.3d at 411;Landreth v. Las Brisas Council of Co–Owners, Inc., 285 S.W.3d 492, 501 (Tex.App.-Corpus Christi 2009, no pet.).⁴ In Murphy, this court held that the defendant waived his right to dismissal by substantially invoking the judicial process; the defendant participated extensively in discovery, sought affirmative relief in the form of traditional and no-evidence summary judgment motions, participated in court-ordered mediation after obtaining partial summary judgment in his favor, and did not assert his dismissal right for three and one-half years before seeking it just five days before trial was scheduled. See374 S.W.3d at 633–36. In the remaining four cases, the appellate courts held that the defendants did not waive their dismissal right. See Pro Plus, Inc., 388 S.W.3d at 703–06 (finding no waiver where defendant participated in discovery, agreed to extend discovery and expert-designation deadlines, and delayed in filing motion to dismiss until after two-year statute of limitations ran on plaintiff's negligence claim); Ustanik, 320 S.W.3d at 413–14 (finding no waiver where defendants participated in discovery, filed motions for summary judgment, and waited more than two years before filing motion to dismiss); DLB Architects, P.C., 305 S.W.3d at 411 (holding that defendants did not waive dismissal...