Zanchi v. Lane

349 S.W.3d 97, 2011 Tex. App. LEXIS 7177, 2011 WL 3849728

• Court: Court of Appeals of Texas
• Decided: September 1, 2011
• Docket: 06-11-00036-CV
• Status: Published

Opinions

OPINION

Opinion by

Chief Justice MORRISS.

Twenty-four-year-old Juameka Cynarra Ross died after undergoing a splenectomy at Paris Regional Medical Center. Michael A. Zanchi, M.D.,¹ the anesthesiologist, was sued by Reginald Keith Lane, individually, and as personal representative of Ross’ estate, for medical negligence allegedly resulting in Ross’ death.² Lane filed the original petition on April 21, 2010, but did not serve Zanchi with process until September 16, 2010.³ In the interim, on August 19, 2010, Lane mailed the expert report of Jeffrey Wagner, M.D.,⁴ to Zanchi by certified mail, return receipt requested, as required by Section 74.351(a) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prao. & Rem.Code Ann. § 74.351(a) (West 2011). Zanchi filed a motion to dismiss the lawsuit, alleging that any transmittal of the expert report to him before the date he was served with process was no service at all, because he was not a party to the lawsuit.⁵ The trial court denied Zanchi’s motion to dismiss. Because Zanchi was a party to the lawsuit when he was timely served with the expert report, we affirm the trial court’s order.⁶

Zanchi Was a Party to the Laivsuit When Timely Served with the Expert Report

A trial court’s ruling on a motion to dismiss under Section 74.351(b) is reviewed for an abuse of discretion. Tex. Civ. Prao. & Rem.Code Ann. § 74.351(b) (West 2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.2001). A trial court abuses its discretion when it “reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re Bass, 113 S.W.3d 735, 738 (Tex.2003); Yilmaz v. McGregor, 265 S.W.3d 631, 635-36 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). When the facts are not in dispute, the question of whether service satisfied the requirements of Section 74.351(a) is a purely legal question. Questions of law are subject to a de novo review. See Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 137 (Tex.App.-Eastland 2006, no pet.).⁷

Zanchi contends the trial court erred by denying his motion to dismiss Lane’s suit because Lane did not timely serve Zanchi with an expert report, as required by Section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011). Pursuant to Section 74.351(a), a claimant must serve on each “party or the party’s attorney” one or more expert reports no later than the 120th day after the date the original petition was filed. Tex. Crv. Prac. & Rem.Code Ann. § 74.351(a). By statute, if an expert report is not served within the specified time period, the court must dismiss the claim with prejudice and award to the affected health care provider reasonable attorneys’ fees and costs of court. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(1), (2). Each defendant physician whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the twenty-first day after the date the report was served, subject to waiver of those objections. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a).

Here, because Lane filed his lawsuit April 21, 2010, he was required to serve one or more expert reports on Zanchi or Zanchi’s attorney by August 19, 2010, the 120th day after the filing of the original petition. Lane asserts that he timely served his expert report on Zanchi August 19, 2010, via certified mail, return receipt requested. It is undisputed that, at that time, Zanchi had not yet been served with process and that he was not served with process until September 16, 2010. Zanchi, therefore, contends that Lane did not serve his expert report on a “party” before the expiration of the 120-day period, as required. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Zanchi maintains that the trial court was therefore required, upon motion, to dismiss the suit. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(2).

In support of his position, Zanchi points to the language of the statute, which provides that a claimant must serve on each “party or the party’s attorney” one or more expert reports no later than the 120th day after the original petition was filed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(2). The term “party” is not defined in Section 74.351 or Chapter 74 of the Texas Civil Practice and Remedies Code. “Any legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(b) (West 2011). The question then, of whether Zanchi was a party to the lawsuit when the expert report was served, hinges on the meaning of “party” under the common law. We conclude that, under the common law and under the statutory scheme, one is a “party” if so named in a pleading, whether or not yet served.

Zanchi contends that, under the common law, to be a party, one must generally “be named in the pleadings and ... be served, accept or waive service, or make an appearance.” Yilmaz, 265 S.W.3d at 637. Yilmaz involved a health care liability claim in which the original petition was filed in March 2007. Attempts to serve Yilmaz with process were unsuccessful. McGregor alleged service of the expert report one day before the statutory deadline. Because Yilmaz was not served with process before service of the expert report, he filed a motion to dismiss, claiming the expert report was served at a “known wrong address,” at a time when he was not a party to the suit. id. at 635. The trial court denied the motion to dismiss.

On appeal, the First Court of Appeals ruled that Yilmaz was not a party to the lawsuit at the time the expert report was served and, thus, that the motion to dismiss should have been granted. In defining a party as one who must “be named in the pleadings and ... be served, accept or waive service, or make an appearance,” Yilmaz relied on Ex parte Bowers, 886 S.W.2d 346 (Tex.App.-Houston [1st Dist.] 1994, writ dism’d w.o.j.). In Bowers, the defendant complained that he did not receive notice of an injunction and was therefore not bound by its provisions. In its discussion of whether Bowers was bound by the injunction, the court stated, “A party to a suit generally is one named in the pleadings, who is served, accepts or waives service, or appears, and who participates at trial and contests the cause of action.” Id. at 349. Bowers relies on Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex.1991), in support of this definition. In addition, Yilmaz relies on Mapco for the proposition that “[mjerely being named in a petition as a defendant does not make one a ‘party’ to the lawsuit.” Yilmaz, 265 S.W.3d at 637.

Our reading of Mapco does not support that proposition. In Mapco, the Texas Supreme Court ruled that a judgment may not be entered against a party not before the trial court. In that case, the Carters sued Mapco Underground Storage of Texas, Inc., and Texasgulf, Inc. Even though a related corporation, Mapco, Inc., was not named in the pleadings and was not served with process, a judgment was entered against it. In reversing that judgment, the court stated, “In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance.” Mapco, Inc., 817 S.W.2d at 687. Mapco does not state, or even support the proposition, that one is not a “party” until that one is served with process, accepts or waives such service, or makes an appearance. Three of our sister courts have adopted the definition of “party” as used in Yilmaz.⁸ In each of those decisions, the discussion has pointed to Mapco as the source of this definition. Our analysis leads us to the belief that such reliance is misplaced.

While Mapco recognizes the well defined concept that a party cannot be subjected to the jurisdiction of the court when that party has not been served with process, or has otherwise accepted or waived service, it did not undertake to define the term “party.” Indeed, a person has no duty to participate in proceedings if the person has not been properly served, even if the person later becomes aware of the proceedings. Ross v. Nat’l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 797-98 (Tex.2006) (per curiam). The concept of personal jurisdiction, however, as discussed in Mapco and in Ross, is distinct from the concept of party status. The Texas Supreme Court did not hold, in Mapco or Ross, that one named as a defendant in a lawsuit is not a party to that suit unless and until that person has been served, accepts or waives service, or makes an appearance. While it is true that a party must be served, accept or waive service, or otherwise appear in order for a judgment to be rendered against that party, it does not logically follow that such a party, named in the pleadings on file with the district clerk, is not a party to the lawsuit in which the party has been specifically named, merely because there is no obligation to participate until brought within the jurisdiction of the court. Stated another way, a party named in the pleadings is no less a party to the lawsuit even though that party has yet to be served.

Where a health care provider, and prospective defendant, is served with an expert report before suit is even filed against the provider, he or she is not a “party,” but becomes one when a claim is asserted against him or her in a suit. Poland v. Ott, 278 S.W.3d 39, 48-49 (Tex. App.-Houston [1st Dist.] 2008, pet. denied) (noting distinction in Chapter 74 between use of “party” after suit filed and “physicians, and health-care providers” before suit filed). See also Daybreak Cmty. Sens., Inc. v. Cartnte, 320 S.W.3d 865, 871-72 (Tex.App.-Amarillo 2010, no pet.) (“party” status established when suit filed against him or her).

Not many years ago, the Texas Supreme Court affirmed that a “party who becomes aware of the proceedings without proper service of process has no duty to participate in them,” thus tacitly recognizing that one can be a “party” to a legal proceeding even though not served with process. Caldwell v. Barnes, 154 S.W.3d 93, 97 n. 1 (Tex.2004); see also Ross, 197 S.W.3d at 796-97 (trial court had no jurisdiction either to enter judgment or enforce it against party who had neither been served nor appeared).

The Texas Rules of Civil Procedure generally refer to those named in pleadings as “parties” regardless of whether they have been served with process. The most prominent examples are connected to the pleading that initiates a lawsuit. The plaintiffs petition must list the “parties,” thus, in every case, requiring that the designation as parties precedes those parties being served with process. Tex.R. Civ. P. 79. The Civil Case Information Sheet promulgated under Rule 78a also directs the plaintiff to complete it with the names of the “parties” named as defendants, certainly contemplating that the defendants are considered parties before being served with process. See Tex.R. Civ. P. 78a. There are other examples.⁹

The term “party” is defined by Black’s Law Dictionary as “One by or against whom a lawsuit is brought <a party to the lawsuit>.” Blaok’s Law DICTIONARY 1231, 1232 (9th ed. 2009). A “party” is “one of the litigants in a legal proceeding; a plaintiff or a defendant in a suit.”¹⁰ WebsteR’s Unabridged Dictionary 1416 (2d ed. 2001). That definition is consistent with the longstanding definition of the term from the Texas Supreme Court stating that a “party to an action” is “one who is directly interested in the subject matter in issue, who has a right to make defense, control the proceedings, or appeal from the judgment.” Hodde v. Susan, 58 Tex. 389, 393 (1883). None of these definitions require that one must first be served, accept or waive service, or enter an appearance before becoming a “party”; and we do not believe that to be the law or the intent of the statute in question here.

There are also legitimate practical and policy reasons that support a rule that, for these purposes, one should be recognized as a party when named in a lawsuit, even before being served with process.

The 120-day statutorily decreed period, within which an expert report must be served, starts when suit is filed, that is, when the “parties” are named, not from when they are served. Tex. Civ. Prao. & Rem.Code Ann. § 74.351(a). Recognizing persons named in a pleading as parties at that time thus fits better with the overall structure of the statute and with the general sense of what a “party” is, i.e., a person named in the style of a pleading, not the redefinition of a “party” as becoming one only when served.

The arguments in this case have revealed two competing problem scenarios, both of which arise from the unstated, but not-always-correct, legislative assumption that service of process will have been accomplished before the 120-day expert-report deadline.

The first problem scenario is set up if one does not become a party until served with process and if service of process is not accomplished by the end of the 120-day deadline. If such is the case, as is suggested by Zanchi here, the suit must be dismissed for lack of service of the required expert report. That is a draconian result, based on an interpretation of the statute that is not clearly dictated by the statute’s language and is based on dicta of doubtful derivation, as is shown above.

The alternative problem scenario arises if, as Lane suggests, one becomes a party when suit is filed or when the party is first named in a pleading, but service of process is delayed beyond the 120-day expert-report deadline. In such case, the parties are not faced with the draconian result of the first scenario, but with what is certainly a less extreme problem. Based on the statute, the defendant could have a possible deadline to object to the expert report before he or she is even obliged to answer the lawsuit.

The first scenario results in the loss of a claim. The second scenario results in a much less severe situation. Faced with the second scenario, it could be said that, since the party has not yet been served with process in the suit, there is no obligation to respond in any way until that occurs. But, even if a party who has been served with an expert report, but who has not yet been served with process, decides that, out of an abundance of caution, he or she will object to the report within the time period specified by the statute, that burden or harm is significantly less than on the claimant in the first scenario. The second scenario may be seen as an anomaly that may suggest further legislative action, but that relatively minor anomaly should not dictate that one is not a party until served, and thus automatically require a dismissal of a claim when service of process has not been accomplished within 120 days after filing suit. That might be seen as throwing the baby out with the bath water.

The purpose of the expert report requirement is to provide a shield, a mechanism to weed out frivolous suits and not require medical defendants to spend a lot of time and money defending a frivolous case, or at least to keep that period short, i.e., a maximum of 120 days. That purpose is amply served by recognizing one as a party when he or she is named as one in a pleading rather than when, later, he or she is served with process; without the draconian result posed by the converse.

In this case, Zanchi was interested in the subject matter in issue — he was named in Lane’s original petition as a defendant alleged to have committed acts of medical negligence allegedly resulting in the death of Ross. As such, Zanchi had the right to make a defense, participate in the proceedings, and appeal from any judgment rendered against him. Zanchi became a party to the underlying lawsuit when he was named in Lane’s original petition filed with the district clerk.¹¹ Having so determined, we turn to the issue of whether Zanchi was timely served with an expert report.

It is undisputed that the expert report was to be served on or before August 19, 2010. The record indicates that Lane’s attorney mailed the expert report and curriculum vitae (CV) of Jeffrey Wagner, M.D., via certified mail, return receipt requested, to Zanchi at Paris Regional Medical Center on August 19, 2010. The green card indicates these documents were signed for by Chuey Potter at Paris Regional Medical Center. Zanchi contends that Lane failed to demonstrate that Potter had the authority to accept service on Zanchi’s behalf. Even so, Zanchi does not deny having received Wagner’s report. Certainly, if Zanchi never received the report, such statement would have been clearly and unequivocally articulated in briefing filed on his behalf. This was not done.

In Goforth v. Bradshaw, 296 S.W.3d 849 (Tex.App.-Texarkana 2009, no pet.), this Court determined that “service” of expert reports and CVs means the same thing as “service” under Rule 21a of the Texas Rules of Civil Procedure. Id. at 853. The pivotal issue in Goforth was whether the Goforths’ actual and direct delivery of the documents to the defendant and his counsel by regular mail, along with acknowledged receipt of those documents, amounted to “service” under Rule 21a. In holding that service was indeed accomplished under the Rule, we noted the Rule’s purpose is to achieve actual notice, even when the manner of delivery was not one of those listed in Rule 21a. Id. at 854. Because there was actual receipt of the notice and no harm resulted from the failure to serve the notice by registered or certified mail, we held that service was sufficient, and the lawsuit was improperly dismissed. Id.

In this case, Zanchi complains of a failure to prove Potter was authorized to accept service on his behalf. Because actual notice was accomplished, and no harm resulted from any alleged failure of authority on Potter’s part to sign for the report, we find that service here was in compliance with Rule 21a. Zanchi contends, though, that harm resulted from the fact that the expert report was served prior to service of the lawsuit. He maintains that his rights under Section 74.351(a) of the statute will be waived if service of the expert report is authorized prior to service of the lawsuit. Section 74.351(a) requires that “[e]ach defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.” Tex. Civ. Prao. & Rem.Code Ann. § 74.351(a).

Because Zanchi was served with the expert report before being served with process, he had no duty to participate in the proceedings. See Caldwell, 154 S.W.3d at 97 n. 1. Absent a duty to participate in the proceedings, Zanchi was not required to file objections to the sufficiency of Wagner’s report. Therefore, Zanchi did not waive his right to file objections to the report.¹² Zanchi therefore was not harmed by service of the expert report before he was served with process.¹³ Because Zanchi was a party to the lawsuit at the time he was served with the expert report, and because the report was served within 120 days of filing of the lawsuit, we hold that, as a matter of law, the trial court did not err in refusing to dismiss Lane’s lawsuit.

We affirm the order of the trial court.¹⁴

Concurring Opinion by Justice CARTER.

Dissenting Opinion by Justice MOSELEY.

1 . Michael A. Zanchi, M.D., P.A., and Paris Regional Anesthesia, P.A., were named defendants with Zanchi. The three Zanchi defendants are hereinafter collectively referred to as Zanchi.

2 . In 2007, Ross was diagnosed with a condition known as idiopathic thrombocytopenic purpura (ITP) and was informed that she would have to undergo a splenectomy as part of the treatment for this condition. Ross was admitted to Paris Regional Medical Center for surgeiy in February 2008. The original petition alleged that Ross became cyanotic and a code blue was called to attempt to resuscitate her. Zanchi returned to the operating room, where he extubated the endotracheal tube and initiated multiple attempts to reintubate Ross. After her pulse was restored, Ross was transferred to Baylor University Medical Center in Dallas, where it was determined that her brain was functioning only at the level of the brain stem. Ross was removed from life support.

3 . The trial court issued an order dated September 7, 2010, authorizing substituted service on Zanchi. The trial court specifically found that Lane's previous attempts to serve Zanchi were unsuccessful. Zanchi was ultimately served with process personally while the process server was proceeding to execute substituted service.

4 . Wagner’s report concludes that Zanchi improperly placed the endotracheal tube in the right main-stem bronchus and failed to reposition the tube during surgery.

5 . The expert report was mailed to Zanchi at Paris Regional Medical Center. The return receipt or green card was signed by Chuey Potter. While Zanchi does not admit that he received this report, neither does he deny having received it.

6 . Lane contends service of the expert report in this instance is sufficient because he exercised due diligence in serving Zanchi with process. Because the "party” issue is dispos-itive and because inherent uncertainties surround the due diligence analysis, we do not reach this issue.

7 . "[A] trial court has no discretion in determining what the law is, which law governs, or how to apply the law.” Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 n. 1 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); see also Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (de novo standard of review applies in reviewing interpretation of health care liability statute).

8 . Our sister courts in Fort Worth, Austin, and Corpus Christi have used the definition of "party" as one who has been served with process, waived service of process, or made an appearance. See Dingler v. Tucker, 301 S.W.3d 761, 766-67 (Tex.App.-Fort Worth 2009, pet. denied) (defendant named in original petition did not become party until served with process); Carroll v. Humsi, 342 S.W.3d 693, 701 (Tex.App.-Austin 2011, no pet.) (term "party” denotes defendant who has already been served with process, waived service, or entered an appearance in the action); Carreras v. Zamora, 294 S.W.3d 348, 350 (Tex.App.Corpus Christi 2009, no pet.) (to be party to lawsuit, one must generally be served, accept or waive service, or make an appearance). We respectfully disagree.

9 . The court clerk is to keep a record of the "names of the parties to the suit,” without any suggestion that a name not be registered as a party unless he or she has been served with citation. See Tex.R. Civ. P. 25, 26. A judge must disqualify from a case if a "party” is related to the judge. Tex.R. Civ. P. 18b. There is no suggestion that the judge should wait to recuse until his or her relative is served with process.

10 . Consistent with this definition are definitions found in online legal sources. A "party” is a "person or entity who is the plaintiff or defendant in a lawsuit.” www.legal-dictionary.org. "Party with reference to an action means a person who is described in the court of record as plaintiff or defendant. Thus, it means a person by or against whom a legal suit is'brought.” www.USLegal.com. A "party” is

one of the participants in a lawsuit or other legal proceeding who has an interest in the outcome. Parties include plaintiff (person filing suit), defendant (person sued or charged with a crime), petitioner (files a petition asking for a court ruling), respondent (usually in opposition to a petition or an appeal), cross-complainant (a defendant who sues someone else in the same lawsuit), or cross-defendant (a person sued by a cross-complainant)....

http://dictionaiy.law.com.

11 . Our determination that Zanchi was a party to the lawsuit when named in a petition duly filed with the clerk of record does not diverge from the substantive holdings in Mapco (judgment shall not be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance), Ross (trial court is without jurisdiction to enter or enforce judgment against party who had neither been served nor appeared), and Caldwell (party who becomes aware of the proceedings without proper service of process has no duty to participate in them). Our holding does not suggest that a person or entity that has merely been sued, but not served with process, has any duty to participate in the proceedings; certainly, Zanchi had no duty to participate in the proceedings until such time as he was properly served with process.

12 . Out of an abundance of caution, Zanchi may wish to do so within twenty-one days after issuance of this opinion. But we offer no opinion on this particular issue.

13 . At the dismissal hearing, counsel for Lane stated, "I think we put in our response that we certainly would not object to them having their opportunity at that point to make their objections. We’re not trying to play games here.”

14 . Because we hold that Lane properly and timely served the expert report on Zanchi, a party to the lawsuit — and has therefore complied with the statute — we do not reach the issues of whether a due diligence exception exists that might forgive a lack of compliance by Lane or whether Lane would qualify for such an exception.