Bernardo L. Gonzalez v. Momentum Design and Construction, Inc.

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
BERNARDO L. GONZALEZ, § No. 08-19-00004-CV
Appellant, § Appeal from the
v. § 346th District Court
MOMENTUM DESIGN & § of El Paso County, Texas
CONSTRUCTION, INC.,
§ (TC# 2018-DCV-3826)
Appellee.
OPINION
This case arises from claims for personal injuries to Appellant Bernardo L. Gonzalez,
which he alleges were caused by Momentum Design & Construction, Inc. (“Momentum”).
Gonzalez’s claims are based on the alleged negligent design, construction, and installation of a
fiberglass cover at his place of work. Momentum sought and obtained dismissal of Gonzalez’s
claims on the grounds that Gonzalez failed to attach a certificate of merit to his petition, pursuant
to Section 150.002 of the Texas Civil Practice and Remedies Code (“Section 150.002”). In four
issues, Gonzalez asserts the trial court erred in dismissing his claims with prejudice. We reverse
and remand.
BACKGROUND
On September 10, 2014, Gonzalez fell through a fiberglass cover while he was working for
El Paso Electric at one of their substation houses, causing him to suffer severe injuries. In April
2016, he filed suit against Jordan Foster Construction, LLC, the company who had constructed the
substation house. The following month, Gonzalez filed his First Amended Petition, nonsuiting
Jordan Foster Construction, LLC, and asserting claims instead against Karlsruher, Inc. d/b/a CSA
Constructors (“CSAC”), who he alleged designed and built the fiberglass cover in question.
Gonzalez alleged that CSAC was negligent in a number of ways, including that it negligently
designed, constructed, and installed the fiberglass cover without necessary support.
In July 2016, in response to one of Gonzalez’s discovery requests, CSAC identified
Momentum as a potential party. In response to another discovery request, CSAC asserted that
Momentum designed the fiberglass cover and that its design was defective. On July 28, 2016,
Gonzalez filed his Second Amended Petition, in which he added Momentum as a defendant and
asserted claims against it for damages arising from its alleged negligent design and negligent
engineering of the fiberglass cover. Gonzalez did not file a Section 150.002 certificate of merit
with this amended pleading. Momentum neither raised the omission in its answer filed on
September 1, 2016, nor did it move for dismissal, at that time, based on the lack of filing of a
certificate of merit.
On September 7, 2016, CSAC filed a motion for leave to designate Momentum as a
responsible third party. It specifically alleged that it believed that Momentum designed the
fiberglass cover and that the design did not include a lateral support beam at the point where
Gonzalez fell. It alleged that Gonzalez’s injuries would likely not have occurred if the lateral
support beams had been included. It further alleged that, “to the extent support beams were needed,
Momentum as the professional architect and engineering firm should have designed the substation
to provide for the lateral safety support beams.”
Momentum engaged in discovery over the next seventeen months and on February 6, 2018,
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it filed a Motion to Dismiss for Plaintiff’s Failure to File Certificate of Merit (hereinafter referred
to as “Motion to Dismiss”). One month later, Momentum filed an amended answer in which it
raised—for the first time—Gonzalez’s failure to comply with Section 150.002 as an affirmative
defense. The trial court conducted hearings on the Motion to Dismiss in March and August of
2018. On August 8, 2018, the court signed an order (the “Order”) granting the Motion to Dismiss
Gonzalez’s claims against Momentum, with prejudice. The court later signed an order severing
those claims into a separate cause number. Gonzalez filed a motion for new trial, which the court
denied by written order, and this appeal followed.
ISSUES PRESENTED
Gonzalez raises four issues on appeal. First, he argues that, under statutory construction
principles, Section 150.002 does not apply to his claims against Momentum. Second, Gonzalez
argues that if Section 150.002 does apply, the trial court erred in failing to determine whether
Momentum waived its right to seek dismissal under Section 150.002, and that if the trial court
made an implicit ruling of no waiver, it erred in so doing. Third, Gonzalez argues that if his claims
against Momentum were to be dismissed, they should have been dismissed without prejudice. In
Gonzalez’s fourth and final issue, he contends that Section 150.002 is unconstitutional as applied
to his claims against Momentum.
We address Gonzalez’s first two issues below. Because we sustain Gonzalez’s second
issue, we reverse the trial court’s order dismissing his claims against Momentum. Therefore, we
need not address Gonzalez’s third and fourth challenges. See TEX. R. APP. P. 47.1.
STANDARD OF REVIEW
Generally, a trial court’s ruling on a motion to dismiss under Section 150.002 is reviewed
for abuse of discretion. See Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 520
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S.W.3d 887, 897 (Tex. 2017). A trial court abuses its discretion when it acts arbitrarily or
unreasonably, without reference to any guiding rules and principles. In re Academy, Ltd., 625
S.W.3d 19, 25 (Tex. 2021). Although the overall standard of review applied to a trial court’s ruling
on a motion to dismiss is for abuse of discretion, pure questions of law that lead to the trial court’s
ruling are reviewed de novo. See Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008) (stating
that, even under an abuse-of-discretion review, appellate courts give no deference to a trial court
on questions of law). And a trial court’s “failure to analyze or apply the law correctly is an abuse
of discretion.” In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (orig.
proceeding).
Here, the two challenges by Gonzalez that we address in this opinion both hinge on
questions of law. See Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487, 493
(Tex. 2017) (holding that matters of statutory construction are questions of law and thus reviewed
de novo); LaLonde v. Gosnell, 593 S.W.3d 212, 220 (Tex. 2019) (holding that when there are no
disputed facts, waiver presents a question of law, which is reviewed de novo). Thus, we review the
two questions of law de novo in order to determine whether the trial court abused its discretion in
granting Momentum’s Motion to Dismiss.
DISCUSSION
A. Issue One – Statutory Construction
Gonzalez first argues that, under statutory construction principles, Section 150.002 does
not apply to his claims against Momentum. He argues that his Second Amended Petition, which
added Momentum as a defendant, did not initiate the overall lawsuit, and thus was not an “action”
as that term is used in Section 150.002. If Gonzalez is correct, it follows that he would not have
been required to file a certificate of merit. Conversely, Momentum argues that, although the
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Second Amended Petition did not initiate the lawsuit, the amended pleading was an “action” under
Section 150.002 because it did initiate the claims against Momentum and brought it into the case
as a party for the first time.
1. Applicable law
When a question of statutory construction arises, the court’s primary task is to determine
the legislature’s intent as expressed in the plain meaning of the language used in the statute.
Levinson, 513 S.W.3d at 493. We are required to enforce the statute “as written” and “refrain from
rewriting text that lawmakers chose.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443
(Tex. 2009). We are required to analyze the words of the statute and apply the plain meaning of
those words “unless a different meaning is apparent from the context or the plain meaning leads
to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). Finally,
we “endeavor to read the statute contextually, giving effect to every word, clause, and sentence.”
In re Office of Atty. Gen., 422 S.W.3d 623, 629 (Tex. 2013).
Section 150.002 was amended in 2019 in a manner that addresses some of the issues raised
in this case. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a). But because this lawsuit
predates that amendment, unless otherwise noted, all references to Section 150.002 in this opinion
refer to the version of the statute in effect immediately prior to the 2019 amendment. Section
150.002(a), as it was written at the time this lawsuit was filed—and at the time of Gonzalez’s
Second Amended Petition—reads as follows:
In any action or arbitration proceeding 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, licensed professional engineer, registered landscape architect, or
registered professional land surveyor who: (1) is competent to testify; (2) holds
the same professional license or registration as the defendant; and (3) is
knowledgeable in the area of practice of the defendant and offers testimony
based on the person’s (A) knowledge; (B) skill; (C) experience; (D) education;
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(E) training; and (F) practice.
Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992
(amended 2019) (codified at TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a)).
The Supreme Court of Texas construed Section 150.002 in Jaster v. Comet II Constr., Inc.,
438 S.W.3d 556 (Tex. 2014) (plurality opinion). In Jaster, a homeowner sued his contractor—
Comet II Construction, Inc.—for damages arising from the allegedly negligent design and
construction of his house’s foundation. Id. at 559. Comet then asserted third-party claims against
Austin Design Group—the design group from which it had purchased the foundation plans—and
against Gary Wayne Jaster—the licensed professional engineer who had prepared the plans. Id.
Austin Design Group filed a counterclaim against Comet and a cross-claim against Jaster. Id. Jaster
moved to dismiss the claims against it brought by Austin Design Group and Comet because they
had failed to file a certificate of merit, pursuant to Section 150.002. Id.
The trial court denied Jaster’s motion to dismiss, and the Supreme Court of Texas
ultimately affirmed that denial, holding that neither Comet nor Austin Design Group could be
considered a “plaintiff” under Section 150.002; Comet was the defendant and Austin Design group
was a third-party defendant. Id. at 571.
Although Gonzalez relies heavily on Jaster we determine that it does not support
Gonzalez’s position on this issue. The question in Jaster was whether a defendant or third-party
defendant who filed a third-party claim or cross-claim against a licensed or registered professional
was required to file a Section 150.002 certificate of merit, or whether that requirement applied
only to the original plaintiff in the suit. Id. at 559. Thus, much of the court’s discussion (in three
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separate opinions) centered around the meaning of the word “plaintiff.”1 There is no question,
though, that Gonzalez is the “plaintiff” in the present case.
The court in Jaster also engaged in an extended discussion of the meaning of “action” as
used in the statute.2 The plurality stated that “[t]he common meaning of the term ‘action’ refers to
an entire lawsuit or cause or proceeding, not to discrete ‘claims’ or ‘causes of action’ asserted
within a suit, cause, or proceeding.” Id. at 563-64. Stated another way, an “action” is “a judicial
proceeding in which parties assert claims for relief.” Id. at 564. A “cause of action” or “claim,” on
the other hand, is “a legal right that a party asserts in the suit that constitutes the action.” Id.
The Jaster plurality concluded that “section 150.002 requires ‘the plaintiff’ to file a
certificate of merit in ‘any [lawsuit] or arbitration proceeding’ against a licensed professional, and
‘the plaintiff’ is a party who initiates the ‘action’ or suit, not any party who asserts claims or causes
of action within the suit.” Id. at 565. In addition, the Court in a later case stated that Section 150.002
requires that a certificate of merit “accompany the initiation of a lawsuit against these named
design professionals[,]” i.e., “architects, engineers, land surveyors, and landscape architects . . . .”
Melden & Hunt, Inc., 520 S.W.3d at 889-90. This reiterates and reinforces that, under the pre-2019
statute, the certificate of merit requirement falls on the party that initiates a lawsuit and names as
a defendant a covered professional.
2. Application
There is no question that Gonzalez, as plaintiff, initiated this “action” or lawsuit, and that
1
As a result of the 2019 amendment to Chapter 150, “plaintiff” has been replaced by “claimant,” which is specifically
defined as “a party, including a plaintiff or third-party plaintiff, seeking recovery for damages, contribution, or
indemnification.” TEX. CIV. PRAC. & REM. CODE ANN. §§ 150.001(1-a), 150.002(a).
2
As a result of the 2019 amendment, the statute now defines “complaint” as “any petition or other pleading which,
for the first time, raises a claim against a licensed or registered professional for damages arising out of the provision
of professional services by the licensed or registered professional.” See TEX. CIV. PRAC. & REM. CODE ANN. §
150.001(1-b).
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he asserted claims against Momentum, a covered professional. Under the plain language of Section
150.002, Jaster, and Melden & Hunt, Gonzalez was required to file a certificate of merit
contemporaneously with that amended petition. Gonzalez contends, though, that he did not initiate
the “action” with his Second Amended Petition. But nothing in Section 150.002—or the plurality
opinion in Jaster—places any significance on why or when a plaintiff files a lawsuit against a
covered professional. Under Jaster, had CSAC filed a third-party petition against Momentum, it
would not have been required to file a certificate of merit because it is not the plaintiff in this case.
Jaster, 438 S.W.3d at 565 (third-party plaintiffs are not required to file affidavit because they are
not the parties who initiated the suit). But Gonzalez did not somehow cease to be the plaintiff
simply because CSAC was the first to raise the possibility that Momentum might be responsible
for Gonzalez’s injuries as the designer of the fiberglass cover.3
The fact remains that Gonzalez initiated this lawsuit, both generally and as against
Momentum. We find no significance in the fact that the lawsuit against Momentum was initiated
by means of an amended petition. See Nangia v. Taylor, 338 S.W.3d 768, 771 (Tex. App.—
Beaumont 2011, no pet.) (applying certificate of merit requirement in context of amended petition
joining professional engineer as defendant). On the contrary, “although a plaintiff may amend its
petition, and thus file multiple petitions in a single action, the statute requires the plaintiff to file
the certificate of merit with the first petition filed in the action that raises claims subject to its
provisions.” TIC N. Cent. Dallas 3, L.L.C. v. Envirobusiness, Inc., 463 S.W.3d 71, 77 (Tex. App.—
Dallas 2014, pet. denied); accord Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex. App.—Houston
[14th Dist.] 2010, no pet.) (“section 150.002 requires a plaintiff to file a certificate of merit with
3
Gonzalez erroneously equates CSAC’s identification of Momentum as a potential responsible third party with CSAC
asserting a claim for relief against Momentum. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(i) (neither
designation nor finding of fault imposes liability on responsible third party). Gonzalez is the only party in this case
who asserted any claims against Momentum.
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the first-filed complaint asserting a negligence claim against a professional”).
As the plaintiff in an action for damages against a covered professional arising out of the
provision of professional services, Gonzalez was required to file a certificate of merit. The trial
court did not err in concluding that Section 150.002 applies. Gonzalez’s first issue is overruled.
B. Issue Two – Waiver
In Gonzalez’s second issue, he argues the trial court erred in failing to rule on whether
Momentum had waived its right to seek dismissal under Section 150.002. In response, Momentum
argued: (1) that Gonzalez did not preserve the issue for appeal; (2) that the trial court implicitly
ruled that Momentum did not waive its right to seek dismissal under Section 150.002; and (3) that
the trial court was correct in so doing. In his reply, Gonzalez argued that he did preserve the issue
and that any such implied ruling, if made by the trial court, was incorrect. Momentum then filed a
sur-reply, arguing that this Court should not consider Gonzalez’s arguments on the merits of the
waiver issue asserted in his reply brief.
Below, we address these arguments in the following order: first, whether we may consider
Gonzalez’s waiver argument as presented in his reply brief; second, whether the trial court made
an implied ruling concluding that Momentum did not waive its right to seek dismissal under
Section 150.002; third, whether the issue of Momentum’s waiver was properly preserved for
appellate review; and finally, whether—as a matter of law—Momentum waived its right to seek
dismissal.
1. Whether we may consider the arguments presented in Gonzalez’s reply brief
As a preliminary matter, Momentum contends we should not consider the arguments set
forth in Gonzalez’s reply brief because “[t]he Rules of Appellate Procedure do not allow an
appellant to raise an issue in a reply brief which was not included in his original brief.” Fox v. City
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of El Paso, 292 S.W.3d 247, 249 (Tex. App.—El Paso 2009, pet. denied) (citing TEX. R. APP. P.
38.3; Few v. Few, 271 S.W.3d 341, 347 (Tex. App.—El Paso 2008, pet. denied); Gray v. Woodville
Health Care Center, 225 S.W.3d 613, 620 (Tex. App.—El Paso 2006, pet denied)). While we
agree with the principle on which Momentum relies, we do not agree that it applies in this case.
Rule 38.3 provides that “[t]he appellant may file a reply brief addressing any matter in the
appellee’s brief.” TEX. R. APP. P. 38.3. Momentum, in its Appellee’s brief, argued that the trial
court implicitly ruled on the waiver issue and that the facts concerning that issue were undisputed.
Momentum then presented an extended discussion of why those facts support the implied ruling
that it did not waive its right to dismissal under Section 150.002. We determine that Gonzalez was
entitled, under Rule 38.3, to respond to those arguments. See TEX. R. APP. P. 38.3.
After full briefing, it is clear that the parties agree on two premises: first, that the trial court
made an implicit ruling on the waiver issue, and second, that the facts relevant to the waiver issue
are undisputed. However, Gonzalez urges this Court to reach a different legal conclusion on the
waiver issue based on those undisputed facts. It would be a perversion of the appellate rules to
permit Momentum to present its substantive analysis of the issue but to deny Gonzalez the
opportunity to counter that analysis. As a result, if we first determine that the trial court ruled that
Momentum did not waive its right to dismissal under Section 150.002, then we will further address
Gonzalez’s substantive contention that the trial court erred in so doing.
2. Whether the trial court ruled on the issue of waiver or not
The parties do not dispute that Gonzalez raised the issue of waiver in response to
Momentum’s Motion to Dismiss; and, to that extent, we agree the issue was presented to the trial
court. After the second hearing on the Motion to Dismiss, the trial court announced in open court
that it was granting the Motion to Dismiss based on its conclusion that Gonzalez was required to,
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but did not, file a certificate of merit contemporaneously with his Second Amended Petition. The
court also stated, “I’m not making any decisions at this point in time or making any findings as to
whether there was a waiver or not a waiver. I don’t think that’s a question here for the Court.” The
court explained its reasoning for granting the Motion to Dismiss as being simply that the statute
required Gonzalez to file the certificate of merit—“the word is ‘shall’ file . . . it did have to be
filed, and, therefore, the motion to dismiss is granted.”
When counsel for Gonzalez expressed his confusion over the court’s refusal to rule on the
waiver issue, the court explained further:
I believe that that statutory provision is a requirement that it had to be filed. And so
in doing so, anyway would really be moot or irrelevant, because I’m not making a
decision on what happened after that. I’m making the decision on that it had to have
been filed at that time.
So I’m not making a decision on that. I’m only making a decision on the fact that
it should have been filed, since it was triggered, and it was mandatory.
But the court also stated,
So I think the law is very clear that there is no waiver; that they have that time. The
case law that was provided on an 18-months type of situation and a 20-month type
of situation, therefore, it wasn’t waived. And that’s what the finding was for the
Court that heard these cases, and their precedent above that. . . . I think the law
speaks for itself in these cases.
Gonzalez raised the issue of waiver again in his Motion for New Trial. At the hearing on
Gonzalez’s Motion for New Trial, the court again heard argument on this issue, as well as the issue
of the applicability of Section 150.002. At the close of the hearing, the court stated that it had taken
some time to distinguish the differences between this case and the case law provided by the parties
“on both . . . issues[,]” but that it was happy to do so again. The court then denied the Motion for
New Trial by written order.
We conclude that the trial court ruled that Momentum did not waive its right to seek
dismissal. While it does appear, at first, that the trial court was not inclined to rule on the issue of
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waiver, after Gonzalez pressed the issue, the court stated that “there is no waiver” and “it wasn’t
waived.” Additionally, waiver was clearly presented to the court again in the context of Gonzalez’s
Motion for New Trial, where the court stated that it had reviewed the issue, as well as its intention
to look at the matter again. Then the trial court signed an order denying the Motion for New Trial.
These circumstances evidence a ruling by the trial court concluding that Momentum did not waive
its right to dismissal under Section 150.002. TEX. R. APP. P. 33.1(a)(2)(A) (recognizing ruling may
be express or implicit).
3. Whether the waiver issue was preserved for appellate review
To preserve a complaint for appellate review, a party must make “a timely request,
objection, or motion” stating the grounds for the ruling that the party seeks “with sufficient
specificity to make the trial court aware of the complaint . . . .” TEX. R. APP. P. 33.1. If the court
refuses to rule on the request, objection, or motion, the party must then object to that refusal. Id.As stated above, Gonzalez raised the issue of waiver in its response to Momentum’s Motion
to Dismiss. Although when giving a preliminary oral ruling on the Motion to Dismiss, the trial
court appeared to indicate that it was not ruling on the issue of waiver, when pressed by counsel
for Gonzalez, the trial court stated that “there is no waiver” and “it wasn’t waived.” Also, as stated
above, it is undisputed that the issue was raised in Gonzalez’s Motion for New Trial, which the
trial court denied by written order. We determine that the denial of Gonzalez’s Motion for New
Trial included an implicit ruling on the waiver issue in favor of Momentum, which was consistent
with the trial court’s ruling on Momentum’s Motion to Dismiss. As a result of the foregoing, we
determine that Gonzalez’s waiver argument was preserved for appellate review.
4. Whether Momentum waived its right to seek dismissal under Section 150.002
The Supreme Court of Texas has stated that Section 150.002 imposes a mandatory, but
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non-jurisdictional, filing requirement. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d
384, 393 (Tex. 2014). Thus, the Court held “that a defendant may waive its right to seek dismissal
under the statute.” Id. Because the certificate of merit is not jurisdictional, the right to seek
dismissal under the statute may be waived. Id. And because the facts and circumstances relevant
to the issue of waiver in this case are undisputed, we decide this issue as a matter of law. Crosstex,
430 S.W.3d at 394.
Waiver is defined as “an intentional relinquishment of a known right or intentional conduct
inconsistent with claiming that right.” Crosstex, 430 S.W.3d at 391 (quoting Sun Explor. & Prod.
Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987)); see LaLonde v. Gosnell, 593 S.W.3d 212, 218-19
(Tex. 2019). It is “primarily a function of intent.” Crosstex, 430 S.W.3d at 393. Where waiver is
asserted to be based on a party’s conduct, that intent “must be clearly demonstrated by the
surrounding facts and circumstances.” Crosstex, 430 S.W.3d at 393; see LaLonde, 593 S.W.3d at
219 (“A party’s conduct sufficiently demonstrates intent to waive a right if, in light of the
‘surrounding facts and circumstances,’ it is ‘unequivocally inconsistent with claiming’ that
right.”).
Momentum points to a 2008 case from this Court, Apodaca v. Miller, where we found—in
the context of a plaintiff’s failure to file a medical expert report within 180 days of filing a health
care liability claim—that a “three-year delay in filing a motion to dismiss . . . is not a ‘clear
demonstration’ of an intent to waive the statutory right to dismissal.” 281 S.W.3d 123, 127 (Tex.
App.—El Paso 2008, no pet.). Indeed, this Court went further in the Apodaca opinion to state that
“[i]mplicit waiver is only inferred by Texas courts in extreme circumstances.” Id. Aside from the
fact that Apodaca arose in a completely different context and was based on a different statutory
requirement and different waiver rules, it was also decided prior to the LaLonde case. In
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LaLonde—a case dealing with the same statutory requirement as this case—the Supreme Court of
Texas clarified the standard for determining implicit waiver based on a party’s litigation conduct:
[T]he universal test for implied waiver by litigation conduct is whether the party’s
conduct—action or inaction—clearly demonstrates the party’s intent to relinquish,
abandon, or waive the right at issue—whether the right originates in a contract,
statute, or the constitution. This is a high standard.
LaLonde, 593 S.W.3d at 219-20. The Court further explained that this test requires a case-by-case
approach considering “all the facts and circumstances attending a particular case” or, in other
words, “the totality of the circumstances.” Id. at 220.
The LaLonde Court began its substantive analysis of waiver by noting that “the right to
dismissal under section 150.002 ordinarily arises immediately when a ‘complaint’ has been filed
without an expert’s sworn certification of merit.” Id. For that reason, all litigation conduct by a
party who is entitled to seek dismissal, but has not done so, is inconsistent with the right to seek
dismissal. Id. at 221. Even so, “not all litigation conduct is necessarily so inconsistent with a party’s
rights under section 150.002 to imply an intent to relinquish those rights.” Id.
LaLonde identifies several factors to be considered in assessing the totality of the
circumstances relevant to waiver: (1) participation in discovery; (2) the stage of the litigation at
which dismissal is sought; (3) the time elapsed in litigation; (4) seeking affirmative relief; and (5)
participating in alternative dispute resolution. Id. at 223-26.
(a) Participation in discovery
The LaLonde court noted that, “in the certificate-of-merit context, discovery may be
pointless unless the defendant intends to waive the right to dismissal” because “the absolute right
to dismissal clearly and unequivocally exists at the suit’s inception . . . .” Id. at 224. However,
engaging in discovery may not evidence an intent to waive the right to dismissal when such
discovery “could help persuade the trial court to dismiss with prejudice . . . .” Id. Thus, “[a]n
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implication of intent depends on the nature, degree, and extent of discovery activities under the
circumstances.” Id. For example, in Crosstex, the Supreme Court concluded that, even in the
context of exchanging 11,000 pages of written discovery, “[a]ttempting to learn more about the
case in which one is a party does not demonstrate an intent to waive the right to move for
dismissal.” 430 S.W.3d at 394. The defendant in LaLonde, on the other hand, engaged in extensive
discovery “reflect[ing] preparation of the case for disposition on the merits contrary to their
statutory right to a certificate of merit before commencing litigation activity and the related right
to dismissal for noncompliance with that requirement.” LaLonde, 593 S.W.3d at 227-28.
Gonzalez points out that Momentum filed numerous oral deposition notices, deposition
subpoenas, subpoenas duces tecum, and notices of depositions on written questions, and that it
initiated and responded to a variety of written discovery requests. Momentum responds that, like
the defendant in Crosstex, its participation in discovery merely demonstrates that it was trying to
learn more about the case. See Crosstex, 430 S.W.3d at 394.
As noted by the Supreme Court in LaLonde, “[i]f all the defendant does is parry a plaintiff’s
attacks or attempt to learn more about the case to determine eligibility for dismissal, engaging in
[pretrial] discovery has little bearing on the defendant’s intent to waive the right.” LaLonde, 593
S.W.3d at 223-24. But when, as in the present case, “the absolute right to dismissal clearly and
unequivocally exists at the suit’s inception,” there is no point in engaging in any discovery or in
learning more about the case unless the defendant intends to waive that right to dismissal. Id. at
224. On the contrary, “actively pursuing discovery oriented toward a resolution on the merits
strongly indicates the defendant intends to litigate and, thus, waive the statute’s threshold
requirements.” Id. Still, the court emphasized that “[a]n implication of intent depends on the
nature, degree, and extent of discovery activities under the circumstances. Not just quantity but
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also quality.” Id. We look, then, not only to the number of discovery activities in which Momentum
participated, but the nature, degree, extent, and quality of those discovery activities.
Momentum’s participation in discovery went far beyond merely “parry[ing] a plaintiff’s
attacks . . . .” LaLonde, 593 S.W.3d at 223. Momentum not only responded to Gonzalez’s discovery
requests, but it also initiated substantial written discovery and half a dozen oral depositions. In
addition, most of Momentum’s discovery sought information about Gonzalez’s injuries and
damages. Thirteen of its fourteen notices of deposition on written questions and twenty-two of its
twenty-three subpoenas duces tecum were directed to the custodians of billing, medical, and
radiology records for medical professionals. While the Supreme Court of Texas has acknowledged
that discovery may be helpful in persuading a trial court to dismiss with prejudice, we fail to see
how discovery relating to a plaintiff’s injuries or damages would be of assistance in that context.
See id. at 224. On the contrary, engaging in substantial discovery concerning damages indicates
an intent to litigate on the merits rather than to avail oneself of the right to dismissal regardless of
the merits.
We conclude that the nature, degree, extent, and quality of Momentum’s discovery
activities demonstrate an intent to waive the right to dismissal under Section 150.002. This factor
weighs heavily in favor of Gonzalez.
(b) Stage of litigation
The purpose of the certificate of merit requirement is to “weed out” frivolous cases early
in the litigation process, not to dispose of potentially meritorious cases. Id. For this reason, “the
more developed a case is, and the closer it is to trial, the stronger the implication becomes that the
defendant intended to abandon the certificate-of-merit requirement and, accordingly, the remedy
for noncompliance.” Id.
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The defendant in LaLonde advanced the litigation beyond the close of discovery until one
month before the trial setting. Id. at 228. In fact, by the time the defendant filed its motion to
dismiss, there was little left in the litigation process but disposition on the merits. Id. In contrast,
at the time Momentum filed its motion to dismiss, the trial setting was still seven months distant
and many of the deadlines established in the scheduling order had not yet passed. However, given
the time and extensive discovery conducted, we cannot say that Momentum’s Motion to Dismiss
was filed early in the litigation process. We determine that this factor is either neutral, or—at
most—weighs only slightly in favor of Momentum.
(c) Time elapsed in litigation
Silence or inaction, for a period sufficient to demonstrate an intent to yield a known right,
may be enough to establish waiver. LaLonde, 593 S.W.3d at 225 n.56 (citing Tenneco Inc. v. Enter.
Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996)). And while the Supreme Court of Texas recognized
that it would take a long time to be “enough,” “every day a defendant has an absolute procedural
right to dismissal yet does not exercise it is another small but cumulative indication of the
defendant’s intent to waive that right.” Id. at 225.
The defendant in LaLonde waited 1,219 days (well over three years) before moving for
dismissal, a period the Court characterized as “easily fall[ing] on the ‘too long’ end of the
spectrum.” Id. at 228. The time elapsed in the present litigation between the filing of the Second
Amended Petition and the filing of Momentum’s Motion to Dismiss is over seventeen months, or
nearly a year and a half. This is considerably less than the forty-month delay in LaLonde (which
was determined to be too long), but considerably more than the eight-month delay in Crosstex
(which was not). See LaLonde, 593 S.W.3d at 228; Crosstex, 430 S.W.3d at 387.
We conclude that the length of Momentum’s delay lends support to Gonzalez’s position
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that Momentum intended to waive its right to dismissal under Section 150.002. This factor weighs
in Gonzalez’s favor.
(d) Seeking affirmative relief
“[E]lecting to litigate the case to a merits-based disposition is conduct inconsistent with
the right to dismissal of the case without litigation, without regard to the merits, and on terms that
are within the trial court’s discretion.” LaLonde, 593 S.W.3d at 225. The defendant in LaLonde
filed an affirmative claim for attorney’s fees and twice filed motions to shift liability to responsible
third parties. Id. at 228-29. The court determined that those actions unequivocally demonstrated
that the defendant not only intended to, but actually was, litigating the merits. Id. at 229.
It appears that the only affirmative relief Momentum sought in this case was a request to
designate El Paso Electric Company—Gonzalez’s employer and the owner of the property where
his injuries occurred—as a responsible third party. That motion was granted. Although this was
the only affirmative relief requested by Momentum, the import of designating a responsible third
party is to give the ultimate trier of fact the opportunity to apportion fault to that third party and,
thus, to relieve the defendant of some or all responsibility for the plaintiff’s damages. See TEX.
CIV. PRAC. & REM. CODE ANN. § 33.003 (trier of fact shall determine percentage of responsibility
of each claimant, defendant, settling person, and designated responsible third party). This factor
demonstrates an intent by Momentum to litigate Gonzalez’s claims on the merits and, thus, to
waive its right to seek dismissal of those claims. This factor weighs heavily in favor of Gonzalez.
(e) Participating in alternative dispute resolution
Whether the defendant engages in mediation before seeking dismissal is a factor to
consider, but one with limited value. LaLonde, 593 S.W.3d at 225-26. While participating in
alternative dispute resolution tends to indicate an intent to contest the merits of the case, it is not,
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alone, sufficient to clearly demonstrate an intent to waive the right to dismissal. Id. at 226.
The defendant in LaLonde participated in two mediations, one over a year before moving
for dismissal, and a second only two days before moving for dismissal. Id. at 228. In the present
case, there is no evidence that Momentum participated in any alternative dispute resolution
proceedings, or that any such proceedings were ever proposed, either by the court or the parties.
This factor weighs in favor of Momentum.
In summary, we determined that both the first and fourth LaLonde factors—Momentum’s
participation in discovery and its affirmative relief sought—weigh heavily in favor of waiver. We
also determined that the third factor—time elapsed in litigation—weighed slightly in favor of
waiver. Conversely, we found that the second factor—the stage of litigation—was either neutral
or weighed slightly against waiver while the fifth factor—participation in alternative dispute
resolution—weighed against waiver. We keep in mind that the fifth factor is to be considered with
limited value. LaLonde, 593 S.W.3d at 225-26.
No single factor discussed above is dispositive; they are to be weighed against one another
and considered as part of the totality of the circumstances. See LaLonde, 593 S.W.3d at 220. The
parties variously urge that this case is governed by Crosstex, in which no waiver was found, or
LaLonde, in which waiver was found. Although the facts and circumstances of this case are unique
and fall somewhere between Crosstex and LaLonde, we ultimately find they lean closer to LaLonde
given Momentum’s extensive discovery of Gonzalez’s medical treatment records, its delay of more
than double the time of Crosstex before seeking dismissal, and its seeking of affirmative relief in
the form of requesting apportionment of fault to a third party. We conclude that the totality of the
facts and circumstances in this case demonstrate intentional conduct on Momentum’s part that is
so inconsistent with claiming the right to dismissal under Section 150.002 as to establish its intent
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to waive the right to dismissal. See LaLonde, 593 S.W.3d at 219-20; Crosstex, 430 S.W.3d at 391.
Gonzalez’s second issue on appeal is sustained and the trial court’s order dismissing his claims
against Momentum is reversed. As a result, we need not discuss Gonzalez’s third and fourth issues.
CONCLUSION
Having sustained Gonzalez’ second issue, we reverse the trial court’s order of dismissal
and remand this case to the trial court for further proceedings consistent with this opinion.
GINA M. PALAFOX, Justice
September 9, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
Alley, J., dissenting
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