Zanchi v. Lane

• Decision Date: 30 August 2013
• Docket Number: No. 11–0826.,11–0826.
• Citation: 56 Tex. Sup. Ct. J. 1152,408 S.W.3d 373
• Parties: Michael A. ZANCHI, M.D., Michael A. Zanchi, M.D., P.A., and Paris Regional Anesthesia, P.A., Petitioners, v. Reginald Keith LANE, Individually and as Personal Representative of the Estate of Juameka Cynarra Ross, Deceased, et al., Respondents.
• Court: Texas Supreme Court

408 S.W.3d 373

56 Tex. Sup. Ct. J. 1152

Michael A. ZANCHI, M.D., Michael A. Zanchi, M.D., P.A., and Paris Regional Anesthesia, P.A., Petitioners,

v.Reginald Keith LANE, Individually and as Personal Representative of the Estate of Juameka Cynarra Ross, Deceased, et al., Respondents.

No. 11–0826.

Supreme Court of Texas.

Argued Jan. 8, 2013.

Decided Aug. 30, 2013.

Charles G. Bell, Kruger, Bell & Bailey LLP, Michael Alan Yanof, Thompson Coe Cousins & Irons LLP, Dallas, TX, Sara M. Berkeley, Thompson Coe Cousins & Irons LLP, Austin, TX, for Petitioner Michael A. Zanchi, M.D.

Darrell L. Keith, Keith Law Firm PC, Fort Worth, TX, for Respondent Reginald Keith Lane.

Justice LEHRMANN delivered the opinion of the Court.

“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....” Tex. Civ. Prac. & Rem.Code § 74.351(a). Today we determine whether a claimant asserting a health care liability claim (HCLC) complies with section 74.351(a)'s mandate to serve an expert report on a “party” by serving the report on a defendant who has not yet been served with process. Because we construe the term “party” in section 74.351(a) to mean one named in a lawsuit, we hold that he does. We further hold that “service” of an expert report on such a defendant need not comport with the service requirements in Rule 106 of the Texas Rules of Civil Procedure that apply specifically to service of citation. Accordingly, we affirm the judgment of the court of appeals.

I. Factual and Procedural Background

Juameka Cynarra Ross died after undergoing a splenectomy at Paris Regional Medical Center (the Hospital) in Paris, Texas. On April 21, 2010, Reginald Keith Lane, individually and as personal representative of Ross's estate, filed suit under the Texas Medical Liability Act (TMLA) against anesthesiologist Michael A. Zanchi, M.D., alleging that Zanchi's medical negligence resulted in Ross's death. It is undisputed by the parties that Zanchi was not served with process until September 16, 2010. Lane attributes this delay, at least in part, to Zanchi's conduct, arguing that Zanchi actively evaded service. In the meantime, however, Lane mailed the expert report and curriculum vitae of Jeffrey Wagner, M.D., to Zanchi at five different locations (including the Hospital) by certified mail on August 19, 2010, which was the statutory deadline for serving the report. Four of the mailings were returned unclaimed, but a Chuey Potter signed for the mailing sent to the Hospital. The record does not reflect Zanchi's relationship to Potter, and Zanchi has neither admitted nor denied receiving Wagner's report.

Zanchi filed a motion to dismiss the suit for failure to timely serve an expert report as required by section 74.351(a) of the Texas Civil Practice and Remedies Code. At the hearing on the motion to dismiss, Zanchi specifically argued that he was not a “party” to Lane's suit until he was served with process, so any transmittal of Wagner's report to him before the date on which he was served could not satisfy section 74.351(a). Zanchi did not file any objections to the substance of the expert report. The trial court denied Zanchi's motion to dismiss. The court of appeals, with one justice concurring and one justice dissenting, 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 comply with the expert-report requirement of the TMLA. SeeTex. Civ. Prac. & Rem.Code § 74.351; Stockton v. Offenbach, 336 S.W.3d 610, 614 (Tex.2011). Section 74.351(a) provides that “[i]n 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.” Tex. Civ. Prac. & Rem.Code § 74.351(a). Strict compliance with that provision is mandatory. Stockton, 336 S.W.3d at 614. If the claimant does not serve an expert report by the statutory deadline and the parties have not agreed to extend the deadline, the statute requires, with one exception not relevant here, dismissal of the claim with prejudice “on the motion of the affected physician or health care provider.” Tex. Civ. Prac. & Rem.Code § 74.351(b).

Matters of statutory construction are legal questions that we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.2012). “The aim of statutory construction is to determine and give effect to the Legislature's intent, which is generally reflected in the statute's plain language.” CHCA Woman's Hosp., L.P. v. Lidji, 403 S.W.3d 228, 231 (Tex.2013). A word's meaning cannot be determined in isolation, but must be drawn from the context in which it is used. TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex.2011).

III. Discussion

A. The Meaning of “Party” under the TMLA

In his first issue, Zanchi argues that a defendant is not a “party” to an HCLC until he is served with process, waives service, or otherwise appears in a lawsuit. He contends that he did not become a “party” to this lawsuit until September 16, 2010, the day Lane served him with process. As a result, Zanchi argues, Lane did not comply with the requirement in section 74.351(a) that he serve the expert report on a “party” within 120 days of filing suit, and the trial court was required to dismiss Lane's suit. We disagree. We conclude that, in the context of the TMLA, the term “party” means one named in a lawsuit and that service of the expert report on Zanchi before he was served with process satisfied the TMLA's expert-report requirement.

The TMLA does not define the term “party,” but provides that “[a]ny 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 § 74.001(b). This Court has never directly addressed the meaning of the term “party” in the context of the TMLA's expert-report requirement. However, we have stated that “because [a health care provider] was named in the original petition as a party to this suit, the [claimants] were required to serve it with a report before the statutory period expired,” indicating that one becomes a “party” to an HCLC when named in the lawsuit. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex.2008) (emphasis added). In addition, we have tacitly recognized in other contexts that one can be a “party” to a legal proceeding even though he is not served with process. See, e.g., In re E.R., 385 S.W.3d 552, 563 (Tex.2012) (“If service is invalid, it is ‘of no effect’ and cannot establish the trial court's jurisdiction over a party.”); Ross v. Nat'l Ctr. for the Emp't of the Disabled, 197 S.W.3d 795, 796–98 (Tex.2006) (holding that the “trial court had no jurisdiction either to enter judgment or to enforce it against a party who had neither been properly served nor appeared” and that “the court of appeals erred in finding that a party never served can challenge a default judgment only if he first complies with it”); M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex.2004) (stating that the “remaining party was never served with citation”); Caldwell v. Barnes, 154 S.W.3d 93, 97 n. 1 (Tex.2004) (“A party who becomes aware of the proceedings without proper service of process has no duty to participate in them.”). These cases confirm that a person can be a “party” to a lawsuit even though, not having been served with process, the person has no duty to participate in, and may not be bound by, the proceedings. We must presume that the Legislature was aware of our construction of the term in enacting the TMLA. Tooke v. City of Mexia, 197 S.W.3d 325, 361 (Tex.2006).

Five courts of appeals have previously considered the question of when a defendant becomes a “party” under section 74.351(a), but, unlike the court of appeals here, they all determined that “party” means one who has been named in an HCLC and served with citation and a copy of the petition, accepted or waived such service, or made an appearance. Key v. Muse, 352 S.W.3d 857, 860–64 (Tex.App.-Dallas 2011, no pet.); Carroll v. Humsi, 342 S.W.3d 693, 701 (Tex.App.-Austin 2011, no pet.); Dingler v. Tucker, 301 S.W.3d 761, 766–68 (Tex.App.-Fort Worth 2009, pet. denied); Carreras v. Zamora, 294 S.W.3d 348, 350 (Tex.App.-Corpus Christi 2009, no pet.); Yilmaz v. McGregor, 265 S.W.3d 631, 640 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). As explained by the court below, in espousing that definition of “party,” those courts of appeals relied principally on Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex.1991) (per curiam), for the common-law formulation of that definition.¹349 S.W.3d at 101. Such reliance is misplaced. We recognized in Mapco that a party must be served, accept or waive service, or otherwise appear before judgment may be rendered against him. Mapco, 817 S.W.2d at 687. The concept of personal jurisdiction, however, is distinct from the concept of party status. Rendering judgment against a party who has not yet been served with process, accepted or waived service, or otherwise appeared raises due process concerns that are not implicated when serving a defendant with an expert report. See Omni Capital v. Rudolf Wolff & Co., 484 U.S. 97, 103–04, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (stating that, as a matter of due process, before a court may exercise personal jurisdiction over a defendant the procedural requirement of service of summons must be satisfied). Indeed, our interpretation of “party” does not prejudice the defendant; rather, it gives the defendant advance notice of the pending lawsuit and the alleged conduct at issue. Moreover, nowhere in Mapco did we even...