Appeal from the 122nd District Court Galveston County, Texas
Trial Court Cause No. 17-CV-0004
PAXTON Attorney General of Texas JASON WARNER JEFFREY C.
MATEER First Assistant Attorney General BRANTLEY STARR Deputy
First Assistant Attorney General JAMES E. DAVIS Deputy
Attorney General for Civil Litigation KARA KENNEDY Chief,
Tort Litigation Division Assistant Attorney General
consists of Justices Christopher, Jewell, and Hassan.
The University of Texas Medical Branch at Galveston
("UTMB") appeals the trial court's denial of
its motion to dismiss appellee Francis Durisseau's health
care liability suit. For the reasons below, we reverse the
trial court's order denying the motion to dismiss and
remand for further proceedings.
sued Dr. Daniel Beckles and asserted health care liability
claims arising from the death of her husband following
coronary bypass surgery. Dr. Beckles filed a motion to
dismiss, arguing he was immune from Durisseau's claims
because he was employed by UTMB, a governmental unit. Before
the trial court ruled on Dr. Beckles' motion, Durisseau
filed an amended petition eliminating her claims against Dr.
Beckles and asserting claims only against UTMB.
filed its original answer to Durisseau's amended petition
on August 11, 2017. Based on this filing, the parties agree
that Durisseau had until December 11, 2017 to serve UTMB with
the expert report required by section 74.351 of the Texas
Medical Liability Act ("TMLA"). See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon
2017) ("In a health care liability claim, a claimant
shall, not later than the 120th day after the date each
defendant's original answer is filed, serve on that party
. . . one or more expert reports."). On October 6, 2017,
Durisseau filed a "Notice of Filing of Expert
Report" that included a certificate of service attesting
the expert report was served on all counsel of record.
filed a motion to dismiss on December 15, 2017, asserting
Durisseau failed to serve an expert report by December 11,
2017 as required by section 74.351. Durisseau filed a
response arguing (1) the notice of filing's certificate
of service showed Durisseau "attempted to serve"
UTMB via fax; and (2) UTMB was "aware" and
implicitly acknowledged service of the expert report. UTMB
filed a reply to Durisseau's arguments. The parties did
not attach any evidence to their filings.
trial court held a hearing on UTMB's motion to dismiss in
February 2018. No testimony or other evidence was introduced
at the hearing. After argument, the trial court took the
motion under advisement.
same day as the motion hearing, UTMB filed an affidavit from
assistant attorney general Jason Warner, counsel for UTMB.
Warner's affidavit stated he did not receive
Durisseau's expert report. Attached to Warner's
affidavit was a fax log showing he did not receive a fax from
Durisseau or her attorneys. The day after the motion hearing,
UTMB filed a supplemental reply to Durisseau's response
to the motion to dismiss. Warner's affidavit also was
attached to the supplemental reply.
filed a motion to strike UTMB's supplemental reply and
objected to Warner's affidavit. Asserting that a motion
to dismiss under the TMLA is equivalent to a motion for
summary judgment, Durisseau argued UTMB should not be
permitted to supplement the evidentiary record. UTMB filed a
response to Durisseau's motion and objections.
April 3, 2018, the trial court signed an order denying
UTMB's motion to dismiss. The trial court did not rule on
Durisseau's motion to strike and objections to