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Sutker v. Simmons

Court of Appeals of Texas, Fifth District, Dallas

July 10, 2019


          On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-13851

          Before Justices Brown, Schenck, and Pedersen, III


          Pedersen, III Justice.

         In this 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.

         I. BACKGROUND

         On 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.[1] 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.

         On 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.

         Notwithstanding 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.

         On 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.

         Simmons 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 advisement.

         On 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.

         The 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.

         II. ANALYSIS

         A. Standard of Review

         We 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)). ...

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