
    James FRAZIER, Appellant, v. GNRC REALTY, LLC, Appellee.
    No. 13-14-00447-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 29, 2014.
    
      A. Boone Almanza, Elisa G. Underwood, Jacob Scheick, Almanza, Blackburn & Dickie, Austin, for Appellant.
    John W. Griffin Jr., Robert. E. McKnight, Marek, Griffin & Knaupp, Victoria, for Appellee.
    Before Justices BENAVIDES, PERKES, and LONGORIA.
   OPINION

Opinion by

Justice BENAVIDES.

This is an interlocutory appeal from the trial court’s denial of an architect’s motion to dismiss únder Texas Civil Practice and Remedies Code section 150.002 for lack of a certificate of merit. See Tex Crv. Prac. & Rem.Code Ann, § 150.002(f) (West, West-law through 2013 3d C.S.) (authorizing immediate interlocutory "appeal from an order denying a motion to dismiss under section 150.002). By one issue, 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, Inc. (“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 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.

In 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. In May 2011, Frazier, proceeding pro se, answered GNRC’s suit with a letter that he filed in the trial court as an original answer.

In February 2012, Quality Air filed a cross-claim against, among others, Frazier, seeking contribution in the event it was found liable to GNRC. In 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 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.

Id. § 150.002(b). “The plaintiffs 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. Prao. & 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. “In 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 meaning.” Id. “Every word of a statute múst be presuihed 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. . It 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-jurisdietional 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 light, for such an unreasonable period of time as to indicate an intention to waive the; right;, or (3) other conduct of the party 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 Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex.1999)); Rowe, 619 S.W.2d at 213 (citing Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (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. Crv. P. 94. It may be asserted against a party who waives a right arising from law. Tenneco Inc. 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 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 light to seek dismissal under section 150.002. In his original pro sé answer, Frazier did not assert a general denial to deny the five allegations of design negligence against him; 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 thé Ganado Nursing Facility, it was part of yóur 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 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 plaintiffs claims. Frazier’s, own admissions lend support to plaintiffs 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 1-1 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. ■ • • ■: •

V. Conclusion

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

Dissenting Opinion by Justice GREGORY T. PERKES.’

GREGORY T. PERKES, Justice,

dissenting.

Because I disagree that Frazier’s 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 150.002,1 respectfully dissent.

■ I: agree with the majority’s recitation of the applicable standard of review, the controlling law on section 150.002, 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 thé judicial process “clearly demonstrating an intent to waive the right to dismiss under subsection 150.002(3).” Crosstex Energy Servs. L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 395 (Tex.2014).

In 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 150.002 certificate; the Murphy Court recognized that no intermediate appellate court that had considered waiver in the context of section 150.002 had ever found waiver to exist. See id. 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. Gu-tiérrez 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.

Id. at 629.

Considering the totality of the circumstances and significant factors for substantial invocation, the Murphy Court concluded that because Gutierrez “participated extensively in discovery,” sought and received affirmative relief, participated. in court-ordered mediation, and waited for over three and one-half years until the “eve of trial” 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 id. at 633-36.

Murphy is distinguishable from this case. . In 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., Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 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.

Crosstex Energy, 430 S.W.3d at 394. Similarly, “participation in discovery,” such as responding to requests for admission, and even “filing motions for summary judgment do not necessarily demonstrate an intent to waive the right to move for a dismissal.” Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409, 414 (Tex.App.-Waco 2010, pet. denied); see Crosstex 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 “11,000 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 Crosstex Energy and Ustanik defendants, whose greater participation was nevertheless insufficient to manifest an intent to waive dismissal under section 150.002. See Crosstex Energy, 430 S.W.3d at 394-95; Ustanik, 320 S.W.3d at 413-14.

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. In 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. Tex.R. Civ. P. 85, 92; Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 744 (Tex.1973) (“[A] general 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 otherwise 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 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 I disagree 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. ' 
      
      . 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., 438 S.W.3d 556, 567, 2014 WL 2994503, at *8 (Tex.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.
     
      
      . Frazier subsequently filed an amended answer which included a general denial.
     
      
      . The record shows that after the trial court denied his motions to dismiss, Frazier filed an amended answer in which he asserted a general denial.
     