THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Appellant
BRYAN JOPLIN AND JANICE JOPLIN, Appellees
Appeal from the 157th District Court Harris County, Texas
Trial Court Cause No. 2015-46430
consists of Chief Justice Frost and Justices Brown and
W. Brown Justice.
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.
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.
filed a motion to dismiss. Lippert asserted: that (1) she was
a fulltime 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
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.
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
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
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).
Standard of review
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.
The parties' positions
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.
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.
Section 74.351's expert-report requirement
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 ...