Lalonde v. Gosnell

Full title: Thomas A. LALONDE, Jr., P.E., Individually and d/b/a Lee Engineering Co.…

Court: Supreme Court of Texas.

Date published: Jun 14, 2019

593 S.W.3d 212 (Tex. 2019)

Opinion

No. 16-0966

06-14-2019

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

Amy Fitzgerald Casto, Texas Council of Engineering Companies, 1001 Congress, Suite 200, Austin TX 78701, for Amicus Curiae American Council of Engineering Companies of Texas. Diana L. Faust, Kyle M. Burke, R. Brent Cooper, Cooper & Scully, P.C., Founders Square, 900 Jackson Street, Suite 100, Dallas, TX 75202, for Amicus Curiae Texas Alliance for Patient Access. Frank Gilstrap, Frank W. Hill, Garrett T. Reece, Hill Gilstrap, P.C., 1400 West Abram Street, Arlington, TX 76013-1705, Andrew F. Stasio Jr., Stasio & Stasio, P.C., 303 Main Street, Ste. 302, Fort Worth, TX 76102-4069, for Petitioners. Jeffrey L. Crouch, Haiman Hogue, PLLC, Hall Office Park, 2595 Dallas Parkway, Suite 100, Frisco TX 75034, for Respondent.

Eva M. Guzman, Justice

Amy Fitzgerald Casto, Texas Council of Engineering Companies, 1001 Congress, Suite 200, Austin TX 78701, for Amicus Curiae American Council of Engineering Companies of Texas.

Diana L. Faust, Kyle M. Burke, R. Brent Cooper, Cooper & Scully, P.C., Founders Square, 900 Jackson Street, Suite 100, Dallas, TX 75202, for Amicus Curiae Texas Alliance for Patient Access.

Frank Gilstrap, Frank W. Hill, Garrett T. Reece, Hill Gilstrap, P.C., 1400 West Abram Street, Arlington, TX 76013-1705, Andrew F. Stasio Jr., Stasio & Stasio, P.C., 303 Main Street, Ste. 302, Fort Worth, TX 76102-4069, for Petitioners.

Jeffrey L. Crouch, Haiman Hogue, PLLC, Hall Office Park, 2595 Dallas Parkway, Suite 100, Frisco TX 75034, for Respondent.

Justice Guzman delivered the opinion of the Court, in which Justice Green, Justice Lehrmann, Justice Devine, Justice Brown, and Justice Busby joined.

Eva M. Guzman, Justice Chapter 150 of the Texas Civil Practice and Remedies Code requires that a sworn "certificate of merit" accompany any lawsuit complaining about a licensed professional engineer's services.¹ Failure to contemporaneously file an affidavit from a similarly licensed professional attesting to the lawsuit's merits requires dismissal of the suit.² The certificate-of-merit requirement is a substantive hurdle that helps ensure frivolous claims are expeditiously discharged.³ To that end, if the plaintiff fails to file a certificate of merit, the statute obviates the need to litigate the lawsuit altogether, even to the point of relieving the defendant of any obligation to file an answer until thirty days after a certificate is filed.⁴

1 Tex. Civ. Prac. & Rem. Code § 150.002(a).

2 Id. § 150.002(b), (e).

3 CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n Inc. , 390 S.W.3d 299, 301 (Tex. 2013) ("Section 150.002(e) dismissal is a sanction ... to deter meritless claims and bring them quickly to an end."); cf. Spectrum Healthcare Res., Inc. v. McDaniel , 306 S.W.3d 249, 253 (Tex. 2010) (discussing an analogous expert-report requirement under the Texas Medical Liability Act).

4 Tex. Civ. Prac. & Rem. Code § 150.002(d).

No certificate of merit has ever been filed in this lawsuit, as required, but the defendant engineers did not seek dismissal until the eve of trial—1,219 days after suit was filed, nearly two years after the engineers answered, and long after the limitations periods had expired on the plaintiffs' claims. In the interim, the engineers participated in discovery until all discovery deadlines had expired, filed motions seeking to shift responsibility to third parties, and—rather than invoking the absolute statutory right to dismissal—chose to participate in alternative methods for terminating the lawsuit. As we affirmed in Crosstex Energy Services, L.P. v. Pro Plus, Inc. , a defendant can waive Chapter 150's certificate-of-merit requirement by litigating inconsistently with claiming the right to dismissal.⁵ Considering the totality of the circumstances, we agree with the court of appeals that the defendant engineers' engagement of the judicial process implies they intended to waive the statute's requirements.⁶ Accordingly, we affirm the court of appeals' judgment and remand the case to the trial court for further proceedings.

5 430 S.W.3d 384, 386, 393-95 (Tex. 2014).

6 559 S.W.3d 559, 568 (Tex. App.—Fort Worth 2016).

I. Background

Paul and Kim Gosnell hired Thomas A. LaLonde d/b/a Lee Engineering Co.; TAL Industries, Inc. d/b/a Lee Engineering Co.; Stanley Harold Prather; and Prather Engineering Consultants Inc. (collectively, the Engineers) to evaluate and stabilize their home's foundation. The Gosnells allege the Engineers' work exacerbated the foundation problems, causing significant damage to their home. Exactly two years later, the Gosnells sued the Engineers, alleging contract and tort claims, but they did not contemporaneously file a certificate of merit as required by section 150.002 of the Texas Civil Practice and Remedies Code.

Twenty months later, the Engineers filed their original answer, denying the allegations and requesting attorney's fees. Though a certificate of merit still had not been filed, the parties agreed to a scheduling order establishing discovery and expert-designation deadlines and setting a trial date. Shortly thereafter, the parties voluntarily participated in mediation to resolve the case without further litigation.

When settlement efforts failed, the parties began litigating the case in accordance with the scheduling order. Over the course of the next eighteen months, the Engineers successfully moved to withdraw and substitute counsel; supplemented their answer with specific denials and affirmative defenses; propounded and responded to discovery requests; designated expert witnesses; and moved to designate responsible third parties under Chapter 33 of the Texas Civil Practice and Remedies Code. A second agreed scheduling order extended the discovery and expert-witness designation deadlines and also reset the trial, which had been continued by agreement at the defendants' request. The day discovery closed, the Engineers produced a final batch of documents. A few days after that, the parties participated in an unsuccessful court-ordered mediation.

Two days later—and mere weeks before trial—the Engineers filed a motion to dismiss with prejudice because the Gosnells had not included a certificate of merit when they filed their original petition forty months earlier. The dismissal hearing was delayed for an additional five months as the parties engaged in further settlement negotiations, but the trial court ultimately granted the motion and dismissed the Gosnells' lawsuit with prejudice.

The court of appeals reversed, holding the Engineers impliedly waived section 150.002's requirements.⁷ Considering the totality of the circumstances, the court concluded that "the Engineers' engagement in the judicial process indicated their intention to litigate and amounted to waiver."⁸

7 Id.

8 Id.

We granted the Engineers' petition for review, which asserts the court of appeals applied the wrong waiver standard and the wrong standard of review. The Engineers argue that implied waiver of a statutory right (1) is not determined under a totality-of-the-circumstances test, (2) should not be reviewed de novo because it involves a question of intent, (3) always begins with a presumption against waiver, and (4) requires a showing of prejudice. We reject the first two arguments. As to the third, we hold that the undisputed evidence satisfies the burden of proof under our intent-based waiver standard.⁹ We need not decide whether prejudice—a conceptually distinct concept from waiver—is required to effect a waiver because prejudice is established on this record.

9 In cases involving contractual arbitration and forum-selection clauses, we have noted that a "strong presumption against waiver" exists and that the presumption "should govern" in "close cases," Perry Homes v. Cull , 258 S.W.3d 580, 593 (Tex. 2008), such that "doubts" as to waiver are "resolved in favor of arbitration," In re Poly-Am., L.P. , 262 S.W.3d 337, 348 (Tex. 2008) ; see also, e.g. , RSL Funding, LLC v. Pippins , 499 S.W.3d 423, 430 (Tex. 2016) (arbitration); In re Nationwide Ins. Co. of Am. , 494 S.W.3d 708, 718 & n.1 (Tex. 2016) (forum-selection clauses, which are "analogous to arbitration clauses"); In re D. Wilson Constr. Co. , 196 S.W.3d 774, 783 (Tex. 2006) (arbitration); EZ Pawn Corp. v. Mancias , 934 S.W.2d 87, 89 (Tex. 1996) ("The FAA [Federal Arbitration Act] disfavors waiver, and there is a strong presumption against waiver." (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), and Prudential Sec. Inc. v. Marshall , 909 S.W.2d 896, 899 (Tex. 1995) )). We have not recognized a similar presumption outside these contexts, and the public policies favoring arbitration and contract rights are not implicated here. We note, however, that the party asserting waiver bears the burden of proving intent by a preponderance of the evidence. Proving intent is an inherently high standard, and the necessity of preponderating evidence of subjective intent means that a claim of waiver in a close case would fail. The FAA's "strong presumption" also seems to refer to the requirement, in the arbitration context, that waiver be accompanied by prejudice, a matter we do not reach here because the record establishes prejudice. See In re Vesta Ins. Group, Inc. , 192 S.W.3d 759, 763 (Tex. 2006) ; In re Bruce Terminix Co. , 988 S.W.2d 702, 704 (Tex. 1998).

II. Discussion

In Crosstex Energy Services, L.P. v. Pro Plus, Inc. , we held that section 150.002's certificate-of-merit requirement is mandatory but not jurisdictional, so notwithstanding the absence of a statutory deadline for dismissal, it can be waived.¹⁰ The Gosnells concede they failed to file the affidavit section 150.002 requires, but assert the Engineers impliedly waived that requirement by substantially invoking the judicial process contrary to their statutory right to dismissal. The court of appeals agreed with the Gosnells but the Engineers say this was error because the court applied the "totality of the circumstances" waiver test instead of the "traditional" waiver test. Perceiving a distinction between judicial articulations of the waiver standard, the Engineers maintain that the "totality of the circumstances" test is limited to determining waiver of contractual rights, such as arbitration and forum selection, while the "traditional" test applies to waiver of statutory rights, like those in section 150.002.

10 430 S.W.3d 384, 393 (Tex. 2014). Though we settled the matter in Crosstex , the American Council of Engineering Companies of Texas, as amicus curiae, argues that section 150.002's requirements cannot be waived. For the reasons articulated in Crosstex , we disagree.

We disagree that the waiver tests are different in the way the Engineers assert. The nature of the right at issue might make a difference in whether a showing of prejudice or detriment is required,¹¹ a matter we need not consider in this case, but we cannot agree that the standard for determining implied waiver differs.

11 See Nationwide , 494 S.W.3d at 712-13 (observing that for waiver of forum-selection clauses, "we have borrowed a different standard from the jurisprudence applicable to arbitration clauses" that requires prejudice); Perry Homes , 258 S.W.3d at 593, 595 (describing the test for implied waiver of arbitration rights as "quite similar" to the test for "estoppel," where the question is "not so much when waiver occurs as when a party can no longer take it back" and noting that, in some contexts, "prejudice is an element of the normal contract rules").

A. Waiver Standard

Waiver is the "intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right."¹² Waiver "results as a legal consequence from some act or conduct of the party against whom it operates" and is "essentially unilateral in character," meaning "no act of the party in whose favor it is made is necessary to complete it."¹³ Prejudice, in comparison, is an estoppel-based requirement that focuses on detriment or prejudice to the other party.¹⁴

12 Crosstex , 430 S.W.3d at 391 (quoting Sun Exploration & Prod. Co. v. Benton , 728 S.W.2d 35, 37 (Tex. 1987) ).

13 Shields Ltd. P'ship v. Bradberry , 526 S.W.3d 471, 485 (Tex. 2017) (quotation marks omitted).

14 Perry Homes , 258 S.W.3d at 593, 595 ; see also Nationwide , 494 S.W.3d at 712-13 (noting the implied waiver test "borrowed" from the arbitration context is "different" from traditional waiver principles because the former includes the estoppel-based requirements of detriment or prejudice).

Though waiver is a question of intent, it need not be explicit.¹⁵ 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.¹⁶ As we explained in Crosstex , "[s]ubstantial invocation of the judicial process" implies waiver when it "clearly demonstrat[es]" an intent to abandon a known right.¹⁷ Intentional relinquishment is "clearly demonstrate[d]" when litigation conduct is manifestly inconsistent with the right at issue.¹⁸ To effect waiver by litigation conduct in the arbitration and forum-selection cases, we have also required a showing of prejudice but only in addition to an intent to abandon those rights.¹⁹ Under Texas law, implied waiver and prejudice are distinct concepts.²⁰ That does not mean, however, that evidence bearing on one is irrelevant to the other, because conduct inconsistent with claiming a right can evince intent while also working a prejudice to the opposing party.

15 Crosstex , 430 S.W.3d at 393.

16 Id. ; Van Indep. Sch. Dist. v. McCarty , 165 S.W.3d 351, 353 (Tex. 2005).

17 Crosstex , 430 S.W.3d at 394.

18 Id.

19 See In re Universal Underwriters of Tex. Ins. Co. , 345 S.W.3d 404, 405, 410-11 (Tex. 2011) (both conduct evidencing intent to waive contractual appraisal right and prejudice were required); Perry Homes v. Cull , 258 S.W.3d 580, 593, 595 (Tex. 2008) (holding a party's litigation conduct established both intentional abandonment of arbitration rights and prejudice in the form of "substantial direct benefits" and "advantage" from engaging "in the pretrial litigation process").

20 See Perry Homes , 258 S.W.3d at 595 ("Under Texas law, waiver may not include a prejudice requirement, but estoppel does. In cases of waiver [of arbitration rights] by litigation conduct, the precise question is not so much when waiver occurs as when a party can no longer take it back.").

Our description of the type of litigation conduct that can establish an implied waiver has varied in articulation, but not in substance. While our arbitration and forum-selection cases refer to implied waiver arising when a party "substantially invokes the litigation process,"²¹ some statutory-right cases refer to waiver implied by "engagement in the judicial process" that "clearly demonstrates" an intent to waive the right.²² To the extent these linguistic variations have caused confusion, we clarify here that the 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.²³ This is a high standard.

21 See, e.g. , Id. at 589-90 (arbitration); In re Automated Collection Techs., Inc. , 156 S.W.3d 557, 559 (Tex. 2004) (forum selection).

22 See Crosstex , 430 S.W.3d at 394.

23 See Moayedi v. Interstate 35/Chisam Rd., L.P. , 438 S.W.3d 1, 6 (Tex. 2014) ("In general, parties may waive statutory and even constitutional rights."); Tenneco Inc. v. Enter. Prods. Co. , 925 S.W.2d 640, 643 (Tex. 1996) ("Silence or inaction, for so long a period as to show an intention to yield the known right, is also enough to prove waiver.").

In determining whether a party's conduct clearly demonstrates an intent to waive a right, courts must consider the totality of the circumstances.²⁴ This is a "case-by-case" approach that necessitates consideration of all the facts and circumstances attending a particular case.²⁵ That is precisely the standard the court of appeals applied in correctly concluding the Engineers waived the right to dismissal based on the Gosnells' failure to file an expert's threshold assurance that their claims are not frivolous.²⁶

24 In re Nationwide Ins. Co. of Am. , 494 S.W.3d 708, 713 (Tex. 2016) ("Whether litigation conduct is ‘substantial’ depends on context and is determined on a case-by-case basis from the totality of the circumstances."); Crosstex , 430 S.W.3d at 393 ("To find waiver through conduct, such intent ‘must be clearly demonstrated by the surrounding facts and circumstances.’ "); 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.").

25 See supra note 24.

26 559 S.W.3d at 561, 566-68 (Tex. App.—Fort Worth 2016) (concluding that "the totality of the circumstances here paints the picture of defendants who did not intend to take advantage of their right to dismissal").

The Engineers also complain about the standard of review the court of appeals applied, but as the Engineers concede, we have long and consistently held that waiver is a question of law.²⁷ Appellate courts do not defer to the trial court on questions of law.²⁸ Deference must be afforded to the trial court's disposition of disputed facts, but when there are none, as here, our review is entirely de novo.

27 Perry Homes , 258 S.W.3d at 598 & n.101.

28 Id. at 598 & n.102.

B. Implied Waiver of the Certificate-of-Merit Requirement

The rights at issue here arise under section 150.002 of the Texas Civil Practice and Remedies Code. Section 150.002 gives certain professionals, including licensed engineers, the right to a professional certification that any complaint about their services has merit before any litigation may be undertaken at all.²⁹ Absent a properly filed certificate of merit, professionals have the right to avoid litigation entirely.³⁰ By enabling defendants to quickly jettison meritless lawsuits, the certificate-of-merit requirement saves parties the expense of protracted litigation.³¹

29 Tex. Civ. Prac. & Rem. Code § 150.002(a), (b), (d).

30 Id. § 150.002(d), (e).

31 CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n Inc. , 390 S.W.3d 299, 300-01 (Tex. 2013).

To that end, unlike the analogous expert-report requirement in the Texas Medical Liability Act, 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.³² Also unlike the Medical Liability Act, the case must be dismissed under section 150.002 without the defendant ever having to file an answer.³³ Though Chapter 150 does not include any deadline for seeking dismissal, it quite plainly provides ample opportunity to do so without the need to engage in any other litigation activity, at least when no certificate has been filed, as in this case.³⁴ Our precedents affirm that the absence of a deadline for asserting a right—whether arising under a statute, a contract, or the constitution—does not preclude implied waiver by conduct inconsistent with claiming the right.³⁵ We thus begin our implied-waiver analysis with the observation that all of the Engineers' conduct in this case was inconsistent with their rights under section 150.002.

32 Tex. Civ. Prac. & Rem. Code § 150.002(a), (c), (e).

33 Compare id. § 150.002(a), (b), (d) (requiring an expert certification to be filed contemporaneously with the petition and tolling the defendant's answer filing date until 30 days after a compliant certificate is filed), with id. § 74.351(a) (requiring service of an adequate expert report within 120 days after the original answer is filed, absent a statutorily permitted extension).

34 Cases involving a missing certificate are analytically different than those in which a certificate has been filed but is later challenged as defective or otherwise noncompliant. In the latter case, one might reasonably expect some litigation activity would be essential to "learn more about the case" and avoid being disadvantaged if a dismissal motion challenging the adequacy of a expert certification is denied. Jernigan v. Langley , 111 S.W.3d 153, 157 (Tex. 2003).

35 See, e.g. , Crosstex Energy Services, L.P. v. Pro Plus, Inc. , 430 S.W.3d 384, 394-95 (Tex. 2014) (section 150.002's requirement of a timely certificate of merit and right to dismissal as a remedy for noncompliance may be waived); Perry Homes v. Cull , 258 S.W.3d 580, 593 (Tex. 2008) (finding waiver of a contractual right to arbitration); Jernigan , 111 S.W.3d at 156 ("Although there is no statutory deadline to file a motion to dismiss [under a superseded version of the Medical Liability Act], we must decide whether [the defendant] nevertheless waived the right ...."); Fort Worth Indep. Sch. Dist. v. City of Fort Worth , 22 S.W.3d 831, 843-44 (Tex. 2000) (constitutional rights can be waived by conduct inconsistent with claiming that right, and a party's "conduct for more than fifty years," including agreeing to pay the taxes, was inconsistent with his complaint that the assessed taxes violated the Texas Constitution); Tenneco Inc. v. Enter. Prods. Co. , 925 S.W.2d 640, 643 (Tex. 1996) ("[O]ver a period of three years, from the date of the First Transfer until the filing of this lawsuit, no owner complained about Tenneco Natural Gas Liquids' failure to comply with Section 12.2 [of the parties' contract]. This extended inaction by the plant owners, coupled with their acceptance of Tenneco Natural Gas Liquids as a plant co-owner, establishes an intentional waiver of any rights concerning the First Transfer.").

As we explained in Crosstex , however, 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.³⁶ For example, conduct that is merely defensive or responsive to litigation initiated and carried on by the other party does not in and of itself give rise to waiver.³⁷ Hence, filing an answer "out of an abundance of caution" is "inconsequential"³⁸ and "attempting to learn about the case" when the defect in an expert's certification may not be evident would not be "inconsistent with the intent to assert the right to dismissal."³⁹ Nor is mere delay, like the eight-month time frame in Crosstex , ordinarily sufficient to imply waiver.⁴⁰

36 See Crosstex , 430 S.W.3d at 394-95 (filing an answer, engaging in limited discovery, and waiting a few months to move for dismissal did not indicate an intent to waive the certificate-of-merit requirement and the right to dismissal for noncompliance).

37 See RSL Funding, LLC v. Pippins , 499 S.W.3d 423, 430 (Tex. 2016) ("[A]sserting defensive claims—even if such claims seek affirmative relief—does not waive arbitration."); G.T. Leach Builders, LLC v. Sapphire V.P., LP , 458 S.W.3d 502, 513 (Tex. 2015) ("A party's litigation conduct aimed at defending itself and minimizing its litigation expenses, rather than at taking advantage of the judicial forum, does not amount to substantial invocation of the judicial process.").

38 Crosstex , 430 S.W.3d at 394 ; see, e.g. , Palladian Bldg. Co. v. Nortex Found. Designs, Inc. , 165 S.W.3d 430, 433-35 (Tex. App—Fort Worth 2005, no pet.) (finding that filing original and amended answers constituted "no action that would preclude it from seeking dismissal ....").

39 Jernigan , 111 S.W.3d at 157 (expert-report filed as required under the Texas Medical Liability Act, but subsequently challenged as defective).

40 430 S.W.3d at 387 (eight months with limited activity); see also Jacobs Field Servs. N. Am., Inc. v. Willeford , No. 01-17-00551-CV, 2018 WL 3029060, at *5 (Tex. App.—Houston [1st Dist.] June 19, 2018, no pet.) (mem. op.) (six-and-a-half months); Landreth v. Las Brisas Council of Co-Owners, Inc. , 285 S.W.3d 492, 501 (Tex. App.—Corpus Christi 2009, no pet.) (eight days after learning the plaintiff's certificate of merit was fatally deficient).

Yet, in affirming that section 150.002's requirements can be waived by substantially engaging the judicial process, Crosstex also recognizes that, at some point, the right to a threshold certification of merit will be so obviated by a party's litigation conduct as to clearly evince an intent to abandon that requirement and proceed with the litigation.⁴¹ Whether that is the case here depends on the totality of the circumstances.

41 430 S.W.3d at 386, 393-95.

C. Totality of the Circumstances

The jurisprudence reflects several factors that bear on whether a party's litigation conduct clearly demonstrates an intent to repudiate a known right. For the most part, those factors have received attention in the arbitration and forum-selection contexts,⁴² but they must necessarily be weighed differently here because the right at issue is materially different. Arbitration and forum-selection cases involve rights that do not terminate the litigation; rather, those rights—at best—change the arena of dispute and, in doing so, may change the rules of engagement. Here, in comparison, the rights arising under section 150.002 eliminate the obligation to litigate at all based on the plaintiff's failure to raise a preliminary fact issue on merit. The right to dismissal under section 150.002(e) arises solely and exclusively from the requirements in sections 150.002(a) and (b) that an engineer certify the merit of each theory of recovery before the case may proceed. This requirement can be waived, and if it is, the right to dismissal under section 150.002(e) is as well. In focusing only on the dismissal right in section 150.002(e), the dissent ignores waiver of the condition precedent to that right, misstates the right at issue, and asserts—contrary to clear precedent—that the absence of a statutory deadline for dismissal is essentially controlling.

42 Perry Homes v. Cull , 258 S.W.3d 580, 591 (Tex. 2008) (arbitration); In re Nationwide Ins. Co. of Am. , 494 S.W.3d 708, 718 & n.1 (Tex. 2016) (forum selection).

Fixating on the absence of a statutory deadline for dismissal, the dissent frames the right at issue as the right to seek and obtain dismissal at "any ... point in the litigation process ," the "unlimited" right to seek dismissal at any time, "the right to seek dismissal at any time ," the "right to ever obtain dismissal at any point in the process ," and "the right to obtain dismissal of the homeowners' claims at any time during this litigation process."⁴³ The statute says no such thing. The dissent adds those words to a statute that is simply silent on the matter. The dissent's augmented view of the statute and root analysis conflict with our holding in Crosstex that substantially invoking the litigation process can waive section 150.002's requirements when that conduct demonstrates intent to waive those requirements.

43 Post at 233–35, 235–36 & 237–38 ( Boyd , J., dissenting) (emphases added).

Jernigan involves (1) a substantively different statute that does not excuse the defendant from litigating and (2) a timely filed, but allegedly defective, expert report. Nevertheless, we held the same thing there—even without a statutory deadline for dismissal, rights may be waived through a party's actions "inconsistent with the intent to assert the right to dismissal."⁴⁴ As we held in Jernigan , and as we do here, merely waiting to move for dismissal is insufficient to establish waiver "unless the defendant's silence or inaction shows an intent to yield the right to dismissal based on the report's insufficiency" and "to establish an intent to waive the right to dismissal under [the statute], the defendant's silence or inaction must be inconsistent with the intent to rely upon the right to dismissal."⁴⁵ Consistent with Crosstex , we also made clear that delay is only one of the surrounding facts and circumstances to be considered.⁴⁶ An objective reading of Jernigan does not support the dissent's characterization of its disposition as turning on the absence of statutory deadline.

44 Jernigan v. Langley , 111 S.W.3d 153, 156-57 (Tex. 2003) ("Although there is no statutory deadline to file a motion to dismiss, we must decide whether [the defendant] nevertheless waived the right ....").

45 Id. at 157 (citing Tenneco, Inc. v. Enter. Prods. Co. , 925 S.W.2d 640, 643 (Tex. 1996), and Martinez v. Lakshmikanth , 1 S.W.3d 144 (Tex. App.—Corpus Christi 1999, pet. denied) ).

46 Id. at 156 (intent to waive "must be clearly demonstrated by the surrounding facts and circumstances"); id. at 157 (considering the defendant's delay, participation in discovery, pleading practice, and affirmative request for relief in determining whether the defendant's actions were "so inconsistent with an intent to assert the [statutory] right to dismissal").

Given the true nature of the rights at issue here, the proper focus is on the degree to which a party has chosen to litigate despite the plaintiff's noncompliance with the statutory requirement of a threshold merits certification and the availability of a mandatory dismissal right. We do not focus on a single factor, so conduct that may seem negligible in isolation may nonetheless unequivocally demonstrate an intent to abandon section 150.002's requirements when the party's conduct is cumulatively considered in light of the surrounding facts and circumstances.

1. Discovery Participation

One factor is whether and to what extent the defendant has participated in pretrial discovery.⁴⁷ If all the defendant does is parry a plaintiff's attacks⁴⁸ or attempt to learn more about the case to determine eligibility for dismissal,⁴⁹ engaging in such discovery has little bearing on the defendant's intent to waive the right. But 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. This is especially so in a case like this where the fatal defect—the lack of a certificate of merit—exists at the outset of litigation.

47 Id. at 157 ; Crosstex , 430 S.W.3d at 394 ; Found. Assessment, Inc. v. O'Connor , 426 S.W.3d 827, 833 (Tex. App.—Fort Worth 2014, pet. denied) ; Murphy v. Gutierrez , 374 S.W.3d 627, 633 (Tex. App.—Fort Worth 2012, pet. denied) ; DLB Architects, P.C. v. Weaver , 305 S.W.3d 407, 411 (Tex. App.—Dallas 2010, pet. denied) ; Ustanik v. Nortex Found. Designs, Inc. , 320 S.W.3d 409, 414 (Tex. App.—Waco 2010, pet. denied) ; Palladian Bldg. Co., Inc. v. Nortex Found. Designs Inc. , 165 S.W.3d 430, 434 (Tex. App.—Fort Worth 2005, no pet.) ; see also Perry Homes , 258 S.W.3d at 593 ("How much litigation conduct will be ‘substantial’ depends very much on the context; three or four depositions may be all the discovery needed in one case, but purely preliminary in another.") (footnotes omitted).

48 Jernigan , 111 S.W.3d at 157 ("[T]he defendant's participation was in response to discovery initiated by the plaintiff.").

49 Id. ; Crosstex , 430 S.W.3d at 394.

The import discovery activities bear depends considerably on the right at issue. In the forum-selection context, for example, engaging in initial discovery says little about waiver, especially when the same discovery would be available in the other forum.⁵⁰ Discovery will happen one way or the other, so any discovery that occurs retains value even after the right to litigate in another forum has been exercised. In contrast, seeking discovery when the absolute right to dismissal clearly and unequivocally exists at the suit's inception would, in the ordinary case, be manifestly inconsistent with that right. Thus, in the certificate-of-merit context, discovery may be pointless unless the defendant intends to waive the right to dismissal.

50 See In re Bruce Terminix Co. , 988 S.W.2d 702, 704 (Tex. 1998) (finding no waiver after the defendant moved to compel arbitration after only filing an answer and propounding one set of interrogatories and requests for production).

Still, one could envision scenarios in which some discovery would be useful, such as when the discovery could help persuade the trial court to dismiss with prejudice, which is entirely in the trial court's discretion under section 150.002(e), or when a certificate is filed but later challenged as inadequate.⁵¹ An implication of intent depends on the nature, degree, and extent of discovery activities under the circumstances. Not just quantity but also quality. Discovery that would be inconsistent with exercising one's rights under section 150.002 in a relatively straightforward case might be inconsequential in a more complex case.

51 Tex. Civ. Prac. & Rem. Code § 150.002(e).

2. Stage of Litigation and Elapsed Time

Another factor to consider is the point in the litigation process that the defendant first attempts to seek dismissal.⁵² As is evident from the statute's express language—which essentially abates all litigation if no preliminary evidence of merit is offered—the expert-affidavit requirement serves to weed out frivolous claims before litigation commences, not to dispose of those that are potentially meritorious.⁵³ So 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.⁵⁴

52 Murphy , 374 S.W.3d at 634-35 ; Landreth v. Las Brisas Council of Co-Owners, Inc. , 285 S.W.3d 492, 501 (Tex. App.—Corpus Christi 2009, no pet.) ; see Perry Homes , 258 S.W.3d at 591.

53 Cf. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 877 (Tex. 2001).

54 Perry Homes , 258 S.W.3d at 591 & n.57 (citing two federal circuit cases for the same proposition); In re Vesta Ins. Group, Inc. , 192 S.W.3d 759, 764 (Tex. 2006) (finding no waiver of a right to arbitration after the finding the party did not "conduct full discovery, file motions going to the merits, and seek arbitration only on the eve of trial").

The time elapsed in the litigation should also be taken into consideration. ⁵⁵ Indeed, "[s]ilence or inaction, for so long a period as to show an intention to yield the known right, is ... enough to prove waiver."⁵⁶ It certainly takes a long time to be "enough," but 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.

55 Jernigan v. Langley , 111 S.W.3d 153, 157 (Tex. 2003) ; Found. Assessment, Inc. v. O'Connor , 426 S.W.3d 827, 833 (Tex. App.—Fort Worth 2014, pet. denied) ; Murphy , 374 S.W.3d at 635 ; Ustanik v. Nortex Found. Designs, Inc. , 320 S.W.3d 409, 414 (Tex. App.—Waco 2010, pet. denied) ; Landreth , 285 S.W.3d at 500-01.

56 Tenneco Inc. v. Enter. Prods. Co. , 925 S.W.2d 640, 643 (Tex. 1996) ; see Jernigan , 111 S.W.3d at 157 (paraphrasing Tenneco ); Motor Vehicle Bd. of Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc. , 1 S.W.3d 108, 111 (Tex. 1999) (quoting Tenneco ); see also Crosstex , 430 S.W.3d at 391 (parties may waive the section 150.002 expert-report requirement "by failing to object timely").

3. Seeking Affirmative Relief and Alternative Dispute Resolution

The right to dismissal under section 150.002 is clear and unequivocal. But dismissal for noncompliance with the certificate-of-merit requirement may be with or without prejudice,⁵⁷ a matter within the trial court's discretion.⁵⁸ Seeking and obtaining affirmative relief from the trial court, especially summary judgment, eschews the discretion-based remedy that arises from a procedural defect in favor of substantive relief on the merits.⁵⁹ In short, electing 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.⁶⁰

57 Tex. Civ. Prac. & Rem. Code § 150.002(e) ; see Pedernal Energy, LLC v. Bruington Eng'g, Ltd. , 536 S.W.3d 487, 493-94 (Tex. 2017) (rejecting a party's argument that section 150.002(e) requires dismissal with prejudice).

58 Pedernal Energy , 536 S.W.3d at 495-96 (failure to file the required affidavit with the original petition coupled with filing of an amended petition with a deficient affidavit "might support a trial court's determination that the claims lack merit[,] [b]ut that determination is within the trial court's discretion and is reviewed for abuse of discretion").

59 Found. Assessment , 426 S.W.3d at 832-33 ; Murphy , 374 S.W.3d at 634 ; Ustanik , 320 S.W.3d at 414.

60 See Jernigan , 111 S.W.3d at 157 (a defendant's failure to object to an expert report's inadequacy "until after the case is disposed of on other grounds" is an "example" of implied waiver of the report requirement in a Medical Liability Act case); compare Pedernal Energy , 536 S.W.3d at 496 (even if a case appears to lack merit due to noncompliance with the certificate-of-merit requirement, the trial court has discretion to dismiss without prejudice), with e.g. , Tex. R. Civ. P. 166a(i) (a summary-judgment movant is entitled to judgment as a matter of law when no evidence supports the plaintiff's claims).

In a similar vein, strategically waiting to seek dismissal until after limitations has expired—thus procuring a de facto dismissal with prejudice—is also conduct that may be considered in determining intent to waive the right to dismissal under section 150.002(e). It is, in effect, a repudiation of the remedy on the terms the Legislature has provided.

Whether the defendant participated in mediation is also a factor, but it may be of limited value.⁶¹ Consistent with the state's strong public policy favoring the peaceable resolution of disputes, mediation is an effective tool for resolving claims outside of litigation.⁶² We encourage it. At the same time, we recognize that attempting to terminate litigation in this manner is both consistent and inconsistent with the right to dismissal under section 150.002. As the multiple failed settlement negotiations in this case prove, mediation is obviously a less certain dispute-resolution method than mandatory dismissal under section 150.002 and is definitely contrary to that relief.

61 Found. Assessment , 426 S.W.3d at 833 ; Murphy , 374 S.W.3d at 634.

62 Tex. Civ. Prac. & Rem. Code § 154.002.

But because dismissal may or may not be with prejudice to refiling the suit, if refiling would not be time barred, mediating would not be a particularly strong indicator of intent. Engaging in mediation certainly tends to suggest an intent to contest the merits of the case notwithstanding the plaintiff's failure to comply with a precondition to suit, but on its own does not clearly demonstrate an intent to forgo the right to dismissal. The fact that the parties have engaged in mediation is thus probative but not dispositive of intent.

4. Case-By-Case Analysis Required

Although we have recognized that a single factor might be sufficient to establish waiver in unusual cases, intent to waive will often require much more because "substantially invoking the judicial process" means the defendant has engaged in litigation conduct that is manifestly incompatible with the rights section 150.002 affords.⁶³

63 Jernigan , 111 S.W.3d at 157 (noting that, other than a single set of interrogatories and a request for production a few weeks into the suit, the defendant had moved for summary judgment eighteen months into the litigation on charitable-immunity grounds followed quickly by dismissal for a defective expert report under a prior version of the Medical Liability Act); see Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W.3d 384, 387 (Tex. 2014) (the defendant also joined a motion for a continuance and entered a limited Rule 11 agreement); Cimarron Eng'g, LLC v. Miramar Petroleum, Inc. , No. 13-14-00163-CV, 2014 WL 2937012, at *2 (Tex. App.—Corpus Christi June 26, 2014, no pet.) (mem. op.); DLB Architects, P.C. v. Weaver , 305 S.W.3d 407, 411 (Tex. App.—Dallas 2010, pet. denied) (the only evidence of waiver the plaintiff pleaded was that the defendant waited fifteen months to move for dismissal).

Crosstex is typical of no-waiver cases. The defendant in Crosstex moved for dismissal only eight months into the suit, with six months to go before the close of discovery and more than seven months until the docket call.⁶⁴ Substantively, the defendant had only filed an answer, exchanged some discovery to "wrap [its] mind[ ] around the case," agreed to a continuance, and entered a Rule 11 agreement.⁶⁵ Such little activity over a relatively short period of time that was so temporally and procedurally distant from any resolution on the merits did not establish the defendant's implied intent to waive or abandon the dismissal right.

64 Crosstex , 430 S.W.3d at 387.

65 Id. at 394.

In contrast, when the defendant throws itself into the vortex of the merits, either explicitly⁶⁶ or implicitly by its unmistakable conduct,⁶⁷ waiver is established. In Murphy v. Gutierrez , the Fort Worth Court of Appeals considered some of the same factors we discuss here in concluding the facts established the defendant's intent to abandon its rights.⁶⁸ The court held that the defendant had "substantially invoked the judicial process and that he waived his right to pursue dismissal."⁶⁹ The court arrived at this conclusion only by "considering the totality of the circumstances"—the defendant's three-and-a-half-year delay in seeking dismissal, "extensive[ ]" participation in discovery, requests for affirmative relief, and participation in mediation—which demonstrated the defendant's "intention to litigate the case ... and waive[ ] his right to pursue dismissal ...."⁷⁰

66 Frazier v. GNRC Realty, LLC , 476 S.W.3d 70, 73-74 (Tex. App.—Corpus Christi 2014, pet. denied).

67 Murphy v. Gutierrez , 374 S.W.3d 627, 633-36 (Tex. App.—Fort Worth 2012, pet. denied) ; see Perry Homes v. Cull , 258 S.W.3d 580, 590-93 (Tex. 2008) (finding waiver of a mandatory-arbitration provision).

68 374 S.W.3d at 633-36.

69 Id. at 635.

70 Id.

Likewise, in Perry Homes , we examined several of the preceding factors in concluding the plaintiffs voluntarily relinquished their contractual arbitration rights.⁷¹ The plaintiffs had actively opposed arbitration, conducted extensive discovery, and then moved "very late" (fourteen months had elapsed) in the process and on "the eve of trial" (one month from the trial date⁷² ) after "most of the discovery in the case had already been completed."⁷³ In particular, the plaintiffs had filed five motions to compel with 76 requests for production, designated at least six people for depositions with a request for 67 categories of documents, noticed depositions of three of the defendant's experts, and requested each expert produce 24 categories of documents.⁷⁴ Unsurprisingly, such extensive discovery carried out until such a late point in the litigation—without any indication the plaintiffs had intended to preserve the right to compel arbitration—implied an intent to relinquish that right. This was true even though there, like here, the parties were not operating under an express deadline for asserting their rights.

71 258 S.W.3d at 589-95. The only factor not considered was participation in alternative dispute resolution.

72 Id. at 596 (finding one month from trial to be the "eve of trial," which "is not limited to the evening before trial; it is a rule of proportion ...."); see 3 C.R. at 496, Perry Homes , 258 S.W.3d 580 (Tex. 2008) (No. 05-0882) (listing the date of filing the motion to compel arbitration as November 15, 2001); 18 C.R. at 3536-37, Perry Homes , 258 S.W.3d 580 (Tex. 2008) (No. 05-0882 ) (identifying the trial setting as December 10, 2001).

73 Perry Homes , 258 S.W.3d at 596.

74 Id. at 595-96.

Just as in Murphy and Perry Homes , every fact in this case other than the motion for dismissal itself demonstrates an intent to litigate contrary to the Engineers' statutory dismissal right.

D. The Engineers' Litigation Conduct

To say that the Engineers' motion to dismiss was filed late in the game is an understatement. The defect in the Gosnells' pleadings existed from day one. It was open and obvious. The right to dismissal was manifest, and the dispute was relatively uncomplicated. Yet, the Engineers actively brought discovery to a close, even after agreeing to an extension of the discovery and expert-designation deadlines. They served interrogatories and requested disclosures and production, responded to requests for disclosures and production, designated two experts, filed two motions to designate third parties, amended their discovery responses, and filed an amended answer asserting affirmative defenses but not the right to dismissal. The Engineers' pretrial discovery activity reflects 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.

What's more, the Engineers advanced the litigation past the close of discovery to within one month of trial—a trial date that had already been extended to accommodate the Engineers' counsel. The defendant in Perry Homes waited until the same exact point: one month before trial. As we said there, "[t]he rule that one cannot wait until ‘the eve of trial’ to request arbitration is not limited to the evening before trial; it is a rule of proportion that is implicated here."⁷⁵ At the point the Engineers filed their dismissal motion, there was very little left of the judicial process to invoke except for an actual disposition on the merits. While the dissent summarily concludes this circumstance is relevant only to estoppel,⁷⁶ it most directly demonstrates the Engineers' intentional conduct inconsistent with claiming its rights under section 150.002.

75 Id. at 596.

76 Post at 236–37 ( Boyd , J., dissenting).

Even without a deadline for asserting the right at issue, a significant delay can suffice to establish waiver.⁷⁷ The Engineers waited 1,219 days after the Gosnells filed the initial petition to move for dismissal, every day of which the Gosnells' procedural mistake was apparent.⁷⁸ Even if the Engineers had been unaware of the lawsuit until the day they filed their original answer (and they were not), twenty months elapsed before they exclaimed, "King's X!" In finding waiver, only one appellate case has considered a longer time period, and that was only an additional month.⁷⁹ The time elapsed here thus easily falls on the "too long" end of the spectrum.

77 See supra n.56 and accompanying text.

78 The date the Engineers were served does not appear to be in the record, but it appears they were served by consent and do not now contest they were served properly.

79 Murphy v. Gutierrez , 374 S.W.3d 627, 628-29 (Tex. App.—Fort Worth 2012, pet. denied).

The Engineers also waited 492 days after the first unsuccessful mediation to seek dismissal—eighteen months after they knew enough of the merits to believe mediation could resolve the dispute. Neither the delay of 1,219 days from the petition nor 492 days from the first mediation can be reconciled with an intent to seek dismissal. Such lengthy time periods might not be ineluctably conclusive, but they are strong indicators of intent to waive.

This is especially so given that the parties had engaged in yet another mediation a mere two days before the Engineers finally invoked their statutory rights. Although the Engineers attempt to draw a distinction between court-ordered and voluntary mediation, we are not persuaded there is merit to that distinction here. The trial court had similarly set a trial date by court order, but that did not prevent the Engineers from filing a motion to dismiss and deferring the trial date. Had the Engineers intended to rely on their dismissal right, they could have done the same with respect to the mediation order. They chose not to do so. The Engineers' continual efforts to resolve the dispute in ways other than by dismissal under section 150.002 demonstrates an intent to abandon that right.

The Engineers did not file any summary-judgment motions, but their request for attorney's fees is an affirmative claim for relief.⁸⁰ Moreover, they twice filed motions to shift liability to responsible third parties. This litigation conduct is yet another unequivocal sign that the Engineers did not just intend to, but were in fact, litigating the merits of the claim.

80 See Villafani v. Trejo , 251 S.W.3d 466, 469 (Tex. 2008) (an independent claim for attorney's fees is an affirmative claim for relief that survives a nonsuit).

Finally, regardless of whether prejudice is required—as both parties assume—prejudice exists. While the Engineers were sitting on their rights, limitations expired on the Gosnells' contract claims. For two years after filing suit and in the four months after the Engineers had filed their original answer, the Gosnells could have cured the pleading defect by refiling the lawsuit. Due to unexplainable, and unexplained, delay, they are now time-barred from doing so. Though defendants are not expected to bend over backwards to save the plaintiffs' claims, 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.

Even assuming none of the above factors is dispositive on its own—not the extent of discovery, not the proximity to trial, not the nearly unprecedented length of delay—all point in the same direction: the Engineers intended to litigate the case on the merits despite their right not to do so. Considering the totality of the circumstances, the Engineers impliedly waived the right to seek dismissal under section 150.002.

III. Conclusion

Under Chapter 150, both a certificate of merit and the consequence for failing to file one are mandatory. But as our analysis in Crosstex tacitly recognizes, when defendants have so engaged the judicial process that a certificate of merit ceases to serve its intended function, the requirement of its filing is waived. And when the right to a threshold affirmation of merit has been waived, the consequence for failing to file one dissipates. In other words, because the Engineers' substantial invocation of the judicial process implied an intent to waive the certificate-of-merit requirement, the statutory basis for dismissal has likewise been waived. We therefore affirm the court of appeals' judgment finding waiver of the statutory right to dismissal and remand the case to the trial court.

Justice Boyd filed a dissenting opinion, in which Chief Justice Hecht and Justice Blacklock joined.

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 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

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.").

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 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 contractual³ 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.

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).

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 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 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

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").

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").

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 II.

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 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").

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.—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 222. 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 216, "obviates the need to litigate the lawsuit altogether," ante at 216, allows the defendant to "avoid litigation entirely," ante at 220, enables the trial courts to "quickly jettison meritless lawsuits," ante at 220, "saves parties the expense of protracted litigation," ante at 220, "provides ample opportunity to [obtain dismissal] without the need to engage in any other litigation activity," ante at 221, and "eliminate[s] the obligation to litigate at all," ante at 222. 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 221.

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 statute 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 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.

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 225, or by "electing to litigate the case to a merits-based disposition," ante at 225. 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 litigation." Ante at 225. And at least under some circumstances, announcing "ready" for trial could clearly demonstrate a defendant's intent to forego dismissal. See Apodaca , 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 225–26. The Court notes that the engineers pleaded for attorneys' fees (in their original answer) and later sought to designate responsible third parties, ante at 217–18, 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 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 224. 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 227 ("[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 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 228–29.

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.

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 227–28. 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 233.

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. 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

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)).

13 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).

14 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 ).

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 229. It acknowledges that prejudice is an element of estoppel, not waiver, see ante at 219 ("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 229. 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, 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.