Ustanik v. Nortex Found. Designs Inc

• Decision Date: 16 June 2010
• Docket Number: No. 10-09-00272-CV.,10-09-00272-CV.
• Parties: Mike USTANIK and Wife, Teresa Ustanik, Appellant,v.NORTEX FOUNDATION DESIGNS, INC., Jerry L. Coffee, P.E., and Ready Cable, Inc., Appellee.
• Court: Texas Court of Appeals

320 S.W.3d 409

Mike USTANIK and Wife, Teresa Ustanik, Appellant,v.NORTEX FOUNDATION DESIGNS, INC., Jerry L. Coffee, P.E., and Ready Cable, Inc., Appellee.

No. 10-09-00272-CV.

Court of Appeals of Texas Waco.

June 16, 2010.

COPYRIGHT MATERIAL OMITTED

Jim Hering, Pakis Giotes Page & Burleson PC, Waco, for Appellant.

C.D. Peebles, Peebles Law Firm, Southlake, for Appellee.

Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.

OPINION

TOM GRAY, Chief Justice.

Mike and Teresa Ustanik sued Nortex Foundation Designs, Inc. and Jerry Coffee when the foundation on their newly built house failed. When the trial court granted Nortex's and Coffee's motion to dismiss, the Ustaniks appealed. Because the trial court did not err in dismissing the Ustaniks's suit against Nortex and Coffee, we affirm the judgment of the trial court.

Section 150.002

At the time the Ustaniks filed their suit against Nortex and Coffee, Texas Civil Practice and Remedies Code section 150.002 required that a plaintiff, in a suit for damages arising out of services by a design professional, file with the complaint a “certificate of merit”-the affidavit of a third-party licensed professional engineer. See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a) (Vernon Supp. 2009)). The current version of Section 150.002 applies to a suit filed or commenced on or after September 1, 2009, the effective date of the amendments. Here, the Ustaniks originally filed their suit against Nortex and Coffee on February 8, 2007. Accordingly, we apply the former version of section 150.002 in this case.

The parties do not dispute that the Ustaniks failed to file the certificate of merit with their suit. The required result of that failure is a “dismissal of the complaint,” with or without prejudice. See id. (current version at § 150.002(e)). The trial court dismissed the claims without prejudice.

Standard of Review

We review a trial court's decision on a motion to dismiss a case for failure to comply with section 150.002 for an abuse of discretion. Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.-Fort Worth 2005, no pet.); see also Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (applying similar statute in context of healthcare liability suits). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles when it dismisses, or refuses to dismiss, a claim. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); Palladian Bldg., 165 S.W.3d at 433. However, if resolution of the issue requires us to construe statutory language, we review under a de novo standard. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009); Palladian Bldg., 165 S.W.3d at 436 (citing Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002)). Once we determine the proper construction of the statute, we determine whether the trial court abused its discretion in the manner in which it applied the statute to the instant case. See Palladian Bldg., 165 S.W.3d at 436.

Waiver

In their first issue, the Ustaniks argue that the trial court erred in granting Nortex's and Coffee's motion to dismiss because Nortex and Coffee waived their right to contest the Ustaniks' failure to file a certificate of merit with their original petition.

The Fort Worth Court was the first appellate court in the State to analyze the doctrine of waiver in conjunction with a motion to dismiss pursuant to section 150.002. Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434-435 (Tex.App.-Fort Worth 2005, no pet.). Following the Texas Supreme Court's method of analyzing waiver regarding the right to dismiss in a medical liability act case, the Forth Worth Court held that the defendant took no action that would preclude it from requesting a dismissal. Id. See Jernigan v. Langley, 111 S.W.3d 153 (Tex.2003). We, too, will follow that same analysis.

Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003); Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434 (Tex.App.-Fort Worth 2005, no pet.). Although waiver is ordinarily a question of fact, when the facts and circumstances are admitted or clearly established, the question becomes one of law. Jernigan, 111 S.W.3d at 156; Palladian Bldg., 165 S.W.3d at 434. Waiver is largely a matter of intent, and for implied waiver to be found through a party's actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Jernigan, 111 S.W.3d at 156. There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Jernigan, 111 S.W.3d at 156; Palladian Bldg., 165 S.W.3d at 434.

The Ustaniks argue that Nortex and Coffee waived their right to a dismissal because Nortex and Coffee waited almost two years and five month to file a motion to dismiss after raising a certificate of merit defense in their original answer and because Nortex and Coffee participated in discovery, designated their expert witness, filed traditional and no evidence motions for summary judgment, participated in mediation, participated in various pre-trial activities, and requested the amending of the Ustaniks' expert report. Some of the claimed actions taken are not supported by the record. See Palladian Bldg., 165 S.W.3d at 434-435.

Like a former version of the Medical Liability Act, former Tex.Rev.Civ. Stat. art. 4590i, § 13.01(d) repealed and recodified as amended by Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003, section 150.002 does not contain a deadline to file a motion to dismiss. See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 150.002(b) (Vernon Supp. 2009)).¹ When a statute does not contain a deadline, the mere fact that a defendant waits to file a motion to dismiss is insufficient to establish waiver. See Jernigan, 111 S.W.3d at 157; see also Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500-501 (Tex.App.-Corpus Christi 2009, no pet.). The Ustaniks find it significant that in Landreth, the court found no waiver when the defendant waited only 8 days before filing a motion to dismiss after discovering that the affiant did not practice in the same area of practice as the defendant. We do not. The Landreth court acknowledged that the certificate of merit statute does not have a deadline and that the Texas Supreme Court found no waiver when a doctor waited 600 days to file a motion to dismiss under the healthcare liability statute, a statute similar to this one. Landreth, 285 S.W.3d at 500-501; see Jernigan v. Langley, 111 S.W.3d 153 (Tex.2003). The Landreth court only mentioned the 8 day delay while discussing the action of participating in discovery, finding that there was no intent on Landreth's part to waive its right to file a dismissal. Id. at 501. The court did not find that a defendant could not wait any longer than a certain period of time. Accordingly, the fact that Nortex and Coffee waited 2 years and five months to file the motion to dismiss is insufficient, by itself, to establish waiver. The critical question is whether Nortex and Coffee took actions that were inconsistent with exercising their right to file a motion to dismiss.

Further, participation in discovery and filing motions for summary judgment do not necessarily demonstrate an intent to waive the right to move for a dismissal. See Jernigan, 111 S.W.3d at 157; see also Perry Homes v. Cull, 258 S.W.3d 580, 590 (Tex.2008) (citing examples of participation in discovery where the Court did not find waiver of an arbitration clause). Attempting to learn more about the case in which one is a party does not demonstrate an intent to waive the right to move for a dismissal. See id. And even though Nortex and Coffee filed motions for summary judgment, none of the motions were ever ruled on; however, we are not prepared to say that obtaining a ruling on a summary judgment motion is necessarily inconsistent with the right to file a motion to dismiss. Finally, the Ustaniks have not pointed to anything in the remaining documents that shows actions inconsistent with an intent to rely upon the right to seek a dismissal. We have not found anything either. Even the provided portions of the deposition of Coffee do not show an intent to waive the right to seek a dismissal.

In sum, we conclude that Nortex's and Coffee's actions were not so inconsistent with an intent to assert the right to a dismissal under section 150.002 as to amount to a waiver of that right. The Ustaniks' first issue is overruled.

Laches

In their second issue, the Ustaniks allege that the trial court abused its discretion in granting the motion to dismiss because the doctrine of laches precluded Nortex's and Coffee's right to seek a dismissal. Laches is an affirmative defense akin to estoppel. Ft. Worth v. Johnson, 388 S.W.2d 400, 403 (Tex.1964); Tex.R. Civ. P. 94. Assuming without deciding that the Ustaniks, as plaintiffs, may use this affirmative defense to prevent the dismissal of their suit, the burden was on the Ustaniks to prove the essential elements of laches. See id. The two essential elements are (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay. Id.; see also Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80 (Tex.1989).

We have already held that Nortex and Coffee did not waive their rights to pursue a motion to dismiss. Upon the same basis, arguments, and evidence, we...