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The University of Texas Medical Branch v. Durisseau

Court of Appeals of Texas, Fourteenth District

October 31, 2019

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellant
v.
FRANCIS DURISSEAU, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MICHAEL DURISSEAU, DECEASED, Appellee

          On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause No. 17-CV-0004

          KEN 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

          Panel consists of Justices Christopher, Jewell, and Hassan.

          MEMORANDUM OPINION

          Meagan Hassan Justice

         Appellant 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.

         Background

         Durisseau 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.

         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.

         UTMB 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.

         The 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.

         The 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.

         Durisseau 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.

         On 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 ...


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