Murphy v. Gutierrez
2012 Tex. App. LEXIS 5575
| Tex. App. | 2012Background
- Murphys sued Classic Reflections Pools, Inc. and Gutierrez on August 3, 2007 for pool design and construction at the Murphys' home.
- Gutierrez, an engineer, designed the pool; Classic Reflections Pools, Inc. built it.
- Gutierrez filed an original answer on August 20, 2007 and a motion to dismiss for failure to file a section 150.002 certificate of merit.
- The trial court did not hear or rule on Gutierrez’s motion to dismiss for over three and a half years.
- During that period Gutierrez participated in discovery, deposed witnesses, designated an expert, filed summary judgment motions, and mediated.
- On January 5, 2011, five days before trial, Gutierrez amended his motion to dismiss; the trial court granted the motion on March 7, 2011, prompting this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of §150.002 dismissal right | Murphys contend Gutierrez waived by substantial invocation. | Gutierrez argues no waiver under section 150.002. | Gutierrez waived; dismissal reversed and remanded. |
Key Cases Cited
- Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430 (Tex.App.-Fort Worth 2005) (analyzed waiver in §150.002 context)
- Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409 (Tex.App.-Waco 2010) (no waiver found despite extensive discovery)
- Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492 (Tex.App.-Corpus Christi 2009) (waiver considerations based on discovery and timing)
- Perry Homes v. Cull, 258 S.W.3d 580 (Tex.2008) (waiver by substantial invocation of judicial process)
- Jernigan v. Langley, 111 S.W.3d 153 (Tex.2003) (waiver analysis in medical malpractice context)
- Roccaforte v. Jefferson Cnty., 341 S.W.3d 919 (Tex.2010) (concurring discussion on waiver where deadlines exist)
- Loutzenhiser v. Univ. of Tex. Sw. Med. Ctr., 140 S.W.3d 351 (Tex.2004) (waiver may be found where statutory notice requirements are not timely asserted)