Hernandez v. Ebrom

• Decision Date: 03 July 2009
• Docket Number: No. 07-0240.,07-0240.
• Parties: Miguel HERNANDEZ, M.D., Petitioner, v. Julious EBROM and Richard Hunnicutt, Respondents.
• Court: Texas Supreme Court

289 S.W.3d 316

Miguel HERNANDEZ, M.D., Petitioner, v. Julious EBROM and Richard Hunnicutt, Respondents.

No. 07-0240.

Supreme Court of Texas.

Argued October 15, 2008.

July 3, 2009.

Ronald G. Hole, Hole & Alvarez, L.L.P., McAllen, TX, for Petitioner.

Richard W. Hunnicutt III, Law offices of David McQuade Leibowitz, Michael Don Joy II, San Antonio, TX, for Respondent.

Justice JOHNSON delivered the opinion of the Court, in which Justice HECHT, Justice WAINWRIGHT, Justice BRISTER, Justice GREEN, and Justice WILLETT joined.

A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the plaintiff's expert report. The statutes authorizing the defendant's objection and appeal do not impose consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health care provider's failure to challenge the adequacy of an expert report by interlocutory appeal precludes a challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of appeals held it does; we hold it does not. We reverse and remand to the court of appeals.

I. Background

Dr. Miguel Hernandez, a member of McAllen Bone and Joint Clinic, performed surgery on Julious Ebrom's knee. Ebrom experienced complications, filed a health care liability suit against Dr. Hernandez and the clinic, and timely provided the required expert report. See TEX. CIV. PRAC. & REM.CODE § 74.351(a).

Dr. Hernandez and the clinic filed a motion to dismiss, asserting that the report was deficient because no curriculum vitae for the expert making the report was submitted, the report was conclusory, and it did not mention either defendant. Both defendants sought recovery of their attorney's fees and costs. See id. § 74.351(b)(1). The trial court granted the motion as to the clinic but denied it as to Dr. Hernandez. Six months later, and before trial, Ebrom filed notice of nonsuit. The trial court dismissed the case with prejudice. Following entry of the final judgment of dismissal, Dr. Hernandez appealed the trial court's denial of his earlier motion to dismiss. He re-urged his contention that Ebrom's expert report was deficient and sought his attorney's fees.

The court of appeals dismissed the appeal for lack of jurisdiction. 289 S.W.3d 332, 2007 WL 416538. It held that the order denying the motion to dismiss was rendered moot by the subsequent nonsuit and order of dismissal. Id. at 332. The appeals court relied on two cases we have since reversed: Villafani v. Trejo, No. 13-04-449-CV, 2005 WL 2461821 (Tex.App.-Corpus Christi Oct.6, 2005), rev'd, 251 S.W.3d 466 (Tex.2008), and Barrera v. Rico, No. 13-04-480-CV, 2005 WL 1693698 (Tex.App.-Corpus Christi July 21, 2005), rev'd per curiam, 251 S.W.3d 519 (Tex.2008). We held in those cases that a health care provider may appeal the trial court's denial of a motion for sanctions and dismissal despite a nonsuit, as "the purpose of the sanctions ... survive[s] [the plaintiff's] nonsuit." Villafani, 251 S.W.3d at 471; see also Barrera, 251 S.W.3d at 520. Under Villafani, Ebrom's assertion that the nonsuit rendered Dr. Hernandez's subsequent appeal moot is invalid.

However, Ebrom also asserts that because Dr. Hernandez failed to pursue an interlocutory appeal, his complaints have been waived. See TEX. CIV. PRAC. & REM. CODE §§ 51.014(a)(9), 74.351.¹ Dr. Hernandez argues that because the plain language of the statute says an interlocutory appeal "may" be taken from an order denying a challenge to an expert report, an interlocutory appeal is permitted but not mandated. See id. § 51.014(a).

We agree with Dr. Hernandez. His failure to pursue an interlocutory appeal did not waive the right to challenge the order after Ebrom nonsuited and final judgment was entered.

II. Discussion

Under the Medical Liability Insurance Improvement Act (MLIIA) as it applies to this case, a health care liability claimant must serve an expert report on the defendant provider within 120 days of filing suit. Id. § 74.351(a). Each health care defendant whose conduct is implicated in the report may object to the report's sufficiency. Id. However, the objection must be made "not later than the 21st day after the date it was served, failing which all objections are waived." Id. If a timely and sufficient report is not served, the trial court must award the provider its attorney's fees and costs and dismiss the case with prejudice. Id. § 74.351(b).

Generally, appeals may only be taken from final judgments, Ogletree v. Matthews, 262 S.W.3d 316, 319 n. 1 (Tex. 2007), and an order denying a health care defendant's objection to an expert report is not a final judgment. However, section 51.014(a)(9) of the Texas Civil Practice and Remedies Code provides that a person "may" appeal from an interlocutory order that "denies all or part of the relief sought by a motion under Section 74.351(b)."

In construing statutes, "our primary objective is to ascertain and give effect to the Legislature's intent." City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex.2006). If the Legislature provides definitions for words it uses in statutes, then we use those definitions in our task. See TEX. GOV'T CODE § 311.011(b). We give effect to legislative intent as it is expressed by the statute's language and the words used, unless the context necessarily requires a different construction or a different construction is expressly provided by statute. See id. § 311.016; City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). Unambiguous statutory language is interpreted according to its plain language unless such an interpretation would lead to absurd results. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999).

According to the Code Construction Act, "`[m]ay' creates discretionary authority or grants permission or a power." TEX. GOV'T CODE § 311.016(1). In this case, Ebrom does not contend that some context or express language in section 51.014 makes it necessary to read "may" differently than how it is defined. Nor do we see in the statute either express language or a context that necessitates construing "may" as imposing a duty as opposed to creating authority or granting permission or a power.

In other cases where this Court has construed "may," we considered the plain language of the statutes. For example, in Dallas County Community College District v. Bolton, 185 S.W.3d 868, 873 (Tex. 2005), the issue was whether a statute prohibited the collection of technology fees if they were not used for bond repayment when the statute provided such fees collected by public junior colleges "may be pledged to the payment of [revenue] bonds." The Court recognized "[w]e cannot disregard the Legislature's choice of language in providing that the authorized fees `may be pledged to the payment' of revenue bonds rather than requiring that they must or shall be so pledged." Id. We concluded that "`may' and `shall' mean different things, and there is no clear indication from the Legislature that it intended otherwise." Id. at 874; see also Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 623 (Tex.2007) (statute providing the insurance commissioner "may" give consideration to certain expenses was permissive and did not compel him to do so).

The Legislature authorized health care providers to pursue interlocutory appeals from trial court denials of challenges to plaintiffs' expert reports, but we see no indication that the Legislature effectively mandated interlocutory appeals by providing that if no appeal was taken, then the health care provider waived the right to challenge the report under all circumstances. Neither section 51.014(a)(9) nor section 74.351 indicates there are consequences if an appeal from the interlocutory order is not pursued. Cf. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001) ("To determine whether a timing provision is mandatory, we first look to whether the statute contains a noncompliance penalty."). The statute providing for interlocutory appeals states only that "[a] person may appeal from" certain specified interlocutory orders. TEX. CIV. PRAC. & REM.CODE § 51.014. And section 74.351, which requires expert reports and allows health care providers to challenge them, does not reference the question of appeal, interlocutory or otherwise, from such a challenge or the ruling on it.

Ebrom relies on Bayoud v. Bayoud, 797 S.W.2d 304 (Tex.App.-Dallas 1990, writ denied), to support his argument that failure to pursue an interlocutory appeal waives the issue. In Bayoud, the appellant challenged the trial court's grant of a temporary injunction enjoining a receiver from selling a company's assets on the ground that the trial court failed to require the appellant, who had requested the injunction, to file a bond. Id. at 308. The court held that the appellants "lost their right to complain of the validity of the bond or the injunction order as they should have appealed within proper time limits after the grant of the injunction." Id. at 312 (citing TEX. CIV. PRAC. & REM.CODE § 51.014(a)(4)). But Bayoud was not addressing the type of interlocutory appeal at issue here.

Appeals of some interlocutory orders become moot because the orders have been rendered moot by subsequent orders. See, e.g., Richards v. Mena, 820 S.W.2d 372, 372 (Tex.1991) (the appeal of a temporary injunction was rendered moot by the rendering of a permanent injunction); Lincoln Prop. Co. v. Kondos, 110 S.W.3d 712, 715 (Tex.App.-Dallas 2003, no pet.) (recognizing that the issue of whether the trial court properly granted class certification was rendered moot by the trial court's grant of the defendant's motion for summary judgment). But as to the statute involved here, we recently held that a motion to dismiss and for sanctions is not rendered moot by a nonsuit. Villafani, 251 S.W.3d at 471.

Appellate review in this case would allow Dr....