NUMBER 13-14-00176-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS VEIN AND VASCULAR,
TVV MEDISPA, AND JAVIER ALONSO
M.D., Appellants,
v.
MARY MARTINEZ, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
NUMBER 13-14-00346-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JAVIER ALONSO, INDIVIDUALLY, Appellant,
v.
MARY MARTINEZ, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Wittig
Memorandum Opinion by Justice Wittig
This is a consolidated appeal challenging the trial court’s denial of appellants’
motions to dismiss under Chapter 74. Appellants in the original appeal in cause number
13-14-00176-CV are Texas Vein and Vascular (Texas Vein), TVV Medispa (TVV), and
Javier Alonso, M.D., PhD., PA (Alonso PA). Mary Martinez is the appellee. On our own
motion, we consolidate this appeal with the companion case of Javier Alonso, individually,
(Alonso) as appellant versus Martinez as appellee in cause number 13-14-00346-CV.
The appeals involve common questions of law and fact. In cause number 13-14-00176-
CV, we will reverse and remand in part, and reverse and render in part as detailed herein.
In cause number 13-14-00346-CV, we will affirm.
I. BACKGROUND1
Martinez apparently filed her original petition August 15, 2012, against appellees
Texas Vein, TVV, and Alonso PA. The trial court found this was a mistake, and the clerk
refused to file2 the petition until certain errors were corrected. According to the findings,
the original petition was subsequently “filed” on September 20, 2013. Although the
August 15, 2012 filing stated that the required expert report(s) and curriculum vita were
1 Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice
of the Supreme Court of Texas pursuant to the government code. See TEX. GOV'T CODE ANN. § 74.003
(West, Westlaw through Ch. 46 2015 R.S.).
2 The record does not support a “refusal to file.” See discussion below.
2
attached, they were not. On January 16, 2014, Martinez filed her First Amended Original
Petition, again stating that her expert report and CV were attached. Appellants Texas
Vein, TVV, and Alonso PA filed a motion to dismiss on January 16, 2014, which was
followed by Martinez’s Second Amended Original Petition adding “Javier Alonso,
Individually” as a defendant for apparently the first time, and serving appellants with the
expert report and CV of Scott A. Scheinin, M.D. An amended motion to dismiss was filed
February 5, 2014 and was denied. Martinez filed her First Supplemental Petition on
February 10, 2014, alleging for the first time that Alonso alone committed all of the
negligent acts and omissions and that the other three defendants were purely vicariously
liable to Martinez and accordingly, no independent expert reports were required.
II. STANDARD OF REVIEW
Generally, an appellate court reviews a trial judge’s decision on a motion to dismiss
a claim under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse
of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 878 (Tex. 2001); Group v. Vicento,
164 S.W.3d 724, 727 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to
guiding rules or principles. Cayton v. Moore, 224 S.W.3d 440, 444 (Tex. App.—Dallas
2007, no pet.). Under an abuse of discretion standard, the appellate court defers to the
trial court’s factual determinations if they are supported by evidence, but reviews the trial
court’s legal determinations de novo. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex.
2011) (citing In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.
proceeding)). Whether the statute permits additional time beyond the 120–day deadline
3
is a legal question. Id. (citing Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d
863, 867 (Tex. 2009) (noting that statutory construction is a legal question)).
At the time of this lawsuit, the then applicable Texas Civil Practice and Remedies
Code section 74.351(a) provided that, within 120 days of suit, a plaintiff must serve expert
reports for each physician or health care provider against whom a liability claim is
asserted. See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen.
Laws 1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM. CODE ANN. §
34.351(a) (West, Westlaw through Ch. 46 2015 R.S); see also Ogletree v. Matthews, 262
S.W.3d 316, 319 (Tex. 2007). These reports must identify the “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 and the
injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)
(West, Westlaw through Ch. 46 2015 R.S.). If a plaintiff does not serve a timely report, a
trial court “shall” grant the defendant’s motion to dismiss the case with prejudice. An order
that denies all or part of the relief sought in such a motion may be immediately appealed.
Id. § 51.014(a)(9) (West, Westlaw through Ch. 46 2015 R.S.) (authorizing interlocutory
appeal from an order that “denies all or part of the relief sought by a motion under Section
74.351(b)”); see id. § 74.351(b). But if a report is served, “[e]ach defendant physician or
health care provider whose conduct is implicated . . . 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.” Id. § 74.351(a) (West, Westlaw through Ch. 46 2015
R.S.).
III. DISCUSSION
A. Original Filing
4
Under prior law, section 74.351(a) provided that “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. See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen.
Laws 1590 (amended 2013). Martinez argues for the subsequent revision effective
September 1, 2013: “In a health care liability claim, a claimant shall, not later than the
120th day after the date each defendant’s original answer is filed, serve on that 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (emphasis added).
The trial court, in agreement with appellee’s position, concluded Martinez’s original
petition was not filed until September 20, 2013, thus extending the applicable time to
serve the required reports beyond the original December 13, 2013, deadline. Appellee
argues from the legislative history that the test is not “filing” but commencing the lawsuit.3
She argues that multiple mistakes were made, including the failure to file the expert report
and CV. In a note dated September 4, 2013, the deputy clerk stated that the district
clerk’s office received a new E-filed petition on August 15, 2013 but “Unfortunately our
Office is lacking the rest of the Constable Fees for Citations of $15.” She requested a
money order, check or cashier check to be paid and directed to her attention and also
requested a civil case information sheet and a service request sheet. “In order for Our
3
Appellee cites Travelers Ins. Co. v. Brown, 402 S.W.2d 500, 504 (Tex. 1966) and other authorities,
which we do not view as being on point.
5
Office to Proceed we do need the items listed above.” The note does not reject the
petition or return the over five hundred dollars in filing fees paid.
The face of the original petition filed August 15, 2013, states in the upper right hand
corner: “Filed 13 August 15 P5:00 Patsy Perez District Clerk Nueces District.” This is
further corroborated by the clerk’s E-file report stating: “Status: Confirmation; Official
Date/Time 08/15/2013 05:00:24 PM; Clerk Process Date: 08/16/2012 11:59:04 AM.”4
Under comments, the clerk notes: “Thank you for E-filing. Have a wonderful day!” Rule
22 plainly states: “A civil suit in the district or county court shall be commenced by a
petition filed in the office of the clerk.” TEX. R. CIV. P. 22. Under local rule 4.3(b), upon
sending an electronically-transmitted document to a filer’s EFSP, the filer is deemed to
have delivered the document to the clerk and subject to exceptions not applicable here
“the document is deemed to be filed.” NUECES COUNTY LOC. R. OF ADMIN. 4.3.5 The clerk’s
file stamp is prima facie evidence of the date of filing, but the presumption it raises may
be rebutted. Dallas Cnty. v. Gonzales, 183 S.W.3d 94, 103 (Tex. App.—Dallas 2006, pet.
denied) (citing Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371,
371–72 (Tex. 1990) (per curiam)).
In Jamar, the supreme court held that a motion for new trial tendered without the
necessary filing fee is nonetheless conditionally filed when it is presented to the clerk,
and that date controls for purposes of the appellate timetable. Jamar v. Patterson, 868
S.W.2d 318, 319 (Tex. 1993). The high court based this holding on “our policy to construe
rules reasonably but liberally, when possible, so that the right to appeal is not lost by
creating a requirement not absolutely necessary from the literal words of the rule.” Id.
4 There is a handwritten note on the E-file confirmation stating: “Need CCTS and SIS.”
5 This corresponds to the new state E-filing rule, TEX. R. CIV. P. 21, effective January 1, 2014.
6
The failure to pay the filing fee before a motion is overruled by operation of law may forfeit
altogether the movant’s opportunity to have the trial court consider the motion but it does
not retroactively invalidate the conditional filing for purposes of the appellate timetable.
Tate v. E.I. DuPont de Nemours & Co., 934 S.W.2d 83, 84 (Tex. 1996). Here the filing
fee was paid, over $500, but a fifteen dollar portion of a constable fee was not paid until
September. An instrument is deemed in law filed at the time it is delivered to the clerk,
regardless of whether the instrument is file-marked. See Biffle v. Morton Rubber Indus.,
Inc., 785 S.W.2d 143, 144 (Tex. 1990).
Martinez argues that the clerk rejected the filing because of the missing fifteen
dollar constable fee and the lack of a case information and service request sheet. Nueces
County Local Rules of Court 4.3(e) and 4.3(g) state that a clerk of the court may reject a
plaintiff’s original petition and notify the filer as to why the petition was rejected. NUECES
COUNTY LOC. R. OF ADMIN. 4.3(e),(g). However, the record does not support such a
rejection. In fact the actual filing of the original petition on August 15, 2012, is reiterated
several times by the district clerk. We also note the local rules state that upon sending
an E-filed document to a filer’s EFSP account (subject to R. 4.3(h)) “the document is
deemed to be filed.” Id. R. 4.3(b). While the clerk may reject or not accept the filing, the
clerk must inform the party of its action the same day that action is taken. Id. R. 4.3(e).
In addition, the district clerk, not later than the first business day after receiving the E-filed
document, must decide whether the document will be accepted for filing. Id. “If the clerk
fails to accept or reject a document within the time period, the document is deemed to
have been accepted and filed.” Id. Thus, the original petition was filed August 15, 2013
and in any event deemed filed August 16, 2013. See id. However, Martinez also
7
maintains that no reports were necessary because the claims against the three entities
were based on vicarious liability. We examine this assertion.
B. Vicarious Liability
Appellee contends that the “entity” appellants, i.e., Texas Vein, TVV, and Alonso
PA, are not entitled to separate expert reports if their liability is based on the physician’s
conduct rather than the conduct of the professional associations. However, the applicable
statute states: “a claimant shall . . .serve on each party or the party’s attorney one or
more expert reports. . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Appellee cites
McCoy for the proposition that if the legal consequences to the professional association
are based solely on the doctors’ conduct, and no allegation is made that the professional
association itself is negligent in some way, then a separate expert report addressing the
professional association’s conduct would appear to be unnecessary. Obstetrical &
Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96, 105 (Tex. App.—Houston [14th
Dist. 2009, pet. denied). However, Martinez’s original petition alleges “As the result of
the negligence of Defendants, (three entities) Plaintiff has suffered damages.” It further
charges “Plaintiff would show that Defendants were negligent in caring for and treating
Plaintiff. Plaintiff presented to Defendants with a history of transient weakness of the right
arm for two days the preceding year, with full recovery.” While the petition also speaks
to negligence on the part of Dr. Alonso, there is no allegation of vicarious liability until
months later after the expert reports were past due. Furthermore, the case also recites
the general rule that “Each physician or health care provider sued must be addressed in
an expert report.” Id. at 101.
Appellee also cites Estorque v. Schafer, 302 S.W.3d 19, 31 (Tex. App.—Fort
Worth 2009, no pet.). Again, this case is distinguishable because the Schafers did not
8
allege any theories of negligence distinct from the negligence of the two physicians, and
no direct acts by the professional associations as separate entities were identified or
challenged as a basis for liability. See id. In any event, no sufficient report concerning
even Alonso was timely filed or served as required under Chapter 74 relating to the
original August 15, 2013 claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).
The supreme court has recently clarified the need for multiple reports in Potts. See
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) (holding that when a health
care liability claim involves a vicarious liability theory, either alone or in combination with
other theories, an expert report that meets the statutory standards as to the employee is
sufficient to implicate the employer’s conduct under the vicarious liability theory; if any
liability theory has been adequately covered, the entire case may proceed.). Here, no
report meeting the statutory standards was timely filed, thus no liability theory was
adequately covered as to Texas Vein, TVV, and Alonso PA.
Because Martinez failed to timely serve the mandatory expert report and CV on
Texas Vein, TVV, and Alonso PA, we sustain this issue. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(a); Ogletree, 262 S.W.3d at 319–20 (stating that the Legislature
denied trial courts the discretion to deny motions to dismiss or grant extensions when
expert reports are not served with 120 days).
C. Dr. Javier Alonso Individually
In appellee’s original petition filed on August 15, 2013, only Texas Vein, TVV, and
Alonso PA were named as defendants. Dr. Javier Alonso is not named in his individual
capacity. But as appellants point out, the petition alleges that Javier Alonso, M.D., PH.D.,
PA is an individual, medical doctor, and professional association practicing in the State
of Texas. However, service of process was only requested on Texas Vein, TVV, and
9
Alonso PA. Texas Vein and TVV were to be served through their registered agent, Alonso
PA. Only Texas Vein, TVV, and Alonso PA filed answers. No answer was filed on behalf
of Alonso individually. The pattern continued throughout the litigation with the original
motion to dismiss being filed only by Texas Vein, TVV, and Alonso PA. Even this appeal
was originally brought only in these three entities’ names.
A new amended suit was filed on January 20, 2014, naming for the first time
Alonso individually. An answer was first filed on behalf of Alonso on March 11, 2014.
Thereafter, a separate motion to dismiss was filed on behalf of Alonso and a separate
appeal was taken on his individual behalf. The trial court also found Alonso was not sued
until January 20, 2014. While it is true that appellee’s first amended petition states that
Alonso had answered, the record does not indicate any answer filed in his individual
capacity until well after the second amended petition naming him individually was first
filed on January 20, 2014. It is also true that the various petitions accuse “Dr. Alonso” of
various acts of negligence and of performing the surgery. Still, the original citation was
directed to Alonso PA, not Alonso individually. The return of service was likewise for
Alonso PA. Finally, in their discovery response, appellants listed only Texas Vein, TVV,
and Alonso PA as correctly named parties, and Alonso individually was not named.
“It is well established that plaintiffs are the masters of their suit regarding the claims
and parties they choose to pursue.” Heard v. Moore, 101 S.W.3d 726, 728 (Tex. App.—
Texarkana 2003, pet. denied). “The general rule is that, in the absence of special
exceptions, a petition will be construed liberally in favor of the pleader.” Boyattia v.
Hinojosa, 18 S.W.3d 729, 733 (Tex. App.—Dallas 2000, pet. denied) (citing Roark v.
Allen, 633 S.W.2d 804, 809 (Tex. 1982)). The petition as a whole must be considered in
determining who is being sued. See Cox v. Union Oil Co., 917 S.W.2d 524, 526 (Tex.
10
App.—Beaumont 1996, no writ). Alonso individually did not file an answer and appear
until March 11, 2014, and then only after Martinez filed a motion for a default judgment
against him. For a non-appearing entity to become a party to a lawsuit, it must be named
as a defendant in the plaintiff’s pleadings. Reynolds v. Haws, 741 S.W.2d 582, 588–589
(Tex. App.—Fort Worth, 1987, writ denied) (holding that an entity is not a party to a lawsuit
without being so named). When reading section 74.351(a) as a whole, the expert report
requirement is not triggered until the claimant files a cause of action naming a particular
physician; it is only then that the defendant becomes a “party” to a suit involving a health
care liability claim. Stroud v. Grubb, 328 S.W.3d 561, 564–65 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) and noting
that report must be served on a “party” or a “party’s attorney”). In Stroud, the fourth
amended petition was not the first-filed original petition in the lawsuit; however, it was the
first petition to assert a claim against Stroud, and thus was the original petition naming
him as a party. Id. This court has also held that the 120-day period began to run when
a defendant is first named as a defendant. Padre Behavioral Health Sys., LLC v. Chaney,
310 S.W.3d 78, 85 (Tex. App.—Corpus Christi, 2010, no pet.).6
As amended, the applicable report requirement now states: “In a health care
liability claim, a claimant shall, not later than the 120th day after the date each defendant’s
original answer is filed, serve on that 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.” TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351. As noted above, Alonso did not answer until March 11, 2014. We
6This is not a situation where Alonso was sued as a d/b/a for Alonso PA. Cf. Chilkewitz v. Hyson,
22 S.W.3d 825, 830 (Tex. 1999).
11
hold that appellee timely served the required expert report and CV pertaining to Dr. Alonso
individually. See id. § 74.351(a).
D. Attorney’s Fees
Martinez argues appellants are not entitled to attorney’s fees because the expert
report was timely filed. While this is true as to Alonso individually, we have already
rejected this argument as to Texas Vein, TVV, and Alonso PA. She also argues that the
amounts of attorney’s fees were not disclosed and that because the Texas Medical
Liability Trust provided insurance coverage, appellants cannot show they actually
incurred any attorney’s fee. The supreme court disposed of the latter part of this argument
in Aviles v. Aguirre, 292 S.W.3d 648, 649 (Tex. 2009). There, it held that when an insurer
paid an insured doctor’s attorney’s fees on his behalf, the insurer was “stand[ing] in the
shoes of its insured.” Id. (quoting Sonat Exploration Co. v. Cudd Pressure Control, Inc.,
271 S.W.3d 228, 236 (Tex. 2008)). The fact that the medical providers had insurance
does not prohibit an award of attorney’s fees under the civil practice and remedies code.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1) (requiring trial court to award
attorney’s fees and costs “incurred by the physician or health care provider” if an expert
report is not filed).
We likewise reject appellee’s argument because attorney fees are not economic
damages subject to disclosure but rather are sanctions. See Villafani v. Trejo, 251
S.W.3d 466, 468 (Tex. 2008) (stating that if the plaintiff fails to provide an adequate expert
report, the statute allows a defendant to move for sanctions against the plaintiff, including
an award of attorney’s fees against the plaintiff). Finally, appellants’ disclosures were
made November 7, 2013, well before expert reports were due December 13, 2013. We
12
conclude appellants are entitled to a hearing on attorney’s fees and costs as to Texas
Vein, TVV, and Alonso PA. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1); see
also Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 763 (Tex. 2014).
IV. CONCLUSION
In cause number 13-14-00176-CV, we reverse and render in part and reverse and
remand in part. We reverse the denial of appellants’ motion to dismiss the claims of
Martinez against Texas Vein, TVV, and Alonso PA, and render judgment on their behalf.
The “entity” appellants’ claims for attorney’s fees are remanded to the trial court for further
proceedings consistent with this opinion.
In cause number 13-14-00346-CV, we affirm the trial court’s denial of the motion
to dismiss as to Alonso, and we affirm the trial court’s denial of attorney’s fees to Alonso
individually.
In each cause, costs are taxed to the party incurring same.
/s/ DON WITTIG
Assigned Justice
Delivered and filed the
3rd day of September, 2015.
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Texas Vein and Vascular, TVV Medispa, and Javier Alonso M.D. v. Mary Martinez
Combined Opinion