                            NUMBER 13-14-00447-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JAMES FRAZIER,                                                               Appellant,

                                            v.

GNRC REALTY, LLC,                                                              Appellee.


                   On appeal from the 135th District Court
                        of Jackson County, Texas.


                                   OPINION
            Before Justices Benavides, Perkes, and Longoria
                     Opinion by Justice Benavides
      This is an interlocutory appeal from the trial court's denial of an architect’s motion

to dismiss under Texas Civil Practice and Remedies Code section 150.002 for lack of a

certificate of merit. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(f) (West, Westlaw
through 2013 3d C.S.) (authorizing immediate interlocutory appeal from an order denying

a motion to dismiss under section 150.002). By one issue,1 appellant James Frazier

argues the trial court should have dismissed appellee GNRC Realty LLC's ("GNRC")

lawsuit for failure to timely file a certificate of merit.          GNRC argues that Frazier waived

its right to a certificate of merit. We affirm.

                                              I. BACKGROUND

        GNRC contracted with Antlers Construction, a/k/a Antlers Corporation ("Antlers")

for the construction of the Ganado Nursing and Rehabilitation Center ("Nursing Facility").

Antlers hired Frazier to design the Nursing Facility.             Capt & Smart Consulting Engineers,

lnc. ("Capt & Smart") was hired to design the heating, ventilation, and air conditioning

('HVAC") for the Nursing Facility, and Dale Williams d/b/a Quality Air Heating and Air

Conditioning (“Quality Air”) was hired to build and install the HVAC system.

Approximately three months after substantial completion of the Nursing Facility, the

parties learned that there was allegedly negative air pressure in the building caused by a




        1   Frazier’s original appeal included another issue: the trial court’s denial of appellee Dale Williams
d/b/a Quality Air, Heating and Air Conditioning's ("Quality Air’s") cross-claim for failure to file a timely
certificate of merit. Quality Air contended that the trial court’s decision was correct: it was not required to
file a certificate of merit under section 150 of the Texas Civil Practice and Remedies Code because it was
a “cross-claimant” and not a “plaintiff.” See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)–(b) (West,
Westlaw through 2013 3d C.S.); Jaster v. Comet II Construction, Inc., —S.W.3d—, No. 12-0804, 2014 WL
2994503, at *8 (Tex. July 3, 2014) (plurality op.) (concluding, in a Texas Supreme Court case issued after
the parties in the underlying case submitted their briefing, that cross-claimants were not required to file
certificates of merit in chapter 150 cases).

        On August 8, 2014, Quality Air informed our court that it had reached a settlement with GNRC
Realty, LLC. Accordingly, Quality Air requested a motion for partial dismissal because its settlement with
GNRC rendered its cross-action against appellant James Frazier moot. We granted this motion for partial
dismissal and severed the case, cause number 13-12-00770, on August 21, 2014. Frazier’s remaining
issue against GNRC proceeds under the current cause number 13-14-00447-CV.



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faulty HVAC system. The problem was allegedly so severe it required the residents of

the Nursing Facility to be evacuated due to excess humidity and inadequate cooling.

       ln April 2011, GNRC filed an original petition that asserted claims against Antlers,

Frazier, Quality Air, and Capt & Smart. Specifically, GNRC sued Frazier and Quality Air

for damages alleging negligence, gross negligence, negligence per se, breach of

contract, and breach of express and implied warranties. No certificate of merit was

attached to GNRC's original petition.   ln May 2011, Frazier, proceeding pro se, answered

GNRC's suit with a letter that he filed in the trial court as an original answer.

       ln February 2012, Quality Air filed a cross-claim against, among others, Frazier,

seeking contribution in the event it was found liable to GNRC.       ln August 2012, Frazier

filed two motions to dismiss under civil practice and remedies code section 150.002.

One was directed against GNRC's claims; the other was directed against Quality Air's

cross-claim.   GNRC responded by arguing that Frazier waived the certificate of merit

requirement.    Quality Air joined and adopted GNRC's response. On October 9, 2012,

GNRC filed a sixth Amended petition. Attached to the sixth Amended Petition is an

affidavit and certificate of merit by John M. McGinty, a registered architect licensed in the

state of Texas. The next day, a hearing was held on Frazier’s motions to dismiss. The

trial court denied both motions to dismiss and this interlocutory appeal followed.

                      II. APPLICABLE LAW AND STANDARD OF REVIEW

       Texas Civil Practice and Remedies Code section 150.002 requires that, "in any

action . . . 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




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”affidavit of a . . . third-party licensed architect."   See id. §150.002(a).

       The affidavit shall set forth specifically for each theory of recovery for which
       damages are sought, the negligence, if any, or other action, error, or
       omission of the licensed or registered professional in providing the
       professional service, including any error or omission in providing advice,
       judgment, opinion, or a similar professional skill claimed to exist and the
       factual basis for each such claim.

ld. § 150.002(b). "The plaintiff's failure to file the affidavit in accordance with this

section . . . shall result in dismissal of the complaint against the defendant."           Id. §

150.002(e). "This dismissal may be with prejudice."           Id.

       “We review a trial court's decision to grant or deny a defendant's motion to dismiss

under section 150.002 of the Civil Practice and Remedies Code for abuse of discretion."

WCM Group, Inc. v. Camponovo, 305 S.W.3d 214, 219 (Tex. App.—Corpus Christi 2009,

pet. dism'd) (citing Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492,

496 (Tex. App.—Corpus Christi 2009, no pet.), superseded by statute on other grounds,

TEX. CIV. PRAC. & REM. CODE ANN. § 150.002, as recognized in Morrison Seifert Murphy,

Inc. v. Zion, 384 S.W.3d 421 (Tex. App.—Dallas 2012, no pet.)).

       To the extent we analyze statutory construction, however, our standard of review

is de novo. See id. (citing Landreth, 285 S.W.3d at 496).             "Once we determine the

statute’s proper construction, we must then decide whether the trial court abused its

discretion in applying the statute."      Id.   "ln construing statutes, we ascertain and give

effect to the Legislature's intent as expressed by the language of the statute."          City of

Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2006). "We use definitions prescribed

by the Legislature and any technical or particular meaning the words have acquired."          Id.

"Otherwise, we construe the statute's words according to their plain and common



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meaning."    ld. "Every word of a statute must be presumed to have been used for a

purpose, and every word excluded from a statute must also be presumed to have been

excluded for a purpose."     Landreth, 285 S.W.3d at 497.

                                         IV. ANALYSIS

       By his sole remaining issue, Frazier argues the trial court abused its discretion by

not dismissing GNRC’s claims against him on account of its failure to timely file a

certificate of merit under section 150.002 of the Texas Civil Practice and Remedies Code.

lt is undisputed that GNRC did not file a certificate of merit until nearly eighteen months

after it first filed suit; GNRC filed its certificate of merit with its sixth amended petition on

the day before the hearing on Frazier's motion to dismiss.        GNRC counters that Frazier

waived his right to a certificate of merit because his original answer and responsive

discovery included admissions of liability that obviated any need for a certificate of merit.

       Section 150.002 imposes a mandatory, non-jurisdictional filing requirement, and a

defendant may waive its right to seek dismissal under the statute.            Crosstex Energy

Svcs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014). Waiver is the intentional

relinquishment of a known right or intentional conduct inconsistent with claiming that right.

Id. at 393–94; Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam) (quoting

Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987); U.S. Fid. & Guar.

Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex. 1971)).          Evidence of waiver

generally takes one of three forms: (1) express renunciation of a known right; (2) silence

or inaction, coupled with knowledge of the known right, for such an unreasonable period

of time as to indicate an intention to waive the right; or (3) other conduct of the party




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knowingly possessing the right of such a nature as to mislead the opposite party into an

honest belief that the waiver was intended or assented to.       Alford, Meroney & Co. v.

Rowe, 619 S.W.2d 210, 213 (Tex. 1981).

       "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 (citing Motor Vehicle Bd. v. El Paso lndep.

Auto. Dealers Ass'n, lnc., 1 S.W.3d 108, 111 (Tex. 1999)); Rowe, 619 S.W.2d at 213

(citing Ford v. Culbertson, 308 S.W.2d 855, 865 (Tex. 1958)).      "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 (citing Maryland

Cas. Co. v. Palestine Fashions, Inc., 402 S.W.2d 883, 888 (Tex. 1966)).

       Generally, waiver is an affirmative defense.     See TEX. R. CIV. P. 94.    lt may be

asserted against a party who waives a right arising from law.        Tenneco lnc. v. Enter.

Prod. Co., 925 S.W.2d 640, 643 (Tex. 1996) (citing Rowe, 619 S.W.2d at 213); Ford, 308

S.W.2d at 865). Waiver is ordinarily a question of fact, but when the surrounding facts

and circumstances are undisputed, the question becomes one of law.         Crosstex Energy

Services, 430 S.W.3d at 394–95 (concluding as a matter of law that a defendant did not

waive its right to a certificate of merit by answering a lawsuit, participating in discovery,

joining continuance and docket-control orders, and entering a Rule 11 agreement);

Jernigan, 111 S.W.3d at 156-57; Tenneco, 925 S.W.2d at 643.

       In the context of cases involving chapter 150, “a party can substantially invoke the

judicial process to such an extent that it is clear the litigant is abandoning the right to




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dismiss the case under section 150.001.”            Murphy v. Gutierrez, 374 S.W.3d 627, 633–

35 (Tex. App.—Fort Worth 2012, pet. filed). And, based on our de novo review of the

undisputed facts, we conclude Frazier's actions prior to seeking dismissal amount to a

waiver of his right to seek dismissal under section 150.002.           ln his original pro se answer,

Frazier did not assert a general denial to deny the five allegations of design negligence

against him.2 In fact, his answer affirmatively admitted that the HVAC design was faulty:

“the design of the HVAC system was, in fact, faulty in design created a negative pressure

in the building.” Although Frazier shifted responsibility to Capt & Smith for the “initial

design,” his answer outlined the steps he personally took in an attempt to remedy the

situation—further acknowledging that there was a defect that needed to be corrected.

       Later, in discovery, Frazier’s conduct continued to demonstrate facts and

circumstances which amounted to waiver. For example, in his responses to Requests

for Admission, he answered as follows:

       Request for Admission No. 5: Admit that as the architect who designed the
       plans for the Ganado Nursing Facility, it was part of your duties to 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 Response]: Admit.

       Importantly, we note that the purpose of chapter 150 “is to deter meritless claims

and bring them quickly to an end.”                  CTL/Thompson Texas, LLC v. Starwood




       2   Frazier subsequently filed an amended answer which included a general denial.




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Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex. 2013). Here, in both his answer

and in discovery, Frazier admitted that the HVAC design was faulty, thus giving merit to

plaintiff’s claims.   Frazier’s own admissions lend support to plaintiff’s claims that

negligence occurred in the construction of the HVAC system, and granting a motion to

dismiss in this case would defeat the purpose of this statute.   In light of this, we conclude

that Frazier “substantially invoked the judicial process,” Murphy, 374 S.W.3d at 631, and

thus waived his right to a certificate of merit.

       The dissent focuses on Texas cases that emphasize the quantity of activity in a

case rather than the substance of activity.        See, e.g., Crosstex Energy Services, 430

S.W.3d at 394–95 (holding that no waiver existed where a party filed an answer,

exchanged 11,000 pages of written discovery, and entered into a Rule 11 agreement,

among other actions). The dissent claims that “the majority construes a single sentence

in Frazier’s original answer and a single response in GNRC’s requests for admission as

being substantively inconsistent with [Frazier’s] right to dismiss under section 150.002.”

We disagree with this cursory summary of our analysis.              Actively participating in

discovery is fundamentally different than admitting that a mechanism you designed, which

was supposed to meet certain state standards yet you concede was “faulty in design”, is

another matter entirely.      If “waiver is a function of intent” that “must be clearly

demonstrated by the surrounding facts and circumstances” of a case, id. at 394, we find

that waiver occurred here.

       We overrule Frazier's second issue on appeal.




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                                       V. CONCLUSION

         Having overruled Frazier’s only issue on appeal, we affirm the judgment of the trial

court.



                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Dissenting Opinion by
Justice Gregory T. Perkes.

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




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