the University of Texas Medical Branch at Galveston v. Carolyn Callas, Ray Callas and Jamie Callas, Individually and as the Representatives of the Estate of Gerald Callas and for and on Behalf of Any Wrongful Death Beneficiaries

ACCEPTED
14-15-00449-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
10/26/2015 11:42:55 AM
CHRISTOPHER PRINE
CLERK
No. 14-15-00449-CV
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS
FOR 10/26/2015 11:42:55 AM
THE FOURTEENTH JUDICIAL DISTRICT
CHRISTOPHER A. PRINE
HOUSTON, TEXAS Clerk
THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
APPELLANT,
V.
CAROLYN CALLAS, RAY CALLAS AND JAMIE CALLAS, INDIVIDUALLY
AND AS THE REPRESENTATIVES OF THE ESTATE OF GERALD CALLAS
AND FOR AND ON BEHALF OF ANY WRONGFUL DEATH
BENEFICIARIES,
APPELLEES.
On Appeal from the 212th Judicial District Court
Galveston County, Texas
No. 14-CV-0927
APPELLANT’S REPLY BRIEF
KEN PAXTON S. RONALD KEISTER
Attorney General of Texas Assistant Attorney General
Attorney-In-Charge
CHARLES E. ROY State Bar Number 11185300
First Assistant Attorney General
Tort Litigation Division
JAMES E. DAVIS P.O. Box 12548, MC-030
Deputy Attorney General for Austin, Texas 78711-2548
Civil Litigation TEL: (512) 463-2197
FAX: (512) 457-4435
KARA L. KENNEDY ronny.keister@texasattorneygeneral.gov
Chief, Tort Litigation Division COUNSEL FOR APPELLANT
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.....................................................................................iv
APPELLANT’S REPLY BRIEF ............................................................................... 1
I. OBJECTION TO STATEMENT OF FACTS ...................................... 2
II. THE APPROPRIATE STANDARD OF REVIEW FOR THIS
APPEAL IS DE NOVO ........................................................................ 2
III. SUFFICIENCY OF THE EXPERT REPORT OR THAT IT
CONSTITUTES “NO REPORT” ARE NOT ISSUES BEFORE
THE COURT .........................................................................................5
IV. CONSTRUCTIVE SERVICE DOES NOT APPLY TO THIS
CASE .....................................................................................................7
V. APPELLANT’S COMPLAINT IS NOT THAT THE APPELLEES
FAILED TO SERVE MEDICAL RECORDS ....................................11
VI. THE TEXAS SUPREME COURT DID NOT APPLY RULE 4,
TRCP, TO THE CALCULATION OF THE 120-day DEADLINE IN
Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009) ...................................14
VII. THE COURTS OF APPEAL DECISIONS APPLYING RULE 4,
TRCP, TO THE CALCULATION OF THE 120-day DEADLINE
WERE WRONGLY DECIDED..........................................................18
VIII. Eikenhorst v. Wellbrock, 2008 WL 2339735 (Tex.App-Houston
[1st Dist.] 2008, no petition) IS NOT APPLICABLE TO THE CASE
BEFORE THE COURT ......................................................................21
IX. EMAIL SERVICE AFTER 5:00 P.M. IS DEEMED COMPLETED
THE NEXT DAY ................................................................................25
ii
X. ELECTRONIC SERVICE WAS REQUIRED PURSUANT TO
RULE 21a(a)(1), TRCP.......................................................................28
PRAYER FOR RELIEF ..........................................................................................31
CERTIFICATE OF COMPLIANCE .......................................................................32
CERTIFICATE OF SERVICE ................................................................................33
APPENDIX ..............................................................................................................34
A) Badiga v. Lopez, BRIEF ON THE MERITS OF THE PETITONER
B) Badiga v. Lopez, RESPONDENT’S NOTICE OF INTENT TO RELY ON
RESPONDENT’S RESPONSE TO PETITION FOR REVIEW AND THE
RESPONDENT’S RESPONSE TO PETITION FOR REVIEW
iii
INDEX OF AUTHORITIES
CASES
Badiga v. Lopez,
274 S.W.3d 681 (Tex. 2009) .........................................................................14
Badiga v. Lopez,
2005 WL 1572273 (Tex. App.-Corpus Chrisiti-Edinburg 2005, rev’d, 274
S.W.3d 681 (Tex. 2009) ................................................................................15
Badiga v. Lopez,
2009 WL 4893565 (Tex. App.-Corpus Chrisiti-Edinburg 2009,
no petition) .....................................................................................................15
Carpinteyro v. Gomez,
403 S.W.3d 508 (Tex. App.-San Antonio 2013, pet. denied) .................19, 21
Christus Santa Rosa Health Care Corporation v. Vasquez,
427 S.W.3d 451 (Tex. App.-San Antonio 2014, no petition) ......................24
Eikenhorst v. Wellbrock,
2008 WL 2339735 (Tex. App-Houston [1st Dist.] 2008,
no petition) ...................................................................................21, 22, 24, 25
Fung v. Fischer,
365 S.W.3d 507 (Tex. App-Austin 2012, no petition) ......................19, 20, 21
Jacobs v. Jacobs,
448 S.W.3d 626 (Tex. App.-Houston [14th Dist.] 2014, no petition).............. 7
Lewis v. Funderburk,
253 S.W.3d 204 (Tex. 2008) .........................................................................24
Zanchi v. Lane,
408 S.W.3d 373 (Tex. 2013) .........................................................................22
iv
STATUTES
V.T.C.A., Civil Practice & Remedies Code § 74.351(a) .............................................
..................................................................................... 3, 5, 14, 18, 22, 23, 24, 25, 30
V.T.C.A., Civil Practice & Remedies Code § 74.351(b).........................................14
RULES
Rule 38.1(g), Texas Rules of Appellate Procedure .............................................2, 16
Rule 38.3, Texas Rules of Appellate Procedure ........................................................ 1
Rule 55.2(g), Texas Rules of Appellate Procedure .................................................16
Rule 55.3(b), Texas Rules of Appellate Procedure .................................................16
Rule 4, Texas Rules of Civil Procedure ................ 3, 6, 14, 15, 17, 18, 19, 20, 22, 25
Rule 5, Texas Rules of Civil Procedure ...................................................................23
Rule 21, Texas Rules of Civil Procedure ...........................................................23, 28
Rule 21a, Texas Rules of Civil Procedure ...............................................8, 25, 27. 30
Rule 21a(a)(1), Texas Rules of Civil Procedure ................. 3, 5, 8, 10, 11, 26, 28, 29
Rule 21a(b), Texas Rules of Civil Procedure ............................................................ 3
Rule 21a(b)(1), Texas Rules of Civil Procedure......................................................26
Rule 21a(b)(2), Texas Rules of Civil Procedure......................................................23
Rule 21a(b)(3), Texas Rules of Civil Procedure......................................................26
Rule 21a(c), Texas Rules of Civil Procedure ..........................................................23
Rule 21a(e), Texas Rules of Civil Procedure ....................................................23, 26
Rule 74, Texas Rules of Civil Procedure .................................................................23
v
No. 14-15-00449-CV
IN THE COURT OF APPEALS
FOR THE FOURTEENTH JUDICIAL DISTRICT
HOUSTON, TEXAS
THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
APPELLANT,
V.
CAROLYN CALLAS, RAY CALLAS AND JAMIE CALLAS, INDIVIDUALLY
AND AS THE REPRESENTATIVES OF THE ESTATE OF GERALD CALLAS
AND FOR AND ON BEHALF OF ANY WRONGFUL DEATH
BENEFICIARIES,
APPELLEES.
On Appeal from the 212th Judicial District Court
Galveston County, Texas
No. 14-CV-0927
APPELLANT’S REPLY BRIEF
TO THE HONORABLE COURT OF APPEALS:
COMES NOW the Appellant, The University of Texas Medical Branch at
Galveston, by and through the undersigned Assistant Attorney General, and pursuant
to Rule 38.3, Texas Rules of Appellate Procedure, files this the “Appellant’s Reply
Brief” to the “Appellees’ Brief”.
1
I.
OBJECTIONS TO STATEMENT OF FACTS
The Appellant objects to the Appellees’ Statement of Facts, [Appellees’ Brief,
pages 2-6], to the extent they include factual and legal arguments contrary to
Rule 38.1(g), TRAP. The Appellant disagrees with the Appellees’ arguments: that
their expert report was timely served; that the Appellant did not accept their email;
that they constructively served their expert report; that the Appellant had knowledge
that the second email contained medical records “which Appellees originally
received from UTMB”; that the Appellant’s motion to dismiss was based upon not
“receiving its own medical records”. The Appellant will further discuss these
misstatements of fact and argument throughout this Reply Brief.
II.
THE APPROPRIATE STANDARD OF REVIEW FOR
THIS APPEAL IS DE NOVO
The Appellees, at pages 6 – 9 of the Appellees’ Brief, assert that the proper
standard of review for this appeal is an abuse of discretion. However, the Appellees
clearly acknowledge by the case law that they cite and quote that questions of law
are reviewed de novo as argued by the Appellant in the Appellant’s Brief at page 14.
As stated by the Appellant in its Brief, the underlying facts in the trial court, and
now on appeal, were not in dispute. The disputed issues presented to the trial court,
2
and now on Appeal, were questions of law as follows: 1) as the Texas Supreme
Court has held that the 120-day deadline of V.T.C.A., Civil Practice & Remedies
Code § 74.351(a) must be strictly applied, can Rule 4, TRCP, be applied to extend
the 120-day deadline to 122 days; 2) as the Appellees electronically filed their expert
report prior to attempting to serve the Appellant’s counsel, was their attempted email
service proper as Rule 21a(a)(1), TRCP, mandates electronic service; 3) as Rule
21a(b), TRCP, does not specify when service by email is complete, is email service
after 5:00 p.m. deemed complete on the next business day? The underlying facts of
this case, to which the above legal questions apply, are not in dispute: 1) the 120th
calendar day after the Appellant filed its Original Answer was January 31, 2015; 2)
the Appellees attempted to electronically file their expert report on January 31, 2015;
and, thereafter, at 6:27 p.m., attempted to email the expert report to the Appellant’s
counsel by two emails; 3) the Appellant’s counsel received the first email on
February 1, 2015; however, the second email was never received; 4) the Appellees’
expert report and curriculum vitae were noted as electronically filed on February 2,
2015; 5) the Appellees did not electronically serve their expert report and curriculum
vitae; 6) after Appellant’s counsel notified the Appellees’ counsel that the second
email had not been received, the Appellees attempted to complete service of their
expert report by a series of emails sent on February 3 and 12, 2015. As set forth in
3
both the Appellant’s Brief and the Appellees’ Brief, the above facts are not in
dispute.
On pages 8 – 9 of the Appellees’ Brief, they assert that as the Appellant did
not request findings of fact and conclusions of law, this Honorable Court should
“imply any necessary findings of fact to support the ruling” of the trial court.
However, the Appellees fail to articulate any factual findings that should be implied
by this Court in this appeal. The Appellees, at page 9 of their Brief, suggest that the
trial court may have determined that: “Appellant is actually asserting a sufficiency
argument, and Appellees’ expert report is sufficient.” However, as will be discussed
later in this Reply Brief, the Appellant did not raise a sufficiency argument in the
trial court. Further, the Appellees suggest that the trial court may have found that
the Appellees “constructively” served their expert report timely. However, as will
be discussed later in this Reply Brief, the Appellees did not raise constructive service
in the trial court and there is neither a legal nor factual basis to support a finding of
constructive service in the record on appeal. Finally, each of the “multiple theories”
upon which the Appellees posit the trial court could have ruled turns upon the proper
resolution of the legal issues set forth above and in the Appellant’s Brief.
As stated in the Appellant’s Brief at page 14, de novo review is the proper
standard of review as the underlying facts were not in dispute in the trial court and
this case turns upon the question of whether the Appellees timely completed proper
4
service of their expert report and curriculum vitae according to the appropriate
construction and interpretation of the statutes and rules at issue.
III.
SUFFICEINCEY OF THE EXPERT REPORT OR THAT IT
CONSTITUTES “NO REPORT” ARE NOT ISSUES BEFORE THE COURT
The Appellees argue throughout their Brief that the issue before this Court on
appeal is whether their expert report is sufficient or constitutes “no report”. See
[Appellees’ Brief, pages 6, 9, 10, 12-13, and 25-33]. However, contrary to their
assertions, no such issues are raised, argued, or even alluded to in the Appellant’s
Brief. The only issue raised in the Appellant’s Brief is that the Appellees failed to
timely complete service of their expert report within the mandatory 120-day deadline
created by V.T.C.A., Civil Practice & Remedies Code § 74.351(a).
In the trial court, the Appellant’s motion to dismiss was based upon the fact
that the Appellees did not timely complete service of their expert report as their
attempted email service was contrary to the mandatory electronic service
requirements of Rule 21a(a)(1), TRCP; and, that the attempted email service, if
completed, would have been deemed completed on February 1, 2015, which was
beyond the 120-day deadline of January 31, 2015. Further, the Appellant asserted
that the email service had not been complete as the Appellees’ second email was
never received by the Appellant’s counsel. [C.R. 36-43].
5
In the Appellant’s reply to the Appellees’ response to the motion to dismiss
in the trial court, the Appellant elaborated on the reasons that the Appellees’
attempted service of their expert report had not been completed within the 120-day
deadline and contested the Appellees’ assertion that Rule 4, TRCP, extended the
120-days to Monday, February 2, 2015. The Appellant did not raise the issue that
the Appellees’ late served documents were insufficient as an expert report or
constituted “no report”. [C.R. 72-82].
In the Appellant’s post hearing submission in the trial court, the Appellant
advised the trial court that the only issue being raised was the Appellees’ failure to
timely complete service of their expert report. The Appellant specifically advised
the trial court that it was not arguing the insufficiency of the expert report as asserted
by the Appellees during the hearing on the motion to dismiss. [C.R. 110-117].
The Appellees, at page 12 of the Appellees’ Brief, assert that: “Appellant is
actually making a sufficiency argument, which was tacitly admitted at oral
argument. [R.R. 9:4-12].” Thereafter, at page 25 of the Appellees’ Brief, they quote,
out of context, statements of Appellant’s counsel to the trial court in order to assert
the sufficiency of the expert report was being challenged during the hearing on the
motion to dismiss. Appellant’s counsel was not making a sufficiency argument. As
the trial court brought to the Appellees’ counsel’s attention during the hearing: “I
believe he is saying the report was incomplete, not that it was insufficient. And
6
according to your expert’s report, he incorporates all the exhibits as part of his report,
which tells me that is the full report.” [R.R. 15]. The trial court’s observation is
supported by the Appellant’s motion, reply, and post hearing submission filed in the
trial court and the complete argument of Appellant’s counsel located at [R.R. 5-9,
28-34 and 36].
As the Appellant has not raised the argument that the documents that the
Appellees late served on the Appellant’s counsel are not sufficient to be an expert
report or constitute “no report,” the Appellant has not raised or briefed these issues
in this appeal and they need not be considered by this Honorable Court.
IV.
CONSTRUCTIVE SERVICE DOES NOT APPLY TO THIS CASE
For the first time on appeal, the Appellees assert that they achieved
constructive service of their expert report upon the Appellant’s counsel. See
[Appellees’ Brief, pages 4, 5-6, 9, 21]. Contrary to the Appellees’ assertion, there
are no facts in the record that would support a finding of constructive service.
As authority for their assertion of constructive service, the Appellees, at page
21 of their Brief, cite the Court to Jacobs v. Jacobs, 448 S.W.3d 626 (Tex. App.-
Houston [14th Dist.] 2014, no petition), and its discussion of “constructive notice.”
The Appellees quote from Jacobs v. Jacobs, at 632, as follows:
7
Even when a party does not have actual notice, the serving party may
establish “constructive notice” by demonstrating compliance with rule
21a and presenting evidence that the intended recipient engaged in
instances of selective acceptance or refusal of certified mail relating to
the case.
Initially, the Appellant would show the Court that constructive service does not
apply in this case as the Appellees did not comply with Rule 21a, TRCP, in their
attempted email service of the Appellant. As shown in the Appellant’s Brief, pages
20-24, the Appellees electronically filed their expert report; therefore, electronic
service was mandatory pursuant to Rule 21a(a)(1), TRCP, and the Appellees failed
to comply with the rule. Further, there are no facts upon which to base an argument
that the Appellant’s counsel “engaged in instances of selective acceptance or refusal
of” emails from the Appellees’ counsel related to this case. The Appellees state at
page 21 of their Brief:
...Appellant’s counsel’s selective decision whether to read emails is at
best selective acceptance or refusal under Jacobs and does not convert
service on Saturday, January 31, 2015 to service on Monday, February
1, 2015.
The Appellant is at a loss as to what the Appellees believe is the basis for such an
assertion. With respect to email one, both the Appellant and the Appellees agree
that it was read by the Appellant’s counsel on Sunday, February 1, 2015. [Appellees’
Brief, page 3]. The Appellant’s assertion is that February 1, 2015, was outside the
120-day deadline. With respect to email two, both Appellant and Appellees agree
that it was never delivered to Appellant’s counsel’s email inbox; therefore,
8
Appellant’s counsel never had the opportunity to read the email. The Appellees’
assertion that the Appellant’s counsel made a “selective decision” not to read the
email has no support in the record.
The Appellees, at page 4 of the Appellees’ Brief, state:
Appellees’ counsel’s paralegal, Darlene Lee, also transmitted
and thereby “constructively” served the medical records to Appellant’s
counsel on Saturday, January 31, 2015, which was email “2 of 2”. [2ND
SUPP. C.R. 1561-1563; 2ND SUPP. C.R. 1545-1620, generally]. Those
medical records were Appellant University of Texas Medical Branch’s
medical records, which Appellees actually originally received from the
Appellant UTMB. The medical records were 1297 pages of Decedent
Callas’s UTMB medical records, but were not accepted by Appellant
apparently due to the size of the file exceeding the limit of attachments.
[2ND SUPP. C.R. 1561-1563, 1566-1574; 2ND SUPP. C.R. 1545-1620,
generally].
There is no evidence in the record on appeal to support the Appellees’ assertion that
email number 2 was “not accepted by Appellant apparently due to the size of the file
exceeding the limit of attachments.” The second email was never received by
Appellant’s counsel and this fact was confirmed by the Appellees’ counsel’s office.
See [Appellant’s Brief, page 4]. The Appellant has no way of knowing if the second
email was actually sent by the Appellees other than their own self-serving statement
that “the 2nd email actually got kicked back...” [C.R. 55]. The Appellant’s counsel
never received email 2 and has no way of knowing if it was sent, why it was not
delivered, or what were the actual contents of the second email. Further, the
Appellees did not attempt to retransmit email 2, or the contents thereof, until
9
Appellant’s counsel notified them that their referenced second email had not been
received. The Appellees refer the Court to the affidavit of Darlene Lee, litigation
paralegal to Appellees’ counsel, wherein she states:
The second email (2 of 2), that was 1297 pages of Decedent Callas’
UTMB medical records, was returned unbeknownst to me, due to its
size as the file exceeded the allowable limit of being attached and was
undeliverable.
[2ND SUPP. C.R. 1562]. This statement does not support the Appellees’ assertion
that the Appellant’s counsel refused to accept or read the email. Further, unlike
email 1, the Appellees did not produce any email records to show that the second
email was actually sent or any records that demonstrate why, if the second email was
sent, it was not delivered to Appellant’s counsel’s email inbox. The evidence
certainly does not support their assertion that Appellant’s counsel engaged in
“selective acceptance or refusal” of their email communications.
As the Appellees did not raise the issue of constructive service in the trial
court; and, as the Appellees failed to comply with the mandatory electronic service
requirement of Rule 21a(a)(1), TRCP, and have presented no evidence to support
their assertion that Appellant’s counsel engaged in “selective acceptance or refusal
of” their emails related to this case, their assertion of constructive service has no
merit.
10
V.
APPELLANT’S COMPLAINT IS NOT THAT THE APPELLEES
FAILED TO SERVE MEDICAL RECORDS
The Appellees, as they did in the trial court, attempt to mischaracterize the
issue in this appeal as being their failure to serve medical records upon the Appellant.
See [Appellees’ Brief, pages 4-6 and 25-33]. The Appellant’s motion to dismiss in
the trial court was not based upon the Appellees’ failure to serve medical records;
but, was based upon the fact that the mandatory 120-day deadline for the Appellees
to serve their expert report ended on January 31, 2015; and, the Appellees’ service
of their expert report was not completed until February 12, 2015. As the Appellees
electronically filed their expert report, Rule 21a(a)(1), TRCP, mandated that they
electronically serve the Appellant with their expert report. Contrary to the
mandatory electronic service rule, the Appellees attempted to improperly piecemeal
serve their expert report by email. A portion of the expert report was received by
the Appellant’s counsel on February 1, 2015, with additional portions being served
by email on February 3rd and February 12th, 2015. Thus, the Appellees failed to
timely complete service of their expert report prior to the expiration of the 120-day
deadline, January 31, 2015. [C.R. 36-43, 72-82, 110-117] [R.R. 5-9, 28-34, 36].
The Appellant has raised the same issue on appeal that was raised in the trial court.
As set forth in the Appellant’s Brief, the Appellees electronically “filed” their
expert report with the trial court; however, they failed to timely “serve” the
11
Appellant with a “true copy” of the “filed” report. [Appellant’s Brief, pages 3-5].
Further, the Galveston County District Clerk sealed much of the Appellees’ filed
documents and they were not accessible by the Appellant until they were unsealed
for this appeal. Thus, the Appellant was unable to verify that the documents it
received by piecemeal email from the Appellees were in fact the same as the
documents that were filed with the trial court. [Appellant’s Brief, pages 4, 5].
The Appellees’ expert stated: “I have read and reviewed the two volumes of
medical records consisting of 1297 pages, (which are incorporated by reference as
if fully set forth at length)...” [2ND SUPP. C.R. 1567]. The Appellees acknowledged
that their expert intended the referenced records to be part of his expert report and
that they were “filed” with the trial court as their expert report; however, they were
not timely served on the Appellant. [R.R. 8-9 and 15-16]. Thus, the Appellant’s
complaint is not that the Appellees failed to serve medical records, the Appellant’s
complaint is that the Appellees failed to timely complete service of their expert
report.
The Appellees state at page 25 of the Appellees’ Brief: “Appellant argues that
it wasn’t served with the expert report until it also received its own medical records.
[Appellant’s Brief at p.p. 14-19].” As stated above, this is not the Appellant’s
argument and it was not an argument made in the Appellant’s Brief. Further, the
expert did not clearly identify the medical records to which he was referring. The
12
expert did not relate that he was only reviewing medical records that had been
obtained from The University of Texas Medical Branch at Galveston and the record
on appeal does not support the Appellees’ repeated assertion that the Appellant had
knowledge of the exact medical records that the expert included as his report, or had
any knowledge of how, or from where, the expert obtained the medical records. The
Appellees’ attempt to falsely impute knowledge to the Appellant of the content and
source of the medical records does not alter the fact that the Appellees failed to
timely complete service of their expert report that they electronically filed with the
trial court.
On page 26 of the Appellees’ Brief, they state:
“Appellant’s argument is disingenuous in that the body of
Appellees’ expert report includes inserted copies of the relevant
medical records referenced and fully complies with CPRC 74.351(a).”
Contrary to Appellees’ statement, the expert did not include the “copies of the
relevant medical records referenced” in the body of the document. As stated above,
the expert specifically included 1297 pages of medical records as part of his report
that was filed with the trial court but that was not timely served. [2ND SUPP. C.R.
1567]. However, the body of the document to which the Appellees refer only sets
out two physician orders [2ND SUPP. C.R. 1569] and one radiological study. [2ND
SUPP. C.R. 1570]. The orders and study would constitute less than a single page of
medical records. The limited medical record set out in the body of the document
13
does not alter the fact that the Appellees failed to timely complete service of their
expert report.
VI.
THE TEXAS SUPREME COURT DID NOT APPLY RULE 4, TRCP, TO
THE CALCULATION OF THE 120-day DEADLINE IN Badiga v. Lopez, 274
S.W.3d 681 (Tex. 2009)
On pages 11-12 and 16-19 of the Appellees’ Brief, they incorrectly assert that
the Texas Supreme Court, in Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009), applied
Rule 4, TRCP, to extend the 120-day deadline of V.T.C.A., Civil Practice &
Remedies Code § 74.351(a), as the 120th day fell on a Saturday. As will be shown
below, the Texas Supreme Court did not consider whether Rule 4 applies to Section
74.351(a); and, the Texas Supreme Court did not apply Rule 4 to extend the Section
74.351(a), supra, 120-day deadline.
In Badiga v. Lopez, the Texas Supreme Court addressed the question of
“whether an interlocutory appeal of the denial of a motion to dismiss under section
74.351(b) is permitted when an extension has been granted even though the claimant
served no expert report within the 120-day period”. Id., at 683. Rule 4, TRCP, was
not applied, discussed, cited, or even mentioned in the opinion and played no part in
the Court’s determination of the case. Further, whether the plaintiff served an expert
report within the 120-day deadline, or on what calendar day the 120th day fell, were
not contested issues before the Texas Supreme Court or the Corpus Christi- Edinburg
14
Court of Appeals. On remand, the Court of Appeals noted in its opinion that: “Both
parties agree that Lopez’s expert report was served after the 120-day period had
expired.” Badiga v. Lopez, 2009 WL 4893565 (Tex. App.-Corpus Chrisiti-Edinburg
2009, no petition). Thus, neither the calculation of the 120-day deadline nor the
specific calendar day upon which it fell were issues for determination by the
appellate courts in this case; and, Rule 4, TRCP, was not applied, discussed, cited or
even mentioned by any court in the resolution of this case. See also, Badiga v. Lopez,
2005 WL 1572273 (Tex. App.-Corpus Chrisiti-Edinburg 2005, rev’d, 274 S.W.3d
681 (Tex. 2009).
On page 17 of the Appellees’ Brief, the Appellees quote the following
language from Badiga v. Lopez, supra, at 682, and assert that it demonstrates that the
Texas Supreme Court applied Rule 4, TRCP, in the calculation of the 120-day
deadline:
Maricruz Lopez filed a health care liability claim against S.
Murthy Badiga, M.D. on October 24, 2003, alleging that Doctor Badiga
committed medical malpractice by perforating Lopez’s colon during a
colonoscopy. Lopez was required to serve an expert report on Dr.
Badiga by February 23, 2004 - the 120th day after she filed suit.
There is nothing in the above quoted language to suggest that the court undertook to
calculate the 120-day deadline, or the specific calendar date upon which it fell, as it
was uncontested that the plaintiff had served the expert report well after the 120-day
period had expired. As the Appellees correctly point out, the above quoted language
15
appears in the opinion under the heading “Factual and Procedural Background”.
Rule 38.1(g), TRAP, with respect to the “statement of facts” on appeal, states: “In
a civil case, the court will accept as true the facts stated unless another party
contradicts them.” As set forth above, in the court of appeals, the parties agreed that
the plaintiff did not serve an expert report prior to the expiration of the 120-day
period; therefore, the court of appeals did not determine the specific calendar date
upon which the 120th day fell.
Further, Rule 55.2(g), TRAP, states, with respect to the “statement of facts”
in a petitioner’s brief:
(g) Statement of facts. The brief must affirm that the court of
appeals correctly stated the nature of the case, except in any particulars
pointed out. The brief must state concisely and without argument the
facts and procedural background pertinent to the issues or points
presented. The statement must be supported by record references.
Thereafter, Rule 55.3(b), TRAP, states with respect to the respondent’s brief:
(b) a statement of the case and a statement of the facts need not
be made unless the respondent is dissatisfied with that portion of the
petitioner’s brief.
Thus, the petitioner’s statement of facts are accepted by the Texas Supreme Court
unless contested by the respondent.
The briefing in Badiga v. Lopez, supra, is still available on the Texas Supreme
Court website. The Appellant has attached to this Reply Brief, as Appendix “A”,
the “Brief on the Merits of the Petitioner” taken from the Texas Supreme Court
16
website. Further, the Appellant has attached to this Reply Brief, as Appendix “B”,
the Respondent’s notice that it intended to rely on the Respondent’s Response to the
Petition for Review and the “Response to Petition for Review” taken from the Texas
Supreme Court website. The petitioner in Badiga v. Lopez, supra, stated in the Brief
on the Merits, under the heading “Statement of Facts”, the following:
On October 24, 2003, Respondent filed her health care liability
claim against Petitioner. (1 CR 5). Pursuant to Texas Civil Practice
and Remedies Code section 74.351(a), Respondent’s deadline to serve
the required expert report was February 23, 2004. See TEX. CIV. PRAC.
& REM. CODE § 74.351(a).
[Appendix “A” – Petitioner’s Brief, page 1]. As the Respondent did not challenge
the Petitioner’s “statement of facts”, [Appendix “B” – Respondent’s Response],
pursuant to the above cited Texas Rules of Appellate Procedure, the Texas Supreme
Court would have accepted the Petitioner’s “statement of facts” as true.
Further, as set forth above, the Petitioner in Badiga v. Lopez, supra, did not
demonstrate how he calculated the calendar date upon which the 120th day fell.
Absent any elaboration on how the 120th day calendar date was calculated or any
reference to Rule 4, TRCP, one can surmise that the Badiga petitioner made an error
in calculating the specific calendar date upon which the 120th day fell, as did the
Appellees in the trial court in the current case before this Honorable Court. [2ND
SUPP. C.R. 1546, 1551, 1552, 1553, 1556]. The Court should note that the
Appellees miscalculated the actual 120th calendar date even having available the
17
ability to count the days on the calendar as well as the utilization of a circular
calendar wheel. [2ND SUPP. C.R. 1551, 1561, 1564]. Further, even after the
Appellant filed its motion to dismiss and stated the correct calculation of the 120th
day falling on January 31, 2015, the Appellees continued to miscalculate the actual
120th day calendar date and stated under oath that it fell on February 1, 2015. [2ND
SUPP. C.R. 1559 - Verification of Brian D. Sutton and 2ND SUPP. C.R. 1561-1563
- Affidavit of Darlene Lee]. Be that as it may, it is abundantly clear, by comparing
the language that the Texas Supreme Court used in Badiga v. Lopez, supra, to the
language that the Badiga petitioner used in the “statement of facts” with respect to
the 120th calendar day, the Texas Supreme Court relied upon the Badgia petitioner’s
calculation of the calendar date.
The Appellees’ assertion that the Texas Supreme Court has applied Rule 4,
TRCP, to extend the 120-day deadline mandated by V.T.C.A., Civil Practice &
Remedies Code § 74.351(a), is incorrect and it is not supported by their citation to
Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009).
VII.
THE COURTS OF APPEAL DECISIONS APPLYING RULE 4, TRCP, TO
THE CALCULATION OF THE 120-day DEADLINE WERE WRONGLY
DECIDED
The Appellees, at pages 17-18 of the Appellees’ Brief, assert that three courts
of appeal have applied Rule 4, TRCP, to the Section 74.351(a), supra, 120-day
18
deadline and cite to Carpinteyro v. Gomez, 403 S.W.3d 508 (Tex. App.-San Antonio
2013, pet. denied), Christus Spohn Health System Corp. v. Lopez, 2014 WL 3542094(Tex. App.-Corpus Christi 2014, no petition), and Fung v. Fischer, 365 S.W.3d 507(Tex. App-Austin 2012, no petition).
The Appellant, in the Appellant’s Brief, at pages 32-36, has presented its
arguments as to why Carpinteyro v. Gomez, supra, and Christus Spohn Health
System Corp. v. Lopez, supra, were wrongly decided. The Appellees do not respond
to the Appellant’s arguments other than referring to the flawed reasoning of those
opinions.
As to Fung v. Fischer, supra, while the Austin Court of Appeals cited Rule 4,
TRCP, at page 526 of the opinion, the issue before the court was not whether the
case should be dismissed based upon one of the expert reports being “filed and
served” after the 120-day deadline; but, was whether the trial court acted correctly
in finding that the defendants’ objections to the expert reports had not been timely
filed. While the opinion is somewhat confusing, it is important to recognize that the
trial court did not consider whether the two reports referenced on page 526 of the
opinion had been timely “served” or whether the defendants had “filed” their
objections within the 21 days following “service” of the reports. Instead, the trial
court found that the defendants’ failure to object to reports that had been served two
19
years earlier made their objections to the “supplemental” reports under consideration
untimely. The court of appeals set out the issues at page 521, as follows:
The ADC appellants’ first issue, phrased somewhat differently
than Minicucci’s and Urukalo’s issues, similarly contends that the
original ADC defendant’s objections to the 2009 expert reports were
timely and that the original ADC defendant’s lack of objection to the
2007 reports did not waive its right to seek dismissal as to the Fischers’
health care liability claim asserting the original ADC defendant’s direct
liability, which was not mentioned by any expert report within the 120-
day deadline. The ADC appellants argue that because the 2007 reports
did not address the Fischers’ direct liability claim against the original
ADC defendant alleging a lack of adequate policies and procedures, the
cause of action based on those facts in the Fischers’ 2007 original
petition was not supported by timely report and as such, the original
ADC defendant had no duty to object. The Fishers contend that because
the original ADC defendant did not object to the 2007 reports, it waived
all of its objections, including its objections to the 2009 reports and its
corresponding right to seek dismissal. Apparently persuaded by this
argument, the probate court overruled ADC’s collective objections to
the 2009 reports, specifically “find[ing] that the objections were
untimely under Texas Civil Practice & Remedies Code § 74.351(a).”
Thus, as the issue in the trial court and court of appeals was not whether the 2009
expert reports had been “served” within the 120-day deadline; and, as none of the
parties contested whether the actual calendar date had been calculated correctly or
made any argument with respect to whether Rule 4, TRCP, can be applied to extend
the 120-day deadline, the court of appeals reference to Rule 4, TRCP, was not
discussed and is dicta.
Further, as the question of whether Rule 4, TRCP, can extend the 120-day
deadline to serve expert reports was not a contested issue in Fung v. Fischer, supra,
20
the court of appeals did not address the issues that are raised in the case before this
Honorable Court or the issues addressed in Carpinteyro v. Gomez, supra, and
Christus Spohn Health System Corp. v. Lopez, supra. Therefore, Fung v. Fischer,
supra, is not authority supporting the Appellees’ arguments in the case before the
Court.
VIII.
Eikenhorst v. Wellbrock, 2008 WL 2339735 (Tex. App-Houston [1st Dist.] 2008,
no petition) IS NOT APPLICABLE TO THE CASE BEFORE THE COURT
On pages 11-12 of the Appellees’ Brief they state:
...TRCP 4 has also been applied generally to health-care liability claims
by the First District Court of Appeals. See, Eikenhorst v. Wellbrock,
No. 01-07-00459-CV, 2008 WL 2339735 (Tex.App-Houston [1st
Dist.] June 5, 2008, no pet)(mem. Op) (“Because December 16, 2006
was a Saturday, the deadline to file was extended to December 18, the
date Eikenhorst served his objectons”) (applying TRCP 4 to the
Defendant’s 21-day deadline to object in CPRC 74.351(a))[Appendix
K].
See also, Appellees’ Brief page 18. Further, on page 19 of the Appellees’ Brief they
state:
Although Appellant urges that there is a conflict in applying
TRCP 4 to the 120-day calculation, there is simply no conflict in
applying TRCP 4. Indeed, not applying TRCP 4 would be directly
contrary to what is stated in the Texas Rules of Civil Procedure. If TRCP
4 applies to the Defendant’s 21-day deadline to object, as in
Eikenhorst)[Appendix K], then it certainly applies to the Plaintiff’s 120-
day deadline to serve an expert report and CV.
21
As set forth in the Appellant’s Brief at page 32, Eikenhorst v. Wellbrock, supra, is
not applicable to the case before the Court as it did not address the question of
whether the mandatory 120-day deadline for the “service” of the expert report and
curriculum vitae can be extended by the application of Rule 4, TRCP; but, addressed
only the application of Rule 4, TRCP, to the defendant’s 21-day deadline to “file”
and “serve” objections to the expert report and curriculum vitae under V.T.C.A.,
Civil Practice & Remedies Code § 74.351(a). As will be shown below, the method
of, or the rationale for, the application and calculation of the two deadlines created
by Section 74.351(a) are not the same.
Initially, as set out in the Appellant’s Brief at pages 8-10 and 33, the Texas
Supreme Court has determined that strict compliance with the 120-day deadline
created by Section 74.351(a) is mandatory. See Zanchi v. Lane, 408 S.W.3d 373,
376 (Tex. 2013). The Texas Supreme Court has not held that the 21-day period to
“file” and “serve” objections to the expert report and curriculum vitae must be
strictly applied; therefore, Eikenhorst v. Wellbrock, supra, does not conflict with
Zanchi v. Lane, supra. While the defendant has the option to object or not object
without consequence, the plaintiff’s failure to timely serve an expert report and
curriculum vitae triggers automatic dismissal of the case with prejudice.
Further, the wording of Section 74.351(a) demonstrates that the two deadlines
necessarily require different applications and calculations. As the Appellees point
22
out in their Brief, unlike the defendant’s objections to the expert report and
curriculum vitae, Section 74.351(a) only requires that the expert report and
curriculum vitae be “served”, not “filed”. Therefore, unlike the defendant’s
objections, the plaintiff can meet its deadline for the “service” of its expert report
and curriculum vitae without concern for, or consideration of, the rules related to the
“filing” of documents with the trial court. See, for example, Rules 5, 21 and 74,
TRCP. As the defendant must “file” its objections to the expert report and
curriculum vitae, the timing and manner of the “service” of the objections is dictated
by the timing and manner of the “filing” of the objections.
Further, under the current version of Section 74.351(a), applicable to the case
before this Court, the beginning of the 120-day period to “serve” the plaintiff’s
expert report and curriculum vitae is triggered by the defendant’s “filing” of its
original answer. The beginning of the 120-day period is in contrast to the beginning
of the defendant’s 21-day period to “file” and “serve” objections which is triggered
by the plaintiff’s “service” of the expert report and curriculum vitae. Therefore,
while the plaintiff’s 120-days begins to run the day that the defendant “files” its
original answer, regardless of the method of “service” of the original answer upon
the plaintiff, the beginning of the defendant’s 21-day period to object is dependent
upon the method of “service” chosen by the plaintiff and potentially the date of the
actual receipt. See Rule 21a(b)(2), Rule 21a(c) and 21a(e), TRCP. The decision to
23
begin the running of the 120-day period from the date of the actual “filing” of the
original answer, without consideration of the method or date of the “service” of the
original answer upon the plaintiff, demonstrates that the legislature intended for the
120-day period to be strictly applied and unaffected by the Texas Rules of Civil
Procedure.
Further, while the defendant’s opportunity to object to the expert report and
curriculum vitae begins and ends within the 21-day period, Section 74.351(a), supra,
was not drafted with the intent that the plaintiff would have only one opportunity to
“serve” an expert report and curriculum vitae within its 120-day period. In fact, the
statute was specifically written so as to allow the plaintiff to “serve” multiple reports
and curriculum vitaes during the 120-day period. The diligent plaintiff, if he so
desires, has the opportunity to “serve” an expert report and curriculum vitae during
the 120-day period and, if objections are filed, have objections to the sufficiency of
the expert report and curriculum vitae ruled upon by the trial court without the risk
of having the case dismissed during the 120-day period. See, Christus Santa Rosa
Health Care Corporation v. Vasquez, 427 S.W.3d 451 (Tex. App.-San Antonio
2014, no petition); Eikenhorst v. Wellbrock, supra, at *7; Lewis v. Funderburk, 253
S.W.3d 204, 207 (Tex. 2008). If the trial court sustains the objections to the
sufficiency of the expert report, the plaintiff has the opportunity to “serve” additional
reports and curriculum vitae up to and including the 120th day.
24
As the purpose of Section 74.351(a), supra, was to encourage that only
meritorious health care liability lawsuits be filed, the statute necessarily includes the
assumption that the validity of the cause of action will be evaluated by a medical
expert prior to the filing of the lawsuit. Therefore, the 120-day period is more than
sufficient for the medical expert to provide an expert report.
As Eikenhorst v. Wellbrock, supra, does not address the application of
Rule 4, TRCP, to the 120-day deadline of Section 74.351(a), supra, it does not
support the Appellees’ arguments on appeal.
IX.
EMAIL SERVICE AFTER 5:00 P.M. IS DEEMED COMPLETE
THE NEXT DAY
The Appellees, at pages 12, 13, and 19-24 of the Appellees’ Brief, while
acknowledging that Rule 21a, TRCP, is silent as to when service by email is
“complete”, argue that email service is complete when the server transmits the
document to the intended recipient’s email address. In support of their position, the
Appellees cite, as their only authority, commentary contained within “O’Connor’s
Texas Rules of Civil Trials 2015”. [Appellee’s Brief, pages 12 and 24]. The lone
statement that the Appellees rely upon as authority supporting their argument is:
“Although not specified under TRCP 21a, service by email is presumably complete
on transmission of the document to the receiving party.” Far from being authority
supporting the Appellees’ position, O’Connor’s commentary recognizes that there
25
is no existing authority to support this statement and it is making a “presumption”,
or better stated an “assumption”, as the rule is silent as to when email service is
complete. Absent from O’Connor’s statement is any discussion of how other
statutes, rules of procedure, or local rules of court determine when email service is
complete.
Further, the O’Connor’s “presumption” is incorrect as email service by a party
directly to the intended recipient’s email address is not comparable to electronic
service pursuant to Rule 21a(a)(1), TRCP. For electronic service to apply, as
required, the intended recipient’s email address must be on file with the “electronic
filing manager”. Under Rule 21a(b)(3), TRCP, the serving party completes
electronic service by transmitting the document to the serving party’s “electronic
service provider”. Thereafter, the “electronic filing manager” sends confirmation of
service. Under this electronic service procedure, the serving party is relying upon
the established rule that service is complete upon transmission to its “electronic
service provider”, not directly to the recipient to be served, and is comparable to
service being complete when a document is deposited in the mail, Rule 21a(b)(1), as
opposed to being delivered directly by the serving party to the intended recipient.
However, no matter which form of service is used, the document must be delivered
to the intended recipient. Rule 21a(e), TRCP.
26
The Appellees, at pages 22-24 of the Appellees’ Brief, argue that Local Rule
12.5.2, “Amended Local Rules of the District Courts for Galveston County, Texas”,
which establishes that email service after 5:00 p.m. should be deemed completed
“the next day that is not a Saturday, Sunday or legal holiday”, does not apply as it
was established prior to the electronic filing and service rules contained in the Texas
Rules of Civil Procedure. However, the Appellees have not established that the local
rules have been rescinded by the District Courts of Galveston County and have not
shown that Local Rule 12.5.2 has been preempted by the Texas Rules of Civil
Procedure. While the Appellees direct the Court to several local rules that arguably
conflict with the current Texas Rules of Civil Procedure, the Appellees have not
directed the Court to a current rule of the Texas Rules of Civil Procedure with which
Local Rule 12.5.2 conflicts. As all parties agree, Rule 21a, TRCP, does not mandate
any procedures with respect to email service and does not establish when email
service is complete; therefore, as argued in Appellant’s Brief, pages 24-31, the
appropriately adopted and approved “Amended Local Rules of the District Courts
for Galveston County, Texas”, with respect to the completion of email service, do
not conflict with the Texas Rules of Civil Procedure and apply to the case before this
Court.
Therefore, pursuant to Local Rule 12.5.2(c), if the Appellees had completed
email service after 5:00 p.m. on January 31, 2015, which they did not, their expert
27
report and curriculum vitae would have been deemed served on Monday, February
2, 2015.
X.
ELECTRONIC SERVICE WAS REQUIRED PURSUANT TO
RULE 21a(a)(1), TRCP
The Appellees, at pages 13 and 34-35 of the Appellees’ Brief, contend that
while they electronically filed their expert report and curriculum vitae pursuant to
Rule 21(f), TRCP, they were not required to comply with the mandatory electronic
service requirement of Rule 21a(a)(1), TRCP.
The Appellees, at page 34 of the Appellees’ Brief, contend that the “Appellant
cites no authority for this proposition” that once the Appellees chose to electronically
file their expert report and curriculum vitae, electronic service was mandatory.
Contrary to their assertion, the Appellant, at pages 20-24 of the Appellant’s Brief,
specifically cites to the Rule 21(f), TRCP, mandatory requirement that “attorneys
must electronically file documents in courts where electronic filing has been
mandated”. The Appellees have not presented alternative authority or procedure for
their electronic filing of their expert report other than what is found in Rule 21(f).
Further, the Appellant specifically cited as authority Rule 21a(a)(1), TRCP, and its
mandatory language that “a document filed electronically under Rule 21 must be
served electronically through the electronic filing manager.” This language is clear
28
and does not require interpretation. Further, the Appellees have repeatedly asserted
that they attempted to “serve” their expert report and curriculum vitae by email
pursuant to Rule 21a(a)(2), TRCP; [Appellees’ Brief, pages 2-3], however, this rule
is explicit that only “a document not filed electronically may be served...by email...”.
Thus the authority is abundantly clear that only electronic service was permissible
once the Appellees electronically filed their expert report and curriculum vitae.
Further, considering the inherent risk that service by email may not be timely
completed or may not be completed at all, the wisdom of mandatory electronic
service under Rule 21a(a)(1), TRCP, is obvious.
The Appellees state at page 34 of the Appellees’ Brief: “Indeed, if an attorney
attempts service in two or more different manners, only one form of successful
service is required”. The Appellees’ statement is not applicable to the case before
the Court as they attempted only one form of service, by email, and it was not
successfully completed service within the mandatory 120-day deadline.
The Appellees state at page 35 of the Appellees’ Brief: “Instead, as shown
above, service via email is expressly permitted, and by Appellant’s counsel’s own
admission, service was complete on February 1, 2015 when he ‘actually’ received
and read the email containing the expert report and CV”. Once again the Appellees
attempt to mischaracterize the Appellant’s position and the issue on appeal. The
Appellant asserted in the trial court and asserts on appeal that email service was not
29
completed on February 1, 2015, as the portion of the expert report contained in the
second email was not delivered to Appellant’s counsel. Further, even if both emails
had been received on February 1, 2015, the service of the expert report and
curriculum vitae would still have been outside the 120-day deadline.
On page 35 of the Appellees’ Brief, the Appellees state:
The rules governing discovery provide an analogous example.
Under the rules governing discovery, discovery requests and responses
are to be served, but not filed, just as expert reports and CVs under
CPRC 74.351. Under Appellant’s theory, a party “e-filing” a discovery
response (though not required) and also “serving” the discovery
response via email would be deemed to not have “served” the discovery
response, despite proper “service” by email. Appellees’ counsel is
aware of no authority which would create such a scenario.
The Appellees’ argument is incorrect. Unlike the expert report provision of Section
74.351(a), supra, Rule 191.4(a), TRCP, prohibits the filing of discovery materials
except for certain specifically articulated situations set out under Rule 191.4(b) and
(c), TRCP. When discovery materials are “filed” pursuant to Rule 191.4(b) and (c),
the “service” rules of Rule 21a, TRCP, apply. While the “filing” of the expert report
and curriculum vitae under Section 74.351(a) is not required, it is not prohibited.
Just as with the “filing” of discovery materials, once a claimant “files” an expert
report and curriculum vitae, “service” under, and in accordance with, Rule 21a,
TRCP, is required.
As argued in the trial court and in the Appellant’s Brief on appeal, electronic
service of the expert report and curriculum vitae were mandatory under the facts of
30
this case; therefore, the Appellees failed to timely complete service within the 120-
day deadline.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant, The University
of Texas Medical Branch at Galveston, prays that this Honorable Court reverse the
order of the trial court denying “Defendant, The University of Texas Medical Branch
at Galveston’s Motion to Dismiss with Prejudice for Failure to Timely Serve an
Expert Report Pursuant to Section 74.351 of the Civil Practice and Remedies Code”;
and, render judgment dismissing this cause of action in its entirety and with prejudice
to its refiling. Further, the Appellant prays that all costs, in the trial court and Court
of Appeals, be taxed against the Appellees. The Appellant further prays for all other
relief, legal and equitable, to which it may be entitled.
RESPECTFULLY SUBMITTED,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
KARA L. KENNEDY
Chief, Tort Litigation Division
31
/s/ S. Ronald Keister
___________________________________
S. RONALD KEISTER
State Bar No. 11185300
Assistant Attorney General
Attorney-In-Charge
Tort Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Ronny.Keister@texasattorneygeneral.gov
(512) 463-2197
FAX (512) 457-4435
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. 9.4(i)(3), this is to certify that this brief complies
with the type-volume limitations of TEX. R. APP. 9.4(i)(2)(B)(must not exceed 7,500
words). This brief contains 7,441 words in a proportionally spaced typeface,
exclusive of the exempted portions set forth in TEX. R. APP. 9.4(i)(1). This brief has
been prepared using Times New Roman 14 point in text and Times New Roman 12
point in footnotes produced by Microsoft Word 2013 software.
/s/ S. Ronald Keister
_______________________________
S. RONALD KEISTER
Assistant Attorney General
32
CERTIFICATE OF ELECTRONIC SERVICE
I certify that on October 26, 2015, at approximately 11:40 a.m., I served a
copy of Appellant’s Reply Brief on the party listed below by electronic service
concurrently with the electronic filing of the document. The electronic transmission
was reported as complete.
My e- mail address is Ronny.Keister@texasattorneygeneral.gov.
Brian D. Sutton Via e-service
Sutton & Jacobs, LLP
Attorneys and Counselors at Law
850 Park Street
Beaumont, Texas 77701
(409) 833-1100
(409) 833-0711, fax
brians@sutton-jacobs.com
ATTORNEY FOR PLAINTIFF
/s/ S. Ronald Keister
____________________________________
S. RONALD KEISTER
Assistant Attorney General
33
No. 14-15-00449-CV
IN THE COURT OF APPEALS
FOR THE FOURTEENTH JUDICIAL DISTRICT
HOUSTON, TEXAS
THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
APPELLANT,
V.
CAROLYN CALLAS, RAY CALLAS AND JAMIE CALLAS, INDIVIDUALLY
AND AS THE REPRESENTATIVES OF THE ESTATE OF GERALD CALLAS
AND FOR AND ON BEHALF OF ANY WRONGFUL DEATH
BENEFICIARIES,
APPELLEES.
On Appeal from the 212th Judicial District Court
Galveston County, Texas
No. 14-CV-0927
APPENDIX
A) Badiga v. Lopez, BRIEF ON THE MERITS OF THE PETITONER
B) Badiga v. Lopez, RESPONDENT’S NOTICE OF INTENT TO RELY ON
RESPONDENT’S RESPONSE TO PETITION FOR REVIEW AND THE
RESPONDENT’S RESPONSE TO PETITION FOR REVIEW
34
APPENDIX A
Badiga v. Lopez, BRIEF ON THE MERITS OF THE PETITONER
ORAL ARGUMENT REQUESTED
NO. 05-0801
IN THE
SUPREME COURT OF TEXAS
S. MURTHY BADIGA, M.D.,
Petitioner,
v.
MARICRUZ LOPEZ,
Respondent.
On Petition for Review from the
Thirteenth District Court of Appeals at Corpus Christi, Texas
No. 13-04-00452-CV
BRIEF ON THE Ml;RITS OF PETITIONER
Respectfully submitted,
R. BRENT COOPER
Texas Bar No. 04783250
DIANA L. FAUST
Texas Bar No. 00793717
WILLIAM J. AKINS
Texas Bar No. 24011972
COOPER & SCULLY, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
(214) 712-9500
(214) 712-9540 (fax)
COUNSEL FOR PETITIONER
IDENTITY OF PARTIES AND COUNSEL
. ;.
Maricruz Lopez Plaintiff/Appellee/Respondent
S. Murthy Badiga, M.D. Defendant/Appellant/Petitioner
- Trial and Appellate Counsel for Petitioner
.·.
Mr. R. Brent Cooper Appellate Counsel for Petitioner
Ms. Diana L. Faust in Supreme Court of Texas
Mr. William J. Akins
Cooper & Scully, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
Mr. Steven M. Gonzalez Counsel for Petitioner in
Mr. Edward J. Castillo Trial Court and Court of Appeals
Gonzalez, Gaytan, Garza
& Castillo, L.L.P.
1317 E. Quebec Avenue
McAllen, Texas 78503
Trial and Ap,pellate Counsel for Respondent
Mr. E. A. Villarreal, Jr. Trial and Appellate Counsel for Respondent
Law Office of E.A. Villarreal, Jr.
1320 South 10t11 Street
Edinburg, Texas 78539
-i-
'\ ~ "·'
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................. -1-
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-
TABLE OF AUTHORITIES ............................................. -vi-
STATEMENT OF THE CASE ........................................... -xi-
STATEMENT OF THE JURISDICTION ................................. .
..
-Xll-
ISSUES PRESENTED
1. Whether the trial court's refusal to dismiss the case under Chapter 74
of the Texas Civil Practice and Remedies Code, where no expert report
was served within 120 days following the filing of suit, is subject to an
interlocutory appeal under section 51.014(a)(9) of the Texas Civil
Practice and Remedi~s Code ................................. -xiii-
2. Whether the Court ofAppeals' interpretation of section 51.0 l 4(a)(9) of
the Texas Civil Practice and Remedies Code (to preclude an
interlocutory appeal when case involves both the subject matter of an
appealable and a non-appealable interlocutory order) conflicts with
other courts of appeals' interpretations of jurisdiction (in cases
presenting the subject matter of both appealable and non-appealable
interlocutory order or orders), including Letson v. Barnes, 979 S.W.2d
414 (Tex. App.-Amarillo 1998, pet. denied); America Online, Inc. v.
Williams, 958 S.W.2d268 (Tex. App.-Hous. [14Dist.] 1997, no writ);
American Express Travel Related Servs. Co. v. Walton, 883 S.W.2d
703 (Tex. App.-Dallas 1994, orig. proceeding); and Texas R.R.
Comm 'n v. Air Prods. & Chems., Inc., 594 S.W.2d 219 (Tex. Civ.
App.-Austin 1980, writ refd n.r.e.) ............................ -xiii-
STATEMENT OF THE FACTS .......................................... -1-
A. October 24, 2003: Respondent Filed her Original Petition . . . . . . . . . . . -1-
-ii-
B. February 27, 2004: Petitioner Filed bis Motion to Dismiss Because
Respondent Failed to Serve Required Expert Report by Statutory
Deadline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
C. March 31, 2004: Respondent Filed Motion for Extension of Time .... -1-
D. The Trial Cowt Granted Respondent's Motions and Extended Time for
Serving Expert Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
E. Petitioner Re-Urged Dismissal Pursuant to Section 74.35l(b) of the
Texas Civil Practice and Remedies Code ........................ -3-
F. The Cowt of Appeals Refused to Consider Petitioner's Appeal . . . . . . . -3-
SUMN.lARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
ARGUMENT .................................. : . . . . . . . . . . . . . . . . . . . . . . -5-
A. Texas Civil Practice and Remedies Code Chapter 74 Mandates that a
Health Care Liability Claimant Must Serve an Expert Report Within
120 days After the Claim is Filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
B. Respondent Failed to Serve an Expert Report as Mandated by Section
74.351 Within 120 Days After the Date of Filing the Health Care
Liability Claim; Thus, the Trial Court Was Required to Dismiss the Suit
with Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1. Respondent Failed to Timely Serve Any Expert Report . . . . . . . -9-
2. The Trial Court Abused its Discretion in Denying Petitioner's
Motion to Dismiss When No Expert Report Had Been Served on
Petitioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
C. Proper Statutory Construction of Section 51.014(a)(9) Permits Appeal
of the Denial ofa Motion to Dismiss a Health Care Liability Claim for
Failure to Serve an Expert Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
1. Standard for Statutory Construction . . . . . . . . . . . . . . . . . . . . . . -12-
-iii-
2. Section 51.014(a)(9) Specifically Authorizes Jurisdiction over
....,-.
the Interlocutory Appeal of the Trial Court's Failure to Dismiss
the Chapter 74 Health Care Liability Claim Where no Expert
Report is Served by !20th Day After Suit is Filed ........ " .. -13-
a. The Interlocutory Appeal Statute is to be Strictly
Construed, and Strict Construction Favors Interlocutory
Appeal ....................................... -14-
. ;.:·.j
r.;,_;
"
' I
b. The Interrelatedness of an Extension of Time Under
Section 74.351 and the Denial of a Motion to Dismiss
Under Section 74.351 Does Not Defeat Jurisdiction over
the Interlocutory Appeal, and the Court of Appeals'
Holding Conflicts with Other Courts of Appeals'
·-- Exercise of Jurisdiction Where One Issue is Properly the
·-·"
Subject of Interlocutory Appeal and One is Not ....... -15-
c. Additionally, Other Courts Have Recognized a Right to
an Interlocutory Appeal Under Section 51.014(a)(9) from
the Denial of a Motion to Dismiss .................. -17-
3. The Basis for Petitioner's Appeal fit Precisely Within the Court
of Appeals' Jurisdiction over the Interlocutory Appeal ....... -19-
4. The Legislative History Underlying House Bill 4 Supports the
Court of Appeals' Jurisdiction Over an Interlocutory Appeal .. -20-
5. The Court of Appeals' Ruling Precludes an Appeal of a Trial
Court's Denial of a Motion to Dismiss for No Expert Report
Where the Trial Court Also Grants an Extension ............ -21-
a. The Court of Appeals Improperly Construed Petitioner's
Appeal, Disregarding Petitioner's Single Issue, the
Arguments of Petitioner and Respondent, Sections
74.35l(a) and (b), and Petitioner's Right to Appeal
Under Section 51.014(a)(9) ....................... -21-
b. The Issue is Likely to Recur ...................... -23-
D. This Court has Jurisdiction Over this Interlocutory Appeal .... -28-
-iv-
: .
., I. The Court has Jurisdiction to Determine if the Court of Appeals
Properly Declined to Exercise its Jurisdiction . . . . . . . . . . . . . . -28-
2. This Court has Also Jurisdiction Over This Interlocutory Appeal
Because of A Conflict in the Courts of Appeals . . . . . . . . . . . . -30-
a. This Court has Recognized Jurisdiction Where Courts of
Appeals' Decisions Conflict ...................... -30-
b. Courts of Appeals' Decisions Conflict on Jurisdiction
Over Case When Appeal Involves Appealable and Non-
Appealable Issues in the Context of an Interlocutory
Appeal ....................................... -31-
CERTIFICATE OF SERVICE .......................................... -34-
APPENDIX TO BRIEF ON THE MERITS OF PETITIONER . . . . . . . . . . . . . . . . . -35-
-v-
TABLE OF AUTHORITIES
Page(sl
Acad. of Oriental Med., L.L.C. v. Andra,
173 S.W.3d 184 (Tex. App.-Austin 2005, no pet.) ...... 11, 12, 14, 18, 24, 25, 31
America Online, Inc. v. Williams,
1958 S.W.2d 268 (Tex. App.-Houston [14 Dist.] 1997, no writ)
............................................... ii, ix, x, 16, 17, 27, 31
American Express Travel Related Servs. Co. v. Walton,
883 S.W.2d 703 (Tex. App.-Dallas 1994, orig. proceeding) . . ....... xii, xiii, 16
Awde v. Dabeit,
938 S.W.2d 31 (Tex. 1997) ....................................... xii, 29
Badiga v. Lopez, .
No. 13-04-00452-CV, 2005 WL 1572273{Tex. App.-Corpus Christi 2005, pet. filed) .................. 3, 15, 17, 31, 35
Bally Total Fitness Corp. v. Jackson,
53 S.W.3d 352 (Tex. 2001) ....................................... 11, 14
Bexar Metro. Water Dist. v. City ofBulverde,
156 S.W.3d 79 (Tex. App.-Austin 2005, pet. denied) ..................... 14
Christus Health Southeast Texas v. Griffin,
175 S.W.3d 548 (Tex. App.-Beaumont Oct. 20, 2005, no. pet. h.) ........... 17
City ofSan Antonio v. City of Boerne,
111 S.W.3d 22 (Tex. 2003) .......................................... 12
De Los Santos v. Occidental Chem. Corp.,
933 S.W.2d 493 (Tex. 1996) ...................................... xii, 29
Del Valle lndep. Sch. Dist. v. Lopez,
845 S.W.2d 808 (Tex. 1992) ................................... xii, 28, 29
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985) ......................................... 10
-vi-
Fitzgerald v. Advanced Spine Fixation Systems, Inc.,
996 S.W.2d 864 (Tex. 1999) ....................................... '. . 12
Fort Worth Southwest Nursing Ctr., L.L.C. v. Bly,
2004 WL 314907 (Tex. App.-Fort Worth Feb. 19, 2004, no pet.) ...... 18, 19, 28
Gross v. Innes,
988 S.W.2d 727 (Tex. 1998) ...................................... 30, 31
Group Ill D. C. v. Vincento,
164 S.W.3d 724 (Tex. App-Houston [14th Dist.] 2005, pet. filed) ........... 32
Heart Hosp. ofAustin v. Matthews,
_ S.W.3d __, 2006 WL 1194881(Tex. App. -Austin, May 5, 2006, no pet. h.) ................... 13, 23, 24, 31
Kendrick v. Garcia,
171S.WJd698 (Tex. App.-Eastland, Aug. 18, 2005, pet. filed) .......... 9, 32
Letson v. Barnes,
979 S.W.2d 414 (Tex. App.-Amarillo 1998, pet. denied) xii, xiii, 15, 16, 17, 27, 31
Lewis v. Funderburk,
No. 10-05-00197-CV, 2006 WL 870943(Tex. App.-Waco April 5, 2006, no pet. h.) ....................... 26, 27, 31
Liberty Mut. Ins. Co. v. Garrison Contractors,
966 S.W.2d 42 (Tex. 1998) .......................................... 12
Long v. Humble Oil & Refining Co.,
380 S.W.2d 554 (Tex. 1964) ..................................... xii, 28
McCauley v. Consolidated Underwriters,
304 S.W.2d 265 (Tex. 1957) ......................................... 28
Methodist Health Care System ofSan Antonio, Ltd. v. Rangel,
No. 04-05-00500-CV, 2005 WL 3445994(Tex. App.-San Antonio Dec 14, 2005, pet. filed) ......................... 6
Mokkala v. Mead,
178 S.W.3d 66 (Tex. App.-Houston [14th Dist.] 2005, pet. filed)
................................................ 12, 13, 19, 20, 27, 32
-vu-
Murphy v. Russell,
167 S.W.3d 835 (Tex. 2005) .......................................... 9
Reardon v. LightPath Technologies, Inc.,
183 S.W.3d429 (Tex. App.-Hous. [14Dist.] 2005, pet. denied) ............. 23
Sterner v. Marathon Oil Co.,
767 S.W.2d 686 (Tex. 1989) ......................................... 23
.. :· -·
t• :•.""
Texas R.R. Comm'n v. Air Prods. & Chems., Inc.,
594 S.W.2d 219 (Tex. Civ. App.-Austin 1980, writ refd n.r.e.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii, xiii, 16, 17, 27, 31
Thomas v. Long,
No. 03-0204, 2006 WL 1043429,
49 Tex. Sup. Ct J. 532 (Tex. April 21, 2006) ........................... 30
Thoyakulathu v. Brennan,
No. 06-05-00070-CV, 2006 WL 1096191(Tex. App.-TexarkanaApril 27, 2006, no pet. h.) ............ 11, 14, 17, 27, 31
University of Texas Medical Branch at Galveston v. Barrett,
159 S.W.3d 631(Tex.2005) ...................................... xii, 28
University of Texas Southwestern Medical Center ofDallas v. Margulis,
11 S.W.3d 186 (Tex. 2000) ....................................... xii, 29
Van LS.D. v. McCarty,
165 S.W.3d 351 (Tex. 2005) ........................ . .......... . ..... 30
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ......................................... 10
In re Women's Hosp. o/Texas, Inc.,
141S.W.3d144 (Tex. 2004) ......................................... 18
Statutes, Rules & Constitutions Paa;eCsl
Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1-, 1995 Tex. Gen. Laws 985 .......... 14
Act of June 2, 2003, 78th Leg. R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847 ... 9, 20
-viii-
Act of Sept. 1, 2003, 78th Leg., R.S. ch. 204, § 1.03, 2003 Tex. Gen. Laws 847 ...... 20
Debate on Tex. H.B. 4 on the Floor of the House,
78th Leg., R.S. 317 (Mar. 19, 2003) ................................... 20
TEX. CIV. PRAC. & REM. CODE ANN.§ 51.014(a)(9) ......................... 17, 27
§ 74.3Sl(a) ........ 1, 6, 10, 13, 19, 21, 22, 28, 31
TEX. GoV'T CODE§§ 22.22S(bX3) ......................................... 30
:.;..
Miscellaneous Page(s)
Michael S. Hull, et al., House Bill 4 and Proposition 12: An Analysis with
Legislative History, Part Three, 36 TEX. TECH L.R. 169, 212 (2005) ... 20, 21, 28
::. ...
-ix-
ORAL ARGUMENT REOVESTED
. " ..
' ..
NO. 05-0801
IN THE
.. SUPREME COURT OF TEXAS
:.::-.
S. MURTHY BADIGA, M.D.,
Petitioner,
v.
MARICRUZ LOPEZ,
Respondent.
On Petition for Review from the
Thirteenth District Court of Appeals at Corpus Christi, Texas
No.13-04-00452-CV
BRIEF ON THE MERITS OF PETITIONER
TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:
Petitioner Dr. S. Murthy Badiga, M.D., ("Petitioner'' or "Dr. Badiga"), submits this
Brief on the Merits, pursuant to the Court's letter request and in compliance with Rule 55 of
the Texas Rules of Appellate Procedure, seeking reversal of the Court of Appeals' judgment
and reversal of the trial court's order.
-x-
STATEMENT OF THE CASE
Nature of the Case: On October 24, 2003, Respondent Maricruz
Lopez ("Lopez'' or "Respondent'') brought this
health care liability claim, pursuant to Chapter 74
of the Texas Civil Practice and Remedies Code,
alleging that Petitioner S. Murthy Badiga, M.D.
was negligent in his medical care and treatment of
Lopez, proximately causing a perforation of her
colon during an esopyagogastroduodenoscopy and
colonoscopy. (1 CR 1-10). Respondent was
required to serve an expert report within 120 days
after filing suit in accordance with section
74.3Sl(a) of the Texas Civil Practice and
Remedies Code. Upon expiration ofthe deadline,
Petitioner filed a motion to dismiss based on
Respondent's failure to serve an expert report. ( 1
CR 16-31). Respondent then filed a Motion to
Extend Expert Report Submission on April l,
2004 (1 CR 32-34), which the trial court granted
on May 18, 2004. (1 CR 149). The trial court
never ruled on this motion to dismiss. Petitioner
then filed a another motion to dismiss rearguing
dismissal based on Respondent's failure to serve
an expert report within the statutorily mandated
120-day deadline. (1 CR 153-184). On August
10, 2004, the trial court denied Petitioner's
motion to dismiss. (1CR196). Petitionertiniely
filed his Notice of Appeal onAugust30, 2004. (1
CR 197-198).
Trial Court: The Honorable Rodolfo Delgado, 193rc1 District
Court, Hidalgo County, Texas.
Trial Court Disposition: The trial court denied Petitioner's Motion to
Dismiss.
·:··..
Parties in the Court of Appeals: S. Murthy Badiga, M.D. - Appellant; Maricruz
Lopez - Appellee.
·.:
-XI-
Court of Appeals: Thirteenth District Court of Appeals at Corpus
Christi, Texas.
Court of Appeals Dispo~ition: Unpublished memorandum opinion, by Chief
Justice Rogelio Valdez, with Justice Federico
Hinojosa and Justice Nelda Rodriguez concurring,
dismissal of appeal due to lack of jurisdiction.
Badiga v. Lopez, No. 13-04-00452-CV, 2005 WL
;.. .. 1572273 (Tex. App.-Corpus Christi 2005, pet.
filed).
STATEMENT OF THE JURISDICTION
This Court has jurisdiction over this appeal under Texas Government Code section
22. 001 (a)(2) because the Court ofAppeals' decision in this matter conflicts with other courts
of appeals' decisions in Letson v. Barnes, 919 S.W.2d 414 (Tex. App.-Amarillo 1998, pet.
denied); America Online, Inc. v. Williams, 958 S.W.2d 268 _(Tex. App.-Hous. [14 Dist.]
1997, no writ); American Express Travel Related Servs. Co. v. Walton, 883 S.W.2d 703 (Tex.
App.-Dallas 1994, orig. proceeding); and Texas RR. Comm 'n v. Air Prods. & Chems., Inc.,
594 S.W.2d 219 (Tex. Civ. App.-Austin 1980, writ refd n.r.e.), on a question of law
material to a decision of the case.
This Court has jurisdiction to determine whether or not the Court of Appeals erred in
deciding that it lacked jurisdiction over Petitioner's interlocutory appeal. See University of
Texas Medical Branch at Galveston v. Barrett, 159 S.W.3d 631, 633 n.8 (Tex. 2005); see
also University ofTexas Southwestern Medical Center ofDallas v. Margulis, 11 S.W.3d 186,
187 (Tex. 2000); Awde v. Dabeit, 938 S.W.2d 31, 32 (Tex. 1997); De Los Santos v.
Occidental Chem. Corp., 933 S.W.2d 493, 494 (Tex. 1996); Del Valle /ndep. Sch. Dist. v.
Lopez, 845 S.W.2d 808, 809 (Tex. 1992); Long v. Humble Oil &Refining Co., 380 S.W.2d
554, 555 (Tex. 1964).
This Court also has jurisdiction over this matter under Texas Government Code
section 22.001 (a)(3) because this is a matter of first impression in statutory construction and
the Court of Appeals erred in interpreting sections 74.351(a) and(b) and section 51.014(a)(9)
of the Texas Civil Practice and Remedies Code in determining that it lacked jurisdiction over
Petitioner's interlocutory appeal.
This Court also has jurisdiction under Texas Government Code section 22.00l(a)(6)
because it appears that an error of law has been committed by the Court of Appeals, and that
error is of such importance to the jurisprudence of the State that it requires correction.
ISSUES PRESENTED
1. Whether the trial court's refusal to dismiss the case under Chapter 74 of the
Texas Civil Practice and Remedies Code, where no expert report was served
within 120 days following the filing of suit, is subject to an interlocutory
appeal under section 51.014(a)(9) of the Texas Civil Practice and Remedies
Code.
2. Whether the Court of Appeals' interpretation of section 51.014(a)(9) of the
Texas Civil Practice and Remedies Code (to preclude an interlocutory appeal
when case involves both the subject matter of an appeal.able and a
non-appealable interlocutory order) conflicts with other courts of appeals'
interpretations of jurisdiction (in cases presenting the subject matter of both
appealable and non-appealable interlocutory order or orders), including Letson
v. Barnes, 919 S.W.2d414 (Tex. App.-Amarillo 1998, pet. denied); America
Online, Inc. v. Williams, 958 S.W.2d 268 (Tex. App.-Hous. [14 Dist.] 1997,
no writ); American Express Travel Related Servs. Co. v. Walton, 883 S.W.2d
·... ·.
~
703 (Tex. App.-Dallas 1994, orig. proceeding); and Texas R.R. Comm 'n v. Air
Prods. & Chems., Inc., 594 S.W.2d 219 (Tex. Civ. App.-Austin 1980, writ
rerd n.r.e.).
-xiii-
STATEMENT OF THE FACTS
A. October 24, 2003: Respondent Filed her Orifdnal Petition
On October 24, 2003, Respondent filed her health care liability claim against
Petitioner. (1 CR 5). Pursuant to Texas Civil Practice and Remedies Code section 74.351 (a),
......
: Respondent's deadline to serve the required expert report was February 23, 2004. See TEX.
Crv. PRAC. & REM. CODE§ 74.35l(a).
B. February 27. 2004: Petitioner Filed his Motion to Dismiss Because
· Respondent Failed to Serve Required Expert Report by Statutory
Deadline
Respondent failed to serve any expert report on Petitioner by February 23, 2004. On
February 27, 2004, Petitioner filed his motion to dismiss on the grounds that Respondent had
failed to comply with section 74.35l(a) by not serving anexpertreportbythe 12om day after
the lawsuit was filed. (See I CR 16). Petitioner requested dismissal of Respondent's cause
of action with prejudice, as required under section 74.35l(b). (1 CR 16).
C. March 31. 2004; Respondent Filed Motion for Extension of Time
Despite the expiration of the expert report deadline a month earlier, Respondent
sought relief from the trial court through her Motion to Extend Expert Report Submission
Date. ( 1 CR 32). Therein, she urged that "good cause" existed to extend the submission date
of the report because Respondent had provided medical reports and records on October 31,
'!.·.
2003 to Petitioner's insurer, Texas Medical Liability Trust ("TMLT'') for forwarding to
Petitioner's counsel. (Id.). Respondent further stated that the reports included those from
the medical treating physician Dr. Rodolfo Guerrero, and no objections or requests for further
-1-
information were filed thereafter. (Id.).
On April l, 2004, Respondent filed a Second Motion to Extend Expert Report
Submission Date re-urging "good cause" to extend the submission time of the expert report
in that it was not a conscious indifference of Respondent or her attorney, but a clerical error.
iL (1 CR42).
D. The Trial Court Granted Respondent's Motions and Extended Time for
Sen1na Expert Report
On April 5, 2004, the trial court heard Petitioner's Motion to Dismiss. (2 RR 4-17).
Respondent's COWlSel argued that the case law under former Article 4590i of the Texas
Revised Civil Statutes would continue to apply and the trial court could grant a thirty-day
extension within its discretion for a mistake in not serving any expert report by the 120-day
deadline. (2 RR 5-6). The trial court requested additional briefing on the legislative intent
behind the 120-day requirement, and did not rule on the motion to dismiss. (Id. at 13-17).
The parties filed supplemental briefing on the interpretation of Chapter 74. (I CR 45-
132). Petitioner's brief clarified that the trial court could not grant a thirty-day extension
when no expert report had been served. (1 CR 46-48). Respondent's brief argued for the
application of fonner Article 4590i to extensions where no report had been served. (I CR
129-13 0). Respondent contended that the failure to serve the report was a "clerical error and
:..,. ;•.•.·
not conscious indifference;,, thus, the trial court should grant the thirty-day extension to
initially serve the expert report. (1 CR 130-131 ).
On May 18, 2004, almost four months after the expiration of the expert report
deadline, the trial court granted Respondent's Motion to Extend Expert Report, extending the
-2-
date to submit Respondent's expert report to June 18, 2004. {l CR 149). The trial court did
not sign any order disposing of Petitioner's motion to dismiss. On June 8, 2004, Respondent
served the expert report of Rodolfo Guerrero, M.D. (1 CR 177-78).
E. Petitioner Re-Urged Dismissal Pursuant to Section 74.35l(bl of the Texas
Civil Practice and Remedies Code
On June 21, 2004, Petitioner filed a second motion to dismiss rearguing that the case
must be dismissed due to Respondent's failure to serve an expert report within 120 days, and
further arguing that Respondent's expert report was deficient pursuant to Texas Civil Practice
and Remedies Code section 74.35l(r)(6). (1 CR 153). On August 9, 2004, the trial court
heard Petitioner's second motion to dismiss (3 RR 4-12), and on August 10, 2004, the trial
court signed an order denying Petitioner's motion to dismiss. (1CR196).
F. The Court of Appeals Refused to Consider Petitioner's Appeal
On August 30, 2005, Petitioner timely appealed the trial court's August 10, 2005 order
denying Petitioner's motion to dismiss. (1 CR 197-198). The Court of Appeals
misinterpreted the interlocutory appeal provided for in section 51.014(a)(9) of the Texas
Civil Practice and Remedies Code and misconstrued the substance of Petitioner's appeal.
The Court of Appeals concluded that Petitioner was challenging "solely" the trial court's
granting of an extension, not the trial court's disregard ofthe requirement for dismissal under
section 74.35l(b) oftheTexas Civil Practice and Remedies Code. SeeBadigav. lopez, No.
13-04-00452-CV, 2005WL1572273 (Tex. App.-Corpus Christi July7, 2005, pet. filed) (See
Tab A). Based on that conclusion, the Court of Appeals decided that it lacked jurisdiction
over the appeal, and dismissed it for want of jurisdiction. (See id.).
-3-
SUMMARY OF THE ARGU1\'1ENT
This Court should grant the petition, reverse the judgment, and order that this case be
dismissed. This case of first impression raises an important issue of the statutory
construction ofsection 51.014(a)(9) and, necessarily, sections 74.351 (a) and (b) ofthe Texas
Civil Practice and Remedies Code. 1 Section 51.014(a)(9) authorizes jurisdiction in the courts
of appeals over interlocutory appeals arising from a trial court's denial of a motion to dismiss
for failure to serve an expert report as required under section 74.351 (a) within 120 days after
the filing of a-health care liability claim under section 74.35 l(b). It is indisputable that
Respondent failed to serve any expert report within the statutorily prescribed 120-day time
period. Despite the clear statutory language mandating dismissal, the trial court denied
Petitioner's motion to dismiss for failure to serve an expert report.
Petitioner appealed the trial court's order, specifically limiting the appeal only to the
issue expressly authorized by section 51.014(a)(9) (the denial of the motion to dismiss), as
reflected in Petitioner's single issue and the arguments within Petitioner's and Respondent's
briefs. However, the Court of Appeals improperly conducted the statutory interpretation of
section 51.0 l 4(a)(9) by failing to strictly construe the section according to its plain language
which allows the interlocutory appeal of a trial court's denial of all or part of a motion under
section 74.35l(b). Instead, the Court of Appeals erroneously considered only the exception
to section 51.014(a)(9), and construed the appeal as challenging "solely" the grant of the
extension of time to serve the expert report, an issue that does not give rise to jurisdiction
Whenever reference is made to a particular "section" or "subsection," it is referring to that section or
subsection of the Tex.as Civil Practice and Remedies Code.
4-
through interlocutory appeal.
Under the Court of Appeals' reasoning, when a trial court grants an extension of time
in connection with a motion to dismiss, a defendant's discussion on appeal of the granting
of an extension precludes the exercise of its statutory right to appeal the denial of the motion
.. .
.,~.
to dismiss. This result conflicts with the plain language of 51.014(a)(9), which allows for
an interlocutory appeal of a denial of all or part of a motion to dismiss, and it conflic~ with
the legislative intent behind sections 74.35l{a) and(b) and section 51.014(a)(9). Further, the
Court of Appeals' opinion conflicts with the decisions from other courts of appeals'
decisions that have exercis~djurisdiction over an appealable issue despite the presence of a
non-appealable issue. Because this matter presents an issue of importance of the
jurisprudence of the state concerning statutory construction, conflicts between the Courts of
Appeals, and because this problem is likely to recur given the Court of Appeals' reasoning,
this Court should exercise its jurisdiction to review this matter.
ARGUMENT
A. Texas Civil Practice and Remedies Code Chagter 74 Mandates that a
Health Care Liability Claimant Must Serve an Expert Report Within 120
days After the Claim is Filed
Under section 74.351 of the Texas Civil Practice and Remedies Code, a claimant
must, not later than the I 20th day after the date a health care liability claim is filed, serve on
each party one or more expert reports2 addressing liability and causation and a curriculum
2
An expert report is:
a written report by an expert that provides a fair summary of the expert's opinions as of the date of the
report regarding applicable standards of care, the manner in which the care rendered by the physician
or health care provider failed to meet the standards, and the causal relationship between that failure
-5-
vitae for each expert:
' ···
In a health care liability claim, a claimant shall, not later than the 120th day
after the date the original petition was filed, serve on each party or the party's
attorney one or more expert reports, with a curriculum vitae of each expert
listed in the report for each physician or health care provider against whom a
liability claim is asserted. The date for serving the report may be extended by
written agreement of the affected parties. Each 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. PR.Ac. & REM. CODE§ 74.35l(a) (Vernon 2005). If the expert report is not timely
served, the ·trial court must dismiss the health care liability claim with prejudice. TEX. CIV.
PRAC. & REM. CODE § 74.351 (b)(2); see also Vickv. Rangel, No. 04-05-00362-CV, 2005 WL
2438375 (Tex. App.-San Antonio Oct 5, 2005) (mem. op.) ("Because Rangel failed to meet
the deadline set forth in section 74.351(a), the trial court abused its discretion in vacating its
earlier order granting Vick's motion to dismiss."), rev'd sub. nom. Methodist Health Care
System of San Antonio, Ltd. v. Rangel, No. 04-05-00500-CV, 2005 WL 3445994 (Tex.
App.-San Antonio Dec 14, 2005, pet. filed).
The requirement of timely serving an expert report is based on the legislature's
findings that the medical malpractice insurance crisis in Texas had a material adverse affect
on the delivery of medical and health care in Texas, including the significant reductions of
availability of medical and health care services to the people of Texas, and a likelihood of
further reductions in the future, that the direct cost of medical care to the patient and public
and the injury, harm, or damages claimed.
TEX. CIV. PRAC. &REM. CODE§ 74.35l(r)(6).
-6-
materially increased due to rising costs of malpractice insuranc~. The legislature included
within House Bill 4 of the 78th Legislative Session, the following at section 10.11 of the bill
that enacted Chapter 74:
SECTION 10.11.
(a) The Legislature of the State of Texas finds that:
( 1) the ll1:1ffiber ofhealth care liability claims (frequency) has
increased since 1995 inordinately;
(2) the filing of legitimate health care liability claims in
Texas is a contributing factor affecting medical professional liability rates;
(3) the amounts being paid out by insurers in judgments and
settlements (severity) have likewise increased inordinately in the same short
period;
(4) the effect of the above has caused a serious public
problem in availability of and affordability of adequate medical professional
liability insurance;
(5) the situation has created a medical malpractice insurance
crisis in Texas;
(6) this crisis has had a material adverse effect on the delivery
of medical and health care in Texas, including significant reductions of
availability of medical and health care services to the people of Texas and a
likelihood of further reductions in the future;
(7) the crisis has had a substantial impact on the physicians
and hospitals of Texas and the cost to physicians and hospitals for adequate
medical malpractice insurance has dramatically risen, with cost impact on
patients and the public;
(8) the direct cost ofmedical care to the patient and public of
Texas has materially increased due to the rising cost of malpractice insurance
protection for physicians and hospitals in Texas;
·1-
(9) the crisis has increased the cost of medical care both
directly through fees and indirectly through additional services provided for
protection against future suits or claims, and defensive medicine has resulted
in increasing cost to patients, private insurers, and Texas and has contributed
to the general inflation that has marked health care in recent years;
(I 0) satisfactory insurance coverage for adequate amounts of
insurance in this area is often not available at any price;
-.·
-~~ ·
( 11) the combined effect of the defects in the medical,
insurance, and legal systems has caused a serious public problem both with
respect to the availability of coverage and to the high rates being charged by
insurers for medical professional liability insurance to some physicians, health
care providers, and hospitals; and
(12) the adoption of certain modifications in the medical,
insurance, and legal systems, the total effect of which is currently
undetermined, will have a positive effect on the rates charged by insurers for
medical professional liability insurance.
··.
•..
(b) BecauseoftheconditionsstatedinSubsection(a)ofthis section,
it is the pwpose of this article to improve and modify the system by which
health care liability claims are determined in order to:
(1) reduce excessive frequency and severity of health care
liability claims through reasonable improvements and modifications in the
Texas insurance, tort, and medical practice systems;
(2) decrease the cost of those claims and ensure that awards
are rationally related to actual damages;
(3) do so in a manner that will not unduly restrict a claimant's
rights any more than necessary to deal with the crisis;
(4) make available to physicians, hospitals, and other health
care providers protection against potential liability through the insurance
mechanism at reasonably affordable rates;
(5) make affordable medical and health care more accessible
and available to the citizens of Texas;
-8-
(6) make certain modifications in the medical, insurance, and
legal systems in order to determine whether or not there will be an effect on
rates charged by insurers for medical professional liability insurance; and
(7) make certain modifications to the liability laws as they
relate to health care liability claims only and with an intention of the
legislature to not extend or apply such modifications of liability laws to any
other area of the Texas legal system or tort law.
..·
:. ,.
Act of June 2, 2003, 78th Leg. R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847 (current
version at TEX. Crv.PRAc.&REM.CODE §§ 74.001-.507 (Vemon2005)). In order to ensure
the legitimacy of health care liability claims, the legislature made the service of an expert
report a "threshold" requirement to pursuing a health care liability claim. See Murphy v.
Russell, 167 S.W.3d 835, 838 (Tex. 2005)(discussingformerstatute). Thus, in keeping with
the legislative intent, when no expert report is served within the 120-day deadline, the trial
court will abuse its discretion when it denies a motion to dismiss. See Kendrick v. Garcia,
171 S.W.3d 698, 704 (Tex. App.-Eastland, Aug. 18, 2005, pet. filed) (reversing trial court's
order denying motion to dismiss where experts' reports were served before 120-day deadline,
but never served). When a trial court abuses its discretion in this manner, section
51.014{a)(9) gives the health care provider the right to have the trial court,s decision
reviewed by on appeal.
B. Respondent Failed to Serve an Expert Report as Mandated by Section
74.351Within120 Days After the Date ofFilin& the Health Care Liability
:-:;·
Claim; Thus. the Trial Court Was Required to Dismiss the Suit with
frejudice
1. Respondent Failed to Timely Serve Any Expert Report
Section 74.35l(a) mandated that Respondent serve a sufficient expert report on
-9-
Petitioner before the expiration of the I 20th day since filing the health care liability claim.
See TEX. C1v.PRAc. &REM. CODE§ 74.35l(r)(6). Respondentfiledherhealthcare liability
claim against Petitioner on October 24, 2003. {l CR 5). Pursuant to section 74.35l(a),
Respondent's deadline to serve the required expert report was February 23, 2004. See TEx.
.. Crv. PRAC. & REM. CODE§ 74.351 (a). Because Respondent failed to serve any expert report
: .
on Petitioner by Fe~ruary 23, 2004, Petitioner filed his motion to dismiss on the grounds that
Respondent had failed to comply with section 74.3 51 (a) by not serving an expert report by
the 120111 day after the lawsuit was filed. (See 1 CR 16). Petitioner requested dismissal of
Respondent's cause of action with prejudice, as required under section 74.351 (b). (I CR 16).
The trial court was required to dismiss Respondent's health care liability claim to satisfy the
legislative mandate that suits be dismissed for failure to timely serve any expert report.
2. The Trial Court Abused its Discretion in Denying Petitioner's Motion
to Dismiss Wlien No Expert Report Had Been Sened on Petitioner
The trial court abused its discretion in denying Petitioner's motion to dismiss under
section 74.3 51. A trial court abuses its discretion if it acts without reference to any guiding
rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine
Operators. Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court has no "discretion" in
determining what the law is or applying the law to the facts. Walke,. v. Packer, 827 S.W.2d
833, 840 (Tex. 1992). Thus, a clear failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion. Id.
Because no expert report had been served on Petitioner by the 120111 day after the filing
date, the trial court abused its discretion in denying Petitioner's motion to dismiss. Dismissal
-10-
...
was mandatory. See Thoyakulathu v. Brennan, No. 06-05-00070-CV, 2006 WL 1096191,
.,,.
at *4 (Tex. App.-Texarkana April 27, 2006, no pet. h.). The Brennan Cowt of Appeals
acknowledged what is apparent from the statute itself, that without service of an expert
report, the case must be dismissed:
Brennan concedes he did not timely serve Appellants with an expert report of
any kind. There is no provision under which Brennan could seek or be granted
an extension. Section 74.35l(c) applies only when an expert report was not
"served" because it was inadequate, not when no report was served at all.
Id. Employing strict construction ofsection'51.014(aX9), the Brennan Court of Appeals
reasoned that its review was limited to the portion of the trial court's ruling that denied the
motion to dismi~s. See id. at *l n.2 ("We strictly construe Section 51.014 as a narrow
exception to the general rule that only final judgments or orders are appealable and,
therefore, limit our review to the trial court's order denying the doctor's motion to dismiss.")
(citing Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)).
Perhaps most importantly, the Brennan Court of Appeals resolved the tension in the
appealability of the denial of a motion to dismiss infavor of exercising its jurisdiction to
consider the denial of the modon to dismiss:
Inevitably, however, our holding that the trial court erred in denying
Appellants• motion to dismiss affects the trial court's order granting the
extension. 1bis consequence is consistent with and unavoidable under the
structure of the statute. "[T]he relief a court grants under (b) is always 'subject
to Subsection (c),' which allows a trial court to deny a defendant's motion to
dismiss with fees and costs and instead grant a 30-day extension even where
'an expert report has not been served within the period specified .. · because
elements of the report are found deficient"' Acad. of Oriental Med., L.L. C.
v. Andra, 173 S.W.3d 184, 188 (Tex. App.-Austin 2005, no pet). So, our
actual determination will be whether, under Section 74.35l(b), the trial court
was required to dismiss Brennan's claims against Appellants, in effect
-11-
determining whether the trial court lacked the authority to do anything else,
including granting an extension.
Id. The reasoning in Brennan is important here. There being no expert report, the trial court
had no discretion but to dismiss Respondent's health care liability claim. The CoW1 of
Appeals' refusal to exercise its jurisdiction to consider this specific issue constituted an error
~. · . w
••• !...;":...
of law that this Court should review.
C. Proper Statutory Construction of Section 51.014Ca)C9) Permits Appeal of
the Denial of a Motion to Dismiss a Health Care Liability Claim for
Failure to Serve an E:x;pert Report
1. Standard for Statutory Construction
Section 51.0 l 4(a)(9) gives the courts of appeal jurisdiction to consider the denial of
a motion to dismiss a health care liability claim for failure to file an expert report. Proper
statutory construction of section 51.014(a)(9} supports the Court of Appeals' jurisdiction.
It is "cardinal law in Texas that a court construes a statute, 'first by looking to the
plain and common meaning of the statute's words."' Fitzgerald v. Advanced Spine Fixation
Systems, Inc., 996 S.W.2d 864, 865 (Tex. 1999) (quoting Liberty Mut. Ins. Co. v. Garrison
Contractors, 966S.W.2d42,44(Tex.1998)};seealsoMokkalav. Mead, 178 S.W.3d66, 71-
72 (Tex. App.-Houston [14th Dist.] 2005, pet. filed).
In construing a statute, this Court's objective is to determine and give effect to the
legislature's intent. City ofSan Antonio v. City ofBoerne, 111S.W.3d22, 25 (Tex. 2003);
Mokkala, 178 S. W.3d at 71-72. The intent is detennined from the entire act, not just isolated
portions, and the statute is read as a whole, interpreting it so that every part is given effect
Mokkala, 178 S. W.3d at 71. Finally, even if a statute is unambiguous on its face, this Court
-12-
may consider matters including (1) the object the legislature sought to obtain; (2) the
f -· ·
'.
circumstances under which the legislature enacted the statute; (3) the legislative history; (4)
common law or former statutory provisions, including laws on the same or similar subjects;
and (5) the consequences ofa particular construction. See id. (citing TEX. Gov'TCODEANN.
.": .......
§ 311.023 (Vernon 2005)) .
2. Section 51.014(a)(9) Specifically Authorizes Jurisdiction over the
Interlocutory Appeal of the Trial Court 1s Failure to Dismiss the
Chapter 74 Health Care Liability Claim Where no Expert Report is
Served by 12(/11 Day After Suit is Filed
Section 51.014(a)(9) grants jurisdiction in the courts of appeals to review an
interlocutory appeal ofa denial of all or part of a motion to dismiss under section 74.35l(b)
for failure to timely serve an expert report:
L·.
(a) A person may appeal from an interlocutory order of a district court, county
court at law, or county court that:
***
(9) denies all or part of the relief sought by a motion under Section 74. 351 (b),
except that an appeal may not be taken from an order granting an extension
under Section 74.351;
TEX. CIV. PRAC. & REM. CODE§ 51.014(a)(9); see also Raley v. Arboretum Group, No.
10-06-00053-CV, 2006 WL 1280933, at *l (Tex. App.-Waco May 10, 2006, no pet. h.)
(recognizing that the right to interlocutory appeal of an "order 'den[ying ] all or part of the
relief sought by a motion under Section 74.351(b)"' but dismissing for lack of jurisdiction
····:
where the claimant had appealed the granting of a motion to dismiss). Further, inMokkala,
the Fourteenth Court of Appeals interpreted the legislative intent underlying section
74.35 l(a) to determine that a "claim" means "a health care liability claim." Mokkala, 178
-13-
S.W.3dat71 (interpreting section 74.351inaccordancewithActofMay5, 1995, 74thLeg.,
-··.·
R.S., ch. 140, 1, 1995 Tex. Gen. Laws 985, 986 (setting forth expert-report procedure)).
When sections 54.014(a)(9) and 74.351 of the Texas Civil Practice and Remedies Code are
interpreted together in accordance with the legislative intent, it becomes apparent that the
Court of Appeals had jurisdiction here to consider the appealable issue even though a non-
appealable issue was present.
a. The Interlocutory Appeal Statute is to be Strictly Construed,
and Strict Construction Favors Interlocutory Appeal
Section 51.014(a)'s authorization of interlocutory appeals is an exception to the
general rule that only final judgments and orders are appealable. Andra, 173 S. W.3 d at 184-
85. Thus, section 51.0l4(a}(9) must be strictly construed. Id. (citing Bally Total Fitness
Carp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); Bexar Metro. Water Dist. v. City of
Bulverde, 156 S.W.3d 79, 85 (Tex. App.-Austin 2005, pet. denied)).
The Court of Appeals failed to strictly construe section 51.014(a)(9). Instead, the
Court of Appeals applied only the exception to jurisdiction of interlocutory appeals found
within subsection (a)(9). The Court of Appeals did not apply subsection (a)(9)'s general
allowance for interlocutory appeals. Ifthe Court ofAppeals had strictly construed subsection
(a)(9) and applied all of the statutory language, it should have concluded that it had
jurisdiction over Petitioner's appeal because Petitioner challenged solely the trial court's
denial of the motion to dismiss, a basis for jurisdiction in subsection (a)(9). This was
precisely the construction of the statute noted in Brennan. See Brennan, 2006 WL 1096191,
at *4. Because the Court of Appeals conducted an improper construction of section
-14-
51.014(a)(9), this Court should exercise its jurisdiction to review this matter.
b. The Interrelatedness of an Extension of Time Under Section
74.351 and the Denial of a Motion to Dismiss Under Section
74.351 Does Not Defeat Jurisdiction over the Interlocutory
Appeal, and the Court of Appeals' Holding Confficts with
Other Courts of Appeals' Exercise of Jurisdiction Where
One Issue is Properly the Subject of Interlocutory Appeal
and One is Not
Petitioner directed the Court of Appeals to a specific issue: the trial court 1 s failure to
dismiss the health care liability claim where no expert report had been served within 120 days
after the filing of the claim. Nevertheless, the Court of Appeals construed the brief against
Petitioner and interpreted it as focusing on the trial court's granting of an extension of time
to serve the expert report. See Badiga, 2005 WL 1572273, at *I. The Court of Appeals
claimed:
Although appellant maintains that this interlocutory appeal is based on the
120-day filing requirement wider section 74.35l(b), the briefs argwnents
revolve solely around the legality of the trial court's granting of the 30-day
extension under 74.35l(c). In other words, the substance of the appeal is
directed at the legality of the 30-day extension.
Id. The lack ofjurisdiction over that ruling does not preclude statutory jurisdiction from the
Court of Appeals. Instead, the Court of Appeals maintained the jurisdiction specifically
provided for in subsection (a)(9)-jurisdiction over a trial court's denial of a motion under
section 74.351 (b).
Other courts of appeals have recognized that they have jurisdiction over a case even
if one issue is properly the subject of an interlocutory appeal and one is not. See, e.g., Letson
v. Barnes, 919 S.W.2d 414, 417 (Tex. App.-Amarillo 1998, pet. denied) ("Yet, to the extent
-15-
that the subject matter of a the non-appealable interlocutory order may affect the validity of
the appealable order, the non-appealable order may be considered."); America Online, Inc.
v. Williams, 958 S.W.2d 268, 271 (Tex. App.-Hous. [14 Dist.] 1997, no writ) (although the
appellate court lacked jurisdiction over certain matters, "the appellate court has jurisdiction
over matters related to certification that are also included in the order.") (citing American
Express Travel Related Servs. Co. v. Walton, 883 S.W.2d 703, 707 (Tex. App.-Dallas 1994,
orig. proceeding) (since the trial court had disposed of issues of class size and notification
in its order certifying the class, the appellate court had jurisdiction to review those collateral
issues)); Texas R.R. Comm'n v. Air Prods. & Chems., Inc., 594 S.W.2d 219, 221-22 (Tex.
Civ. App.-Austin 1980, writ refd n.r.e.) ("Non-appealable interlocutory orders cannot be
attacked in an appeal from an appealable interlocutory order, except insofar as the question
raised might affect the validity of the appealable order.'l The Court of Appeals erred by
refusing to exercise its jurisdiction over the appealable issue.
In fact, to allow the inextricable presence of an non-appealable matter to defeat the
grant of jurisdiction over an appealable matter would render the specific statutory grant of
jurisdiction a nullity. Cf Letson, 919 S.W.2d at 417; Williams, 958 S.W.2d at 271; Air
Prods. & Chems., Inc., 594 S.W.2d at 221-22. Here, the reasoning of the Court of Appeals
- applying the exception to appealability first - did indeed render section 51.014(a)(9) a
nullity. The Court of Appeals' opinion demonstrates that it did not first consider and apply
the primary language of section 51.0 l 4(a)(9), which permits appeal. Instead, the Court of
Appeals first applied the exception:
The language of section 51.014(a)(9) excludes the possibility of an
interlocutory appeal regarding the 30-day extensions granted under section
74.351(c), and thus does not create the exceptionaljwisd.iction necessary for
this Court to hear appellant's claim. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(9).
Badiga, 2005 WL 1572273, at *1. By jumping to the exception first, the Court of Appeals
overrode the legislature's specific allowance permitting the appeal of the denial of a motion
to dismiss under Chapter 74.
Accordingly, while the Court of Appeals certainly had express jurisdiction over the
trial court's denial ofPetitioner's motion to dismiss filed pursuant to section 74.351 (b). And
to dismiss the appeal for lack of jurisdiction constituted a failure to properly construe the
grant of jurisdiction contained in section 51.014(a)(9). See Letson, 919 S.W.2d at 417;
Williams, 958 S.W.2dat271;Air Prods. & Chems., Inc., 594 S.W.2d at221-22. The Court
of Appeals' decision in this matter conflicts with other courts of appeals' decisions on a
question of law material to the decision regarding a court of appeals' jurisdiction over
interlocutory appeals. See Brennan, 2006 WL 1096191, at *1 n.2; see also Letson, 979
S.W.2d at 417; Williams, 958 S.W.2d at 271; Air Prods. & Chems., Inc., 594 S.W.2d at
221-22.
c. Additionally, Other Courts Have Recognized a Right to an
Interlocutory Appeal Under Section Sl.014(a)(9) from the
Denial of a Motion to Dismiss
Other courts have recognized a legislatively-enacted right to pursue an interlocutory
appeal from an order denying a motion to dismiss where no expert report was timely served.
See, e.g., Christus Health Southeast Texas v. Griffin, 175 S.W.3d 548, 552 (Tex.
-17-
App.-Beaumont Oct. 20, 2005, no. pet. h.) ("The additional legislation authorizing
interlocutory appeal when a trial court denies a ~otion to dismiss for failure to [serve] an
adequate expert report also applied 'only to an action filed on or after the effective date' of
September 1, 2003."); Fort Worth Southwest Nursing Ctr., L.L.C. v. Bly, 2004 WL 314907,
... at* 1 (Tex. App.-Fort Worth Feb. 19, 2004, no pet.); see also In re Women's Hosp. ofTexas,
•t ......
Inc., 141 S.W.3d 144, 148 (Tex. 2004) (Owen, J., concurring and dissenting) {noting that
interlocutory appeal is available only in health care liability cases filed on or after September
1, 2003).
In Bly, the Forth Worth Court of Appeals recognized that section 51.014(a)(9) allows
interlocutory appeals from "orders denying motions to dismiss based on untimeliness of
expert reports(.]" Bly, 2004 WL 314907, at *1 n.4 (emphasis added). Here, the issue in the
trial court was the witimeliness of the expert report - in that no expert report at all had been
timely served. Section 51.014(a)(9) specifically provides for an appeal for the failure to
dismiss a case when no expert report has been timely served. See id. The issue was properly
the subject of Petitioner's interlocutory appeal, and it did not fall within the "exception" to
the interlocutory appeal. See Andra, 173 S.W.3d at 184-85 (recognizing that section
51. 014(a)(9) " includes an exception: 'an appeal may not be taken from an order granting an
extension under Section 74.351 "). Here, because the only issue appealed was the denial of
the motion to dismiss, the issue fell within the statutory grant of jurisdiction in section
51. 014(a)(9), and the Court of Appeals erroneously failed to exercise jurisdiction over the
interlocutory appeals from the order denying the motion to dismiss. See TEX. CIV. PRAC. &
-18-
4. The Legislative History Underlying House Bill 4 Supports the Court
.......:
ofAppeals' Jurisdiction Over an Interlocutory Appeal
Section 51.014(a)(9) was added to the Texas Civil Practice and Remedies Code by
legislation effective September 1, 2003. See Act of Sept. 1, 2003, 78th Leg., R.S. ch. 204,
§ 1.03, 2003 Tex. Gen. Laws 847 (current version at TEX. CIV. PRAC. & REM. CODE §§
74.001-.507 (Vernon 2005)). It is noteworthy that the enactment coincided with the
enactment of Chapter 74, and that the legislature specifically chose to codify the grant of
jurisdiction in the section of the Texas Civil Practice and Remedies Code governing
interlocutory appeals. Although there is little legislative history explaining the statutory
addition of section 51.014(a)(9), the reference to "relief sought by motion under Section
74.351 (b)" gives rise to consideration of the legislative history behind Chapter 74. 3 And in
interpreting the enactment of section 51.014(a)(9), the Court may refer to the circumstances
under which the legislature enacted sections 74.351(a) and (b) and section 51.014(a)(9). See
Mokkala, 178 S.W.3d at 71-72.
Commentators recognize the House Bill 4 amendment to section 51.014 of the Texas
Civil Practice and Remedies Code. See Michael S. Hull et al., House Bill 4 and Proposition
12: An Analysis with Legislative History, Part Three, 36 TEX. TECH L.R. 169, 212 (2005)
("H.B. 4 amended Section 51.014 of the Civil Practice and Remedies Code, the section
.......
In speaking on the intent behind Chapter 74's expert report requirement, Representative Joe Nixon
stated, "[T]be herd reality is we just need to make a hard and fast deadline, like we do on statue [sic] oflimitations-as
we do on other requirements." Debate on Tex. H.B. 4 on the Floor of the House, 78th Leg., R.S. 317 {Mar. 19, 2003)
(statement ofRep. Nixon) (transcript available from Capitol Research Services, Austin, Texas). He agreed that, ifHouse
Bill 4 were passed, it meant that, if an attorney missed the deadline for "filing [sic]" the expert report. the plaintiffwould
be barred from prosecuting that claim. Id. Thus, in keeping with the intent behind Chapter 74, the legislature's objective
behind section 51.0 I 4(a}(9) was to authorize jurisdiction in the Courts ofAppeals overa trial court's failure to recognize
that the plaintiff would be barred from prosecuting the claim for failing to serve any expert report within 120 days from
the filing of suit.
-20-
regarding appeals from interlocutory orders ..."). Further, "the right of an interlocutory
.'.;', .
appeal applies to cases in which either no report has been filed or a deficient report has been
filed." Id. at 214. Here, no report was served by the 120-day deadline. Thus, in accord with
the legislative intent underlying section 51.014(a)(9) in keeping with the intent behind
Chapter 74, the Court of Appeals had jurisdiction over Petitioner's interlocutory appeal of
the denial of the motion to dismiss. See id.
5. The Court ofAppeals' Ruling Precludes an Appeal ofa Trial Court's
Denial ofa Motion to Dismiss for No Expert Report Where the Trial
Court Also Grants an Extension
a. The Court of Appeals Improperly Construed Petitioner's
Appeal, Disregarding Petitioner's Single Issue, the
Arguments of Petitioner and Respondent, Sections 74.351(a)
and (b), and Petitioner's Right to Appeal Under Section
51.014(a)(9)
As stated, section 51.014(a)(9) provides for a right to appeal any denial of a motion
to dismiss for failure to serve an expert report under section 74.351 (a). Petitioner filed his
interlocutory appeal as authorized by this section. Within his briefing, Petitioner repeatedly
emphasized that the appeal concerned the trial court's denial of the motion to dismiss:
Appellant requests the Appellate Court vacate the trial court's order ofAugust
10, 2004, denying Appellant's Motion to Dismiss pursuant to TEX. CIV. PRAC.
& REM. CODE § 74.3 51 (b) and order this case dismissed with prejudice.
***
ISSUES PRESENTED
Issue 1:
!··:
Did the trial court err in denying Appellant's Motion to Dismiss under Texas
Civil Practice & Remedies Code§ 74.351(b), when Appellee failed to file an
expert report within 120 days after the date Appellee's claim was filed?
(Appellant's Brief at I, 2, ).
-21~
Appellant is not challenging the adequacy of Plaintiffs expert report through
this appeal. To do so would be improper. Appellant is challenging the trial
court's ruling denying Defendant's Motion to Dismiss based on Plaintiffs
failure to file an expert report within 120 days ofthe filing of suit as prescribed
by TEX. Crv. PRAc. &REM. CODE§ 74.35l(a) and (b).
***
Therefore, the only issue on appeal is whether the trial court erred in denying
the Appellant's Motion to Dismiss under TEX. Crv. PRAC. & REM. CODE§
74.35l(b). when theAppelleefailed to file an expert report within 120 days of
the date the claim was filed.
(Appellant's Reply at 3-4). Even Respondent recognized that the scope of the appeal was
limited to the denial of Petitioner's motion to dismiss:
This appeal stems from an Order denying Appellant's Motion to Dismiss the
medical malpractice action filed by Appellee against Appellant (Ct. R., at 5).
The basis of Appellant's Motion to Dismiss was that Appellee failed to file an
expert report within 120 days after filing suit in accordance with the Texas
Civil Practice & Remedies Code§ 74.351.
***
[T]he Defendant/Appellant's challenge is rooted only in the 120-day
requirement, which the trial court denied.
(Appellee's Brief at 1, 3). Despite the stated scope of the appeal, the Court of Appeals
construed Petitioner's argument as concerning solely the granting of the extension:
Although appellant maintains that this interlocutory appeal is based on the
120-day filing requirement under section 74.35l(b), the briefs arguments
revolve solely arowid the legality of the trial court's granting of the 30-day
extension under 74.35l(c). In other words, the substance of the appeal is
directed at the legality of the 30-day extension.
***
Any relief that appellant could obtain from section 74.351 (b) would turn upon
appellee's failure to produce a sufficient report within the required 120-day
time period. However, this time period was extende.d 30 days by the trial court
pursuant to section 74.35l(c) .... Since the sufficiency of the report is not an
issue, this Court is left only to consider the issue of the legality of the 30-day
extension provided by the trial court.
(Tab A at 3). The Court of Appeals disregarded Petitioner's plainly-stated issue, the thrust
-22-
of Petitioner's and Respondent's arguments, and Petitioner's statutory right to appeal the
denial of the motion to dismiss, to conclude that Petitioner appeared to have argued "solely''
the legality of the extension.
In construing Petitioner's briefing narrowly to only encompass the non-appealable
., ~· r
issue, the Court of Appeals failed to liberally construe Petitioner's issue to obtain a just, fair,
and equitable adjudication of Petitioner's rights. See Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690 (Tex. 1989) ("[I]t is our practice to construe liberally points of error in
order to obtain a just, fair and equitable adjudication of the rights of the litigants."); see also
Reardon v. LightPath Technologies, Inc., 183 S.W.3d 429, 443 (Tex. App.-Hous. [14 Dist.]
2005, pet. denied) ("We construe briefing rules reasonably yet liberally, so that the right to
appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of
a rule.,,)(citing Republic Underwriters Ins. Co. v.Mex.-Texlnc., 150 S.W.3d423,427 (Tex.
2004); Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54-55 (Tex. 1998V'). The Court
of Appeals effectively denied Petitioner the right to appeal specifically provided for in
section 51.014(a)(9). The Court of Appeals should have considered the appealable issue
even though a non-appealable issue was present.
b. The Issue is Likely to Recur
The issue presented is likely to recur. In fact, the Third Court ofAppeals recently held
that no right to appeal exists unless the trial court denies a motion to dismiss under section
74.351 only ifit does not also grant an extension of time to cure the deficiencies. See Heart
Hosp. ofAustin v. Matthews,_ s. W.3d _,No. 03-05-00317-CV, 2006 WL 1194881 (Tex.
-23-
App. -Austin, May 5, 2006, no pet. h.). In Matthews, a similar situation arose entailing the
denial of a motion to dismiss and grant of an extension to cure deficient expert reports:
In this case, appellees filed several reports attempting to satisfy section 74.3 51.
Ogletree objected to those reports and also moved for dismissal under
subsection 74.351(b). The trial court agreed that the reports were deficient as
to Ogletree, but exercised its discretion to grant appellees an extension of time
~·~..: ·. -
to file satisfactory reports under subsection 74.351(c) and denied Ogletree's
motion to dismiss. Because the trial court's denial of Ogletree's motion also
granted an extension under subsection 74.3Sl(c), an interlocutory appeal may
not be brought from the court's order. We lack jurisdiction over Ogletree's
appeal and therefore dismiss Ogletree's appeal for want of jurisdiction.
Id. at *3. The Third Court of Appeals reasoned that no right to appeal exists where the
appealable portion of the trial court's order was combined with the non-appeal able portion:
[A]n interlocutory appeal from the denial of a motion to dismiss under
subsection 74.3 51 (b) is proper only ifthe trial court's order does not also grant
an extension under subsection 74.35l(c). Id. To hold otherwise would
essentially eliminate the phrase "an appeal may not be taken from an order
granting an extension under Section 74.351,, from subsection 51.014(a)(9).
Id. Apparently, the Matthews Court of Appeals employed the same erroneous reasoning as
the Court of Appeals here in concluding that the presence of the non-appealable grant of an
extension eliminated· the right to appeal. Although Matthews is similar to Petitioner's
situation in some respects, it is also distinguishable from the instant situation. Contrary to
the Matthews facts, here, no expert report was served on Dr. Badiga. Thus, the trial court had
before it no expert report and was required to dismiss the lawsuit.
·:~ ' ..
The Third Court of Appeals in Matthews followed a footnote in its prior opinion in
Andra, 173 S.W.3d 184 (Tex. App.-Austin 2005, no pet.). In Andra, the Third Court of
Appeals addressed the argument of whether the trial court's denial of a motion to strike an
-24-
expert report was appealable under section 51.014(a)(9). See id. at 184. The appellants had
requested that the trial court strike the report but did not request the relief outlined in section
74.351(b): dismissal with prejudice and attorney's fees. See id. at 186. The appellants also
did not assert that no expert report had been timely served because the deadline had not run
at the time appellants filed the motion. See id. Consequently, the Third Court of Appeals
construed the appellants' motion to strike as a motion for relief under section 74.351(1), not
under section 74.351 (b); thus, there was no interlocutory jurisdiction under 54.0 l 4(a)(9). See
id. In a footnote, the Third Court of Appeals noted:
The grant of an extension to the plaintiff can be a denial of a defendant's
motion under 74.35l(b). Section 51.014(a)(9) generally makes such denials
the proper subject of an interlocutory appeal. Id. § 51.104(a)(9) (West Supp.
2004-05).
Id. at 188 n.7. However, the Andra Court of Appeals continued:
Rather than inviting us to assume jurisdiction over interlocutory appeals of
denials of motions other than motions for relief under section 74.35l{b), the
exception in 51.014(9) clarifies that an interlocutory appeal is only available
when the court had denied a defendant's motion but had not granted the
plaintiff additional time to cure deficiencies. See id. §§ 51.014(9); 74.35l(b),
(c).
Id. Under the reasoning of the Third Court of Appeals and the Court of Appeals in this case,
the granting of an extension eliminates the right to appeal the denial of the motion to dismiss.
See id.
One other court of appeals, the Tenth Court of Appeals, has recognized the need for
clarity regarding the appealability of interlocutory orders denying relief requested under
section 74.351 and granting an extension: "Though it is not entirely clear where the line is
-25-
to be drawn between the denial of a motion to dismiss under section 74.35l(b) and the
granting of an extension under section 74.3 51 (c), the defendant is expressly prohibited from
bringing an appeal from an order granting such an extension." Lewis v. Funderburk, No.
10-05-00197-CV, 2006 WL 870943, at *3 (Tex. App.-Waco April 5, 2006, no pet. h.).
:: ~~~: Funderburk had filed suit on December 22, 2003, so the 120-day statutory deadline for
Funderburk to serve an expert report on Lewis was April 20, 2004. There being on timely
served expert report, Lewis filed a motion to dismiss on June 28, 2004. The court denied
Lewis' motion to dismiss and granted Funderburk's motion for a 30-day extension. See id.
at *1. Thereafter, Funderburk timely served an expert report. See id. Lewis responded with
a second motion to dismiss due to the inadequacy of the expert report, coupled with a motion
for reconsideration of the prior denial of the first motion to dismiss and an objection to the
sufficiency of plaintiffs expert report. See id. The trial court denied the motions, and Lewis
filed a notice of appeal.
The majority determined that notice of appeal was filed too late after the denial of the
first motion to dismiss; thus, there was no appellate jurisdiction to consider the trial court's
ruling that combined the denial of the motion to dismiss with the grant of an extension. See
id. at *2. The Tenth Court of Appeals characterized the second motion to dismiss and
objections to adequacy of the expert report as challenges to the expert report under section
74.3 51 (/). See id. at *3. There being no appellate jurisdiction for a defendant's appeal of the
denial of a section 74.351(/) motion, the majority dismissed the appeal for want of
jurisdiction. See id. at *4.
-26-
Chief Justice Gray dissented, recognizing that the first order bad denied the motion
to dismiss and granted an extension. See id. at *4-5. But even then, the court of appeals had
jurisdiction because the following expert report was deficient:
the challenge to the sufficiency of an extended report is still a challenge
pursuant to section 74.351(b) that no compliant report has been timely served
as required by section 74.351(a). And the denial of all or part of the relief
11
sought by a motion under Section 74.351(b)" by a defendant can be reviewed
by interlocutory appeal. Tex. Civ. Prac. & Rem. Code Ann.§ 51.014(a)(9).
See id. at *4-5. However, the dissent followed Andra, reasoning that in order "to give effect
to all parts of the statute, the exception requires that the defendant must wait and appeal
objections to the extended report, including that there was never a report upon which the
extension could be based!' Id. at *8 (citing Andra, 173 S.W.3d at 188 n.7).
The interpretation adopted by the Third and Thirteenth Courts of Appeals (and
recognized by the Tenth Court of Appeals in dissent) conflicts with the line of case authority
considering appealable interlocutory rulings even when coupled with non-appealable
interlocutory rulings. See, e.g., Brennan, 2006 WL 1096191, at *4; Letson, 919 S.W.2d at
417; Williams, 958 S.W.2d at 271; Air Prods. & Chems., Inc., 594 S.W.2d at 221-22. Such
interpretation also works an injustice because it precludes any defendant's right to appeal the
denial of the motion to dismiss for failure to serve an expert report when the trial court grants
an extension - even if no expert report had been served. As stated above, the legislature
intended the 120-day deadline to be a mandatory date - only if the claimant had served a
deficient report could an extension be granted. The legislature provided no such leeway for
the failure to serve a11y expert report. See Mokkala, 118 S. W.3d at 74-76.
-27-
According to the Court of Appeals' opinion, if the trial court refuses to dismiss and
grants an extension, or if the trial court grants an extension because a report was timely
served but was deficient, any appeal therefrom would "revolve solely around the legality of
the trial court's granting of the 30-day extension under74.351(c)." (Tab A at2). The Court
_: --. : of Appeals' reasoning is based on a misconstruction of section 51.014(a)(9) which is likely
to recur and which would preclude any defendant's right to appeal the denial of a motion to
dismiss for no expert report when the trial court grants an extension. Because this result
conflicts with a defendant's right interlocutory appeal, this Court should exercise its
discretion to review this matter. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9); Bly, 2004
WL 314907, at *I n.l; Michael S. Hull et al., House Bill 4 and Proposition 12: An Analysis
with Legislative History, Part Three, 36 TEX. TECH L.R. 169, 212-214 (2005).
D. This Court has Jurisdiction Over this Interlocutory Appeal
1. The Court has Jurisdiction to Determine if the Court of Appeals
Properly Declined to Exercise its Jurisdiction
This Court has jurisdiction "to determine whether or not the Court of Civil Appeals
has jurisdiction of the interlocutory orders from which the appeals were attempted." Long
v. Humble Oil & Refining Co., 380 S.W.2d 554, 555 (Tex. 1964) (citing McCauley v.
Consolidated Underwriters, 304 S.W.2d 265 (Tex. 1957)), cited in University of Texas
Medical Branch at Galveston v. Barrett, 159 S.W.3d 631, 633 n.8 (Tex. 2005); see also Del
Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). "[E]ven when an appeal
is interlocutory, we have jwisdiction to determine whether the court of appeals has
jurisdiction of the appeal." University of Texas Southwestern Medical Center ofDallas v.
-28-
Margulis, 11S.W.3d186, 187 (Tex. 2000) (citingAwde v. Dabeit, 938 S.W.2d31, 32 (Tex.
1997); De Los Santos v. Occidental Chem. Corp., 933 S.W.2d 493, 494 (Tex. 1996); Del
Valle, 845 S.W.2d at 809; Long, 380 S.W.2d at 555).
In Del Valle, the issue was whether the court of appeals had properly declined to
exercise its jurisdiction over an interlocutory appeal of an order granting a temporary
injunction. "Though appellate review is generally limited to final judgments, a court of
appeals may consider an interlocutory order that grants a temporary injunction." Del Valle,
845 S.W.2dat809 (citingTEX.CIV.PRAc.&REM.CODE §§ 51.012, 51.014(4)). Jurisdiction
turned on whether the trial court's order could have been "properly be characterized as a
temporary injunction.,, ld. The trial court's order provided mandatory, temporary relief
pending final resolution of the case. Id. But it did not state that it was a writ of injunction.
Id. Determining that the character and function of the order itself determines its
classification, the Court reasoned that the order was a temporary injunction. Id.
Consequently, the court of appeals should have exercised jurisdiction over the interlocutory
appeal. Id.
Here, this Court has jurisdiction to determine whether the court of appeals erred in
refusing to consider the trial court's denial of Petitioner's motion to dismiss. The Court may
exercise its jurisdiction commensurate with its reasoning in Long and Del Valle and review
the court of appeals' detennination that it lacked jurisdiction over Petitioner's interlocutory
appeal under section 51.014(a)(9).
-29-
2. This Court has Also Jurisdiction Over This Interlocutory Appeal
Because ofA Conflict in the Courts ofAppeals
a. This Court has Recognized Jurisdiction Where Courts of
Appeals' Decisions Conflict
This Court has jurisdiction over this interlocutory appeal because of a conflict in the
;_. _·•
courts of appeals concerningjurisdiction to consider rulings that involve appealable and non-
appealable issues. See TEX. GOV'T CODE §§ 22.225(b)(3), 22.225(c), 22.00l(a)(2).4
Although this Court generally does not have jurisdiction to consider a petition from an
interlocutory appeal, there is an exception for cases in which one of the courts of appeals
holds differently from a prior decision of this Court. See Thomas v. Long, No. 03-0204, 2006
WL 1043429, at *2, 49 Tex. Sup. Ct. J. 532 (Tex. April 21, 2006) ("We have jurisdiction
over this interlocutory appeal because there is a conflict among the courts of appeals on
whether a governmental unit's challenge to subject matter jurisdiction is appealable if raised
in a motion for summary judgment."); Van LS.D. v. McCarty, 165 S.W.3d 351, 352 (Tex.
2005) (concluding conflict existed between opinion of court of appeals and prior decision of
this Court and, thus, exercising jurisdiction over interlocutory appeal of denial of plea to
jurisdiction and reversing denial and dismissing case for want of jurisdiction). Thus, this
Court may consider an interlocutory appeal where there is a bona fide conflict between
appellate courts. See id. at§ 22.225(c); see also Gross v. Innes, 988 S.W.2d 727, 729 (Tex.
1998) (per curiam). In Gross, this Court concluded:
4
Section 22.001 was amended in 2003 to add subsection (e), which provides that one court "holds
differently from another" for purposes ofsection 22.002(a)(2) "when there is inconsistency in their respective decisions
that should be clarified to remove unnecessary uncertainty in the law and unfairness to the litigants." TEX. GoYI'CODE
§§ 22.00l(e), 22.22S(c).
-30-
Thus, we can exercise jurisdiction over an appeal from a [sic] interlocutory
:;:
order under section 51.014(a)(5) only when there is a dissent or a conflict.
Id. (recognizing the exception in the context of an interlocutory appeals from certain
summary judgments involving immunity. See TEX. CIV. PRAC. & REM. CODE § 51,
014(a)(5)).
b. Courts of Appeals' Decisions Conflict on Jurisdiction Over
Case When Appeal Involves Appealable and Non~
Appealable Issues in the Context of an Interlocutory Appeal
Here, there is a conflict among the courts of appeals on the important issue of
appellate jurisdiction over a case where one issue is properly the subject of an interlocutory
appeal and one is not. As explained above, several courts of appeals recognize their
jurisdiction over mixed interlocutory issues. See, e.g., Letson, 979 S.W.2d at 417; Williams,
958 S.W.2d at211;Air Prods. & Chems .. Inc., 594 S.W.2dat221-22. The decisions by the
Third5 and Thirteenth Courts of Appeals 6 (and as recognized by the Tenth Court of Appeals
in dissent7) that no appellate jurisdiction exists when a interlocutory appeal involves
appealable and non-appealable issues conflicts with the line of case authority considering
appealable interlocutory rulings even when coupled with non-appealable interlocutory
rulings. See, e.g., Brennan, 2006 WL 1096191, at *4; Letson, 979 S.W.2d at 417; Williams,
958 S.W.2d at 271; Air Prods. & Chems .. Inc., 594 S.W.2d at 221-22. Such interpretation
also works an injustice because it precludes any defendant's right to appeal the denial of the
Matthews, 2006 WL 1194881, at *3;Andra, 173 S.W.3d at 184.
Badiga, 2005 WL 1572273.
Lewis, 2006 WL 870943, at *3.
-31~
motion to dismiss for failure to serve an expert report when the trial court grants an extension
- even if no expert report had been served.
Moreover, to date, no Texas authority instructs that this Court does not have
jurisdiction in this matter (i.e., an interlocutory appeal involving the denial of a motion to
-. ;: .....~:
~; ~~
dismiss pursuant to section 74.351). Likewise, no Texas authority instructs that the courts
of appeals are the courts of last resort over this particular type of interlocutory appeal. And
at this point, the Court has before it petitions for review in at least three other cases involving
section 74.351 of the Texas Civil Practice and Remedies Code. See, e.g., Mokkala, 178
S.W.3dat66;Kendrick, 171 S.W.3d698; Group/IL D.C. v. Vincento, 164S.W.3d 724(Tex.
App-Houston [14th Dist.] 2005, pet. filed). This Court has jurisdiction over these
interlocutory appeals concerning rulings on motions to dismiss for failure to comply with the
statutory expert report requirements of section 74.351 of the Texas Civil Practice and
Remedies Code where the court of appeals opinion in such matters conflicts with an opinion
of a sister court of appeals.
WHEREFORE, PRE1\1ISES CONSIDERED, Defendant/Appellant/Petitioner S.
Murthy Badiga, M.D. respectfully moves this Court grant his Petition for Review, and set this .
matter for oral argument, and upon submission or within a per curiam opinion, reverse and
remand the case to the Court of Appeals for consideration of Petitioner's substantive issues.
Petitioner also prays for such other and further relief, general or special, at law or in equity,
as this Court deems just.
-32-
Respectfully submitted,
COOPER & SCULLY, P.C.
By:-~---· ' ...___...2005 WL 1572273 (Tex. App.-Corpus Christi 2005, pet.
filed) (copy and Westlaw version included)
TabB: August 10, 2004 Order Denying Motion to Dismiss (1CR196)
APPENDIXB
Badiga v. Lopez, RESPONDENT'S NOTICE OF INTENT TO RELY ON
RESPONDENT'S RESPONSE TO PETITION FOR REVIEW AND THE
RESPONDENT'S RESPONSE TO PETITION FOR REVIEW
LAW OFFICE OF
E. A. VILLARREAL, JR., P.C.
FILED 1320 South 10th Street
1N SUPREME COURT Edinburg, Texas 78539
OF1'EXAS E-Mail: attoneybetovlU1rreal@Y1hoo.com
(956) 383-6902
JI 'N 1 4 2006 Fu (956) 383-6995
June 13, 2006
ANOAEW WEBER. O.rtt
By
VIA: Lone Star Ovemi&flt
Deputy ORIGINAL
Mr. Andrew Weber, Clerk
Supreme Court of Texas
Supreme Court Building
201 W. 14th Street, Rm 104
Austin, Texas 78701
512-463-1312
Re: S. Murthy Badiga, M.D. Petitioner vs. Maricruz Lopez, Respondent
Supreme Court of Texas, No. 05-0801
Cause No. C-2711-03-B; Maricruz Lopez vs. S. Murthy Badiga, M.D .
. Court of Appeals Cause No. 13-04-00452-CV
Dear Mr. Weber:
This letter will serve as notice that we intend to rely on the Respondent's Response to Petition for
Review which is already on file and as such will not be filing a response to Petitioner's Brief on the
Merits. We have enclosed twelve copies ofthis letter with the original which we respectfully request
be filed with the above-reference matter.
Further, please return a file-stamped copy of one of the letters in the enclosed self addressed stamped
envelope.
By copy of this letter, we are forwarding a copy of same to all counsel ofrecord. Thank you for your
cooperation in this matter.
Sincerely,
LAW OFFICE OF E. A. VILLARREAL, JR., P. C.
~L/6
R.
Attorney at Law
EAV:ch
XC: Our File No.
cc: Edward Castillo, Via Fax 956-618-0445 and Regular Mail.
R. Brent Cooper, Cooper & Scully, Via Fax 214-712-9540 and Regular Mail
Rosmarie Kanusky, Fulbright & Jaworski, Via Fax 210-270-7205 and Regular Mail
No. 05-0801
IN THE
SUPREME COURT OF TEXAS
S. MURTHY BADIGA, M.D.
Petitioner
v.
MARICRUZ LOPEZ
Respondent
On Petition for Review from the Thirteenth Court of
Appeals at Corpus Christi, Texas
No. 13-04-00452-CV
RESPONSE TO PETITION FOR REVIEW
TABLE OF CONTENTS
1. TABLE OF CONTENTS ii
2. INDEX OF AUTHORITIES iii
3. STATEMENT OF JURISDICTION vi
4. ISSUES PRESENTED v
5. SUMMARY OF THE ARGUMENT 1
6. ARGUMENT 2
7. PRAYER 9
II
INDEX OF AUTHORITIES
Case
America Online v. Williams,
958 S.W.2d 268 (Tex. App.-Hous. [14 Dist.]
1997, no writ) 6
American Express Travel Related Servs. Co v. Walton,
883 S.W. 703 (Tex. App.-Dallas 1994, orig.
proceeding) 6
American Transitional Care Ctrs. V. Palacios,46
S.W.3d 873, 875 (Tex.2001) . . . 12
Black v. Bankers Ins. Co.,
478 S.W.2d 434, 437 (Tex. 1972) 7
Christus Health Southeast Texas v. Griffin,
2005 WL 2666473 . 9
Coastal Corp. v. Garza,
979 S.W.2d 318 Tex.1998) 10
Fort Worth Southwest Nursing Center, LLC v. Bly,
2004 WL 314907 (Tex.App. Ft. Worth) 9
Gonzalez v. Avalos,
907 S.W.2d 443 (Tex.Sup.Ct. 1995) 2, 4, 5
Hajek v. Bill Mowbray Motors, Inc.,
647 S.W.2d 253 (Tex.1983) 5
Kilroy v. Kilroy,
(Tex. App. Houston [1st Dist.] May 6th, 2004, no
pet) . 1
Letson v. Barnes,
979 s.w.2D 414 (Tex. App.-Amarillo 1998, pet.
denied) 6
Mokkala v. Mead,
178 S.W.3d 66, 2005 WL 1377766 (Tex.App.-Hous. (14
Dist.)) 12
iii
•
New York Underwriters Ins. Co. v. Sanchez,
799 S.W.2d 677, 679 (Tex. 1990). 1
Resendez v. Johnson,
52 S.W.3d 689, 156 Ed. Law Rep.1450, 44
Tex.Sup.Ct.J.336 (Tex.2001). 10
Russ v. Titus Hospital District,
128 S.W.3d 332 (Tex.App. - Texarkana 2004) 12, 13
Sayre v. Mullins,
681 S.W.2d 25, 27-28 (Tex. 1984) 8
Statues, Rules & Constitutions
Civil Practice & Remedies Code
Chapter 74 9
§§51. 014 (a) (4 3, 4, 5, 7,
9I 11
§§51.014(a) (9)
vi, 1, 2, 3, 4, 6, 7, 8, 9, 10,13,14
§§74.351(b) viii, 1, 2, 3, 4, 6, 12, 13
§§74.351(c) 2I 3
V.T.C.A. Government Code
§§22.00l(a) (1,2,3) vi, vii, 4
§§22.225(b) (3) 10
§§22.225(c) 5
Miscellaneous
Michael S. Hull et al., House Bill 4 and Proposition
12: An Analysis with Legislative History
36 Tex.Tech L.R. 169, 212 (2005 . 11, 13
The Medical and Insurance Improvement Act of Texas
(article 4590i, Vernon's Texas Civil
Statutes) 11,12
iv
v
STATEMENT OF THE JURISDICTION
Appellant's Petition fails to assert valid grounds
for jurisdiction. Contrary to Appellants assertion, the
statutory construction provision found in Texas
Government Code section 22.001(a)(3) does not confer
jurisdiction upon this Court where, as in the present
case, the Court of Appeals applied the plain and
unambiguous terms of the statute: Texas Civil Practice
& Remedies Code Ann. §51.014(a) (9) expressly prohibits
interlocutory appeals of orders denying motions to
dismiss where an extension has been granted.
The legal authority that proscribes appellate
jurisdiction of this matter is contained in a single
provision, comprised of only one sentence:
"A person may appeal from an interlocutory order of
a district court, county court at law, or county
court that ... denies all or part of the relief sought
by a motion under section 74.351(b), except that an
appeal may not be taken from an order granting an
extension under Section 74.351." Tex. Civ. Prac. &
Rem. Code Ann. Section 51.014(a) (9) (emphasis
added).
Thus, Section 51.014(a) (9) is a one-sentence
provision pertaining to expert reports in medical
negligence suits that provides for one thing: it provides
vi
statutory authority for the interlocutory appeal for an
order denying a motion to dismiss unless the motion to
dismiss was denied because an extension was granted for
the deadline to file the expert report. The Court of
Appeals correctly applied the plain and unambiguous
language of the statute, thus jurisdiction for the
Supreme Court under Section 22.001 is not warranted.
vii
ISSUES PRESENTED
1. Whether the Courts of Appeals correctly
dismissed this interlocutory appeal for lack
of jurisdiction because appellate courts are
proscribed from reviewing an interlocutory
order denying a 74.351(b} motion where the
denial was based on the granting of an
extension.
2. Whether the Appellant can circumvent the
prohibition against interlocutory appeals of
orders denying a motion to dismiss where an
extension has been granted by separating the
denial ruling from the reason for the
denial-the extension ruling.
viii
SUMMARY OF THE ARGUMENT
Courts of appeals have no jurisdiction to hear appeals
from interlocutory orders unless specifically authorized by
statute. See New York Underwriters Ins. Co. v. Sanchez, 799
S.W.2d 677, 679 (Tex. 1990). A statute authorizing an
appeal from an interlocutory order is in derogation of the
general rule that only final judgments are appealable;
therefore, Texas courts strictly construe those statutes
authorizing interlocutory appeals. Kilroy v. Kilroy, (Tex.
App. Houston [1st Dist.] May 6th, 2004, no pet). The
Legislature enacted an express provision for interlocutory
appeal of orders denying motion to dismiss brought under
74.35l(b);it specifically directed that an interlocutory
appeal could not be taken from a trial court's decision to
grant an extension.
Petitioner asserts that Peitioner's issue on appeal
deals only with the issue of the Trial Court's denial of
Petitioner's Section 74.35l(b) Motion to dismiss. Further,
Petitioner requests relief pursuant to section 51.014(a) (9)
but ignores the specific exception, or limiting of
jurisdiction, contained therein. Rather, the exception under
Section 51.014(a) (9) clarifies that an interlocutory appeal
is only available when the court had denied a defendant's
motion but had not granted the plaintiff an extension. See
§§51.014(a) (9); §74.351(b) (c).
The Court of Appeals correctly construed Section 51.014
(a) (9) in determining that that section excludes the
possibility of an interlocutory appeal. Accordingly, the
exceptional jurisdiction necessary for the Court of Appeals
to hear Appellant's claim was not created.
The conclusion reached by the court of appeals here was
the direct result of strict statutory construction and
interpretation. For Petitioner to suggest otherwise - that
there are conflicts among the courts of appeals, that this
"problem" is likely to recur, or that this is an issue of
importance of the jurisprudence of the state concerning
statutory construction is without merit.
ARGUMENT
A. The Court of Appeals conducted a proper construction
of section 51. 014 (a) ( 9) .
Appellee asserts that construction of a statute as
grounds for jurisdiction does not apply in this case. These
2
grounds for jurisdiction do not apply in the context of an
interlocutory appeal. See Gonzalez v. Avalos, 907 S.W.2d
443 (Tex.Sup.Ct. 1995).
In the instant case, Petitioner sought relief under
section 74.35l(b). The court of Appeals initially
considered the major of its own jurisdiction. In doing so,
the court of appeals first looked to Section 51.014 in order
to determine in fact whether jurisdiction actually exists.
There, the court of appeals strictly construed Section
51.014 as narrow exception to the general rule that only
final judgments or orders are appealable. The specific
language of Section 51.014(a) (9) excludes the possibility of
an interlocutory appeal in this case.
"a person may appeal from an interlocutory order of a
district court ......... that:
............ "denies all or part of the relief sought by a
motion under section 74.35l(b), except that an appeal
may not be taken from an order qrantinq an extension
under Section 74.351" (emphasis added)
Section 51.014(a) (9)
The relief sought under section 74.351(b) is always
subject to subsection "c". See Sections 74.35l(b), (c);
Section 51. 014 (a) (9). It was because of the court of
3
appeals' strict construction of these statutes and the
application of all of the specific and express statutory
language the court of appeals determined no jurisdiction
existed. See Sections 51.014(a)(9); 74.351(b), (c).
B. Construction of Statute as grounds for jurisdiction
does not app1y in this case.
Petitioner asserts that the Court of Appeals did not
Construe Section 74.351 and 51.014 accurately and in so
doing, that the Court Appeals concluded it had no
jurisdiction. Basically, Petitioner asserts that this
Honorable Court should exercise its jurisdiction because the
Court of Appeals did not Properly construe these statutes.
Construction of a statute is not a valid ground for
exercising jurisdiction in this case. See Gonzalez v.
Avalos, 907 S.W.2d 443, 38 Tex.Sup.Ct. J. 335. In Gonzalez,
this Honorable Court held that "in interlocutory appeals
made final in Court of Appeals, Supreme Court jurisdiction
must be sustained on basis of dissent or conflict, with
other opinions, not on basis of construction of statute."
Id. at 444. See V.T.C.A. Government Code
§22.00l(a) (1,2,3). The Gonzalez Court further held that
4
"as an appeal from an interlocutory order, the case is
appealable to the court of appeals only because of a special
statute, Texas Civil Practice and Remedies Code §51.014,
which does not itself
state or necessarily imply that the Supreme Court also has
the authority to review the appeal. The appeal therefore
falls under the provisions of Texas Government Code
§22.00l(c), stating that all interlocutory appeals are final
in the court of appeals, absent dissent or conflict
jurisdiction." Id at 444.
Similarly, the instant case presents an appeal from an
interlocutory order, which was itself appealable to the
Court of Appeals only because of the very same statute,
§51.014. Like the case in Gonzalez, this appeal therefore
falls under the provisions of Texas Government Code
§22.225(c), which states that all interlocutory appeals are
final in the court of appeals, absent dissent or conflict
jurisdiction.
Respondent asserts then that construction of a statute
does not foster jurisdiction in this case. In interlocutory
appeals made final in the court of appeals, supreme court
jurisdiction must be sustained under subsection (a) (1)
(dissent) or subsection (a) (2) (conflicts), and not under
5
subsection (a) (3) (statutory construction). Gonzalez v.
Avalos, at 444; See also Hayek v. Bill Mowbray Motors, Inc.,
647 S.W.2d 253 (Tex.1983).
Accordingly, Respondent asserts then that construction
of a statute does not support the exercise of jurisdiction
in this case.
C. The one-sentence provision in Section 51.014
specifically "excepts" interlocutory appeals in
those cases where the trial court grants Plaintiff
additional time and thereby denies a §74.351
Motion to dismiss.
The granting of the extension in this case necessarily
defeats Petitioner's request for the dismissal pursuant to
§74.351. That is why the statute is written in terms of
appealing "denials" of dismissal orders, except where
extensions are "granted." See §74.351; See also
51. 014 (a) (9).
Appellant's reliance on the cited case law providing
for interlocutory appeal of the appealable portion of the
order is grossly misplaced. See Letson v. Barnes, 979
s.w.20 414 (Tex. App.-Amarillo 1998, pet. denied); America
Online v. Williams, 958 S.W.2d 268 (Tex. App.-Hous. [14
Dist.] 1997, no writ); American Express Travel Related
6
Servs. Co v. Walton, 883 S.W. 703 (Tex. App.-Dallas 1994,
orig. proceeding). These cases are inapplicable here.
The cases cited by Appellant address the interlocutory
appeal of an order granting or denying of temporary
injunctions. Unlike 51.014(a) (9) and the express exception
to appealing denial orders based on the granting of an
extension, the temporary injunction provision in Section
51.014(a) (4) does not limit or qualify the types of
injunctive relief orders that can be appealed. The various
appellate courts noted that appellate courts have
jurisdiction to review interlocutory orders involving
injunctions, and may review the injunctive relief ruling
without assuming jurisdiction of other non-appealable
matters. Each of these cases involves distinct, separate
and unrelated rulings made together with a ruling on
injunctive relief. In the present case, however, Defendant's
requested relief was denied because the extension was
granted.
Here, Appellants cannot pick and choose what half of
the single-sentence statutory provision they wish to use to
create jurisdiction. See Black v. Bankers Ins. Co., 478
S.W.2d 434, 437 (Tex. 1972) {noting that statutory terms
cannot be given a meaning out of harmony with other terms of
7
the statute.)
Similarly, a statute must be construed in its entirety
and consideration given to the consequences that would
follow from each construction. See Sayre v. Mullins, 681
S.W.2d 25, 27-28 (Tex. 1984). A look at the end result of
Appellant's requested relief illustrates the absurdity of
the way it construes Section 51.014(a) (9). If Appellant was
to succeed in his efforts, he would have this Court assume
jurisdiction only on the portion of the order denying the
motion to dismiss, refuse jurisdiction on the portion of the
order granting the extension, and dismiss the case for
failure to file a report, without ever reviewing or
reversing on appeal the trial court's order granting the
extension. And this would all be accomplished through their
reliance on a statute that provides for interlocutory
appeals of dismissal orders except where extensions have
been granted. This forced approach allows a court to
determine that the trial court's conduct was unreasonable-
i.e. without reason-while expressly refusing to consider the
reason. Appellee urges that this approach would preclude
this Court from conducting an appropriate abuse of
discretion review of the trial court's denial of the motion
to dismiss: a review that necessarily requires the appellate
court to consider the extension and the trial court's
8
reasons for granting the extension in lieu of dismissing the
case.
D.No conflict exists among Courts regarding any
legislatively enacted right to interlocutory appeal
under section 51.014(a) (9).
Petitioner suggests this Court should exercise
jurisdiction over the instant case because "other courts
have recognized a right to interlocutory appeal under
section 51.014(a) (9) from the denial of a motion to
dismiss." First, Petitioner's reliance on Christus Health
Southeast Texas v. Griffin, 2005 WL 2666473 is misplaced.
The issue in that case dealt with whether the party was
entitled to interlocutory relief pursuant to Chapter 74
and/or § 51.014. While the Court 'recognized' that the
interlocutory relief may be authorized in those cases filed
after September 1, 2003, it did not address the
applicability of §51.014(a) (9). There, the plaintiffs filed
the health care liability claim prior to the effective date
of any of the provisions of Chapter 74. What's more, the
Griffin Court did not render any ruling in conflict with
9
that rendered by the court of appeals in the instant case.
Christus Health Southeast Texas v. Griffin, 2005 WL 2666473.
Petitioner also directs this Court's attention to Fort
Worth Southwest Nursing Center, LLC v. Bly, 2004 WL 314907(Tex.App. Ft. Worth) for the proposition that §51.014(a) (9)
allows interlocutory appeals from "orders denying motions to
dismiss based on untimliness of expert reports.H Id at *1.
This reliance however is also misplaced and does not address
the issue present in the instant case. Rather, conflict, as
is necessary for review of a unanimous decision of the Court
of Appeals on appeal of an interlocutory order, exists only
if the rulings in the two cases are so far upon the same
state of facts that the decision of one case is necessarily
conclusive of the decision in the other. V.T.C.A.
Government Code §22.225(b) (3), (c); See Resendez v. Johnson,
52 S.W.3d 689, 156 Ed. Law Rep.1450, 44 Tex.Sup.Ct.J.336
(Tex.2001) The conflict then "must be on the very question
of law actually involved and determined, in respect of
an issue in both cases, the test being whether one would
operate to overrule the other in case they were both
10
rendered by the same court." Resendez v. Johnson at 691,
citing Coastal Corp. v. Garza, 979 S.W.2d 318 Tex.1998).
Under this standard, the court of appeals' decision in this
case does not conflict with any of the cases cited by
Petitioner. Therefore, this case does not present a
conflict among courts such as would warrant this Court
exercising jurisdiction as the Petitioner suggests.
E.The Leqis1ative History under1yinq House Bi11 4 does
not support the Court of Appea1s' jurisdiction over
inter1ocutory appeais such as that in the instant
case.
The legislature must have contemplated such situations
as those involved in the instant case and intended to
provide a "safety valve" for those meritorious claims that
might otherwise be lost to a procedural "misstep." Civil
Practice & Remedies Code § 74.351 still has some sections
"reserved," presumably because they haven't passed
constitutional muster yet. Obviously, the legislature is
not finished with this section. After all, since the
legislature "intended" to provide a safety valve before
September 1, 2003, surely the legislature "intended and
11
intends" to provide some safety valve for those claims filed
after September 1, 2003.
This ultimately leads the Court to a "quandary" because
pursuant to section 10.09 of HB4, The Medical and Insurance
Improvement Act of Texas (article 4590i, Vernon's Texas
Civil Statutes) is repealed. To date, there is at least one
unanswered question: If all or part of the new legislation
is found to be unconstitutional (remember the new law isn't
finished yet), and article 4590i has been repealed, then
what law governs? This speaks volumes for affording the
trial court and vesting it with discretion, an abuse of
which, for purposes of appellate review, occurs only when a
trial court acts in an arbitrary or unreasonable manner or
without reference to any guiding rules or principles. See
American Transitional Care Ctrs. V. Palacios, 46 S.W.3d 873,
875 (Tex.2001) where the court held that "a trial court's
decision to dismiss a case under §13.01 [now §74.35l(b)] is
reviewed for an abuse of discretion." See Mokkala v.
Mead, 178 S.W.3d 66, 2005 WL 1377766 (Tex.App.-Hous. (14
Dist.)), where the court held that "We apply an abuse-of-
discretion standard in reviewing a trial court's decision on
a motion to dismiss in which a defendant claims the expert
12
opinion was untimely served." A necessary question then
becomes if the dismissal sought by Petitioner under §74.351
is a trial court's ministerial duty and affords no "leeway"
as suggested by Petitioner, then why is the review of the
decision to grant or deny a §74.351(b) motion reviewed for
an abuse of discretion? See Russ v. Titus Hospital
District, 128 S.W.3d 332 (Tex.App. - Texarkana 2004) where
the Court held that the trial court abused its discretion in
refusing to grant 30-day extension to file report:
"If the Court finds that the failure of the
claimant or the claimant's attorney was not
intentional or the result of conscious
indifference but rather was the result of an
accident or mistake, the court shall grant a grace
period of 30 days to permit the claimant to comply
with that subsection"
Russ, 128 S.W. 3d at 336.
Even Pe ti ti oner admits there is little legislative
history explaining the addition of section 51.014 (a) (9).
Senator Joe Nixon's comments on the debate regarding HB4,
however, shows us that "of HB4 were passed, it would mean
there would be a procedure barring plaintiffs from prosecuting
claims if deadlines were not met." This however does not shed
13
any more light on the legislature's intent in codifying
§54.014(a} (9)than the plain meaning of the words and phrases
contained in the statute itself! Accordingly, when taking the
plain meaning of the statute into consideration, and when
strictly construing the statute as the court of appeals did in
the instant case, the interlocutory order in the instant case
is not an appealable order. §74.351; §51.014(a) (9)
CONCLUSION AND PRAYER
Appellate Courts have no jurisdiction to hear appeals from
interlocutory orders unless specifically authorized by
statute. Appellants' rely solely on Section 51.014 (a) (9)
for their authority to appeal this interlocutory order.
Section 51.014(a) (9) allows for the interlocutory appeal of
an order denying a motion to dismiss only when the order
does not involve a denial based on the granting of an expert
deadline extension. The interlocutory order in this case is
precisely the type of order expressly prohibited by the
statute.
Respondent Maricruz Lopez respectfully moves this Court
to deny Petitioner's Petition for Review and affirm the
ruling of the Thirteenth Court of Appeals. Respondent
14
further prays for such other and further relief, general or
special, at law or in equity, as this Honorable Court deems
just.
15
Respectfully submitted,
By:~~~~~~~~~~~~~~
E. A. Villarreal, Jr.
Texas-- Bar Number 20582200
Law Office of E.A. Villarreal,
Jr., P.C.
1320 South lOth Street
Edinburg, Texas 78539
Tel. ( 956) 383-6902
Fax. ( 956) 383-6995
Attorney For Plaintiff/appellee,
Maricruz Lopez
CERTIFICATE OF SERVICE
I certify that on February 2, 2006, a true and correct copy of
the forgoing Response to Petition for Review was served on counsel
of record as indicated below.
R. Brent Cooper VIA CMRRR #7002 2410 0007 0562 9777
Cooper & Scully, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
Tel: (214)712-9500
Fax: (214)712-9540
Appellate Attorney for Petitioner
S. Murthy Badiga, M.D.
Mr. Steven Gonzalez VIA CMRRR #7002 2410 0007 0562 9784
Mr. Edward Castillo
Gonzalez, Gaytan, Garza & Castillo, L.L.P.
1317 Quebec Avenue
McAllen, Texas 78503
Tel: (956) 618-0115
Fax: (956) 618-0445
Trial Counsel for Petitioner
S.Murthy Badiga, M.D.
16
E.A. Villarreal, Jr.
17