Zanchi v. Lane

Citation349 S.W.3d 97
Decision Date01 September 2011
Docket NumberNo. 06–11–00036–CV.,06–11–00036–CV.
PartiesMichael A. ZANCHI, M.D., Michael A. Zanchi, M.D., P.A., and Paris Regional Anesthesia, P.A., Appellants,v.Reginald Keith LANE, Individually, And as Personal Representative of The Estate of Juameka Cynarra Ross, Deceased, et al., Appellees.
CourtCourt of Appeals of Texas

OPINION TEXT STARTS HERE

Charles G. Bell, Vernon L. Krueger, Christopher J. Hanlon, Krueger, Bell & Bailey, LLP, Dallas, for appellants.Darrell L. Keith, Phillip S. Brown, Keith Law Firm, PC, Fort Worth, for appellees.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Twenty-four-year-old Juameka Cynarra Ross died after undergoing a splenectomy at Paris Regional Medical Center. Michael A. Zanchi, M.D., 1 the anesthesiologist, was sued by Reginald Keith Lane, individually, and as personal representative of Ross' estate, for medical negligence allegedly resulting in Ross' death.2 Lane filed the original petition on April 21, 2010, but did not serve Zanchi with process until September 16, 2010.3 In the interim, on August 19, 2010, Lane mailed the expert report of Jeffrey Wagner, M.D.,4 to Zanchi by certified mail, return receipt requested, as required by Section 74.351(a) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West 2011). Zanchi filed a motion to dismiss the lawsuit, alleging that any transmittal of the expert report to him before the date he was served with process was no service at all, because he was not a party to the lawsuit. 5 The trial court denied Zanchi's motion to dismiss. Because Zanchi was a party to the lawsuit when he was timely served with the expert report, we affirm the trial court's order.6

Zanchi Was a Party to the Lawsuit When Timely Served with the Expert Report

A trial court's ruling on a motion to dismiss under Section 74.351(b) is reviewed for an abuse of discretion. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b) (West 2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 (Tex.2001). A trial court abuses its discretion when it “reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re Bass, 113 S.W.3d 735, 738 (Tex.2003); Yilmaz v. McGregor, 265 S.W.3d 631, 635–36 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). When the facts are not in dispute, the question of whether service satisfied the requirements of Section 74.351(a) is a purely legal question. Questions of law are subject to a de novo review. See Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 137 (Tex.App.-Eastland 2006, no pet.).7

Zanchi contends the trial court erred by denying his motion to dismiss Lane's suit because Lane did not timely serve Zanchi with an expert report, as required by Section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011). Pursuant to Section 74.351(a), a claimant must serve on each party or the party's attorney” one or more expert reports no later than the 120th day after the date the original petition was filed. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). By statute, if an expert report is not served within the specified time period, the court must dismiss the claim with prejudice and award to the affected health care provider reasonable attorneys' fees and costs of court. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(1), (2). Each defendant physician whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the twenty-first day after the date the report was served, subject to waiver of those objections. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a).

Here, because Lane filed his lawsuit April 21, 2010, he was required to serve one or more expert reports on Zanchi or Zanchi's attorney by August 19, 2010, the 120th day after the filing of the original petition. Lane asserts that he timely served his expert report on Zanchi August 19, 2010, via certified mail, return receipt requested. It is undisputed that, at that time, Zanchi had not yet been served with process and that he was not served with process until September 16, 2010. Zanchi, therefore, contends that Lane did not serve his expert report on a party before the expiration of the 120–day period, as required. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Zanchi maintains that the trial court was therefore required, upon motion, to dismiss the suit. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(2).

In support of his position, Zanchi points to the language of the statute, which provides that a claimant must serve on each party or the party's attorney” one or more expert reports no later than the 120th day after the original petition was filed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(2). The term party is not defined in Section 74.351 or Chapter 74 of the Texas Civil Practice and Remedies Code. “Any legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(b) (West 2011). The question then, of whether Zanchi was a party to the lawsuit when the expert report was served, hinges on the meaning of party under the common law. We conclude that, under the common law and under the statutory scheme, one is a party if so named in a pleading, whether or not yet served.

Zanchi contends that, under the common law, to be a party, one must generally “be named in the pleadings and ... be served, accept or waive service, or make an appearance.” Yilmaz, 265 S.W.3d at 637. Yilmaz involved a health care liability claim in which the original petition was filed in March 2007. Attempts to serve Yilmaz with process were unsuccessful. McGregor alleged service of the expert report one day before the statutory deadline. Because Yilmaz was not served with process before service of the expert report, he filed a motion to dismiss, claiming the expert report was served at a “known wrong address,” at a time when he was not a party to the suit. Id. at 635. The trial court denied the motion to dismiss.

On appeal, the First Court of Appeals ruled that Yilmaz was not a party to the lawsuit at the time the expert report was served and, thus, that the motion to dismiss should have been granted. In defining a party as one who must “be named in the pleadings and ... be served, accept or waive service, or make an appearance,” Yilmaz relied on Ex parte Bowers, 886 S.W.2d 346 (Tex.App.-Houston [1st Dist.] 1994, writ dism'd w.o.j.). In Bowers, the defendant complained that he did not receive notice of an injunction and was therefore not bound by its provisions. In its discussion of whether Bowers was bound by the injunction, the court stated, “A party to a suit generally is one named in the pleadings, who is served, accepts or waives service, or appears, and who participates at trial and contests the cause of action.” Id. at 349. Bowers relies on Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex.1991), in support of this definition. In addition, Yilmaz relies on Mapco for the proposition that [m]erely being named in a petition as a defendant does not make one a party to the lawsuit.” Yilmaz, 265 S.W.3d at 637.

Our reading of Mapco does not support that proposition. In Mapco, the Texas Supreme Court ruled that a judgment may not be entered against a party not before the trial court. In that case, the Carters sued Mapco Underground Storage of Texas, Inc., and Texasgulf, Inc. Even though a related corporation, Mapco, Inc., was not named in the pleadings and was not served with process, a judgment was entered against it. In reversing that judgment, the court stated, “In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance.” Mapco, Inc., 817 S.W.2d at 687. Mapco does not state, or even support the proposition, that one is not a party until that one is served with process, accepts or waives such service, or makes an appearance. Three of our sister courts have adopted the definition of party as used in Yilmaz.8 In each of those decisions, the discussion has pointed to Mapco as the source of this definition. Our analysis leads us to the belief that such reliance is misplaced.

While Mapco recognizes the well defined concept that a party cannot be subjected to the jurisdiction of the court when that party has not been served with process, or has otherwise accepted or waived service, it did not undertake to define the term party.” Indeed, a person has no duty to participate in proceedings if the person has not been properly served, even if the person later becomes aware of the proceedings. Ross v. Nat'l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 797–98 (Tex.2006) (per curiam). The concept of personal jurisdiction, however, as discussed in Mapco and in Ross, is distinct from the concept of party status. The Texas Supreme Court did not hold, in Mapco or Ross, that one named as a defendant in a lawsuit is not a party to that suit unless and until that person has been served, accepts or waives service, or makes an appearance. While it is true that a party must be served, accept or waive service, or otherwise appear in order for a judgment to be rendered against that party, it does not logically follow that such a party, named in the pleadings on file with the district clerk, is not a party to the lawsuit in which the party has been specifically named, merely because there is no obligation to participate until brought within the jurisdiction of the court. Stated another way, a party named in the pleadings is no less a party to the lawsuit even though that party has yet to be served.

Where a health care provider, and prospective defendant, is served with an expert report before suit is even filed against the provider, he ...

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6 cases
  • Zanchi v. Lane, 11–0826.
    • United States
    • Supreme Court of Texas
    • August 30, 2013
    ...affirmed, holding that “one is a ‘party’ if so named in a pleading, whether or not yet served [with process].” Zanchi v. Lane, 349 S.W.3d 97, 100 (Tex.App.–Texarkana 2011).II. The Expert–Report Requirement and Applicable Legal Standards In order to proceed with an HCLC, a claimant must comp......
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  • Key v. Muse, 05–11–00071–CV.
    • United States
    • Court of Appeals of Texas
    • November 28, 2011
    ...Several appellate courts, however, have considered the meaning of the term “party” as used in subsection 74.351(a). See Zanchi v. Lane, 349 S.W.3d 97, 102–03 (Tex.App.-Texarkana 2011, no pet. h.); Carroll v. Humsi, 342 S.W.3d 693, 698–99 (Tex.App.-Austin 2011, no pet.); Dingler v. Tucker, 3......
  • Konasiewicz v. Lomas, NUMBER 13-15-00062-CV
    • United States
    • Court of Appeals of Texas
    • July 30, 2015
    ...defer to the trial court's resolution of disputed factual matters if its decision is supported by the record. See Zanchi v. Lane, 349 S.W.3d 97, 99 (Tex. App.—Texarkana 2011) ("When the facts are not in dispute, the question of whether service satisfied the requirements of Section 74.351(a)......
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