Opinion · Texas Court of Appeals, 11th District (Eastland)

Kendrick v. Garcia

Kendrick v. Garcia, 171 S.W.3d 698 (Texas Court of Appeals, 11th District (Eastland) 2005)

Type
Opinion
Court
Texas Court of Appeals, 11th District (Eastland)
Jurisdiction
State
Date
2005-10-06
Topic
general

How later courts describe this case

  • utilizing the abuse of discretion standard of Palacios to review denial of a motion to dismiss under section 74.351
  • applying abuse of discretion standard to trial court's granting of motion to dismiss
  • only methods of service authorized under Rule 21a will suffice for purposes of service under Section 74.351(a)
  • only the methods of service authorized by Rule 21a will suffice for purposes of service under Section 74.351(a)

Citator

UpLaw has not yet analyzed Kendrick v. Garcia. The absence of a flag is not a finding that it is good law.

Cited by
171 opinions
KENDRICK v. GARCIA,171 S.W.3d 698(Tex.App.-Eastland [11th Dist.] 2005)
Bradley T. KENDRICK and Hendrick Medical Center, Appellants, v. Maria
GARCIA, as Administratrix of the Estate of Edward A. Martinez, Appellee.
No. 11-04-00192-CV.
Court of Appeals of Texas, Eleventh District, Eastland.
August 18, 2005.
Rehearing Overruled October 6, 2005.
Case Number: 11-04-00192-CV 01/30/2007 Case stored in record room 01/11/2007 Notice sent to Court of Appeals 12/22/2006 Motion for Rehearing - Disposed proceeding denied 11/20/2006 Case forwarded to Court 11/15/2006 Motion for Rehearing - Filed 10/27/2006 Motion to dismiss disposed proceeding denied 10/27/2006 Petition for Review disposed proceeding denied 08/02/2006 Electronic copies of brief posted to website 07/13/2006 Reply brief 06/29/2006 Electronic copies of brief posted to website 06/28/2006 Brief filed. 06/22/2006 Electronic copies of brief posted to website 06/20/2006 Motion for Extension of Time disposed. Granted 06/14/2006 Motion for extension of time to file brief. 06/14/2006 Brief filed. 05/25/2006 Case Record Filed 05/25/2006 Brief filed. 05/25/2006 Electronic copies of brief posted to website 05/12/2006 Electronic copies of brief posted to website 05/09/2006 Electronic copies of brief posted to website 05/09/2006 Electronic copies of brief posted to website 05/09/2006 Electronic copies of brief posted to website 04/27/2006 Record Requested in Petition for Review 04/25/2006 Brief on the Merits Requested 03/16/2006 Response to Motion 03/09/2006 Petitioner's reply brief 03/02/2006 Supreme Court of Texas Requested Response; mailbox rule does not apply 03/01/2006 Motion to dismiss for want of jurisdiction. 02/27/2006 Response to Petition for Review filed 02/15/2006 Motion for Extension of Time disposed. Granted 02/13/2006 M/E/T to file response 02/13/2006 Response to Petition for Review filed 01/12/2006 Supreme Court of Texas Requested Response; mailbox rule does not apply 12/13/2005 Case forwarded to Court 12/09/2005 Response to Petition for Review waived 12/05/2005 Response to Petition for Review waived 11/22/2005 Petition for Review filed 11/22/2005 Appendix Filed
Appeal from the District Court, Taylor County, John Weeks, J.Page 699
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 700
Devon J. Singh, Diana L. Faust, R. Brent Cooper, Cooper Scully, P.C., Dallas, John E. Spalding, Lauren Beck Harris, Johnson, Spalding, Doyle, West Trent, L.L.P., Houston, for appellants.

Jeffrey B. Galbreath, Tami Ratliff Morris, Galbreath Morris, P.C., Rick Dunbar, Abilene, for appellee.
Panel consists of: WRIGHT, J., and McCALL, J.
Opinion
JIM R. WRIGHT, Justice.
This appeal involves some of the recent changes made to the expert report requirements for health care liability claims.SeeTEX. CIV. PRAC. REM. CODE ANN. §74.351(Vernon 2005). Appellee, Maria Garcia, as Administratrix of the Estate of Edward A. Martinez, filed a medical malpractice claim against appellants, Dr. Bradley T. Kendrick (Dr. Kendrick) and Hendrick Medical Center (HMC), on January 21, 2004. Since the claim was filed after September 1, 2003, the provisions of Section 74.351 apply to appellee's lawsuit. Section 74.351(a) requires a claimant in a health care liability claim to "serveon each party or the party's attorney one or more expert reports" not later than the 120th day after the date the claim is filed. (Emphasis added) Appellants filed motions on May 25, 2004, and June 4, 2004, seeking the dismissal of appellee's claims on the basis that she had not served them with expert reports within 120 days of filing suit as required by Section 74.351(a).SeeSection 74.351(b). Appellants challenge the trial court's denial of their motions to dismiss in this interlocutory appeal.SeeTEX. CIV. PRAC. REM. CODE ANN. §51.014(a)(9) (Vernon Supp. 2004-2005). We reverse and render an order of dismissal.
Underlying Facts
Appellee filed the reports and curriculum vitaes of two experts with the district clerk's office on March 26, 2004, and April 8, 2004.1Appellee did not serve appellants with a copy of these documents at the time of filing as required by TEX.R.CIV.P. 21. After appellants filed their motions to dismiss,Page 701appellee's counsel filed a "certificate of service" for the documents wherein counsel alleged that the two expert reports and curriculum vitaes were served on appellants on April 12, 2004, "in accordance with the Texas Rules of Civil Procedure, Rule 21a and in compliance with Tex. Civ. Prac. Rem. Code §74.351."SeeTEX. R.CIV.P. 21a.

Appellee's counsel detailed the manner in which she provided appellants with a copy of the reports on April 12, 2004, in an affidavit attached to appellee's reply to the motions to dismiss. With respect to Dr. Kendrick, counsel alleged that she placed a copy of the reports in a box located in the district clerk's office that is assigned to the law firm that represented Dr. Kendrick at trial. Counsel also stated that she mailed a copy of the reports to HMC's attorney of record via first class U.S. mail. Appellants' attorneys of record denied receiving the documents at any time prior to the expiration of the 120-day deadline. They contend that they first received a copy of the documents when appellee's counsel faxed a copy to them on May 27, 2004.2

After conducting a brief hearing on the motions to dismiss, the trial court issued a letter ruling announcing its decision to deny the motions. The letter detailed the reasons why the trial court denied the motions. The trial court stated in the letter that appellee "attempted in good faith to notify [appellants]" about the expert reports. With respect to HMC, the trial court stated that appellee complied with Section 74.351. The trial court noted in this regard that HMC did not rebut the allegation that the documents were mailed to its attorney of record on April 12, 2004. With respect to Dr. Kendrick, the trial court stated as follows:
[T]he Court finds that [appellee] has made a good faith effort to comply with [Section] 74.351 by filing said report and vitae on April 8, 2004, and by placing said report and vitae in the attorney's box located in the District Clerk's office. While [appellee's] efforts may not be technically correct or advisable, I believe that the spirit of [Section] 74.351 has been complied with. The Court does not find that placing an expert report and vitae in a box located in the Clerk's office is service under [TEX.R.CIV.P.] 21a. Therefore, [Dr. Kendrick's] Motion to Dismiss for failing to comply with [Section] 74.351 is denied.


After directing appellee's counsel to prepare an order denying the motions to dismiss, the letter concluded with the following sentence: "This letter will be in the file should any higher authority wish to review the Court's reasoning."
The Effect of the Trial Court's Letter Ruling
As a preliminary matter, we must determine the effect, if any, of the trial court's letter ruling. Appellants have essentially treated the letter as the trial court's findings of fact and conclusions of law. This treatment of the letter is not unreasonable given the trial court's statement of its intent for appellate courts to rely on the letter. However, there is some authority which holds that a letter ruling issued prior to the entry of the trial court's order is not competent evidence of the basis for the trial court's judgment.Cherokee Water Company v.Gregg County Appraisal District,801 S.W.2d 872,878(Tex. 1990). The trial court inCherokee Waterentered findings of fact and conclusions of law after the entry of judgment. The Supreme Court rejected an attempt to alter the trial court's findings of fact andPage 702conclusions of law with a statement contained in a letter ruling issued prior to the entry of judgment.

The holding inCherokee Wateris distinguishable on two grounds. The trial court in this appeal did not enter formal findings of fact and conclusions of law which appellants are attempting to alter with the trial court's letter ruling.3Additionally, the trial court's statement that it intended for appellate courts to rely on the letter ruling as the basis for its decision is a significant factor. In compliance with the trial court's expressed purpose for the letter, we treat it as competent evidence of the trial court's basis for overruling appellants' motions to dismiss.
Issues on Appeal
Dr. Kendrick raises two issues on appeal. He alleges in the first issue that the trial court abused its discretion by denying his motion to dismiss brought under Section 74.351. Dr. Kendrick's second issue challenges the trial court's reliance on Garcia's "good faith effort" to comply with Section 74.351. HMC raises one issue on appeal that encompasses both of the issues raised by Dr. Kendrick.
Standard of Review
The parties have asserted that the trial court's ruling should be reviewed under an abuse of discretion standard. The Supreme Court held inAmerican Transitional Care Centers of Texas, Inc.v. Palacios,46 S.W.3d 873,877-78(Tex. 2001), that expert report determinations made under the former statute are reviewed for abuse of discretion.See Walker v. Gutierrez,111 S.W.3d 56,62(Tex. 2003). The Supreme Court based its determination inPalacioson "the plain language" of the former statute. Specifically, the Supreme Court referenced language in the former statute which vested the trial court with discretion wherein it required the court to dismiss the action if "it appears to the court . . . that the report does not represent a good faith effort to comply with the definition of an expert report."American Transitional Care Centers of Texas, Inc. v. Palacios,supraat 877. The court also referenced the former statute's declaration that an order of dismissal constituted a sanction and that sanctions are generally reviewed under an abuse of discretion standard.American Transitional Care Centers ofTexas, Inc. v. Palacios, supraat 878.

In adopting Section 74.351, the legislature omitted the wording of the former statute upon which the Supreme Court relied inPalacios.4Two commentators have suggested the possibility that the abuse of discretion standard is no longer applicable as a result of this omission.SeeGeorge C. Hanks, Jr. and Rachel Polinger-Hyman, "Redefining the Battlefield," 67 TEX. B.J. 936, 943 (2004). However, absent authority to the contrary, we willPage 703utilize the abuse of discretion standard to review the trial court's decision to deny the motions to dismiss under Section 74.351.

A trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner.Downer v. AquamarineOperators, Inc.,701 S.W.2d 238,241-42(Tex. 1985),cert.den'd,476 U.S. 1159,106 S.Ct. 2279,90 L.Ed.2d 721(1986). When reviewing matters committed to a trial court's discretion, an appellate court may not substitute its own judgment for the trial court's judgment.Walker v. Packer,827 S.W.2d 833,839(Tex. 1992). Nor may a reviewing court set aside the trial court's determination unless it is clear from the record that the trial court could only reach one decision.Walker v. Packer,supraat 840. On the other hand, our review of a trial court's determination of the legal principles controlling its ruling is much less deferential.Walker v. Packer, supraat 840. A trial court has no "discretion" in determining what the law is or applying the law to the facts.Walker v. Packer, supraat 840. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.Walker v.Packer, supraat 840.
Construction of Section 74.351
The resolution of this appeal hinges on the interpretation of two aspects of the new statute. The first element of Section 74.351 under consideration involves a construction of the terms "serve" and "served." The second element to be interpreted is whether an unsuccessful effort to serve an expert report can be excused if it is made in good faith. It appears that both of these issues are matters of first impression.

In construing a statute, our primary objective is to determine and give effect to the legislature's intent.McIntyre v.Ramirez,109 S.W.3d 741,745(Tex. 2003);Texas Department ofTransportation v. Needham,82 S.W.3d 314,318(Tex. 2002). We start with the plain and common meaning of the statute's words.McIntyre v. Ramirez, supraat 745;State ex rel. StateDepartment of Highways and Public Transportation v. Gonzalez,82 S.W.3d 322,327(Tex. 2002). If the statutory language is unambiguous, we will interpret the statute according to its plain meaning.McIntyre v. Ramirez, supraat 745;State ex rel.State Department of Highways and Public Transportation v.Gonzalez, supraat 327. However, we will not give an undefined statutory term a meaning that is out of harmony or inconsistent with other provisions in the statute.See McIntyre v. Ramirez,supraat 745;Texas Department of Transportation v. Needham,supraat 318. We may consider other matters in ascertaining the legislature's intent, including the objective of the law, the legislative history, and the consequences of a particular construction.SeeTEX. GOV'T CODE ANN. §311.023(1), (3), (5) (Vernon 2005);McIntyre v. Ramirez, supraat 745;UnionBankers Insurance Company v. Shelton,889 S.W.2d 278,280(Tex. 1994). Finally, because statutory construction is a question of law, we review the trial court's construction de novo.McIntyrev. Ramirez, supraat 745;State ex rel. State Department ofHighways and Public Transportation v. Gonzalez, supraat 327.
"Serve" and "Served"
Appellants contend that "serve" and "served" as used in the statute are synonymous with service under Rule 21a. We agree with this contention. While several terms used in Section 74.351 are defined, "serve" and "served" are not.SeeTEX. CIV. PRAC. REM. CODE ANN.Page 704§ 74.001(a) (Vernon 2005). TEX. CIV. PRAC. REM. CODE ANN. §74.001(b) (Vernon 2005) provides that undefined terms are to be interpreted as having "such meaning as is consistent with the common law." This provision essentially restates the rule of statutory construction that terms in a statute are to be given their plain meaning.

By its express terms, Section 74.351 applies to health care liability claims. Thus, the statute applies to actively litigated causes of action that are subject to the Rules of Civil Procedure. Rule 21a specifies the method by which litigation documents may be served in compliance with the Rules. Accordingly, "serve" and "served" have distinct legal meanings under the Rules. Given the applicability of the Rules of Civil Procedure to health care liability claims and the use of "serve" and "served" in the statute, we conclude that the legislature intended that a claimant comply with Rule 21a in order to fulfill the requirements of Section 74.351.
Service on HMC
The trial court determined that appellee satisfied the service requirements of Section 74.351 with respect to HMC. This determination constituted an abuse of discretion. Rule 21a provides that service may be accomplished by one of the following methods: (1) physical delivery in person, by agent, or by courier-receipted delivery; (2) certified or registered mail; (3) telephonic document transfer; or (4) such other manner as the trial court in its discretion may direct. While appellee's counsel alleged that she mailed a copy of the documents to HMC's attorney, she did not do so by either certified or registered mail as required by Rule 21a. Notice by regular mail is not an authorized method of service under Rule 21a.Pessel v. Jenkins,125 S.W.3d 807,810(Tex.App.-Texarkana 2004, no pet'n). Accordingly, appellee did not serve HMC with the documents within the 120-day period as required by Section 74.351.

The trial court based its determination that appellee timely served HMC upon its ruling that HMC did not rebut appellee's allegation that the documents were mailed to HMC's attorney by regular mail on April 12, 2004. Rule 21a provides that a presumption of receipt arises from the certificate of service required by the rule. However, the certificate of service filed by appellee's counsel did not raise a presumption of receipt because it was not contemporaneously executed "on the filed instrument" as required by Rule 21a.See Mathis v. Lockwood,166 S.W.3d 743,745(Tex. 2005). Furthermore, appellee did not use one of the methods of service authorized by Rule 21a. As noted recently by the supreme court, "noticeproperlysent pursuant to Rule 21a raises a presumption that notice was received."Mathis v. Lockwood, supraat 745. (Emphasis added) Accordingly, there was no presumption of receipt that HMC needed to rebut. HMC's sole issue on appeal is sustained.
No Good Faith Exception
The trial court determined that the action of appellee's counsel in placing a copy of the documents in Dr. Kendrick's trial counsel's box in the district clerk's office did not constitute service under Section 74.351.5However, the trial court didPage 705not dismiss the claims against Dr. Kendrick because it determined that appellee made a good faith effort to comply with the statute's requirements. The former statute contained an exception for the failure to timely furnish an expert report if the failure "was not intentional or the result of conscious indifference but was the result of an accident or mistake."SeeTEX.REV.CIV. STAT. art.4590i, § 13.01(g) (2003). The legislature has amended the expert report requirements by omitting the "accident or mistake" exception in Section 74.351. By amending the expert report requirements, the legislature has indicated that it "intended to change the original act by creating a new right or withdrawing an old one."American Honda Motor Co., Inc.v. Texas Department of Transportation-Motor Vehicle Division,47 S.W.3d 614,621(Tex.App.-Austin 2001, pet'n den'd). In this instance, the legislature has withdrawn the "accident or mistake" exception which a claimant could previously assert when failing to timely furnish an expert report. As a result of the omission of the "accident or mistake" exception in Section 74.351, we conclude that the new statute precludes the existence of a good faith exception to the requirement of timely serving expert reports. Accordingly, the trial court abused its discretion by denying Dr. Kendrick's motion to dismiss on the basis of appellee's good faith effort to comply with the service requirements of Section 74.351. Dr. Kendrick's first and second issues are sustained.
This Court's Ruling
The trial court's order denying Bradley T. Kendrick's and Hendrick Medical Center's motions to dismiss is reversed. Judgment is rendered in favor of Dr. Kendrick and Hendrick Medical Center on their motions to dismiss the claims of Maria Garcia, as Administratrix of the Estate of Edward A. Martinez.
  1. This appeal does not involve any issues challenging the sufficiency of the reports or the qualifications of the experts. ↩
  2. Dr. Kendrick filed the first motion to dismiss on May 25, 2004. ↩
  3. There is authority holding that findings of fact and conclusions of law were not required under TEX.REV.CIV. STAT. art.4590i, § 13.01 (2003), the predecessor statute to Section 74.351.See Mocega v. Bradford Urquhart, M.D.,79 S.W.3d 61,63-64(Tex.App.-Houston [14th Dist.] 2002, pet'n den'd). The court inMocegareasoned that a dismissal under the former statute constituted a sanction and that findings of fact and conclusions of law are not required in a sanctions dismissal.See IKBIndustries v. Pro-Line Corporation,938 S.W.2d 440,442-43(Tex. 1997). Unlike the predecessor statute, Section 74.351 no longer provides that a dismissal for expert report deficiencies constitutes a sanction. We note without deciding the possibility that findings of fact and conclusions of law may now be required upon a timely request for them in a dismissal proceeding brought under Section 74.351. ↩
  4. SeeFootnote No. 3. ↩
  5. Appellee argues on appeal that her counsel's act of placing a copy of the documents in Dr. Kendrick's attorney's box located in the district clerk's office constituted service under local practice and custom. Appellee supports this contention with affidavits from several attorneys regarding their understanding of the purpose of these boxes located in the district clerk's office. We agree with the trial court's rejection of this contention. The record does not reflect that this practice has been established as an authorized method for service by either local rule or an order entered in the underlying proceeding.SeeTEX.R.CIV.P. 3a 21a. ↩