Univ. of Tex. Health Sci. Ctr. At Hous. v. Joplin

• Decision Date: 18 May 2017
• Docket Number: No. 14-16-00538-CV.,14-16-00538-CV.
• Citation: 525 S.W.3d 772
• Parties: The UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Appellant v. Bryan JOPLIN and Janice Joplin, Appellees
• Court: Texas Court of Appeals

525 S.W.3d 772

The UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Appellant

v.Bryan JOPLIN and Janice Joplin, Appellees

No. 14-16-00538-CV.

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed May 18, 2017

Lisa Violet Cubriel, Austin, TX, for Appellant.

Les Weisbrod, Lawrence Ray Lassiter, Dallas, TX, for Appellees.

Panel consists of Chief Justice Frost and Justices Brown and Jewell.

OPINION

Marc W. Brown, Justice

By this interlocutory appeal, the University of Texas Health Science Center at Houston (UTHSCH) challenges the trial court's denial of UTHSCH's motion to dismiss Bryan Joplin and Janice Joplin's lawsuit with prejudice for failure to serve an expert report and curriculum vitae (CV) pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. Because the Joplins failed to comply with the service requirement under section 74.351(a), subjecting their claims to mandatory dismissal under section 74.351(b), we conclude that the trial court abused its discretion. We also reject the Joplins' arguments that enforcing section 74.351's mandatory dismissal encourages unprofessional conduct and violates the Texas Constitution as applied to them. Therefore, we reverse the trial court's order denying UTHSCH's motion to dismiss, render judgment dismissing the Joplins' claims against UTHSCH with prejudice, and remand for a determination of reasonable attorney's fees and costs.

I. BACKGROUND

On August 7, 2015, Bryan and Janice Joplin filed a healthcare liability suit against Phillip Lloyd Leggett, M.D., and Sarah Josephine Lippert, M.D., in connection with surgery performed on Bryan in August 2013. The Joplins filed two exhibits with their original petition: (1) an expert report signed by Miguel Angel Velez, M.D., and (2) Velez's CV. The Joplins served their original petition, Velez's expert report, and Velez's CV on Leggett and Lippert. Lippert forwarded to UTHSCH a copy of the original petition and exhibits, and requested defense and representation under the UT System Professional Medical Liability Plan.

Lippert filed a motion to dismiss. Lippert asserted: that (1) she was a full-time employee of governmental unit UTHSCH at the time of the surgery, (2) she was acting in the general scope of her employment at the time of the surgery, and (3) the lawsuit could have been brought against UTHSCH. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (West 2011).

On January 5, 2016, the Joplins filed their first amended petition and substituted UTHSCH for Lippert as a defendant. The Joplins alleged vicarious liability negligence claims against UTHSCH based on Lippert's conduct. The first amended petition stated that the Joplins simultaneously were attaching and serving two exhibits with their petition: (1) Velez's expert report and (2) Velez's CV. The Joplins failed to upload these exhibits when they electronically filed their first amended petition. The Joplins did not serve these exhibits on UTHSCH with the first amended petition.

UTHSCH filed its original answer on January 21, 2016. On March 1, 2016, the Joplins filed a second amended petition, which stated that Velez's expert report and CV previously had been produced. On June 2, 2016, UTHSCH filed its motion to dismiss with prejudice for failure to serve an expert report and CV pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. UTHSCH argued that dismissal was mandatory under section 74.351 and requested that the Joplins pay UTHSCH's reasonable attorney's fees and costs of court. UTHSCH included the following exhibits: the Joplins' first amended petition; the civil process request for the first amended petition on UTHSCH; and the affidavit of service for the first amended petition on UTHSCH.

In their response, the Joplins argued that their mistake in inadvertently not uploading, attaching, and serving Velez's expert report and CV with their first amended petition should not result in dismissal under section 74.351. The Joplins relied on Hebner v. Reddy , 498 S.W.3d 37 (Tex. 2016). The Joplins also argued that they fulfilled the purposes of section 74.351 because Lippert forwarded a copy of the original petition with Velez's expert report and CV to UTHSCH. The Joplins further argued that dismissal would violate the Texas Constitution and would reward what the Joplins claim was unprofessional conduct by the Attorney General's Office, which has represented UTHSCH throughout this litigation. Finally, the Joplins requested a 30-day extension to cure any deficiency in service of the expert report. The Joplins included the following exhibits: their original petition; Velez's expert report and CV as filed with the Joplins' original petition; the citation and return of citation for the original petition on Lippert; Lippert's original answer; Lippert's motion to dismiss; UTHSCH's answers to requests for admissions; the Joplins' first and second amended petitions; the citation and affidavit of service for the first amended petition on UTHSCH; and the slip opinion in Hebner . UTHSCH filed a reply.

On June 17, 2016, the trial court signed an order denying UTHSCH's motion to dismiss. UTHSCH timely filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West 2015 & Supp. 2016).

II. ANALYSIS

A. Standard of review

We review a trial court's ruling on a motion to dismiss under section 74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001) ; Univ. of Tex. Health Sci. Ctr. at Houston v. Cheatham , 357 S.W.3d 747, 748 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). Under this standard, we defer to a trial court's factual determinations, but we review de novo questions of law involving statutory interpretation and constitutional challenges. Cheatham , 357 S.W.3d at 748 ; see Stockton v. Offenbach , 336 S.W.3d 610, 615 (Tex. 2011) ; Rivenes v. Holden , 257 S.W.3d 332, 336 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). A trial court has no discretion in determining what the law is or applying the law to the facts. Univ. of Tex. Med. Branch at Galveston v. Callas , 497 S.W.3d 58, 62 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) ). Therefore, the trial court's failure to analyze or apply the law correctly is an abuse of discretion. Id. In this case, the facts are undisputed, and the parties' dispute concerns purely legal questions. See id.

B. The parties' positions

UTHSCH brings one main issue: that the trial court erred in denying UTHSCH's motion to dismiss with prejudice pursuant to section 74.351 because the Joplins failed to serve an expert report and CV on UTHSCH within 120 days of the filing of UTHSCH's original answer. Within this issue, UTHSCH asserts: (1) failure to timely serve an expert report and CV on UTHSCH requires dismissal of the suit against UTHSCH, (2) accident or mistake does not extend the 120-day deadline, and (3) service on Lippert was not service on UTHSCH.

In response, the Joplins contend that they meant to upload the exhibits and serve them on UTHSCH and they believed the exhibits had been served until UTHSCH filed its motion to dismiss. The Joplins argue that the Supreme Court of Texas in Hebner refused to dismiss meritorious claims based on technical noncompliance with section 74.351. They assert that the purposes of section 74.351 were fulfilled when Lippert sent UTHSCH a copy of Velez's expert report and CV. In the alternative, the Joplins request a 30-day extension to cure deficiencies in their report. The Joplins further argue that UTHSCH's counsel's not informing them about the lack of filing and service of Velez's expert report and CV on UTHSCH was unprofessional conduct, which this court should not encourage or reward. The Joplins assert if their claims are dismissed without an opportunity for a hearing on the merits, then that dismissal would violate the Texas Constitution.

C. Section 74.351's expert-report requirement

Determining whether the Joplins' suit against UTHSCH must be dismissed presents an issue of statutory construction. The primary goal when interpreting a statute is to effectuate "the Legislature's intent as expressed by the plain and common meaning of the statute's words." F.F.P. Operating Partners, L.P. v. Duenez , 237 S.W.3d 680, 683 (Tex. 2007). "Where statutory text is clear, that text is determinative of legislative intent unless the plain meaning of the statute's words would produce an absurd result." Tex. Mut. Ins. Co. v. Ruttiger , 381 S.W.3d 430, 452 (Tex. 2012).

"To proceed with a health care liability claim, a claimant must comply with the expert report requirement of the Texas Medical Liability Act." Callas , 497 S.W.3d at 61 n.1. Section 74.351, entitled "Expert Report," provides:

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. 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 later of the 21st day after the date the report is served or the 21st day after the date the defendant's answer is filed, failing which all objections are waived.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017). Section 74.351 also provides:

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

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