Zanchi v. Lane
2011 Tex. App. LEXIS 7177
| Tex. App. | 2011Background
- Ross died after splenectomy at Paris Regional Medical Center; Lane sued Zanchi for medical negligence in 2010; Lane mailed Wagner's expert report Aug 19, 2010, before Zanchi was served; Zanchi was ultimately served Sept 16, 2010; trial court denied motion to dismiss; appellate court held Zanchi was a party when served and report timely served within 120 days; dissent focused on Rule 21a and due diligence implications
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Zanchi a party when the expert report was served? | Lane | Zanchi | Yes, Zanchi was a party when served |
| Did service of the expert report comply with §74.351(a) and Rule 21a? | Lane | Zanchi | Service valid under Rule 21a; report timely served |
| Does the due diligence exception apply to toll the 120-day deadline? | Lane | Lane | Court did not need to reach due diligence; majority avoided carve-out |
| How should §74.351 be construed when expert report is served before citation? | Lane | Zanchi | Statute should be read to allow party status from filing; service timing upheld |
Key Cases Cited
- Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex. 1991) (judgment cannot be entered against a party not before the court)
- Ross v. Nat'l Ctr. for the Employment of the Disabled, 197 S.W.3d 795 (Tex. 2006) (personal jurisdiction; awareness does not create party status without service)
- Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) (party aware of proceedings has no duty to participate without service)
- Goforth v. Bradshaw, 296 S.W.3d 849 (Tex.App.-Texarkana 2009) (service of expert reports under Rule 21a; notice and actual receipt enough for service)
- Stockton v. Offenbach, 336 S.W.3d 610 (Tex.2011) (due diligence discussed in context of service deadlines)