

Opinion issued
February 9, 2012

In
The
Court of
Appeals
For
The
First District
of Texas
————————————
NO. 01-11-00025-CV
———————————
PRO PLUS, INC., Appellant
V.
CROSSTEX
ENERGY SERVICES, L.P., Appellee

 

 
On Appeal from the 55th
District Court
Harris County, Texas

Trial Court Case No. 2010-23663
 

 
 
DISSENTING OPINION
          In
the trial court, Pro Plus, Inc. (“Pro Plus”) filed a motion to dismiss the
claims of Crosstex Energy Services, L.P. (“Crosstex”) on the ground that Crosstex
had failed to file a certificate of merit with its original petition, as
required by Civil Practice and Remedies Code section 150.002.[1]  Identifying eleven issues, Pro Plus appeals
the trial court’s order denying its motion to dismiss.   
          Because
I believe Pro Plus knowingly and voluntarily waived its right to a certificate
of merit under the circumstances of this case, I would affirm the judgment of
the trial court.
I agree with the majority that, by
its plain language, the Certificate of Merit Statute is mandatory, not
discretionary.  See TDIndustries, Inc. v. Citicorp N. Am., Inc., No.
02–10–00030–CV, 2011 WL 1331501, at *3 (Tex. App.—Fort Worth Apr. 7, 2011, no pet.) (mem. op.); see also Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(e) (Vernon 2011) (providing that
plaintiff’s failure to file affidavit “in accordance with this section shall result in dismissal of the complaint
against the defendant”) (emphasis added).  However, I disagree with the majority’s
position that “the Certificate of Merit Statute does not grant the trial court
discretion to completely waive the requirement; rather, it mandates dismissal,
on the defendant’s motion, of any claims for which a certificate is required
and not produced.”  Slip Op. at 18–19 (citing
Citicorp N. Am., 2011 WL 1331501, at
*3; UOP, L.L.C. v. Kozak,
No. 01–08–00896–CV, 2010 WL 2026037, *4 (Tex. App.—Houston [1st Dist.] May 20, 2010,
no pet.) (mem. op)).  Rather, the Texas Supreme Court has recognized
that waiver may indeed apply when compliance with a statutory requirement is
mandatory, so long as the elements of waiver are satisfied.  See
Jernigan v. Langley,
111 S.W.3d 153, 156–57 (Tex. 2003) (applying doctrine of waiver with respect to
right to dismissal of medical malpractice action based on claimant’s failure to
comply with mandatory expert report requirements of Medical liability and
Insurance Improvement Act where defendant’s silence or inaction is inconsistent
with intent to rely upon right to dismissal).
          Waiver
is an intentional relinquishment of a known right or intentional conduct
inconsistent with claiming that right.  Id. at 156; Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434
(Tex. App.—Fort Worth 2005, no
pet.).  Waiver becomes
a question of law when the facts and circumstances are admitted or clearly
established.  Jernigan, 111 S.W.3d at 156; Palladian Bldg., 165 S.W.3d at 434.  Waiver is largely a matter of intent.  Jernigan,
111 S.W.3d at 156;
Ustanik v. Nortex Found.
Designs, Inc., 320 S.W.3d 409, 413 (Tex. App.—Waco 2010, pet. denied).  Intent must be clearly demonstrated by the
surrounding facts and circumstances for implied waiver to be found through a
party’s actions.  Ustanik, 320 S.W.3d at 413 (citing Jernigan, 111 S.W.3d at 156).  Waiver of a right cannot be found if the party
against whom waiver is sought says or does nothing inconsistent with its intent
to rely on such right.  Id. (citing Jernigan, 111 S.W.3d at 156 and Palladian Bldg., 165 S.W.3d at 434).  
          As
the majority points out, participating in the litigation process or delaying pursuit
of dismissal, without more, does not show intent to waive a right to dismissal
under section 150.002.  See, e.g., Jernigan, 111 S.W.3d at 157;
Ustanik, 320 S.W.3d at 414; DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 411 (Tex.
App.—Dallas 2010, pet. denied); Landreth v. Las Brisas Council of Co–Owners, Inc., 285 S.W.3d 492,
500–01 (Tex. App.—Corpus
Christi 2009, no pet.).  Moreover, Crosstex acknowledges that the Certificate of Merit Statute
does not include a deadline to file a motion to dismiss.  See Tex. Civ. Prac.
& Rem. Code Ann. § 150.002; see
also Ustanik, 320
S.W.3d at 413 (observing that section 150.002 does not contain deadline to file
motion to dismiss); cf. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)
(Vernon 2011) (establishing 21-day deadline to object to expert report in
health care liability claim).  Finally, the mere fact that a defendant waits
to file a motion to dismiss pursuant to section 150.002 is not sufficient to establish
waiver.  See Ustanik, 320 S.W.3d at 413–14
(holding that delay of two years, five months to file motion to dismiss did not
constitute waiver); DLB Architects,
305 S.W.3d at 411 (waiting more than one year to file dismissal motion did not manifest intent to
waive); see also Jernigan, 111 S.W.3d
at 157 (holding that physician who waited 600 days after receiving expert
report to move for dismissal did not waive his right to pursue motion to
dismiss under former version of health care liability statute).  Here, however, the record clearly
demonstrates Pro Plus’s intentional conduct inconsistent with claiming the right
to a certificate of merit.  Such conduct
supports a finding of waiver.  See Jernigan, 111
S.W.3d at 156; Palladian Bldg.,
165 S.W.3d at 434.  
          Crosstex’s cause of action arose from a natural gas fire
that occurred when a gasket exploded at the Godley Station on November 15,
2008, causing significant property damage. 
Pro Plus, a registered engineering firm, had been the principal
contractor for the construction of the Godley Station.  Crosstex sued Pro
Plus and another defendant for damages arising from the fire on April 14, 2010,
well within the statute of limitations. 
In its Original Petition, Crosstex asserted
causes of action against Pro Plus for general and specific negligence,
negligent misrepresentation, breach of implied and express warranty, and breach
of contract.  It did not attach the
certificate of merit statutorily required by section 150.002 for negligence
claims against an engineering firm.  Pro
Plus filed its answer on May 28, 2010.  
          Pro
Plus generally denied Crosstex’s claims and asserted
a number of affirmative defenses and special exceptions.  Pro Plus thus acknowledged the gravity of the
claims, and it clearly knew those claims alleged specific acts of professional
negligence, to which it responded with a denial and affirmative defenses, yet
it did not move to dismiss the claims.  Instead,
knowing that the deadline for the joinder of parties and the designation of
expert witnesses was November 8, 2010—within the statute of limitations for Crosstex’s negligence claims—Pro Plus signed a Rule 11
agreement with Crosstex and the other defendants.  That agreement provided, inter alia, that Crosstex’s deadline to designate its experts was extended
to April 8, 2011, well outside the negligence statute of limitations.  All parties consented to the agreement and filed
it with the trial court on November 29, 2010, two weeks after the statute of
limitations on negligence had run.  Three
days later, on December 2, 2010, Pro Plus filed its “Motion to Dismiss
Plaintiff’s Claims Under Chapter 150 of the Texas
Civil Practice and Remedies Code” based on Crosstex’s
“failure to attach the statutorily required certificate of merit to its
Original Petition.”  It sought dismissal
of Crosstex’s claims with prejudice.
The action of negotiating
and signing a Rule 11 agreement postponing critical deadlines, including the designation
of experts, from within the statute of limitations until six months after the
expiration of limitations plainly signaled that Pro Plus did not intend to rely
upon its right to dismiss Crosstex’s claims for lack
of a certificate merit.  Rather, it
expressed its intent to participate in the litigation process and to designate
experts in accordance with its sworn agreement. 
This behavior was plainly inconsistent both with Pro Plus’s assertion of
its right to dismissal and with Pro Plus’s simultaneously preparing a motion to
dismiss for filing three days after the filing of the Rule 11 agreement and two
weeks after the running of limitations.  See Jernigan, 111
S.W.3d at 156; Palladian Bldg.,
165 S.W.3d at 434.  Therefore, this case
is distinguishable from those cases in which the defendant did nothing
inconsistent with its right to seek dismissal.[2]  See Ustanik, 320 S.W.3d at 413–14; DLB Architects, 305 S.W.3d at 411; Landreth, 285
S.W.3d at 500–01.
Moreover, Pro Plus’s action
in entering the Rule 11 agreement extending deadlines and delaying filing its
motion to dismiss with prejudice until the statute of limitations had run had
the additional consequence of increasing the harshness of the statute beyond
the express intent of the Legislature.  Under
section 150.002, dismissal of claims by the trial court is mandatory if the
plaintiff fails to file a certificate of merit with its original petition.  Tex.
Civ. Prac. & Rem. Code Ann. § 150.002(e).  However, dismissal with prejudice is
discretionary.  Id. (providing, “This dismissal may
be with prejudice”) (emphasis added).  Thus,
by its plain language, section 150.002 contemplates the trial court’s having
discretion to permit the refilling of claims erroneously filed without a
certificate of merit when it deems the case meritorious.  Pro Plus’s action in engaging in the
litigation to the point of entering a Rule 11 agreement extending the deadline
for filing of expert reports while preparing a motion to dismiss for filing
three days later—two weeks after the running of the statute of limitations on Crosstex’s negligence claims—had the effect of denying Pro
Plus any opportunity to refile its time-barred claims,
thus rendering the statute more severe than plainly intended by the
Legislature.
Conclusion
          I
would hold that Pro Plus knowingly and voluntarily waived its right to a
certificate of merit.  Accordingly, I
would affirm the judgment of the trial court.
 
 
 
                                                                      Evelyn
V. Keyes
                                                                      Justice

 
Panel consists of Justices Keyes, Higley, and
Massengale.
 
Keyes, J., dissenting.
 




[1]         Tex. Civ. Prac.
& Rem. Code Ann. § 150.002 (Vernon 2011).


[2]
        In Palladian,
in its analysis of whether the defendant waived its right to seek a dismissal
under section 150.002, the court of appeals noted that parties have been held
to have waived their right to compel arbitration by substantially invoking the
judicial process.  Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434 &
n.8 (Tex. App.—Fort Worth 2005, no
pet.) (citing In re
Bruce Terminix Co., 988 S.W.2d 702 (Tex. 1998)
(orig. proceeding); In re Winter Park
Constr., Inc., 30 S.W.3d 576 (Tex. App.—Texarkana 2000, orig. proceeding); EZ Pawn Corp. v. Gonzalez, 921 S.W.2d
320 (Tex. App.—Corpus Christi 1996, writ denied); and Marble Slab Creamery, Inc. v. Wesic, Inc.,
823 S.W.2d 436 (Tex. App.—Houston [14th Dist.] 1992, no writ)).  It held that the plaintiff in that case had
failed to provide documentation in the record that the defendant had, in fact,
substantially participated in the litigation process; but it did not reject the
applicability of the doctrine of waiver by substantial participation in the
litigation process to cases alleging waiver of the right to a certificate of
merit.  Id. at 434–35.  Here, Pro Plus’s signing of the Rule 11
agreement clearly shows substantial participation by Pro Plus in the litigation
process.
 


