Carroll v. Humsi
342 S.W.3d 693
| Tex. App. | 2011Background
- Carroll filed a health care liability action on May 8, 2007 against Seton (Brackenridge Hospital) and later added Humsi and others in an amended petition on October 30, 2007.
- Carroll attached an expert report by Don Patman against the physicians, including Humsi, with the amended petition.
- Humsi was not served until September 2008 despite the amended petition naming Humsi being filed on October 30, 2007.
- Humsi moved to dismiss under section 74.351(a), (b) alleging failure to timely serve Patman's report and that the report was untimely or deficient.
- District court dismissed Carroll's claim against Humsi (and severed nurse claims) without explicit grounds in a written order; Carroll appealed.
- Texas appellate precedent (Hayes) held the 120-day period runs from the first petition naming the defendant, not the original case petition, for purposes of service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of service within 120 days | Carroll timely served Patman’s report under Hayes framework. | Service was untimely under the 120-day trigger after Humsi was named. | District court did not abuse discretion; service was untimely. |
| Trigger date for the 120-day period | Trigger begins when Humsi was named and became a party; service within 120 days of October 30, 2007 suffices. | Trigger is the date of the first petition naming Humsi and requires timely service regardless of party status. | Panel rejects Carroll's alternative; 120 days began October 30, 2007. |
| Service on a party vs. party's attorney within 120 days | Service to Humsi or her counsel within 120 days should suffice regardless of party status at service time. | Section 74.351(a) requires serving on each party or the party's attorney who is a party or becomes a party; timing matters. | Carroll failed to timely serve Humsi as a party or her attorney within 120 days. |
| Equitable due-diligence exception | Offenbach allows potential due-diligence-based relief in some cases. | No fact issue on due-diligence; even under Offenbach, record does not show diligence to toll. | No equitable exception; no due-diligence fact issue shown. |
Key Cases Cited
- Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006) (abuse-of-discretion standard for 74.351 dismissal)
- Rosemond v. Al-Lahiq, 331 S.W.3d 764 (Tex. 2011) (implied findings of fact when none are in record)
- Offenbach v. 336 S.W.3d 610, 336 S.W.3d 610 (Tex. 2011) (due-diligence discussion; suggests possible tolling but leaves question open)
- Hayes v. Carroll, 314 S.W.3d 494 (Tex.App.-Austin 2010) (holds trigger is the first petition naming the defendant, not the original petition)
- Dingler v. Tucker, 301 S.W.3d 761 (Tex.App.-Fort Worth 2009) (requires timely service on each party or their attorney to satisfy report requirement)