                         NUMBER 13-14-00447-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS GHRISTI - EDINBURG


JAMES FRAZIER,                                                        Appellant,



GNRC REALTY, LLC,                                                       Appellee.


                   On appeal from the l35th District Gourt
                        of Jackson County, Texas.


                           DISSENTING OPINION

            Before Justices Benavides, Perkes, and Longoria
                 Dissenting Opinion by Justice Perkes
      Because I disagree that Fraziefs original answer and responsive discovery clearly

waived his right to dismiss GNRC's suit against him for not complying with Texas Civil

Practice and Remedies Code section 150.002, I respectfully dissent.
       I agree with the majority's recitation of the applicable standard of review, the
controlling law on section 1 50.002, and the law of   waiver. I disagree, however, that one
sentence from Frazier's original answer and a single responsive admission to a request

for admission amounts to a substantial invocation of the judicial process                ',clearly

demonstrating an intent to waive the right to dismiss under subsection 150.002(3).,,

Crossfex Energy Serus. L.P. v. Pro PIus, 1nc.,430 S.W.3d 384, 395 (Tex. 2014).

       ln deciding that Frazier waived his right to dismiss under section 150.002, the

majority relies on Murphy v. Gutierrez. see 374 s.w.3d 627 (Tex. App.-Fort worth,

2012, pet. filed). Murphy is an outlier to the law on waiver for the section 1so.o02

certificate; the Murphy court recognized that no intermediate appellate court that had

considered waiver in the context of section 1b0.oo2 had ever found waiver to     exist.     See

rd at 630. The Murphy court concluded that the following conduct evidenced intent by

the engineer defendant to waive the certificate requirement:

       For over three and one-half years, the parties litigated this case.
      Specifically, Gutierrez undertook written discovery; deposed the plaintiffs;
      participated in being deposed by co-defendant and cross-plaintiff Classic;
      designated an expert witness and presented him for deposition; filed
      traditional and no-evidence summary judgment motions, which the trial
      court granted in part; objected to the Murphy's summary judgment
      evidence; and participated        in   post-summary judgment mediation.
      Gutienez also entered into an agreement to extend discovery so that
      Gutierrez could conduct discovery with respect to Classic;s cross-
      claim. . . . [F]ive days before a scheduled trial on the merits, Gutierrez filed
      an amended motion to dismiss, again based on Murphy's failure to file a
      section 150.002 certificate of merit.

ld. at629.

      Considering the totality of the circumstances and signifìcant factors for substantial

invocation, the Murphy Court concluded that because Gutierrez "participated extensively
 in discovery," sought and received affirmativè relief, participated in        court-ordered

mediation, and waited for over three and one-half years until the "eve of kial" to re-urge

his motion to dismiss, he had manifested an intent to litigate the case, thereby waiving

his right to dismiss under section 150.002. See rd. at 633-36.

       Murphy is distinguishable from this   case. ln contrast   to the engineer in Murphy,

Frazier's participation in discovery was limited and responsive, and Frazier did not

request affirmative relief, participate in mediation, or wait years to assert his right to

dismiss. Although Frazier filed an original answer,

       Filing an answer is . . . inconsequential in the analysis. See, e.g., pattadian
       Bldg. Co. v. Noñex Found. Designg /nc., 165 S.W.3d 430,434-35 (Tex.
       App.-Fort Worth 2005, no pet.) (held it is not inconsistent or unreasonable
       for a defendant to answer before moving to dismiss). We should not
       penalize parties or their attorneys for acting out of an abundance of caution
       and protecting their interests by filing an answer.

Crossfex Energy,430 S.W.3d at       394.   Similarly, "participation in discovery,,' such as

responding to requests for admission, and even "filing motions for summary iudgment do

not necessarily demonstrate an intent to waive the right to move for a   dismissal." usfanrk
v. Nortex Found. Designg /nc., 320 S.W.3d 409, 414 (Tex. App.-Waco 2010,                 pet.

denied); see Crossfex Energy,430 S.W.3d at 394-95 (defendant's .flurry of activity,,,

which included moving for continuance, engaging in discovery, entering Rule               11


agreement, and allegedly exchanging        "1 1,OOO   pages of written discovery," did not

manifest "an intent to waive the right to dismiss under section 150.002(e)"). Frazier's

participation was much less than that of the crossfex Energy and lJstanik defendants,

whose greater participation was nevertheless insufficient to manifest an intent to waive
dismissal under section 1 50.002. See Crossfex En e rgy, 430 S.W.3d at 394-9Si               tJ   stanik,

320 S.W.3d at413-14.

        Although citing substantial-invocation case law, the majority's analysis is not a

substantial-invocation inquiry; the majority's holding does not turn on the quantity of

participation but rather on the content of      it.   specifically, the majority construes a single

sentence in Frazier's original answer and a single response to GNRC's requests for

admission as being substantively inconsistent with his right to dismiss under section

150.002. No other appellate court has gleaned a 150.002 waiver from a responsive

pleading and discovery response. ln short, Frazier's answer and responsive admission

do not manifest a clear intent to litigate rather than dismiss the case.

        First, although Frazier admitted in his pro se answer that the HVAC design was

faulty, he stated Capt & Smart designed it, placing GNRC's allegations against him

personally at    issue. Moreover, Frazier subsequently filed an amended answer that
included a general denial, thereby placing all matters in         issue.l   TEX. R. Ctv. p. 95, g2;

Shell Chem. Co. v. Lamb,493 S.W.2d 742,744 (Tex. 1973) ("[A] generat denial puts

[plaintiff] on proof of every fact essential to his case and issue is joined on all material

facts asserted by [plaintiff] except those which are required to be denied under oath.").

Frazier did not admit liability     in his pro se answer or        otheruvise fail   to contest     the

allegations against him.

       Second, the majority makes much of Frazier's response to GNRC's Request of

Admission No. 5, which requested Frazier to admit that "part of [his] duties [were] to


       1   The record shows that after the trial court denied h¡s motions to dismiss, Frazier filed an
amended answer in which he asserted a general denial.
                                                  4
ensure that the facility was constructed pursuant to the requirements and regulations

contained in Title 40 of the Texas Administrative code, chapter 19, Nursing Facility

Requirements for Licensure and Medicaid Certification." Frazier's responsive admission

simply acknowledged a certain standard applied; it did not admit Frazier breached a duty

to GNRC. Neither was it related to or clearly inconsistent with Frazier's right to have

GNRC's claim dismissed under section 150.002.

       Because ldisagree that Frazier's participation and conduct manifested a clear

intent to waive his right   to have GNRC's claim dismissed under section 150.002,      I



respectfully dissent.




                                               Justice
Delivered and filed the 29th
day of August, 2014.
