In the Estate of Jesus Rodriguez Aguero v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 11, 2023
• Docket: 13-22-00047-CV
• Status: Published

Opinion

NUMBER 13-22-00047-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE ESTATE OF JESUS RODRIGUEZ AGUERO, DECEASED

On appeal from the Probate Court of Hidalgo County, Texas.

OPINION

Before Chief Justice Contreras and Justices Silva and Peña Opinion by Justice Silva

Appellant Vivian Garcia, in her capacity as Independent Executrix of the Estate of

Jesus Rodriguez Aguero, Deceased, appeals the trial court’s denial of her motion to

dismiss appellees Charlotte Philbrick and Bruce Philbrick’s health care liability claim

(HCLC). By a single issue, appellant argues the trial court erred by failing to dismiss

appellees’ HCLC claim because the expert report was deficient and did not represent a

good faith effort to comply with the expert report requirements. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351. However, appellees contend that the trial court’s denial was based on appellant’s untimely filing of her objections, not on the merits of the expert

report. See id. We affirm.

I. BACKGROUND

In April 2016, Charlotte sought medical treatment at the emergency department of

the Mission Regional Medical Center for abdominal pain, nausea, and vomiting. Charlotte

was admitted to the hospital where she remained until June 2016. Throughout Charlotte’s

stay at the hospital, she was treated by Jesus Rodriguez Aguero, M.D. Appellees

eventually filed a HCLC suit against Aguero’s estate, alleging that the medical care

provided fell below the standard of care and caused Charlotte to sustain severe and

substantial pain, disfigurement, and physical impairment and incur further medical

expenses. Bruce included a claim for loss of consortium based on Charlotte’s condition.

The following dates are pertinent to this appeal:

• February 20, 2018: Appellees filed their first amended petition in cause number C-0503-18-A, naming “Jesus Rodriguez Aguero, M.D., deceased” as defendant, and directing service to appellant as “the Representative of his Estate.” Attached to the first amended petition was an expert report and curriculum vitae of Joshua Ellenhorn, M.D. 1 See Acts 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, 2013 Tex. Sess. Law Serv. Ch. 870 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351) (requiring preliminary expert reports for HCLCs); 2

• March 23, 2018: “Jesus Rodriguez Aguero, M.D., Deceased, a Defendant” filed an original answer and general denial;

• April 24, 2018: “Jesus Rodriguez Aguero, M.D., Deceased” responded to appellees’ requests for disclosures, see TEX. R. CIV. P. 194.2, stating

1 The clerk’s record contains appellees’ first and second amended petitions. It is not clear from the

record when Aguero passed away nor whether appellees’ original petition was filed prior to or after his death. Further, the record does not contain the return of service for the first amended petition, so it is not known when appellant received it. 2 Subsequent citations to § 74.351 will refer to this version of the statute unless otherwise indicated.

2 the defendant was correctly named and was unaware of any other potential parties to the lawsuit;

• August 2, 2018: The probate court entered an order transferring and consolidating appellees’ suit into the probate case, cause number P- 38,041, then separating the claims into P-38,041-A; 3

• September 25, 2018: “Jesus Rodriguez Aguero, M.D., Deceased” filed a petition for writ of mandamus, asking this Court to compel the trial court to vacate its “Order Transferring Proceeding to a Statutory Probate Court Pursuant to [§] 34.001 of the Texas Estates Code.” In re Aguero, No. 13-18-00535-CV, 2018 WL 6167497, at *1 (Tex. App.—Corpus Christi–Edinburg Nov. 26, 2018, orig. proceeding [mand. denied]) (mem. op.);

• October 9, 2018: Appellees filed their second amended petition, this time in the probate case, naming “Vivian Garcia, In Her Capacity as Independent Executrix of the Estate of Jesus Rodriguez Aguero, Deceased” as the defendant. Appellees again attached Ellenhorn’s expert report to the petition; 4

• February 1, 2019: Appellant was served with a citation and the second amended petition and expert report through her attorney of record; and

• February 12, 2019: Appellant filed an original answer, general denial, objections to appellees’ expert report, and a motion to dismiss appellees’ HCLC.

Appellees responded to appellant’s objections and supplemented their response.

Relevant here, appellees’ supplemental response argued that appellant’s objections to

their expert report were untimely. Appellees asserted that appellant was first served the

3 The clerk’s record includes a copy of appellees’ motion to transfer but does not include a copy of the order to transfer. However, the order is available in the record of a related mandamus proceeding filed by “Jesus Rodriguez Aguero, M.D., Deceased.” In re Aguero, No. 13-18-00535-CV, 2018 WL 6167497, at *1 (Tex. App.—Corpus Christi–Edinburg Nov. 26, 2018, orig. proceeding [mand. denied]) (mem. op.). We take judicial notice of that record. See TEX. R. EVID. 201; Estate of York, 934 S.W.2d 848, 851 (Tex. App.— Corpus Christi–Edinburg 1996, writ denied). 4 Appellees’ second amended petition certified that appellant was served through her attorneys of record on October 9, 2018. See TEX. R. CIV. P. 21a.

3 report with the first amended petition, after which appellant filed an answer and

participated in the litigation; the subsequently served report was an exact duplicate of the

initially served report; and the subsequent service had merely been in observance of

appellant’s proper title. The trial court heard appellant’s objection and motion to dismiss,

ultimately denying the motion without providing its reason. This appeal followed.

II. APPLICABLE LAW

The issue in this appeal is whether a claimant fulfills the duties under Texas Civil

Practice and Remedies Code § 74.351 where the petition misidentifies the defendant as

the estate of a decedent rather than the representative of the decedent’s estate but is

nonetheless served on the representative who then participates in the litigation.

Section 74.351 requires a claimant who asserts an HCLC against a “physician or

health care provider” to serve each defendant with an expert report “describing the

expert’s opinions addressing the applicable standards of care, how the defendant’s

conduct failed to meet those standards, and how those failures caused the claimant’s

injury, harm, or damages.” Lake Jackson Med. Spa, Ltd. V. Gaytan, 640 S.W.3d 830, 836

(Tex. 2022) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6)). The purpose of

the § 74.351’s expert notice provision is to expeditiously weed out unmeritorious claims

“before litigation gets underway.” E.D. ex rel. B.O. v. Tex. Health Care, P.L.L.C., 644

S.W.3d 660, 664 (Tex. 2022) (per curiam). Accordingly, the claimant must, in compliance

with the Texas Rules of Civil Procedure, “serve on that party or the party’s attorney one

or more expert reports, with a curriculum vitae of each expert listed” before “the 120th

day after the date each defendant’s original answer is filed.” TEX. CIV. PRAC. & REM. CODE

4 ANN. § 74.351(a); see TEX. R. CIV. P. 21, 21a.

Failure to timely serve the expert report on a party shall result in the trial court

dismissing the suit with prejudice. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(2);

Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013). But if the report is timely filed, each

defendant in a HCLC suit must object to the sufficiency of the report within twenty-one

days of receiving the report or twenty-one days of the filing of the defendant’s answer,

whichever is later, or the objection is waived. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a). When determining whether service was compliant, courts denounce acts of

gamesmanship and remain mindful of § 74.351’s purpose and whether service was

effectuated in furtherance of that purpose. See Hebner v. Reddy, 498 S.W.3d 37, 39 (Tex.

2016) (concluding, in its review of a prior version of § 74.351, 5 that “the plaintiffs’

mistaken post-suit service of the incorrect expert report is of no consequence” where “the

plaintiffs met their burden with pre-suit service of the correct report”); Rinkle v. Graf, 658

S.W.3d 821, 824–25, 827 n.5 (Tex. App.—Houston [14th Dist.] 2022, no pet.); Univ. of

Tex. Health Sci. Ctr. at San Antonio v. Ripley, 230 S.W.3d 419, 422 (Tex. App.—San

Antonio 2007, no pet.).

Although “[a] suit seeking to establish the decedent’s liability on a claim and subject

property of the estate to its payment should ordinarily be instituted against the personal

5 The version of § 74.351 that the Texas Supreme Court reviewed in both Hebner and Zanchi

required a plaintiff to serve a party with the expert report within 120 days of the filing of the petition, whereas the amended version requires service of the expert report within 120 days after the date of each defendant’s original answer, if it is later. Hebner v. Reddy, 498 S.W.3d 37, 42 (Tex. 2016); Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013); see Acts 2005, 79th Leg., ch. 635, § 1, 2005 Tex. Sess. Law Serv. Ch. 635 amended by Acts 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, 2013 Tex. Sess. Law Serv. Ch. 870 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351).

5 representative,” the inadvertent identification of the defendant as the estate rather than

its representative will not create an infirm judgment where “[t]he purpose of the suit and

the nature of the claim asserted were clear from the outset, and [the representative]

answered for the ‘estate’ and participated in all proceedings affecting the case.” Price v.

Anderson’s Est., 522 S.W.2d 690, 691, 692 (Tex. 1975) (holding that naming the estate

as the defendant but serving the administrator “interrupted the running of the statute of

limitations”); Miller v. Est. of Self, 113 S.W.3d 554, 557 (Tex. App.—Texarkana 2003, no

pet.) (“[I]n those instances where the suit names the estate, rather than the personal

representative of that estate, the trial court will be vested with jurisdiction if the personal

representative is served with citation and participates in the suit in his or her capacity as

the personal representative of the estate.”).

III. STANDARD OF REVIEW

The denial of a motion to dismiss under § 74.351(b) is interlocutory and may be

appealed immediately. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9); see Ogletree v.

Matthews, 262 S.W.3d 316, 319 (Tex. 2007). We generally review a trial court’s ruling on

a motion to dismiss for failure to comply with § 74.351’s expert report requirements for

abuse of discretion. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per

curiam). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner

without reference to any guiding rules or principles.” Walker v. Gutierrez, 111 S.W.3d 56,

62 (Tex. 2003) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex.1985)). When, as here, the trial court does not file findings of fact or conclusions of

law, we will uphold the trial court’s ruling on any theory supported by the record. Rinkle,

6 658 S.W.3d at 824.

IV. ANALYSIS

Appellant argues that her twenty-one-day window to object to the expert report

under § 74.351 did not begin until she filed her answer to appellees’ second amended

petition and expert report on February 12, 2019, which properly named her as defendant

for the first time. For reasons established below, we disagree.

Several facts are undisputed. Appellees’ first amended petition named “Jesus

Rodriguez Aguero, M.D., deceased” as defendant and directed service to appellant as

“the Representative of his Estate.” Appellant, in her capacity as representative of the

estate, was personally served with the first amended petition and expert report that was

filed by appellees on February 20, 2018. The “Estate” filed an original answer on March

23, 2018. At all points, the “Estate” participated in the litigation—as further evidenced by

its submitted disclosures stating that the estate was properly identified as the defendant

in appellees’ petition and the prior petition for writ of mandamus filed with this Court. See

In re Rodriguez Aguero, 2018 WL 6167497, at *1. Appellant never filed a verified plea

that the estate had no legal capacity to be sued. See TEX. R. CIV. P. 93(1). Appellant’s

first and only objection to appellees’ expert report was filed on February 12, 2019, after

appellees had amended their petition to change the defendant’s name from the estate to

the representative of Aguero’s estate. Appellant does not allege that the purpose of the

suit or nature of the claim asserted by appellees changed following appellees’ refiling of

their petition and service of their expert report. See Price, 522 S.W.2d at 691, 692.

In other words, appellant was unequivocally served in her role as the

7 representative for Aguero’s estate, answered for the estate, and participated in all

proceedings affecting the case. See id. We decline to allow appellant to hide behind the

improper identification of the party to the suit, while otherwise participating in the litigation,

only to object to the expert report more than three hundred days after her initial answer.

This would be in contravention to the statute’s stated purpose—i.e., the timely

establishment of whether claims are frivolous or not—and promote the very

gamesmanship that courts discourage. See Hebner, 498 S.W.3d at 39; Price, 522 S.W.2d

at 691; Rinkle, 658 S.W.3d at 824–25, 827 n.5; see also Miller, 113 S.W.3d at 557. Under

these facts, appellant was required to object to appellees’ expert report within twenty-one

days of her original answer filed on March 23, 2018. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(a). Thus, her February 12, 2019 filing was untimely, and the trial court did

not abuse its discretion in denying appellant’s motion to dismiss on this basis. 6 See id.;

Wright, 79 S.W.3d at 52. We overrule appellant’s sole issue.

V. CONCLUSION

We affirm the trial court’s judgment. 7

CLARISSA SILVA Justice

Delivered and filed on the 11th day of May, 2023.

6 Appellant argues that appellees waived any complaint about the untimely objection by failing to raise the matter during the hearing on the matter. However, in appellees’ supplemental response, appellees specifically argued that appellant waived any objection by failing to do so timely and included several exhibits in support. Further, appellant cites no authority that appellees must both present their argument in writing and raise it orally in the hearing to preserve it for review, and we find none. 7 Appellees filed motions for summary affirmance and to issue the mandate with this Court, which were carried with the case. Those motions are denied as moot.