In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-07-128 CV
____________________
MICHAEL LEIGH SMITH, Appellant
V.
GERALD HAMILTON, individually and as personal representative
of the ESTATE OF SUE ANN HAMILTON, DECEASED,
MATTHEW GARRISON and MARK GARRISON, Appellees
Jefferson County, Texas
Trial Cause No. D177240
Appellees Gerald Hamilton, (1) Matthew Garrison, and Mark Garrison sued appellant Michael Leigh Smith and other defendants for alleged medical malpractice. Smith filed a motion to dismiss that challenged the timeliness of appellees' expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a) (Vernon Supp. 2006). Smith appeals the trial court's order denying his motion to dismiss. We reverse and render judgment dismissing appellees' suit against Smith with prejudice.
The procedural facts leading up to the trial court's ruling are not in dispute. Appellees filed their original petition against Smith on June 26, 2006. On July 5, 2006, appellees filed their expert report and curriculum vitae with the district clerk. Appellees filed a supplemental expert report on August 18, 2006, and again filed it with the district clerk. Both parties agree that the 120-day deadline for serving appellees's expert report on Smith was October 24, 2006. Although Smith was apparently served with citation on or about August 25, 2006, he did not file his original answer to appellees' suit until November 16, 2006. On November 17, 2006, appellees sent Smith's counsel copies of their expert report, curriculum vitae, and supplemental expert report via certified mail. An affidavit by appellees' trial counsel sheds some light on this particular circumstance. In pertinent part, it reads as follows:
"When Dr. Michael Smith, Defendant, did not answer the lawsuit, I called his office and told them he was in default. I also told them to have a lawyer contact my office if he wanted to file an answer. A short time later, on November 16, 2006, Dr. Smith's counsel, Mr. Oppenheim, contacted my office and asked if he could have a copy of the expert report. Accordingly, I sent him a copy of the expert report on November 17, 2006. See Exhibit 'A.'"
On December 12, 2006, Smith filed his motion to dismiss pursuant to section 74.351(a), contending that appellees had failed to serve him with an expert report on or before the mandatory expiration date of October 24, 2006, as the first time Smith was provided with appellees' expert report was on November 20, 2006, when his counsel received the original and amended expert reports in the mail.
Subsections (a) and (b) of section 74.351 of the Medical Liability Act read as follows: (a) 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.
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) - (b)(2) (Vernon Supp. 2006).
Smith argues that dismissal of the suit was mandatory under the facts presented as appellees failed to serve either him or his counsel with an expert report between the date suit was filed (June 26, 2006) and the 120-day statutory deadline of October 24, 2006. Appellees reply that the trial court properly denied Smith's motion to dismiss because Smith "failed to file an answer or otherwise appear within the 120-day deadline[,]" and because "equity bars [Smith] from taking advantage of the Chapter 74 sanctions, or at least provides Appellees a reasonable time to provide the reports." Additionally, appellees contend the trial court's ruling was correct as Smith failed to object to the expert reports within the mandatory 21-day period, and that Smith has waived any trial court error by failing to present a sufficient record for appellate review. Appellees also aver they are entitled to prevail on this issue because section 74.351 violates provisions of both the Texas and United States Constitutions as applied to them. We must initially address the constitutional question. (2)
The constitutionality of the current and former version of the Medical Practices Act has been affirmed on appeal in the face of alleged due process, due course of law, and open courts violations. See Walker v. Gutierrez, 111 S.W.3d 56, 65-66 (Tex. 2003); Powell v. Clements, No. 10-05-00418-CV, 2007 WL 475412, at *1-*2 (Tex. App.--Waco Feb. 14, 2007, no pet. h.); Fields v. Metroplex Hosp. Found., No. 03-04-00516-CV, 2006 WL 2089171, at *3-*4 (Tex. App.--Austin July 28, 2006, no pet.); Etheredge v. McCarty, No. 05-05-00164-CV, 2006 WL 1738258, at *1 (Tex. App.--Dallas June 27, 2006, no pet.); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460-62 (Tex. App.--Austin 2006, no pet. h.); Thoyakulathu v. Brennan, 192 S.W.3d 849, 854-56 (Tex. App.--Texarkana 2006, no pet.); Hogue v. Propath Lab., Inc., 192 S.W.3d 641, 645 (Tex. App.--Fort Worth 2006, pet. denied); Williams v. Keck, No. 03-05-00332-CV, 2005 WL 3499439, at *1-*3 (Tex. App.- -Austin 2005 Dec. 21, 2005, pet. denied); Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 166-67 (Tex. App.--Texarkana 2005, no pet.); Thomas v. Univ. of Tex. Med. Branch at Galveston, Nos. 01-03-00471-CV & 01-03-00472-CV, 2004 WL 1516456, at *2 (Tex. App.--Houston [1st Dist.] 2004, no pet.). However, appellees neither discuss nor attempt to distinguish any of the above-cited cases, all of which specifically involve constitutional questions vis-a-vis health care liability claims. Instead, appellees merely provide authority addressing general propositions of law related to due process, due course of law, and/or Texas' guarantee of open courts. Relying on the equities of the circumstances, appellees contend that section 74.351's "punitive provisions unreasonably restrict a well established common-law right of action without a reasonable opportunity to comply and respond."
In Brennan, the plaintiff (Brennan) had filed his expert reports but had not served them on the defendant-health care providers before the 120th day after suit was filed. See Brennan, 192 S.W.3d at 850. Evidence indicated that on the last day for serving such reports, Brennan tried but failed to serve them via facsimile transmission. Id. The health care providers moved for dismissal, but the trial court denied the motion and granted Brennan a thirty-day extension within which to serve the reports. Id. at 850-51. On appeal, the appellate court reversed the trial court's rulings and remanded the cause to the trial court for dismissal of Brennan's claims against the health care providers. Id. at 856. Among other issues, Brennan raised an "as applied" constitutional challenge to section 74.351. Id. at 854. In overruling Brennan's challenge, the Texarkana Court wrote:
[D]ue process does not require additional or broader grounds for extending the clearly stated service deadline or relief from the clearly stated consequences of failing to meet that deadline. Here, we have a situation arising from a possibly malfunctioning facsimile machine on the last day of the allowable time period. As a result of this last-minute problem, Brennan failed to serve the report on Appellants. Section 74.351 need not provide an exception geared toward such misfortune in order to provide constitutionally adequate safeguards. The trial court must dismiss the claim if an expert report has not been served by the deadline. Mandatory dismissal is a "clearly stated consequence" for failing to comply with the statutory deadline.
Id. at 855.
We echo the analysis of the Texarkana Court along with its reliance on Walker v. Gutierrez in addressing the constitutional question. Not quite as compelling as a malfunctioning facsimile machine is appellees's excuse: "There is no way to fulfill legal obligations that assume a defendant is participating in a lawsuit when the defendant refuses to participate in the lawsuit." First, appellees provide no authority for the proposition that a civil defendant is required to participate in any lawsuit instituted against him. Appellees were apparently knowledgeable of Smith's whereabouts as he was served with process, and was apparently provided with pre-suit notice, a statutory prerequisite to suit. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a) (Vernon 2005). Second, appellees have not shown how the requirements of section 74.351 created an "impossible condition" by which they were prevented from pursuing their claim against Smith. See Herrera, 212 S.W.3d at 461 (quoting Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex. 1990)). The essence of appellees' argument is not that it was impossible for them to comply with section 74.351, only that they were excused from doing so because of Smith's inertia. As it did before the Herrera Court, this argument fails before us. See Herrera, 212 S.W.3d at 462. As the party challenging the constitutionality of section 74.351 "as applied," appellees are required to demonstrate the statute is unconstitutional when applied to the particular set of facts or circumstances presented. See Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995). From the above-discussed facts and circumstances, we hold appellees have not met their burden. Section 74.351 complies with both the Texas and federal constitutional provisions in question as applicable to appellees under the record before us.
We now turn to Smith's lone issue complaining of the trial court's denial of his motion to dismiss based upon a tardily-served expert report. Ordinarily, we would review the trial court's denial of Smith's dismissal motion for an abuse of discretion. See Bowie Mem'l Hosp. v Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). When, as here, the issues essentially involve statutory construction, we apply a de novo standard of review . See Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.--Houston [14th Dist.] 2004, no pet.).
We agree with the observation that the purposes behind the enactment of section 74.351 were, "among other things, to remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard-and-fast deadlines for the serving of expert reports." Intracare Hosp. N. v. Campbell, No. 01-06-00356-CV, 2007 WL 926531, at *5 (Tex. App.--Houston [1st Dist.] March 29, 2007, no pet. h.) (citing Mokkala v. Mead, 178 S.W.3d 66, 74-75 (Tex. App.--Houston [14th Dist.] 2005, pet. granted)). Section 74.351(a) plainly states that the plaintiff shall "serve" the expert report on the health care defendant "not later than the 120th day" after the original petition is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Merely filing the expert reports with the district clerk fails to comply with the mandatory requirement that the plaintiff "serve" the report on the defendant. See Herrera, 212 S.W.3d at 458-59 (discussing the distinction between "filing" and "serving" an expert report). Appellees do not dispute they failed to strictly comply with the 120-day deadline. Instead, they contend that because Smith's motion to dismiss was filed more than 21 days after he received the expert's report, Smith has waived any objection to appellees having missed the 120-day deadline. Appellees further argue waiver applies to Smith's dismissal motion because he failed to file his answer until after the 120-day expert report deadline.
Appellees' "waiver" arguments are misplaced. First, a health care defendant's 21-day deadline explicitly refers to an "objection to the sufficiency" of an expert report, not to the fact that an expert report was not served within the mandatory 120-day deadline. Indeed, a health care defendant may move to dismiss for failure to serve an expert report when an otherwise timely-filed report does not meet the statutory definition of "expert report," or is otherwise deficient, and the 120-day deadline has passed. See CHCA Mainland, L.P. v. Burkhalter, No. 01-06-00158-CV, 2007 WL 686679, at *2 (Tex. App.--Houston [1st Dist.] March 8, 2007, no pet. h.); Anglin v. Marrero, No. 09-05-198-CV, 2006 WL 665865, at *2 (Tex. App.--Beaumont March 16, 2006, no pet.); see also Herrera, 212 S.W.3d at 460 (30-day extension to correct deficient expert report applicable only if deficient report was timely filed); Brennan, 192 S.W.3d at 852-53. As the Brennan Court determined in construing section 74.351(a) and (b), "[a]bsent an agreement among the parties for an extension of time to serve the reports, the trial court has no discretion but to dismiss the case with prejudice and to award reasonable attorney's fees and costs of court if the claimant fails to meet this [120-day] deadline[.]" Id. at 852; see also Herrera, 212 S.W.3d at 460.
Second, as we have recently held, "Chapter 74 imposes no deadline for filing a motion to dismiss." Empowerment Options, Inc. v. Easley, No. 09-06-148-CV, 2006 WL 3239527, at *4 (Tex. App.--Beaumont Nov. 9, 2006, pet. denied). "Waiver" is recognized as an intentional relinquishment of a known right or intentional conduct that is inconsistent with claiming that right. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (quoting Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987)). In Jernigan, the Texas Supreme Court held that Dr. Jernigan did not waive his right to file a motion to dismiss by waiting for more than 600 days after receiving the plaintiff's expert reports. Id. at 157. To establish an intent to waive the right to the statutory dismissal, a "defendant's silence or inaction must be inconsistent with the intent to rely upon the right to dismissal. For example, if the defendant fails to object to the report's inadequacy until after the case is disposed of on other grounds, waiver may be implied." Id. (citing Martinez v. Lakshmikanth, 1 S.W.3d 144 (Tex. App.--Corpus Christi 1999, pet. denied)). In the instant case, the record before us does not clearly demonstrate the requisite intent on Smith's part to waive his right to move for dismissal under section 74.351.
We have discussed and rejected all the grounds raised by the record that could support the trial court's denial of Smith's motion to dismiss. We find no authority that is contrary to the well-established holding in actions involving health care liability claims that mandatory dismissal is the clearly stated consequence for failing to comply with the statutory 120-day deadline. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006)(failure to timely file an adequate expert report requires trial court to dismiss plaintiff's suit with prejudice upon motion by defendant); Soberon v. Robinson, No. 09-06-067-CV, 2006 WL 1781623, at *3 (Tex. App.--Beaumont 2006, pet. denied). We sustain Smith's appellate issue. We therefore reverse the trial court's order denying Smith's motion to dismiss and render judgment dismissing appellees' health care liability claims against Smith with prejudice to the refiling of the claims against Smith.
REVERSED AND RENDERED.
__________________________________
CHARLES KREGER
Justice
Submitted on May 31, 2007
Opinion Delivered June 21, 2007
Before Gaultney, Kreger, and Horton, JJ.
1. Hamilton sued individually and as personal representative of the estate of
decedent, Sue Ann Hamilton.
2. As appellees' written response to Smith's motion to dismiss and their argument
to the trial court question the constitutionality of section 74.351, we must discuss the
issue. See Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978) (as no findings of fact or
conclusions of law filed, trial court order must be upheld by any legal theory supported by
the record). Additionally, as we must consider any legal theory that could uphold the trial
court's ruling, we reject any implied finding that Smith has waived error by procedural
default.