Thomas A. Lalonde, Jr., P.E., Individually and D/B/A Lee Engineering Co., Lee Engineering Co., Stanley Harold Prather and Prather Engineering Consultants, Inc. v. Paul Gosnell and Kim Gosnell

IN THE SUPREME COURT OF TEXAS
══════════
No. 16-0966
══════════

THOMAS A. LALONDE, JR., P.E., INDIVIDUALLY AND D/B/A LEE ENGINEERING CO.,
LEE ENGINEERING CO., STANLEY HAROLD PRATHER AND PRATHER ENGINEERING
CONSULTANTS, INC., PETITIONERS,
v.

PAUL GOSNELL AND KIM GOSNELL, RESPONDENTS

══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
══════════════════════════════════════════

JUSTICE BOYD, joined by CHIEF JUSTICE HECHT and JUSTICE BLACKLOCK, dissenting.

The issue in this case is whether the engineers waived their chapter 150 dismissal right, not

whether they are estopped from asserting it. The Court finds waiver, but only by misconstruing

the right at issue. At best, the facts might possibly support estoppel, but they cannot support waiver

of the right chapter 150 actually grants. I respectfully dissent.

I.
Estoppel and Waiver

Estoppel and waiver “are frequently referenced together, but they are different.” Ulico Cas.

Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008). Estoppel “prevents litigants from

taking contradictory positions as a means of gaining an unfair advantage from the inconsistency.”

Kramer v. Kastleman, 508 S.W.3d 211, 217 (Tex. 2017). It “generally prevents one party from

misleading another to the other’s detriment or to the misleading party’s own benefit.” Ulico, 262

1
S.W.3d at 778. 1 When applicable, estoppel will prevent a party from asserting a right regardless

of whether the party intended to waive that right. See Sw. Inv. Co. v. Alvarez, 442 S.W.2d 862, 866

(Tex. App.—El Paso 1969) (“It is elementary that estoppel binds the parties regardless of their

intention if the other party would be injustly prejudiced.”), reformed on other grounds and aff’d,

453 S.W.2d 138 (Tex. 1970). 2

Waiver, by contrast, is “largely a matter of intent.” Jernigan v. Langley, 111 S.W.3d 153,

156 (Tex. 2003) (per curiam). It occurs only when a party who knows about a right intentionally

relinquishes it. Crosstex Energy Servs. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014). To

waive a right, a party must clearly communicate its intent to relinquish or abandon the right. G.T.

Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511 (Tex. 2015). Waiver does not

depend on the opposing party. It is “‘essentially unilateral’ in character and ‘results as a legal

consequence from some act or conduct of the party against whom it operates; no act of the party

in whose favor it is made is necessary to complete it.’” Shields Ltd. P’ship v. Bradberry, 526

S.W.3d 471, 485 (Tex. 2017) (quoting Mass. Bonding & Ins. Co. v. Orkin Exterminating Co., 416

S.W.2d 396, 401 (Tex. 1967)).

A party may communicate its intent to waive a right either expressly or impliedly. G.T.

Leach, 458 S.W.3d at 511–12. To impliedly waive a right, the party must engage in conduct that

1
See also Perry Homes v. Cull, 258 S.W.3d 580, 593 (Tex. 2008) (“Estoppel is a defensive theory barring
parties from asserting a claim or defense when their representations have induced ‘action or forbearance of a definite
and substantial character’ and ‘injustice can be avoided only by enforcement.’”) (quoting Trammell Crow Co. No. 60
v. Harkinson, 944 S.W.2d 631, 636 (Tex. 1997)); Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864
(Tex. 2000) (“Quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a
position previously taken [and] applies when it would be unconscionable to allow a person to maintain a position
inconsistent with one to which he acquiesced, or from which he accepted a benefit.”).
2
See also 31 C.J.S. Estoppel and Waiver § 91 (“[E]stoppel may arise even though there was no intention on
the part of the party estopped to relinquish any existing right.”); 28 AM. JUR. 2D Estoppel and Waiver § 35 (“[A]n
equitable estoppel may arise even though there was no intention on the part of the party estopped to relinquish or
change any existing right.”).
2
is “unequivocally inconsistent with,” Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex.

2005), or “in contravention of” the right, G.T. Leach, 458 S.W.3d at 514, so as to “clearly

demonstrat[e]” the party’s intent to relinquish it, Crosstex, 430 S.W.3d at 394 (quoting Jernigan,

111 S.W.3d at 156). “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.

Although the homeowners claimed they would be “penalized” if the trial court dismissed

their claims, they have never argued that the engineers should be estopped from claiming their

right to dismissal. Instead, they argue only that the engineers impliedly waived their chapter 150

dismissal right by engaging in this litigation. A party can impliedly waive a right through its

litigation conduct, but regardless of whether the right is contractual 3 or statutory, 4 the litigation

conduct must be so inconsistent with the right as to clearly demonstrate the party’s intent to

abandon it. Crosstex, 430 S.W.3d at 394.

In various contexts, we have identified a wide variety of factors that may indicate that a

party “substantially invoked the judicial process” so as to impliedly waive a particular right. See

G.T. Leach, 458 S.W.3d at 512; Perry Homes, 258 S.W.3d at 589–90. But our purpose in

3
See RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 434 (Tex. 2016) (per curiam) (concluding litigation
conduct did not “establish RSL intended to waive its right to arbitrate” or “indicate intent to waive its right to
arbitrate”); G.T. Leach, 458 S.W.3d at 514 (holding party did not act “in contravention of its contractual right to
arbitration”); In re Citigroup Glob. Markets, Inc., 258 S.W.3d 623, 626 (Tex. 2008) (per curiam) (orig. proceeding)
(holding party’s litigation conduct did not “indicate it had abandoned arbitration”); In re Nexion Health at Humble,
Inc., 173 S.W.3d 67, 69 (Tex. 2005) (per curiam) (orig. proceeding) (holding party’s litigation conduct “did not evince
an intent to waive its arbitration right”); In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999) (per
curiam) (orig. proceeding) (“Waiver may be found when it is shown that a party acted inconsistently with its right to
arbitrate . . . .”), abrogated on other grounds by In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002) (orig. proceeding).
4
Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 6 (Tex. 2014) (“[T]here can be no waiver unless
so intended by one party and so understood by the other.”) (addressing statutory offset right); Crosstex, 430 S.W.3d
at 393–94 (considering “surrounding facts and circumstances” to find implied “intent” to waive “through conduct”)
(statutory dismissal right); Jernigan, 111 S.W.3d at 156 (“[F]or implied waiver to be found through a party’s actions,
intent must be clearly demonstrated by the surrounding facts and circumstances.”) (statutory dismissal right).
3
considering those factors has always been to determine not merely whether the party “substantially

invoked the judicial process,” but whether the party’s conduct clearly demonstrated the party’s

intent to waive the right at issue. G.T. Leach, 458 S.W.3d at 515 (concluding evidence did not

establish that party “substantially invoked the judicial process to the extent required to demonstrate

a waiver of its right to arbitration”) (emphasis added). The “substantially invoked” phrase, as we

have used it, reflects the fundamental principle that “[i]mplying waiver from a party’s actions is

appropriate only if the facts demonstrate that the party . . . intended to waive its . . . right.” EZ

Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex. 1996) (per curiam).

In other words, we do not impute an intent to waive a contractual arbitration right because

the party “substantially invoked the judicial process;” rather, we conclude that a party substantially

invoked the judicial process, and thus impliedly waived the right, because its litigation conduct

demonstrated an intent to waive the right. Crosstex, 430 S.W.3d at 393–94 (holding no waiver

because party’s litigation conduct “d[id] not demonstrate intent to waive its right to seek dismissal”

under chapter 150); Jernigan, 111 S.W.3d at 156–58 (holding no waiver because party’s “actions

were not so inconsistent with an intent to assert the right to dismissal under [the medical-liability

act] as to amount to a waiver of that right”). 5 Stated differently, we use the “substantially invoked”

phrase as a shorthand label to describe litigation conduct that is so inconsistent with the right at

issue that it clearly demonstrates an intentional relinquishment of that right. G.T. Leach, 458

S.W.3d at 515 (holding evidence did not establish that party “substantially invoked the judicial

process to the extent required to demonstrate a waiver of its right to arbitration”) (emphasis

5
See also, e.g., In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 715–16 (Tex. 2016) (orig. proceeding)
(holding party had not “substantially invoked the judicial process” because its litigation conduct did not “evidence an
intent to waive the forum-selection clause but rather the opposite”); In re ADM Inv’r Servs., Inc., 304 S.W.3d 371,
374 (Tex. 2010) (orig. proceeding) (holding party did not invoke the judicial process “so as to waive enforcement” of
contractual forum-selection clause because it “did nothing ‘unequivocal’ to waive enforcement”).
4
added); EZ Pawn, 934 S.W.2d at 89 (“Implying waiver from a party’s actions is appropriate only

if the facts demonstrate that the party seeking to enforce [a right] intended to waive its . . . right.”). 6

In making that determination, we consider all of the facts and circumstances—the “totality

of the circumstances”—in each particular case, whether the right at issue is a contractual arbitration

right, 7 a contractual forum-selection right, 8 or a statutory right. 9 But even when an alleged waiver

is based on litigation conduct, we “will not infer waiver where neither explicit language nor

conduct indicates that such was the party’s intent.” In re Universal Underwriters of Tex. Ins. Co.,

345 S.W.3d 404, 410–11 (Tex. 2011) (orig. proceeding). 10

6
See RSL Funding, 499 S.W.3d at 433–34 (holding party did not invoke the judicial process “sufficiently to
waive its contractual arbitration rights” because its litigation conduct “did not indicate intent to waive its rights to
arbitrate disputes that might arise . . . in the future”); Citigroup, 258 S.W.3d at 626 (holding party’s litigation conduct
was not “necessarily inconsistent with seeking arbitration” and did not “indicate it had abandoned arbitration”); Nexion
Health, 173 S.W.3d at 69 (finding no waiver because party’s litigation conduct “did not evince an intent to waive its
arbitration right”); In re Serv. Corp. Int’l, 85 S.W.3d 171, 174 (Tex. 2002) (orig. proceeding) (holding party’s litigation
conduct “reflects an intent to avoid the state judicial process, not invoke it”); Perry Homes, 258 S.W.3d at 593
(explaining that an agreement to waive arbitration “can be implied from a party’s conduct, although that conduct must
be unequivocal”).
7
RSL Funding, 499 S.W.3d at 430 (“Whether waiver has occurred depends on the totality of the
circumstances.”); G.T. Leach, 458 S.W.3d at 512 (“Whether a party has substantially invoked the judicial process
depends on the totality of the circumstances.”); Kennedy Hodges, L.L.P. v. Gobellan, 433 S.W.3d 542, 545 (Tex.
2014) (per curiam) (“We decide waiver on a case-by-case basis by assessing the totality of the circumstances.”);
Citigroup, 258 S.W.3d at 625 (“Waiver is a legal question for the court based on the totality of the circumstances
. . . .”); In re Fleetwood Homes of Tex., L.P., 257 S.W.3d 692, 694 (Tex. 2008) (per curiam) (orig. proceeding) (same);
Perry Homes, 258 S.W.3d at 591 (“We agree waiver must be decided on a case-by-case basis, and that courts should
look to the totality of the circumstances.”).
8
Nationwide, 494 S.W.3d at 713 (“Whether litigation conduct is ‘substantial’ depends on context and is
determined on a case-by-case basis from the totality of the circumstances.”); ADM, 304 S.W.3d at 374 (describing
“test considering the totality of the circumstances”).
9
Moayedi, 438 S.W.3d at 6 (“Determining whether there has been an ‘intelligent waiver’ depends on the
circumstances of the case.”); Crosstex, 430 S.W.3d at 393 (“To find waiver through conduct, such intent ‘must be
clearly demonstrated by the surrounding facts and circumstances.’”) (quoting Jernigan, 111 S.W.3d at 156).
10
The federal-court decisions on which we have relied also confirm this short-hand use of the “substantially
invoked” phrase. See Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 329 (5th Cir. 1999) (holding that, to
“substantially invoke[] the judicial process,” the party “must, at the very least, engage in some overt act in court that
evinces a desire to resolve the arbitrable dispute through litigation rather than arbitration”); Morewitz v. W. of Eng.
Ship Owners Mut. Prot. & Indem. Ass’n (Luxembourg), 62 F.3d 1356, 1366 (11th Cir. 1995) (holding that implied
waiver of a contractual arbitration right occurs only when the party “substantially participates in litigation to a point
inconsistent with an intent to arbitrate”) (emphasis added); Walker v. J.C. Bradford & Co., 938 F.2d 575, 578 (5th
Cir. 1991) (holding that settlement attempts “do not preclude the exercise of a right to arbitrate” because they “are not
5
 II.
The Chapter 150 Dismissal Right

To correctly determine whether a party has impliedly waived a right through litigation

conduct, we must consider the specific right at issue. Here, the homeowners contend that the

engineers impliedly waived their right to mandatory dismissal under chapter 150 of the Texas Civil

Practice & Remedies Code. Chapter 150 requires a plaintiff who sues in Texas for damages arising

out of services provided by certain licensed professionals to file a “certificate of merit.” TEX. CIV.

PRAC. & REM. CODE §§ 150.001(1-a), .002. If the plaintiff fails to file the required certificate “with

the complaint,” the court “shall” dismiss the claims, and that dismissal “may be with prejudice.”

Id. § 150.002(a), (e).

Crucially, chapter 150 does not impose any deadline by which the defendant must assert

its right to mandatory dismissal. It does not require the defendant to file a dismissal motion before

filing an answer, before attempting to settle the claim, before participating in discovery, before

designating third parties, or before engaging in any other litigation conduct. Under the statute, the

defendant has the right to seek and obtain dismissal at any point in the litigation process. Because

the statute “does not include a deadline, a defendant does not waive the right to move for dismissal

simply by waiting to file the motion.” Jernigan, 111 S.W.3d at 157 (citing Strom v. Mem’l

Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex. App.—Houston [1st Dist.] 2003, pet. denied);

Hernandez v. Piziak, No. 03-02-00544-CV, 2003 WL 248329, at *8–10 (Tex. App.—Austin Feb.6,

2003, pet. denied) (mem. op.); Kidd v. Brenham State Sch., 93 S.W.3d 204, 208 (Tex. App.—

Houston [14th Dist.] 2002, pet. denied); Chisholm v. Maron, 63 S.W.3d 903, 908 (Tex. App.—

inconsistent with an inclination to arbitrate”); Burton-Dixie Corp. v. Timothy McCarthy Constr. Co., 436 F.2d 405,
408 (5th Cir. 1971) (explaining that implied waiver occurs only when the parties’ litigation conduct is “inconsistent
with the notion that they treated the arbitration provision in effect” or “might be reasonably construed as showing that
they did not intend to avail themselves of the arbitration provision”).
6
Amarillo 2001, no pet.)); cf. John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001)

(per curiam) (holding that when a rule of civil procedure “imposes no deadline, . . . none can be

added by decision”).

The Court correctly acknowledges that the engineers’ litigation conduct “must necessarily

be weighed differently here” than in cases involving a contractual right to arbitration or to litigate

in a particular forum, because those rights are “materially different” than the chapter 150 dismissal

right. Ante at ___. But it finds waiver only by misconstruing the right and relying on cases

involving the “materially different” right to arbitration. Instead of identifying the right at issue—

the right to dismissal for failure to file a certificate of merit, unlimited by any statutory deadline—

the Court confuses the potential benefits of the defendant’s dismissal right with the nature of the

right as chapter 150 describes it. The Court notes, for example, that the dismissal right “helps

ensure frivolous claims are expeditiously discharged,” ante at ___, “obviates the need to litigate

the lawsuit altogether,” ante at ___, allows the defendant to “avoid litigation entirely,” ante at ___,

enables the trial courts to “quickly jettison meritless lawsuits,” ante at ___ , “saves parties the

expense of protracted litigation,” ante at ___, “provides ample opportunity to [obtain dismissal]

without the need to engage in any other litigation activity,” ante at ___, and “eliminate[s] the

obligation to litigate at all,” ante at ___. In light of these observations, the Court concludes that

“all of the Engineers’ conduct in this case was inconsistent with” their dismissal right. Ante at ___.

But the right the statute actually grants—to seek and obtain dismissal at any time—is far

broader than the right the Court describes. To be sure, the statue permits the defendant to obtain

all the benefits of early—even immediate—dismissal, but nothing in the statute requires the

defendant to take advantage of those benefits or promptly file a dismissal motion. As we confirmed

when discussing the medical-liability act’s deadline-free dismissal right in Jernigan, the statute

7
makes it apparent that defendants “may wait for years, although they forfeit some of the cost-

reduction protections of the statute by doing so.” Jernigan, 111 S.W.3d at 157 (quoting Kidd v.

Brenham State Sch., 93 S.W.3d 204, 208 (Tex. App.—Houston [14th Dist.] 2002, pet. denied));

see also Apodaca v. Miller, 281 S.W.3d 123, 127 (Tex. App.—El Paso 2008, no pet.) (“While a

three-year delay in filing a motion to dismiss may result in the defendant’s forfeiture of the cost-

reducing benefits of the statute, it is not a ‘clear demonstration’ of an intent to waive the statutory

right to dismissal.”) (citing Jernigan, 111 S.W.3d at 157; Kidd, 93 S.W.3d at 208). The issue is

not (as the Court suggests) whether the engineers waived their right to obtain dismissal early in

the process, but whether they waived their right to ever obtain dismissal at any point in the process.

A. Waiver of the right

We have addressed implied waiver of statutory dismissal rights on only two occasions, and

we found no waiver in either case. First, in Jernigan, we held that the defendant had not impliedly

waived the right to dismissal due to the plaintiff’s failure to timely file adequate expert reports

under the medical-liability act, specifically noting that courts have held that “because the statute

does not include a deadline, a defendant does not waive the right to move for dismissal simply by

waiting to file the motion.” Jernigan, 111 S.W.3d at 157 (citations omitted). The plaintiff argued

the defendant impliedly waived the right by failing to object to the reports until more than 600

days after they were filed, participating in discovery during that time, seeking summary judgment

on different grounds, and amending his answer to delete any complaint that the plaintiff had failed

to meet statutory prerequisites to suit. Id. at 155. Holding that the defendant had not impliedly

waived the right because his “silence or inaction” was not “inconsistent with the intent to rely upon

the right to dismissal,” we suggested that implied waiver could occur only if the defendant had

failed to object “until after the case is disposed of on other grounds.” Id. at 157.

8
 More recently, we held in Crosstex that the defendant had not impliedly waived the chapter

150 dismissal right at issue here even though it had participated in discovery, filed an answer,

joined in agreed continuance and docket-control orders, and entered into a rule 11 agreement, and

then filed a dismissal motion three days later, after limitations had run. 430 S.W.3d at 394. We

rejected the waiver argument because none of this conduct “clearly demonstrated” an “intent to

waive the right to dismiss.” Id. at 394–95 (emphasis added).

As the Court notes, the engineers engaged longer and more extensively in this litigation

than the defendants in Jernigan or Crosstex. The engineers agreed to a scheduling order setting a

trial date and imposing deadlines for discovery, expert designations, and amended pleadings;

substituted their counsel; filed amended answers; engaged in written discovery; designated experts

and responsible third parties; agreed to a continuance; supplemented discovery responses;

amended their pleadings; and participated in both voluntary and court-ordered mediation. But none

of this conduct was inconsistent with their chapter 150 right to seek dismissal at any time, or

otherwise clearly demonstrated that they knew about and intended to relinquish or abandon that

right.

As we said in Jernigan, in the absence of a deadline, a party does not waive its deadline-

free dismissal right simply by waiting to assert that right. 111 S.W.3d at 157. But we suggested

that a party could waive the right by asserting it only after the case is “disposed of on other

grounds.” Id. The Court suggests that a party could waive its dismissal right by “[s]eeking and

obtaining affirmative relief from the trial court, especially summary judgment,” ante at ___, or by

“electing to litigate the case to a merits-based disposition,” ante at ___. I agree with the Court that

asking the trial court to enter judgment on the merits based on a ground other than the plaintiff’s

failure to file the certificate of merit is “inconsistent with the right to dismissal of the case without

9
litigation.” Ante at ___. And at least under some circumstances, announcing “ready” for trial could

clearly demonstrate a defendant’s intent to forego dismissal. See Apodoca, 281 S.W.3d at 127; see

also Uduma v. Wagner, No. 01-12-00796-CV, 2014 WL 4259886, at *7 (Tex. App.—Houston [1st

Dist.], Aug. 27, 2014, pet. denied) (mem. op.) (finding waiver when defendant sought dismissal

“only after the first full trial on the merits concluded”); Mem’l Hermann Hosp. Sys. v. Hayden,

No. 01-13-00154-CV, 2014 WL 2767128, at *10 (Tex. App.—Houston [1st Dist.] June 17, 2014,

pet. denied) (mem. op.) (finding waiver when defendant twice announced ready for trial and thus

“attempted to obtain a final judgment through other means”); but see Alexander v. Colonnades

Health Care Ctr. Ltd., No. 14-16-00500-CV, 2017 WL 4930885, at *10 (Tex. App.—Houston

[14th Dist.] Oct. 31, 2017, no pet.) (mem. op.) (“[T]rial settings do not equate to an announcement

of ready.”).

But as the Court acknowledges, the engineers never filed any summary-judgment motions,

never asked the trial court for affirmative relief on the merits, and never expressed that they were

ready and willing to proceed with a trial. Ante at ___. The Court notes that the engineers pleaded

for attorneys’ fees (in their original answer) and later sought to designate responsible third parties,

ante at ___, but these pleadings did not ask the court to grant relief, much less merits-based relief.

See G.T. Leach, 458 S.W.3d at 513 (refusing to consider as evidence of waiver the counterclaim

filed because it “was defensive in nature, and our rules required G.T. Leach to file it or risk losing

it altogether”); BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (“To qualify as

a claim for affirmative relief, a defensive pleading must allege that the defendant has a cause of

action, independent of the plaintiff’s claim, on which he could recover benefits, compensation or

relief, even though the plaintiff may abandon his cause of action or fail to establish it.”) (quoting

Gen. Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990)). Pleading for relief is not

10
the same as asking the trial court to enter relief based on those pleadings. See Crosstex, 430 S.W.3d

at 394 (“We should not penalize parties or their attorneys for acting out of an abundance of caution

and protecting their interests by filing an answer.”).

We cannot rely on implied waiver to judicially restrict the engineers’ statutory right by

imposing a deadline or prohibitions the statute does not impose. While the Court might think it

best that parties be required to move for dismissal early in the litigation process, and it might think

that allowing the defendant to delay filing the motion while engaging in settlement discussions

and the litigation process is unfair to plaintiffs, neither public policy nor any sense of fairness can

dictate the outcome here. We “must take the Legislature at its word, respect its policy choices, and

resist revising a statute under the guise of interpreting it.” Christus Health Gulf Coast v. Aetna,

Inc., 397 S.W.3d 651, 654 (Tex. 2013). The issue here is simply whether the engineers

intentionally relinquished their statutory right to dismissal. Although that right was waivable,

waiver would require not just the lack of intent to seek dismissal at some point in the process, but

an intention to never seek dismissal at any point in the process.

In support of its conclusion, the Court suggests that “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.” Ante at ___.

But the Court necessarily assumes that the only possible reason the engineers could have delayed

filing their dismissal motion was an intent to litigate the case to a final judgment. See ante at ___

(“[E]very fact in this case . . . demonstrates an intent to litigate contrary to the Engineers’ statutory

dismissal right.”). The only reason the record supports, however, is that the parties were engaged

in negotiations, attempting to settle the case without having to go to trial. Indeed, the record

suggests that the parties repeatedly pursued settlement and worked cooperatively with each other

11
throughout the case. The engineers did not even answer or appear in the suit until twenty months

after it was filed, and the homeowners made no effort to seek a default during that time. 11 After

the engineers answered, the parties agreed to a scheduling order and participated in voluntary

mediation. They then agreed to continue the first trial setting, and the case again remained mostly

inactive for the next ten months. And as the Court itself acknowledges, the parties continued their

negotiations for five months even after the engineers filed their dismissal motion. Ante at ___.

If the record supports any reasonable inference as to why the engineers delayed seeking

dismissal, it is that they wanted to find a way to satisfy their customers, not that they wanted to go

to trial. That they did not intend to seek dismissal at any particular point in the process does not

“clearly demonstrate” that they intended to waive the right to dismissal completely.

B. Prejudice and estoppel

Finally, straying from waiver into estoppel, the Court relies on our decision in Perry Homes

and suggests that—despite the lack of any statutory deadline to seek dismissal—the engineers

waived their dismissal right by waiting until “the eve of trial,” and after limitations had run, to

assert it. Ante at ___. But Perry Homes involved alleged waiver of a contractual arbitration right,

not a statutory dismissal right. 258 S.W.3d at 584. As the Court itself acknowledges, a contractual

arbitration right is “materially different” from the chapter 150 dismissal right. Ante at ___.

Because the Federal Arbitration Act governed most of the arbitration agreements we have

addressed, our objective in those cases was to uphold “the FAA’s goal of resolving disputes

without the delay and expense of litigation.” In re Vesta Ins. Grp., 192 S.W.3d 759, 764 (Tex.

11
The engineers explain that they engaged in settlement negotiations with the homeowners during this delay,
attempting to address and resolve their concerns. The homeowners do not dispute that explanation, but the record
contains no evidence to confirm it.
12
2006) (per curiam) (orig. proceeding). 12 For this reason, we have applied a “different standard” in

our arbitration cases, Nationwide, 494 S.W.3d at 712–13, one that includes a prejudice requirement

that makes it “quite similar” to the test for estoppel, Perry Homes, 258 S.W.3d at 593. 13 As a result,

when deciding whether a party impliedly waived an arbitration right through litigation conduct,

“the precise question is not so much when waiver occurs as when a party can no longer take it

back.” Id. at 595. 14

The engineers urge us to adopt a prejudice requirement for implied waiver of the chapter

150 dismissal right. The Court dodges that issue, but then suggests that, even if prejudice is a

requirement, “prejudice exists” here. Ante at ___. It acknowledges that prejudice is an element of

estoppel, not waiver, see ante at ___ (“Prejudice, in comparison [to waiver], is an estoppel-based

requirement . . . .”), yet it holds that “allowing limitations to expire before asserting a right that

significantly pre-existed the time bar provides some indication they intended to waive the pleading

defect and the remedy,” ante at ___. Ultimately, this is the type of estoppel-based waiver we

applied in Perry Homes, not the intent-based waiver we applied in Crosstex and Jernigan. In fact,

12
In the federal context, the concept of “waiver” of an arbitration right derives from the FAA’s requirement
that courts stay litigation involving arbitrable issues pending arbitration unless the party seeking arbitration is “in
default in proceeding with such arbitration.” In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (per curiam)
(orig. proceeding) (emphasis added) (quoting 9 U.S.C. § 3). Although the statute refers to “default,” the federal courts
have construed the term to mean something similar to common-law waiver. Id.; see Morewitz, 62 F.3d 1356 at 1366
n.16 (“[T]he term ‘default’ has been construed as analogous in meaning to the common-law term ‘waiver.’”) (quoting
3 FED. PROC., L.ED. Arbitration § 4:24 (1981)).
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As Justice Johnson explained in his Perry Homes dissent, “Waiver as that term is used in regard to
arbitration agreements subject to the FAA, however, requires more than is required for general waiver—it requires
proof that the party asserting waiver as a defense to arbitration has suffered detriment.” Id. at 603 (Johnson, J.,
dissenting) (emphasis added).
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See also id. at 597 (discussing the “inherent unfairness” in allowing a party to “purposefully and
unjustifiably . . . manipulate the exercise of its arbitral rights simply to gain an unfair tactical advantage over the
opposing party”) (quoting In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d 41, 46 n.5 (1st Cir. 2005)); see also Serv. Corp.
Int’l, 85 S.W.3d at 174 (“Courts will not find that a party has waived its right to enforce an arbitration clause by merely
taking part in litigation unless it has substantially invoked the judicial process to its opponent’s detriment.”) (quoting
Bruce Terminix, 988 S.W.2d at 704).
13
we specifically held in Crosstex that the defendant did not clearly demonstrate an intent to waive

the chapter 150 dismissal right by waiting until after limitations had run before filing its dismissal

motion. 430 S.W.3d at 393–94. Even if the homeowners showed they were prejudiced by the

engineers’ delay in seeking dismissal, they cannot establish waiver unless they show that the

engineers clearly demonstrated an intent to relinquish their dismissal right.

III.
Conclusion

Ultimately, two fundamental truths should determine the outcome of this case. First,

chapter 150 gave the engineers the right to obtain dismissal of the homeowners’ claims at any time

during this litigation process. And second, we cannot hold that the engineers impliedly waived that

right through litigation conduct unless that conduct clearly demonstrated that they knew about and

intended to relinquish that right. Because the statute did not require them to seek dismissal early

in the process or prohibit them from engaging in litigation before seeking dismissal, none of their

conduct clearly demonstrated an intent to relinquish their right to obtain dismissal when and as the

statute allowed. I would therefore reverse the court of appeals’ judgment and reinstate the trial

court’s judgment dismissing the homeowners’ claims. Because the Court does not, I respectfully

dissent.

_____________________
Jeffrey S. Boyd
Justice

Opinion delivered: June 14, 2019

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