Anthonia Uduma v. Patti J. Wagner, as Guardian of Jenny Wagner, an Incapacitated Adult

Opinion issued August 27, 2014

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-00796-CV

———————————

ANTHONIA UDUMA, Appellant

V.

PATTI J. WAGNER, AS GUARDIAN OF JENNY WAGNER, AN

INCAPACITATED ADULT, Appellee

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Case No. 2009-40925

MEMORANDUM OPINION

This interlocutory appeal is from the trial court’s denial of Anthonia

Uduma’s motion to dismiss filed pursuant to Texas Civil Practice and Remedies

Code section 74.351. 1 In two issues, Uduma argues that the trial court (1) erred in

holding that Chapter 74 did not apply to the claims against her, 2 and (2) abused its

discretion when it denied her motion to dismiss. We affirm.

Factual Background

Four J’s Community Living Center operated a residential care facility for

disabled adults in Missouri City, Texas, that caught fire on September 4, 2008.

Four J’s leased the residence from Uduma, Four J’s’ owner, principal officer,

director, and CEO. The fire originated in the bedroom of resident Esperanza

Arzola, who lit her mattress afire with a cigarette lighter, and the fire spread

quickly to the rest of the house. Four residents (Jenny Ann Wagner, Tanya James,

1

In 2013, the Legislature amended section 74.351(a) of the Texas Civil Practice and

Remedies Code to require each health care liability claimant to serve an expert

report “not later than the 120th day after the date each defendant’s original answer

is filed” and states that “[e]ach defendant physician or health care provider whose

conduct is implicated in a report must file and serve any objection to the

sufficiency of the report not later than the later of the 21st day after the date the

report is served or the 21st day after the date the defendant’s answer is filed,

failing which all objections are waived.” See Act of May 26, 2013, 83rd Leg.

R.S., ch. 870, § 2 (emphasis added). The new provision applies to all suits filed

after September 1, 2013. Wagner filed her claims in 2009 and, therefore, the

former section 74.351 still applies. See Act of May 18, 2005, 79th Leg., R.S., ch.

635, § 1, 2005 TEX. GEN. LAWS 1590 (amended 2013) (current version at TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2014)). Under the earlier

version, health care liability claimants must serve an expert report on each health

care provider defendant no later than 120 days after filing their initial petition and

defendants must file and serve any objections to the sufficiency of the report not

later than the 21st day after the date the report is served. Id.

2

The trial court denied Uduma’s motion to dismiss and motion for leave to amend

without explanation; the trial court’s order does not indicate that the court held

that Chapter 74 was inapplicable with respect to Uduma.

2

Elisha Campbell, and Arzola) and a Four J’s staff member, Amuche Udemezue,

were in the building when the fire began. Although she was responsible for all

four residents, Udemezue panicked and fled the house. Campbell and Arzola, too,

escaped. Jenny and Tanya did not.

There were no overhead sprinklers in the building, and although the house

had a working fire alarm, it was not connected to the fire department. When the

fire department arrived on the scene, the house was engulfed. The Fire

Department’s efforts to rescue Jenny and Tanya were further impeded by a

deadbolt lock on one of the house’s two exit doors that required a key to open from

the inside.

Jenny, a severely disabled and wheelchair-bound thirty-five year old woman

with the mental capacity of a two-year old, had lived at the Center since 2002.

Legally blind since infancy and afflicted with cerebral palsy, she has demonstrated

profound mental retardation since eighteen-months old. Jenny suffered second-

and third-degree burns and injuries from smoke inhalation. Her permanent

scarring and disfigurement required skin grafts, which surgery took place over the

course of one month in the hospital followed by several months of rehabilitation.

3

Procedural Background

Jenny’s mother, Patti Wagner, filed suit against Four J’s on Jenny’s behalf in

June 2009. On October 23, 2009, Wagner served expert reports addressing Four

J’s negligence. 3 In September 2010, Wagner added Uduma as a defendant.4

Twelve days before trial—and ten months after the docket control order’s

deadline for filing all pleadings and amendments—Four J’s and Uduma filed a

Combined Third Amended Answer asserting the applicability of and the claimants’

non-compliance with Chapter 74 for the first time. The Combined Third Amended

Answer states in pertinent part:

Defendants Four J’s Community Living Center, Inc. [and] Anthonia

Uduma . . . affirmatively plead the provisions of Texas Civil Practice

and Remedies Code sections [74.301, 74.302, and 74.303], which

limits the amount of damages recoverable in a healthcare liability

claim, except for past and future medical expenses that may be

recovered herein. Defendants Four J’s Community Living Center,

Inc. [and] Anthonia Uduma . . . further assert that Plaintiff has failed

to comply with the requirements of Texas Civil Practice and

Remedies Code [Chapter 74].

Contending that this amendment asserted new defenses and changed the nature of

the case, Wagner objected and filed a motion to strike, that argued, inter alia, that

3

Wagner maintains that this lawsuit involves no health care liability claims, but

served the expert reports out of an abundance of caution.

4

That same month, Wylette Taylor intervened to assert claims against Four J’s and

Uduma on behalf of Derrick Leon James, the son of Tanya James, who died from

the burns and smoke-related injuries she suffered during the fire. Uduma and Four

J’s eventually resolved their claims with Taylor. Taylor is not a party to this

appeal.

4

her claims against Four J’s and Uduma were not Chapter 74 health care liability

claims. Uduma, Wagner argued, who has no medical training, is “merely a

landlord/premises owner. She leases residences to Four J’s . . . . In her capacity as

a landlord, Mrs. Uduma is not a health care provider and it is ludicrous to presume

otherwise. She is no different from any other commercial property owner who

leases property for profit. She is not a health care provider.”

Uduma and Four J’s subsequently filed a joint motion for leave to amend

and a response to the motion to strike in which they acknowledged that Wagner’s

expert reports were timely filed and that she had “met the initial hurdle of a

Chapter 74 claim—that of timely filing an expert report.” Notably, although

Uduma and Four J’s’ motion and response generally contend that Chapter 74

applies to the present case, they only address the applicability of the chapter with

respect to “Defendant Four J’s.” They do not specifically argue that Chapter 74

applies to the claims asserted against Uduma.

The case was set and called to trial on October 17, 2011. The pretrial hearing

was that same day and both the motion for leave to amend and Wagner’s motion to

strike the Combined Third Amended Answer were considered. Expressing

concern as to “the consequences of allowing an amendment to assert Chapter 74,”

the trial court sought clarification as to whether the statute applied to Uduma. In

discussing the amendment, Wagner noted that Uduma was “being sued in her

5

capacity as a property owner” and not as a health care provider. Uduma’s counsel

agreed, unequivocally disclaiming the application of Chapter 74 to Uduma:

UDUMA’S COUNSEL: Judge, with regard to Ms. Uduma, I think

he’s correct. Chapter 74 wouldn’t apply. She’s just a

premises owner. She owns the building.

...

[T]he [Texas Supreme] Court has read [Chapter 74] broadly to

encompass [certain claims]. It doesn’t encompass Ms.

Uduma. It does encompass Four J’s Community Center.

(emphasis added).

Consistent with the representations Uduma made in her motion for leave to amend

and response to the motion to strike, Uduma’s counsel further acknowledged that

Wagner had already filed an expert report discussing Four J’s negligence: “The

Court’s correct that [Wagner has] timely filed expert reports.” Counsel also

represented to the trial court that the only effect of allowing the amendment with

respect to Wagner would be the damage cap.

Based on these representations, the trial court denied the motion to strike,

granted the motion for leave to amend, and asked Wagner if she wanted a

continuance. Wagner asked the trial court to clarify how the ruling applied to

Uduma:

WAGNER’S COUNSEL: Your Honor, one question of clarification:

Is your ruling applicable to both defendants or just to Four J’s

Community Living Center in light of [Uduma’s counsel’s]

comments to the Court?

6

THE COURT: [Uduma’s counsel], are you—

UDUMA’S COUNSEL: Judge, primarily to Four J’s. It doesn’t

apply to Ms. Uduma.

THE COURT: So you’re not asserting Chapter 74 as to Ms.

Uduma?

UDUMA’S COUNSEL: Well, as the—as the owner of the property.

THE COURT: Well, what does that mean? She’s a defendant. Is—

are you going to claim any—any defenses, any rights, any

applicability of Chapter 74 as to Ms. Uduma?

UDUMA’S COUNSEL: No, Your Honor.

(emphasis added). As a result, the trial court’s ruling allowed Four J’s to amend its

answer with respect to Wagner in order to invoke Chapter 74’s damages cap with

respect to Four J’s, but nothing else.

Consequently, Wagner declined the court’s offer of a continuance and the

case proceeded to trial. The jury found both Uduma and Four J’s negligent and

apportioned the responsibility at 40% and 60%, respectively. The jury also

awarded approximately $8 million in damages to Wagner. 5

After the trial concluded, Uduma retained new counsel, who then filed a

Motion to Apply Chapter 74 Limitations on Noneconomic Damages with respect

to both Four J’s and Uduma, asserting that Chapter 74 limited the damages that

could be assessed against both defendants. And in response to Wagner’s Motion

5

Taylor, who was still a party to the suit at this point, was awarded approximately

$6 million in damages.

7

for Entry of Final Judgment, Uduma’s newly retained counsel also argued that

“any action against Mrs. Uduma must be dismissed [under Section 74.351] because

[Wagner] . . . failed to serve an expert report within 120 days.” After being

advised of Uduma’s counsel’s pretrial statements and reviewing the transcript from

the hearing, however, Uduma’s new counsel withdrew the argument that claims

against Uduma should be dismissed for failing to file an expert report:

THE COURT: Are you still persisting in this argument that because

there was no expert report as to Ms. Uduma that the claims

against her should be dismissed?

[UDUMA’S NEW COUNSEL]: No. No, we’re not. I had made that

argument before I saw your comments in the pretrial. And your

comments in the pretrial made [it] clear that that expert report

argument was waived, and we’re not raising that anymore.

THE COURT: All right.

The trial court subsequently entered judgment in favor of Wagner for the

full, uncapped damage amount awarded by the jury. 6 After the entry of judgment,

6

At the conclusion of the hearing, the trial court stated: “I am persuaded to grant

the motion for entry of judgment. I am not persuaded to apply the caps. I am not

persuaded to exclude Ms. Uduma from liability. . . . Do you have a judgment for

me?” The transcript from that hearing reflects that the trial court declined to apply

the damages cap because Four J’s did not prove its status as a health care provider

at trial (i.e, the record was devoid of any evidence that Four J’s was licensed by

the State of Texas to provide health care). See Brown v. Villegas, 202 S.W.3d

803, 806–07 (Tex. App.—San Antonio 2006, no pet.) (“Because the record does

not contain any evidence establishing that LabCorp is ‘duly licensed, certified, or

registered or chartered by the State of Texas to provide health care’ or that

LabCorp is an independent contractor of Dr. Arthur, the trial court’s order

dismissing Brown’s claims against LabCorp and Villegas [pursuant to Chapter 74]

must be reversed.”).

8

Uduma and Four J’s filed a motion for new trial, which the trial court granted on

the ground that the verdict was contrary to the great weight of the evidence

because the jury failed to find Arzola, the resident who set the fire that was the

cause-in-fact of Jenny’s injuries, was negligent. 7

Shortly before the second trial, Uduma sought leave to amend and pleaded

Chapter 74 in her Fourth Amended Answer, and moved to dismiss Wagner’s

claims against her pursuant to section 74.351(b). See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(b) (providing that if health care liability claimant does not

serve expert report as required, trial court must, upon motion by affected health

care provider, dismiss claim with prejudice and award reasonable attorney’s fees

and court costs). After a hearing on these motions two days before trial was

scheduled to begin, the court denied leave to amend 8 and denied the motion to

dismiss without explanation.

Uduma is appealing the denial of her motion to dismiss.9

7

Wagner contends that the trial court’s granting of a new trial on this basis was

error and she notes that the court’s ruling will be the subject of a future appeal in

this case.

8

As a result of the denial of the motion to amend, Uduma’s live pleading is the

Combined Third Amended Answer, which, pursuant to the trial court’s ruling,

only allowed Four J’s to assert Chapter 74’s damages caps as an affirmative

defense.

9

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2014)

(allowing interlocutory appeal from denial of motion to dismiss under Section

74.351(b)). Unlike the denial of a motion to dismiss pursuant to Section

9

Discussion

Uduma argues that the trial court abused its discretion when it denied her

motion to dismiss pursuant to Section 74.351 because she is a health care provider

and Wagner failed to serve an expert report for her within 120 days of naming her

as a defendant. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (requiring

health care liability claimant to serve expert report within 120 days of filing

original petition for each health care provider against whom liability is asserted),

§ 74.351(b) (stating failure to serve expert report entitles affected health care

provider to dismissal of claims with prejudice and award of attorney’s fees).

Wagner’s response notes two independent reasons to affirm the trial court’s

order without addressing the merits: (1) whether construed as waiver, estoppel, or

judicial admissions, Uduma is bound by her counsel’s representations to the trial

court that Chapter 74 was inapplicable to her and she asserted no rights thereunder,

and (2) Chapter 74 is an affirmative defense that Uduma waived by failing to

timely plead and/or securing leave to amend after the docket control deadline.

Standard of Review

We review a trial court’s denial of a motion to dismiss filed under Civil

Practice and Remedies Code section 74.351(b) for abuse of discretion. Am.

Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (applying

74.351(b), there is no statutory right to an interlocutory appeal from the denial of a

motion for leave to amend.

10

abuse of discretion standard under predecessor statute). However, to the extent

resolution of this issue requires interpretation of the statute itself or resolution of

another question of law, we review under a de novo standard. See Tex. W. Oaks

Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); Heriberto Sedeno, P.A.

v. Mijares, 333 S.W.3d 815, 818 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

Waiver

Waiver is the “intentional relinquishment of a known right or intentional

conduct inconsistent with claiming that right.” Jernigan v. Langley, 111 S.W.3d

153, 156 (Tex. 2003) (citations omitted). The elements of waiver include (1) an

existing right, benefit, or advantage held by a party; (2) the party’s actual

knowledge of its existence; and (3) the party’s actual intent to relinquish the right,

or intentional conduct inconsistent with the right. Ulico Cas. Co. v. Allied Pilots

Ass’n, 262 S.W.3d 773, 778 (Tex. 2008). The question of waiver is ordinarily one

of fact. Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996).

Because waiver is largely a matter of intent, a court must consider the words, acts,

and conduct of the parties. See Mandell v. Mandell, 214 S.W.3d 682, 692 (Tex.

App.—Houston [14th Dist.] 2007, no pet.); Robinson v. Robinson, 961 S.W.2d

292, 299 (Tex. App.—Houston [1st Dist.] 1997, no writ); see also Jernigan, 111

S.W.3d at 156 (holding intent must be discerned by reviewing “the surrounding

facts and circumstances”). However, when the facts and circumstances

11

surrounding the question of waiver are undisputed, as in the present case, the

question of waiver because a question of law. Jernigan, 111 S.W.3d at 156–57.

Analysis

Here, Uduma’s counsel expressly and unambiguously waived “any defenses,

any rights, any applicability of Chapter 74 to Ms. Uduma” on the record and in

open court prior to the first trial on the merits.

Uduma, however, argues that her counsel’s “spontaneous” statements at the

October 2011 pretrial hearing do not constitute an intentional relinquishment of her

known rights because the trial court made “inaccurate statements” during the

hearing which “misrepresented” her rights with respect to Chapter 74. Uduma

further contends that it has always been her position that Chapter 74 applies to her

and that her counsel only abandoned this position at the pretrial hearing because

the trial court “convinced” him to do so based on the trial court’s (alleged)

“predisposition that Chapter 74 did not apply to her.” According to Uduma, it was

only after the trial court’s “compelling statement” that Uduma “obviously . . .

waived any right to move to dismiss for an inadequate expert report” that her

counsel abandoned her Chapter 74 argument.

First, the record does not support Uduma’s characterization of her counsel’s

statements as “spontaneous” or her argument that her counsel “abandoned” the

argument that Chapter 74 applied to her only after the trial court “convinced” him

12

to do so. On the contrary, the purpose of the pretrial hearing on Four J’s and

Uduma’s motion to amend and Wagner’s motion to strike was to determine

whether Uduma and Four J’s were allowed to amend their answer to assert the

protections of Chapter 74.10 Given the nature of the proceedings, and the fact that

Wagner explicitly argued in her motion to strike that Chapter 74 did not apply to

the claims against Uduma, Uduma’s counsel should have anticipated the question

and been prepared to respond. The fact that counsel wishes to change his answer

after he has had additional time to reflect may indicate that the position he asserted

at the pretrial hearing was ill-advised, but it does not mean that the position

asserted was unintentional at the time it was made on the record and in open court.

Moreover, the facts and case law that Uduma now claims support the application

of Chapter 74 in this context were known to Uduma at the time of the pretrial

hearing. See generally Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392,

10

We note that although section 74.351(b)’s dismissal provision is not an affirmative

defense, Chapter 74’s damages cap is, and as such, it must be pleaded by the

defendant or else it is waived. See Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d

815, 823 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding that unlike

damages cap, section 74.351(b)’s dismissal provision is not affirmative defense);

see also Webster v. Johnson, 737 S.W.2d 884, 889 (Tex. App.—Houston [1st

Dist.] 1987, writ denied) (holding that damage limit in Chapter 74’s predecessor

statute was affirmative defense that must be pleaded, or else it is waived); Tsai v.

Wells, 725 S.W.2d 271, 275 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e.)

(same).

13

395 (Tex. 2011) (opinion issued July 1, 2011); Marks v. St. Luke’s Episcopal

Hosp., 319 S.W.3d 658, 664 (Tex. 2010).

Similarly, the record does not support Uduma’s position that her counsel

“abandoned” the Chapter 74 argument only after the trial court—who allegedly

expressed a predisposition that Chapter 74 was inapplicable to Uduma—

“convinced” him to do so. On the contrary, the record does not reflect that the trial

court expressed a predisposition—one way or the other—with respect to the

applicability of Chapter 74 to the claims against Uduma. Having reviewed the

relevant portions of the transcript of the pretrial hearing, it is apparent that the trial

court was only attempting to clarify Uduma’s position on the eve of trial in order to

ascertain the impact of the court’s ruling with respect to the pending motions; the

record does not evidence any attempt by the trial court to influence Uduma’s

answers.

Uduma’s position is further compromised by the positions taken in Four J’s

and Uduma’s motion for leave to amend and their response to Wagner’s motion to

strike which they handed to the trial court prior to the commencement of the

October 2011 hearing. Although the filing generally asserts the applicability of

Chapter 74 to the case, the case law supporting this assertion—Omaha

Healthcare—is only analyzed with respect to “Defendant Four J’s” (e.g., “[a]s

with the nursing home in Omaha Healthcare, Defendant Four J’s . . . ,” “as with

14

Defendant Four J’s here,” and “as does Four J’s”). There is no attempt to apply the

facts in Omaha Healthcare to Uduma, herself. This notable omission undermines

Uduma’s argument that it was her position going into the pretrial hearing that

Chapter 74 applied to the claims against her and that she only deviated from that

position because the trial court “convinced” her to do so.

Second, the trial court’s statement that the defendants, Uduma and Four J’s,

had “long since waived any right to move to dismiss for an inadequate expert

report” is not inaccurate. 11 Wagner served two Chapter 74 expert reports in

October 2009. Section 74.351(a) provides that “[e]ach defendant physician or

health care provider whose conduct is implicated in a report must file and serve

any objection to the sufficiency of the report not later than the 21st day after the

date it was served, failing which all objections are waived.” TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(a) (emphasis added). Four J’s, whose conduct was

clearly implicated in the reports, did not file any objections to Wagner’s reports

within the twenty-one-day period, thus waiving any objections to the adequacy of

those reports. Id. Similarly, to the extent that Uduma is challenging the adequacy

of those reports as to her—as opposed to the complete lack of any report—her

11

The trial court stated: “Okay. Well, I’m trying to get down to the brass tacks of

what the consequences of allowing an amendment to assert Chapter 74 would be

since, obviously, they’ve long since waived any right to move to dismiss for an

inadequate expert report.”

15

deadline for filing and serving objections to those reports had long since passed by

the time of the October 2011 pretrial hearing.12

Third, although there is no statutory deadline for filing a motion to dismiss

pursuant to section 74.351(b) when no expert report has been filed which

implicates the conduct of a health care liability defendant, this does not mean that a

defendant cannot waive its right to a dismissal pursuant to this section under any

circumstance. See Jernigan, 111 S.W.3d at 156–58. On the contrary, the Supreme

Court has recognized that traditional waiver principles apply to Chapter 74 claims

and that, while the mere passage of time does not waive a defendant’s right to a

dismissal under Chapter 74 when there is no statutory deadline for asserting said

right, a defendant may still waive its right to a dismissal under Chapter 74 if the

defendant’s conduct is “inconsistent with the intent to rely upon the right to

12

This is true regardless of whether we calculate Uduma’s twenty-one-day deadline

from the time she was first named as a premises-liability defendant in September

2010 or from April 2011, when Wagner filed a second amended petition

contending that Uduma was liable for the wrongful and negligent conduct of Four

J’s under the alter ego theory of liability. See Obstetrical & Gynecological

Assocs., P.A. v. McCoy, 283 S.W.3d 96, 102–03 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (concluding that trial court did not abuse its discretion by not

dismissing plaintiff’s “purely vicarious” liability claims against health care

provider not mentioned in expert reports because health care provider waived any

challenges to sufficiency of those reports by not objecting within twenty-one

days).

16

dismissal.” Id. at 157–58 (discussing waiver with respect to Chapter 74’s

predecessor statute). 13

After applying traditional waiver analysis, the Jernigan court concluded that

the defendant’s actions in that case were not so inconsistent with the intent to

assert the right to dismissal under Chapter 74’s predecessor statute as to amount to

a waiver of that right. Id. at 157. In doing so, the Court noted that “there had been

no hearing on [the summary judgment] motion nor had a conventional trial begun

when [the defendant] moved for dismissal.” Id. Other courts of appeals, however,

including this Court, have found waiver under different circumstances. See Mem’l

Hermann Hosp. Sys. v. Hayden, No. 01–13–00154–CV, 2014 WL 2767128, at *9–

10 (Tex. App.—Houston [1st Dist.] Jun. 17, 2014, no pet. h.) (mem. op.)

(distinguishing Jernigan on its facts and holding defendant who completed

discovery, moved unsuccessfully for summary judgment on plaintiff’s claims, and

announced “ready” for trial twice before seeking dismissal “four days prior to the

trial court actually calling the case to trial,” waived its right to seek dismissal under

Chapter 74; opinion further noted that although defendant had filed motion to

13

Chapter 74’s predecessor statute imposed a deadline on the claimant to file an

expert report, but it did not impose a deadline for a health care provider to file a

motion to dismiss on the ground that the claimant failed to comply with the rule.

See TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(e); see also Jernigan v.

Langley, 111 S.W.3d 153, 156 & n.1 (Tex. 2003) (discussing section 13.01(e) and

noting that new version of statute required defendant health care provider to object

to sufficiency of expert report within twenty-one days of report’s service, or else

“all objections are waived”).

17

dismiss twenty-two months earlier, totality of circumstances demonstrated that

defendant had “strategically decided not to pursue” that motion and “instead, it

attempted to obtain a final judgment through other means”); see also Spinks v.

Brown, 211 S.W.3d 374, 378 (Tex. App.—San Antonio 2006, no pet.)

(distinguishing Jernigan on its facts and holding that defendant waived right to

dismissal under Chapter 74 when defendant made conscious decision to not raise

issue prior to trial and, instead, waited until after full trial on merits to raise issue);

In re Sheppard, 197 S.W.3d 798, 801–02 (Tex. App.—El Paso 2006, orig.

proceeding) (distinguishing Jernigan on its facts and holding that defendant who

participated extensively in discovery and announced ready for trial had acted

“inconsistent with an intent to rely upon the right to seek a dismissal” and therefore

waived right to dismissal). Even if we were to disregard Uduma’s counsel’s

unambiguous waiver of “any defenses, any rights, any applicability of Chapter 74

to Ms. Uduma” prior to the first trial on the merits, the fact is that, unlike in

Jernigan, Uduma sought a dismissal under Chapter 74 only after the first full trial

on the merits concluded. See Jernigan, 111 S.W.3d at 157 (noting that “there had

been no hearing on [the summary judgment] motion nor had a conventional trial

begun when [the defendant] moved for dismissal”). Such conduct is inconsistent

with the intent to rely upon the right to seek a dismissal. See Spinks, 211 S.W.3d at

378 (holding defendant waived right to dismissal under Chapter 74 by waiting until

18

after full trial on the merits to move for dismissal); see generally Mem’l Hermann,

No. 01–13–00154–CV, 2014 WL 2767128, at *10 (holding defendant who

“strategically decided not to pursue” initial motion to dismiss waived right to

dismissal under Chapter 74 by waiting until eve of trial to seek dismissal).

Accordingly, under the specific facts of this case, we hold that the trial court did

not abuse its discretion when it denied Uduma’s motion to dismiss pursuant to

section 74.351 because Uduma waived her right to such a dismissal.

Conclusion

We affirm the trial court’s order denying Uduma’s motion to dismiss.

Jim Sharp

Justice

Panel consists of Justices Jennings, Sharp, and Brown.

19