New Texas Supreme Court Ruling
LaLonde v. Gosnell, No. 16-0966 (Tex. June 14, 2019).
Today the Texas Supreme Court issued its majority and dissenting opinions in a case addressing implied waiver of the right to seek dismissal under the certificate-of-merit statute, chapter 150 of the Texas Civil Practice and Remedies Code. In LaLonde v. Gosnell, a 6-3 decision, the Supreme Court found waiver.
The Gosnells hired engineers to evaluate and stabilize their home’s foundation. The Gosnells later sued the engineers alleging contract and tort claims, but did not file a certificate of merit with their original petition. Nearly three and one-half years later and mere weeks before trial, the engineers filed a chapter 150 motion to dismiss. The trial court granted the motion and dismissed the Gosnells’ lawsuit with prejudice. The court of appeals reversed, holding that the engineers through their litigation conduct had impliedly waived the right to seek dismissal under chapter 150.
A divided Texas Supreme Court agreed with the court of appeals and held that the engineers’ engagement of the judicial process implied they intended to waive the right to seek dismissal. Considering the totality of the circumstances, the majority found it significant that the engineers had, among other things, actively participated in discovery through the close of the discovery deadline; designated experts; moved to designate responsible third parties; and made an affirmative claim for relief by requesting attorney’s fees in their live pleading.
The dissent, on the other hand, found it significant that chapter 150 does not impose any deadline by which the defendant must assert its right to mandatory dismissal. According to the dissent, “the defendant has the right to seek and obtain dismissal at any point in the litigation process.”
Copies of the majority and dissenting opinions may be found here:
Majority opinion: http://www.txcourts.gov/media/1444227/160966.pdf
Dissenting opinion: http://www.txcourts.gov/media/1444228/160966d.pdf
About the Author: Anthony T. Golz is Principal in the Houston office of Cokinos | Young. Tony Golz’s practice focuses primarily on commercial litigation and appellate matters for a wide range of clients. He has represented contractors and owners, as well as product designers and distributors in commercial disputes involving construction defect/delay claims, mechanic’s and materialman’s lien claims, product liability claims, breach of contract claims and DTPA/Insurance Code claims. Tony is Board Certified in Appellate Law by the Texas Board of Legal Specialization.