Foundation Assessment, Inc., D/B/A Engineering Design & Assessment, and Suraj K. Choudhury v. Suzanne O'Connor, 426 S.W.3d 827

Plaintiff Suzanne O’Connor owned a Fort Worth rental property and alleged Perma Pier contracted to repair its foundation; Foundation Assessment and engineer Suraj K. Choudhury produced initial and final engineering reports stating they had inspected the site.
O’Connor sued Perma Pier and Foundation Assessment/Choudhury alleging multiple claims, specifically asserting fraud and civil conspiracy against appellants based on alleged false statements in the engineering reports.
Appellants filed answers and otherwise limited participation in the case (responses to requests for disclosure, one deposition attended, agreed to scheduling and expert-deadline extensions) but conducted little affirmative discovery over ~22 months.
Nearly two years after the petition, one month before trial, appellants moved to dismiss under Tex. Civ. Prac. & Rem. Code §150.002 for failure to file a certificate of merit with the complaint.
The trial court denied the motion; on interlocutory appeal the court of appeals reviewed whether appellants waived the §150.002 dismissal right, whether §150.002 applied, and whether laches barred dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellants waived §150.002 dismissal right by delay	O’Connor: appellants waited ~2 years and litigated, so they waived the right	Appellants: delay alone does not constitute waiver; they took no actions inconsistent with relying on dismissal right	No waiver; delay alone insufficient where defendant didn’t substantially invoke the process (motion timely despite 22-month wait)
Whether §150.002 applies to O’Connor’s claims	O’Connor: claims (fraud re: not performing inspection) are not outside statute because they don’t involve professional services	Appellants: their engineering reports are professional services and misrepresentations arise from those services	§150.002 applies because alleged misrepresentations arose out of provision of engineering services
Whether laches bars dismissal	O’Connor: laches/ prejudice from delay prevents dismissal	Appellants: no detrimental change in position shown; laches not established	Laches not proved—O’Connor failed to show detrimental reliance or impairment
Whether trial court abused discretion in denying motion to dismiss	O’Connor: court acted within discretion given facts	Appellants: denial was erroneous because statutory dismissal required	Court abused its discretion; reversal and remand for entry of dismissal under §150.002 (with determination re: prejudice)

CTL Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, 390 S.W.3d 299 (Tex. 2013) (explaining certificate-of-merit purpose and statutory construction principles)
Murphy v. Gutierrez, 374 S.W.3d 627 (Tex. App.—Fort Worth 2012) (discussing when extensive litigation activity can constitute waiver of §150.002 dismissal right)
Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430 (Tex. App.—Fort Worth 2005) (holding defendant did not waive dismissal right by filing answers before seeking dismissal)
Pro Plus, Inc. v. Crosstex Energy Servs., L.P., 388 S.W.3d 689 (Tex. App.—Houston [1st Dist.] 2012) (delay alone does not necessarily waive §150.002 dismissal right)
DLB Architects, P.C. v. Weaver, 305 S.W.3d 407 (Tex. App.—Dallas 2010) (holding no waiver after a significant delay when no evidence of intent to waive)
Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003) (defining waiver as intentional relinquishment of known right)