Court of Appeals of Texas, Fifth District, Dallas
MICHAEL SUTKER, M.D. AND SURGICAL CONSULTANTS OF DALLAS, LLC, Appellants
DORCAS SIMMONS, Appellee
Appeal from the 298th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-13851
Justices Brown, Schenck, and Pedersen, III
Pedersen, III Justice.
interlocutory appeal, Michael Sutker, M.D. and Surgical
Consultants of Dallas, LLC challenge the trial court's
denial of their motion to dismiss Dorcas Simmons's
healthcare liability lawsuit with prejudice for failure to
timely serve an expert report and curriculum vitae pursuant
to section 74.351 of the Texas Civil Practice and Remedies
Code. In their sole issue, appellants assert that the trial
court abused its discretion by denying their motion to
dismiss because Simmons failed to comply with the service
requirement under section 74.351(a), subjecting her claims to
mandatory dismissal under section 74.351(b). We reverse the
trial court's order denying appellants' motion to
dismiss, render judgment dismissing Simmons's claims
against Dr. Sutker and Surgical Consultants of Dallas, LLC
with prejudice, and remand for a determination of reasonable
attorney's fees and costs.
October 9, 2017, Dorcas Simmons filed a health care liability
suit against Michael Sutker, M.D., and his physician's
group, Surgical Consultants of Dallas, LLC, in connection
with injuries she sustained while a patient under the care of
Dr. Sutker. On October 30, 2017, Dr. Sutker filed his
original answer denying Simmons's allegations. In
response to Simmons's request for disclosures, Dr. Sutker
stated that he would make all medical records and bills in
his possession, custody, or control available for inspection
and copying at the offices of his attorney at a mutually
convenient date and time.
February 27, 2018, Simmons's attorney called the law
office of Dr. Sutker's attorney to request the pertinent
medical records and bills and to request an extension of time
within which to file Simmons's expert report. Dr.
Sutker's attorney was unavailable so Simmons's
attorney explained the nature of his call to an associate of
Dr. Sutker's attorney. The associate informed
Simmons's attorney that she would call Dr. Sutker's
attorney to see how he wanted to respond to the inquiries.
According to Simmons's attorney, the associate stated
that she would call him back later that day. Neither Dr.
Sutker's attorney nor his associate called Simmons's
attorney later that day to discuss either of his requests.
the lack of records, Simmons's attorney attempted to
electronically serve the expert report on Dr. Sutker's
attorney later that day. His first filing, submitted at 12:00
A.M. on February 28, 2018, served Dr. Sutker's attorney
with the expert's CV and inadvertently omitted the expert
report. Realizing his mistake, Simmons's attorney amended
the filing to include the expert report of Dr. Richard Eller
and served it again at 12:18 A.M. on February 28, 2018.
March 9, 2018, Dr. Sutker filed a motion to dismiss because
Simmons had not timely served him with an expert report as
required by section 74.351 of the Texas Civil Practice and
Remedies Code. Because Dr. Sutker's original answer was
filed on October 30, 2017, he asserted that the 120-day
deadline for serving the expert report expired on February
27, 2018. His motion requested the trial court to dismiss the
claims against him with prejudice and to award him
attorney's fees and costs of court.
filed a response to Dr. Sutker's motion, arguing that Dr.
Sutker's failure to provide the medical records she
requested should preclude his right to seek dismissal. She
also argued that communications between the parties
constituted an agreement to extend the statutory deadline for
filing her expert report. The trial court conducted a hearing
on the motion to dismiss and took the matter under
April 11, 2018, and before the trial court had ruled on Dr.
Sutker's motion to dismiss, Simmons filed a special
exception and motion to strike Dr. Sutker's answer for
failing to plead that he had fully complied with the
provisions of sections 74.051 and 74.052. She asserted that
Dr. Sutker could not plead compliance because he had failed
to provide requested medical records within 45 days as
required by the statute. Dr. Sutker responded, arguing that
it was improper to file and request an accelerated ruling on
a motion to strike before the court ruled on his pending
dispositive motion. He also argued that striking his answer
in its entirety was not the proper remedy for noncompliance
with section 74.051.
trial court conducted another hearing and, at the outset,
announced that Dr. Sutker's motion to dismiss was denied.
Although the court refused to strike Dr. Sutker's answer
in its entirety, the court granted Simmons's special
exception, found that Dr. Sutker had not properly answered
the case, and abated the case for sixty days to allow Dr.
Sutker time to properly replead in compliance with the
statute. Dr. Sutker filed this interlocutory appeal of the
trial court's denial of his motion to dismiss.
Standard of Review
review a trial court's decision to grant or deny a motion
to dismiss under section 74.351 for an abuse of discretion.
Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Broxterman
v. Carson, 309 S.W.3d 154, 157 (Tex. App.-Dallas 2010,
pet. denied). Under this standard, we defer to a trial
court's factual determinations, but we review de novo
questions of law that involve statutory interpretation and
constitutional challenges. Stockton v. Offenbach,
336 S.W.3d 610, 615 (Tex. 2011). 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)). ...