LAURA CARTER HIGLEY, Justice.
In the trial court, Pro Plus, Inc. filed a motion to dismiss the claims of Crosstex Energy Services, L.P. 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
We reverse and remand.
Crosstex Energy Services provides natural gas gathering and transmission pipeline services to energy producers and consumers. The Godley Compressor Station in Johnson County, Texas is part of Crosstex's operations. Gas comes to the Godley Station through pipelines from wellheads in the field via gathering stations. The Godley Station compresses the gas, increasing the pressure, and then discharges the gas through a pipeline to the next downstream station.
On November 15, 2008, a gasket connection on a control valve on one of the compressors failed. Natural gas escaped the line and then ignited. A fire erupted at the station causing significant property damage.
On April 14, 2010, Crosstex sued Pro Plus and another defendant for damages arising from the fire. Pro Plus, a registered engineering firm, had been the principal contractor for the construction of the Godley Station. As stated in Crosstex's Original Petition, Pro Plus had "designed, specified, assembled, and constructed" the station.
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. With respect to its general negligence claim, Pro Plus alleged the following:
Crosstex alleged the following specific acts of negligence against Pro Plus:
In support of its negligent misrepresentation claim, Crosstex asserted as follows:
Crosstex made the following allegations to support its breach of implied warranty claim:
Crosstex asserted as follows with regard to its breach of express warranty claim:
Lastly, Crosstex alleged as follows with respect to its breach of contract claim:
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.
A number of months later, the parties signed a Rule 11 agreement, which provided, inter alia, that the Crosstex's deadline to designate its experts was April 8, 2011. The Rule 11 Agreement was filed with the trial court on November 29, 2010.
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." Pro Plus averred that it is "a licensed or registered professional engineering firm" and "engages in the practice of engineering in accordance with Section 1001.003 of the Texas Occupations Code." It stated, "Crosstex engaged the services of Pro Plus to perform work on a natural gas compressor station near Godley, Johnson County, Texas....
Pro Plus requested the trial court to dismiss Crosstex's claims against it with prejudice.
Crosstex responded to Pro Plus's motion by arguing, in part, that Pro Plus had waived its right to dismissal by joining in an earlier filed motion for continuance and by signing the Rule 11 Agreement, which extended the deadline for Crosstex's designation of experts. Within its response, Crosstex also moved for an extension of time to file its certificate of merit. It asserted that the trial court was permitted to grant an extension under Civil Practice and Remedies Code section 150.002(c) on a showing of good cause.
Pro Plus replied, arguing that section 150.002 requires a plaintiff to file a certificate of merit with its first-filed petition. It asserted that if a plaintiff fails to do this "[d]ismissal is mandatory under [section] 150.002." Pro Plus responded to Crosstex's waiver argument by stating, "Expert designation deadlines have nothing to do with a certificate of merit." Pro Plus further asserted, "The real issue is that Plaintiff failed to file a certificate of merit with its first-filed petition, and an expert designation deadline won't save Plaintiff on this issue."
Following a hearing, the trial court signed an order denying Pro Plus's motion to dismiss and giving Crosstex until April 8, 2011 to file its certificate of merit. The order provides specifically as follows:
On January 4, 2011, Pro Plus filed its notice of appeal of the trial court's order. Crosstex filed its certificate of merit in trial court on January 6, 2011.
Resolving this appeal depends on the interpretation and application of section 150.002 of the Civil Practice and Remedies Code. That statute, titled "Certificate of Merit," provides as follows:
TEX. CIV. PRAC. & REM.CODE ANN. § 150.002 (Vernon 2011).
As a threshold matter, we address Crosstex's assertion in its response brief that this interlocutory appeal should be dismissed for lack of subject-matter jurisdiction. Whether a court has subject matter jurisdiction is a question of law, which we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).
Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only when a statute explicitly confers such jurisdiction. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007). Subsection 150.002(f) of the Certificate of Merit statute permits an appeal from an interlocutory order granting or denying a motion to dismiss based on a failure to file a certificate of merit. See TEX. CIV. PRAC. & REM.CODE ANN. § 150.002(f). Pro Plus asserts that this provision allows it to appeal the trial
Crosstex bases its jurisdictional challenge on Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007). Ogletree involved a claim governed by the Texas Medical Liability Act. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 74.001-.507 (Vernon 2011 & Supp. 2011). In Ogletree, the Supreme Court of Texas determined that an appellate court lacks jurisdiction to review an interlocutory order that (1) simultaneously denies a defendant's motion to dismiss a plaintiff's health care liability claim and (2) grants the plaintiff's motion for extension of time to cure its timely filed, but substantively deficient, expert report. See Ogletree, 262 S.W.3d at 321. In reaching its holding, the court considered that section 74.351 of the Medical Liability Act expressly authorizes the trial court to grant a 30-day extension to allow the plaintiff to cure substantive deficiencies in an expert report that is otherwise timely filed within the 120-day statutory period for serving the report. See id. at 319; see also TEX. CIV. PRAC. & REM. ANN.CODE § 74.351(c) (Vernon 2011). The Ogletree court also considered that, although it expressly authorizes an interlocutory appeal from an order dismissing a claim under the Medical Liability Act for failure to serve an expert report timely, the legislature expressly prohibits — in Civil Practice and Remedies Code section 51.014(a)(9) — an interlocutory appeal from an order granting — under section 74.351 — a 30-day extension to cure deficiencies in a report. See Ogletree, 262 S.W.3d at 319.
With these statutory provisions in mind, the court stated that "the actions denying the motion to dismiss and granting an extension are inseparable" because "if a defendant could separate an order granting an extension from an order denying the motion to dismiss when a report has been served, section 51.014(a)(9)'s ban on interlocutory appeals for extensions would be meaningless." Id. at 321. In a later decision discussing Ogletree, the supreme court stated,
Badiga v. Lopez, 274 S.W.3d 681, 684 (Tex. 2009).
The considerations supporting the Ogletree decision do not apply here. Notably, the Certificate of Merit Statute authorizes an interlocutory appeal of an order granting a motion to dismiss but does not expressly ban the appeal of an order granting an extension of time to file a certificate of merit. More significantly, the policy considerations at issue in Ogletree are not relevant in this case.
Ogletree involved a defendant seeking dismissal because the plaintiff's timely filed expert medical report was deficient. See Ogletree, 262 S.W.3d at 318. Because the legislature has decided that a trial court can allow a plaintiff 30 days to cure a deficiency, the Ogletree court determined that allowing an interlocutory appeal before the plaintiff had a chance to cure would be "illogical and wasteful." See id. at 321. The court also stated, "[B]ecause
In contrast, Pro Plus sought dismissal because Crosstex failed to timely file its certificate of merit. Pro Plus asserts, as it did in the trial court, that Crosstex was statutorily required to file its certificate of merit with its Original Petition. See TEX. CIV. PRAC. & REM. ANN.CODE § 150.002(a); see also Pakal Enters., Inc. v. Lesak Enterprises LLC, 369 S.W.3d 224, 228 (Tex. App.-Houston [1st Dist.] 2011, pet. denied) (stating that section 150.002 requires a plaintiff to file a certificate of merit with the first-filed complaint asserting a claim against a professional). Pro Plus contends that because the certificate was not filed with the Original Petition, Crosstex's claims must be dismissed. Pro Plus asserts that failure to file a certificate of merit with an original petition, when required by statute to do so, cannot be cured, unlike a deficient report. See, e.g., Ashkar Eng'g Corp. v. Gulf Chem. & Metallurgical Corp., No. 01-09-00855-CV, 2010 WL 376076, at *3 (Tex.App.-Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) ("Nothing in Section 150.002 allows a plaintiff to cure a failure to timely comply."). Concomitantly, Pro Plus challenges the legality of the trial court's order granting Crosstex an extension of time, pursuant to subsection 150.002(c), to file its certificate of merit.
In short, the primary issue is whether Crosstex was required to file its certificate of merit with its Original Petition. If it was, Pro Plus's motion to dismiss should have been granted. See TEX. CIV. PRAC. & REM.CODE ANN. § 150.002(e). Permitting an appeal of the trial court's order in this case, unlike in Ogletree, would not be "illogical and wasteful." Rather, at this point, it is the dispositive issue concerning the issue in Crosstex's original petition.
We hold that subsection 150.002(f) permits Pro Plus's interlocutory appeal of the trial court's order. See TEX. CIV. PRAC. & REM.CODE ANN. § 150.002(f); cf. Badiga, 274 S.W.3d at 685 ("A provider may pursue an interlocutory appeal of the denial of a motion to dismiss when no expert report has been timely served, whether or not the trial court grants an extension of time."). We overrule Crosstex's contention, raised in its response brief, that we lack jurisdiction.
The trial court's order does not state the basis on which it denied Pro Plus's motion to dismiss. On appeal, Pro Plus identifies 11 issues relating to assertions made by Crosstex in the trial court to support denial of Pro Plus's motion to dismiss.
As in the trial court, Pro Plus principally contends that Crosstex's claims against it should be dismissed pursuant to Civil Practice and Remedies Code section 150.002 — the Certificate of Merit Statute — because Crosstex failed to file a certificate of merit with its Original Petition. Pro Plus points out that subsection (a) requires a certificate of merit in actions or arbitration proceedings "for damages arising out of the provision of professional services by a licensed or registered professional." TEX. CIV. PRAC. & REM. ANN.CODE § 150.002(a). A "licensed or registered
"By its plain language, the Certificate of Merit Statute is compulsory, not discretionary." 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.); see TEX. CIV. PRAC. & REM.CODE ANN. § 150.002(e) (providing that plaintiff's failure to file affidavit in accordance with this section shall result in dismissal of complaint against defendant). Subsection (c) gives the trial court discretion to allow a plaintiff more time in which to obtain the certificate in certain limited circumstances. See TEX. CIV. PRAC. & REM. ANN.CODE § 150.002(c). But 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. See Citicorp N. Am., 2011 WL 1331501, at *3; see also 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.). Pro Plus further asserts that, under the circumstances of this case, subsection (c) did not provide a basis for the trial court to give Crosstex additional time to file its certificate and to deny its dismissal motion.
In contrast, Crosstex contends that the trial court properly denied Pro Plus's motion to dismiss because, pursuant to subsection (c), Crosstex was entitled, "for good cause," to an extension of time to file its certificate of merit. Crosstex also contends that denial of the dismissal motion was proper because Pro Plus's conduct during litigation waived its right to pursue a motion to dismiss under the Certificate of Merit Statute. Crosstex further asserts that its breach of contract claim was not subject to dismissal because the Certificate of Merit Statute does not apply to that claim.
We review a trial court's order denying a motion to dismiss case for failure to comply with section 150.002 for abuse of discretion. TDIndustries, Inc. v. Rivera, 339 S.W.3d 749, 752 (Tex.App.-Houston [1st Dist.] 2011, no pet.); Curtis & Windham Architects, Inc. v. Williams, 315 S.W.3d 102, 106 (Tex.App.-Houston [1st Dist.] 2010, no pet.). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985.) A trial court does not abuse its discretion merely because it decides a discretionary matter differently than this Court would in a similar circumstance, and we may not substitute our own judgment for that of the trial court. Id. Nonetheless, a trial court has no discretion in determining what the law is or in applying the law to the facts. Id. (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)).
If resolution of the issue requires us to construe statutory language, we review statutory construction de novo. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009); Rivera, 339 S.W.3d at 752. 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. Rivera, 339 S.W.3d at 752; Capital One v. Carter &
In its sixth issue, Pro Plus asserts that the trial court abused its discretion by granting an extension of time to file a certificate of merit, and thus subsection 150.002(c) cannot serve as a basis to support the trial court's denial of its motion to dismiss. To reiterate, subsection (c) provides:
TEX. CIV. PRAC. & REM. ANN.CODE § 150.002(c).
Crosstex acknowledges that the statute of limitations did not expire on its claims within 10 days of its filing of its Original Petition and that the 30-day extension provision of section 150.002(c) did not apply. Instead, Crosstex argues that the language in section 150.002(c) providing that "[t]he trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires" creates an additional exception to the contemporaneous filing requirement. Crosstex asserts that a trial court has discretion to grant an extension to file a certificate of merit on a showing of good cause regardless of whether the plaintiff was previously entitled to the 30-day extension mentioned in subsection (c). In other words, Crosstex contends that the last sentence of subsection (c) is a stand-alone provision, independent of the preceding sentences in that subsection. Crosstex cites WCM Group, Inc. v. Brown, 305 S.W.3d 222 (Tex.App.-Corpus Christi 2009, pet. dism'd) to support its position.
In Brown, the court refused to limit the application of "the good cause exception" to circumstances in which the plaintiff files suit within 10 days of the expiration of the statute of limitations. Id. at 230. The court stated,
Id.
We need not determine whether the Corpus Christi Court of Appeals's interpretation of the language found in subsection (c) is correct. Even applying that interpretation, Crosstex did not establish that "good cause" to grant it an extension of time and to concomitantly deny Pro Plus's dismissal motion.
In support of its motion for extension of time, Crosstex relied heavily on the post-suit acts and omissions of Pro Plus to demonstrate good cause for receiving an extension. Crosstex alleged that Pro Plus had actively engaged in the litigation process and agreed to extend the deadline for expert witness designations. Crosstex asserts that it detrimentally relied on these
At this point, we revisit the basic requirement of the Certificate of Merit Statute. The statute provides that, in a suit for damages arising from the provision of professional engineering services, a plaintiff must file, with its complaint, an affidavit (that is, a certificate of merit) of a third-party licensed professional engineer to support those claims. TEX. CIV. PRAC. & REM. ANN.CODE § 150.002. This Court has interpreted this provision to require a plaintiff to file a certificate of merit with its first-filed petition. Pakal, 369 S.W.3d 224 (citing Sharp Eng'g v. Luis, 321 S.W.3d 748, 752 (Tex.App.-Houston [14th Dist.] 2010, no pet.)); see also Ashkar, 2010 WL 376076, at *1, *3 (holding that plaintiff failed to timely file certificate of merit when it did not file certificate with its original petition).
Starting with this principle, Crosstex was statutorily required to file its certificate of merit with its Original Petition. Crosstex had already violated the contemporaneous filing requirement when Pro Plus engaged in the conduct cited by Crosstex as a basis for applying the good cause exception. As we stated in Ashkar, "Nothing in Section 150.002 allows a plaintiff to cure a failure to timely comply." 2010 WL 376076, at *3. This holds true in this case. Crosstex cannot cure its failure to file a certificate of merit with its Original Petition or show "good cause" by relying on Pro Plus's post-filing conduct. Thus, Pro Plus's post-filing conduct cannot serve as a basis for a good-cause extension of time to file a certificate of merit. Cf. WCM Group, Inc. v. Camponovo, 305 S.W.3d 214, 221 (Tex.App.-Corpus Christi 2009, pet. dism'd) (holding good cause for an extension was shown because plaintiffs demonstrated that they did not know that defendant was professional engineering firm at the time original petition was filed).
In support of its motion for extension of time, Crosstex also relies on its own pre-suit conduct to show "good cause." Crosstex offered evidence showing that, after the fire, it conducted an internal investigation and hired an independent engineering firm to determine the cause of the fire. It also hired an independent laboratory to test the control valve involved in the fire. Crosstex offered documentation showing that Pro Plus had been privy to the pre-suit testing and investigations. On appeal, Crosstex points out that the pre-suit investigations revealed a number of possible causes of the fire, including causes unrelated
Crosstex contends that Pro Plus's knowledge of the pre-suit investigations allowed Crosstex "to rely on the fact that Pro Plus was satisfied that Crosstex had more than fulfilled its pre-filing obligation to ensure that its claims were meritorious even if Pro Plus did not agree that Crosstex should prevail on its claims." Crosstex asserts that, as a result, it "could reasonably have believed that Pro Plus would not attempt to dismiss Crosstex's claims or that Pro Plus would not be able to exercise its option to dismiss in good faith."
A review of Crosstex's Original Petition shows that it asserts numerous causes of action against Pro Plus arising out of Pro Plus's provision of engineering services. For each theory of recovery asserted by Crosstex, the statute required that a third-party licensed professional engineer explain the factual basis for each claim. See Nangia v. Taylor, 338 S.W.3d 768, 772-73 (Tex.App.-Beaumont 2011, no pet.) ("The focus of the certificate of merit is on the alleged error or omission and the facts that support the claim."). Specifically, subsection 150.002(b) requires as follows:
TEX. CIV. PRAC. & REM.CODE ANN. § 150.002(b).
The record does not show that Crosstex shared pre-suit expert reports or information with Pro Plus that included the information required by subsection (b). Nor does the record reflect, as Crosstex claims, that "Pro Plus was satisfied" that Crosstex had adequately or objectively investigated the cause of the fire. We disagree with Crosstex that the evidence it offered with regard to its pre-suit activities provided good cause for the trial court to grant it an extension of time and concomitantly deny Pro Plus's motion to dismiss.
We conclude that the record does not show "good cause" existed for the trial court to grant an extension of time for Crosstex to file its certificate of merit. We hold that, to the extent that it denied Pro Plus's motion to dismiss based on subsection (c), the trial court abused its discretion.
We sustain Pro Plus's sixth issue.
In its motion for extension of time, Crosstex asserted that the trial court could grant an extension pursuant to Rule of Civil Procedure 5. Pro Plus asserts in its ninth issue that Rule 5 does not authorize an extension of time to file a certificate of merit. Rule 5 provides, in relevant part, as follows:
TEX.R. CIV. P. 5 (emphasis added). Pro Plus contends that Rule 5 does not apply
We sustain Pro Plus's ninth issue.
In its response to the motion to dismiss, Crosstex asserted that Pro Plus had waived its right to seek dismissal. Crosstex relied on many of the same acts and omissions by Pro Plus that it had cited to support its assertion that good cause existed for an extension of time to file its certificate of merit. Pro Plus addresses the issue of waiver in its fourth and fifth issues.
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.). Waiver becomes a question of law when the facts and circumstances are admitted or clearly established. Jernigan, 111 S.W.3d at 156-57; Palladian Bldg., 165 S.W.3d at 434. Waiver is largely a matter of intent. 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. Id. (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; Palladian Bldg., 165 S.W.3d at 434). Thus, the question becomes did Pro Plus take actions that were inconsistent with exercising their right to file a motion to dismiss. See id. at 414.
Crosstex argues that Pro Plus waived its right to dismissal because it participated in the litigation process and delayed filing its motion to dismiss until after the two-year statute of limitations had run on its negligence based claims. We begin by recognizing that courts have held that 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., Ustanik, 320 S.W.3d at 413-14; 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.). 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; cf. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (establishing a 21 day deadline to object to an expert report in a health care liability claim). 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 414 (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
Courts have determined that participating in the litigation process by, for example, conducting discovery or filing a motion for summary judgment did not manifest intent to waive a right to seek dismissal. See Ustanik, 320 S.W.3d at 414; Landreth, 285 S.W.3d at 500-01. Crosstex contends that Pro Plus's participation in discovery and its agreement to a continuance of the docket control order's discovery deadlines were acts inconsistent with its right to seek dismissal. However, as other courts have indicated, learning more about the case in which one is a party by way of the discovery process does not demonstrate intent to waive the right to move for a dismissal. See Ustanik, 320 S.W.3d at 414 (citing 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 in which supreme court found no waiver of right to arbitrate). Thus, Pro Plus's participation in the discovery process, including engaging in written discovery and agreeing to extend discovery deadlines, and its delay in filing its dismissal motion, are not acts inconsistent with its right to seek dismissal. Ustanik, 320 S.W.3d at 414; DLB Architects, 305 S.W.3d at 411; Landreth, 285 S.W.3d 492, 500-01.
Crosstex also relies heavily on the fact that Pro Plus answered the suit. Crosstex points out that section 150.002 does not require a defendant to answer until 30 days after the certificate of merit is filed. See TEX. CIV. PRAC. & REM.CODE ANN. § 150.002(d) ("The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such affidavit.").
We do not perceive a defendant's decision to answer a suit, even if not required to do so, as being inconsistent with its right to pursue a motion to dismiss. Although it permits a defendant to wait to file its answer, the statute does not require a certain due order of pleadings. See id. Moreover, a defendant must determine early in the litigation process whether to file an answer or risk a possible default judgment. See TEX.R. CIV. P. 99(b),(c) (directing defendant to file written answer "on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof" or face possible default judgment). A defendant's answer may be due before it has adequately determined whether it has a right to pursue dismissal. We agree with other courts that have held no waiver occurred following a defendant's filing of an answer. See Ustanik, 320 S.W.3d at 414 (holding no waiver when defendant filed answer that raised a certificate of merit defense but still waited almost two-and-one-half years to file dismissal motion); Palladian Bldg., 165 S.W.3d at 435 (holding that it was "not unreasonable or inconsistent for [defendant] to elect to file an original or amended answer prior to filing its motion to dismiss for [the plaintiff's] failure to file the required expert's affidavit").
Crosstex also argues that Rule of Civil Procedure 90 required Pro Plus to specially except to the absent certificate. Rule 90 requires, "Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception ... shall be deemed to have been waived by the party seeking reversal on such account...." TEX.R. CIV. P. 90. Crosstex asserts that Pro Plus has waived its right to complain about the lack of a certificate of merit because it did not specially except before seeking dismissal.
Pro Plus responds that it was not required to specially except to the lack of Crosstex's certificate of merit. It points
The purpose of a special exception is to compel clarification of pleadings when the pleadings are not clear or sufficiently specific or fail to plead a cause of action. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998). Special exceptions may also be used to determine whether the plaintiff has stated a cause of action permitted by law. Id. Special exceptions serve to permit amendment of the complained-of pleading to cure the defect before dismissal. See Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 298 S.W.3d 436, 444 (Tex.App.-Houston [14th Dist.] 2009, no pet.). However, when, as here, the defect cannot be cured by amendment, a special exception is unnecessary. See Friesenhahn, 960 S.W.2d at 658 (holding that, when pleading deficiency is type that cannot be cured by amendment, special exception is unnecessary and summary judgment based on the pleading's failure to state a legal claim is permitted); see also Ashkar, 2010 WL 376076, at *3 ("Nothing in Section 150.002 allows a plaintiff to cure a failure to timely comply.").
Lastly, Crosstex contends that Pro Plus waived its right to seek dismissal because it agreed to extend the time by which Crosstex had to designate its expert witnesses and to furnish expert reports. Crosstex points out that Pro Plus joined a motion for continuance of the trial setting and docket control order, which was granted on November 9, 2010. Pro Plus also signed a Rule 11 Agreement further extending the deadline for Crosstex to designate its experts and to furnish expert reports until April 8, 2011. The Rule 11 Agreement was filed in the trial court three days before Pro Plus filed its motion to dismiss. Crosstex asserts that Pro Plus's agreement to extend the expert deadlines was inconsistent with Pro Plus's right to seek dismissal and constitutes waiver of that right.
Pro Plus responds that its agreement to extend expert deadlines that were previously set in the trial court's original docket control order is not inconsistent with its right to seek dismissal pursuant to section 150.002. Pro Plus points out that the docket control order stated that the parties' expert witness designations were required to include the information listed in Rule of Civil Procedure 194.2(f) and that the failure to timely respond was governed by Rule of Civil Procedure 193.6. Pro Plus asserts that the requirement to file a certificate merit is neither subsumed within the requirements of Rule 194.2(f) nor synonymous with them. Rather, the certificate of merit requirement is a separate statutory requirement with a discrete purpose with distinct consequences if a plaintiff fails to comply.
As explained by one court, the purpose of Rule 194.2(f) is "to give the opposing party sufficient information about the expert's opinions to prepare to cross-examine the expert and to prepare expert rebuttal evidence."
In contrast, "[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." Criterium-Farrell Eng'rs v. Owens, 248 S.W.3d 395, 399 (Tex.App.-Beaumont 2008, no pet.). The consequence for failing to file timely a certificate of merit is dismissal of the plaintiff's complaint. See TEX. CIV. PRAC. & REM. ANN.CODE § 150.002(e); see Ashkar, 2010 WL 376076, at *3 (stating that section 150.002 requires trial court to dismiss suit on defendant's motion when plaintiff has failed to timely file certificate of merit).
Given the divergence in the purpose and in the consequences of noncompliance between Rule 194.2(f) and the Certificate of Merit Statute, we agree with Pro Plus that consenting to an extension of time with regard to expert witness discovery deadlines is not inconsistent with Pro Plus's right to pursue dismissal under section 150.002. We cannot perceive how agreeing to extend expert designation and disclosure requirements governed by Rule 194.2(f) manifests intent to abandon a right to seek dismissal of claims for failure to comply with the Certificate of Merit Statute.
Based on the record presented, we hold that Pro Plus did not waive its right to seek dismissal of Crosstex's claims under section 150.002. We sustain Pro Plus's fourth and fifth issues.
In its response to Pro Plus's motion to dismiss, Crosstex asserted that section 150.002 did not apply to its breach of contract claims. Pro Plus contends, in its third issue, that Crosstex was required to file a certificate of merit in support of its breach of contract claim because the 2009 amendment to section 150.002, which applies here, requires a certificate to be filed in support of all claims for damages, including breach of contract, arising from the provision professional services.
In the trial court, Crosstex argued that it was not required to file a certificate of merit with regard to its breach of contract claim because section 150.002 did not apply to that claim. Citing Natex Corp. v. Paris
The Natex court stated, "We conclude, as did our sister courts, that the applicable [2005] version of Section 150.002 applies only to negligence claims and not to claims based on contract." Id. at 733. The court then analyzed the plaintiff's claims and determined that they were based in contract, not in negligence. See id. at 735. The court held that, under the 2005 version of the statute, the plaintiff was not required to contemporaneously file a certificate of merit to support its breach of contract claims. Id.
In 2009, the Texas Legislature amended the Certificate of Merit Statute in direct response to the holdings of intermediate appellate courts, which limited the application of the statute to negligence claims. See S & P Consulting Eng'rs v. Baker, 334 S.W.3d 390, 399-400 (Tex.App.-Austin 2011, no pet.) (discussing bill analysis of section 150.002 showing legislature's frustration with appellate court's continued limitation of statute to negligence actions). As amended in 2009, the current version of the Certificate of Merit Statute requires a certificate of merit to be filed "[i]n any action ... for damages arising out of the provision of professional [engineering] services by a licensed or registered professional."
Id. § 150.002(b) (emphasis added). We conclude that the Certificate of Merit Statute applies to Crosstex's breach of contract claim. See id. § 150.002(a), (b). Accordingly, Crosstex was required to contemporaneously file with its Original Petition a certificate of merit addressing each of its claims, including its breach of contract claim. See id.
We sustain Pro Plus's ninth issue.
For the reasons discussed, we hold that Crosstex was required to file a certificate of merit contemporaneously with its Original Petition. See id. § 150.002(a). Because it failed to do so, section 150.002 requires that Crosstex's claims be dismissed. See id. § 150.002(e). We hold that the trial court abused its discretion when it denied Pro Plus's motion to dismiss.
We reverse the trial court's December 17, 2010 order and remand to the trial court for further proceedings consistent with this opinion.
Justice KEYES, dissenting.
EVELYN V. KEYES, Justice, 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
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. &
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
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.
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.
TEX.R. CIV. P. 194.2(f).
