Stockton Ex Rel. Stockton v. Offenbach
336 S.W.3d 610
| Tex. | 2011Background
- Stockton filed a health care liability claim against Offenbach for birth injuries to her son, attaching an expert report and CV.
- Offenbach’s whereabouts were unknown; he had lost his medical license years earlier.
- Stockton made extensive search efforts, including a Rule 202 proceeding and contacting insurance carriers, but could not locate Offenbach within 120 days.
- Stockton sought substituted service and citation by publication after a delay, with service completed in April 2008.
- The trial court initially denied the motion to dismiss, indicating the Legislature’s intent was fulfilled by sending the report to the insurer and filing it with the petition.
- The court of appeals upheld the strict application of § 74.351(a) and Stockton appealed to the Texas Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for § 74.351(b) orders | Stockton—abuse of discretion governs | Offenbach—de novo review required | De novo review appropriate for legal determinations |
| Whether a due diligence exception applies to the 120-day deadline | Due diligence should interrupt the deadline | No due diligence exception; only written agreement or court cure applies | No due diligence exception; deadline fixed unless other statutory extensions exist |
| Open courts challenge and constitutional viability as applied | Deadline created an impossible condition due to unlocatability | Record shows lack of impossibility; inaction by Stockton | Open courts challenge rejected; statute applied constitutionally as to Stockton |
Key Cases Cited
- Gutierrez, 237 S.W.3d 869 (Tex.App.—Hous. [1st Dist.], 2007) (service of expert report follows Rule 21a framework)
- Herrera v. Seton Nw. Hosp., 212 S.W.3d 452 (Tex.App.—Austin, 2006) (interpretation of service and deadlines under Rule 21a)
- Kendrick v. Garcia, 171 S.W.3d 698 (Tex.App.—Eastland, 2005) (application of service rules to expert reports)
- Gant v. DeLeon, 786 S.W.2d 259 (Tex. 1990) (due diligence may be determined as a matter of law based on unexplained lapses)
- Ashley v. Hawkins, 293 S.W.3d 175 (Tex. 2009) (eight-month service delay as lack of diligence in tort context)
- Diaz v. Westphal, 941 S.W.2d 96 (Tex. 1997) (open courts requirement; impossibility doctrine guidance)
- Shah v. Moss, 67 S.W.3d 847 (Tex. 2001) (open courts due diligence linkage for claims)
- Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778 (Tex. 2007) (open courts and due diligence in pursuing claims)
- Loutzenhiser, 140 S.W.3d 351 (Tex. 2004) (statutory construction; conflict with other law control)