*1 L.P., thrоugh that Primrose We hold Partners, not meet the re- does
Southeast exemption tax
quirements property for the
under sections 11.18 and 11.182 held, Having Tax so we need
Texas Code. argument
not address HCAD’s 11.182(b) exemption was not avail- it its to Primrose L.P. because “filed
able with HCAD on Jan-
exemption application public financing
uary well after its the section 11.182 ex- place, available, longer and with-
emption was request Appraisal to the Dis- prior
out a determination to preliminary
trict for a acquiring the financing
facilitate before
property.” Tex. Tax Code hold 11.182Q). Accordingly, we further granting trial sum- court erred L.P.
mary judgment in favor of Primrose for sum- denying
and in HCAD’s motion
mary judgment. sustain two issues.
We HCAD’s
Conclusion judgment of the trial
We reverse judgment that Primrose
court and render tax
L.P. is not entitled to an ad valorem 11.18 and 11.182
exemption under sections
of the Texas Tax Code. Patrick McDANIEL and
Janice
McDaniel, Appellants, RE- HEALTHCARE
SPECTRUM
SOURCES, and Michael INC.
Sims, Appellees.
No. 04-06-00185-CV. Texas, Appeals
Court
San Antonio.
Aug. *2 Anderson,
Jeffrey L. C. Jessica Lam- bert, Anderson, Jeffrey Law Office of C. Antonio, appellants. San for Biechlin, Jr., Robert R. Har- Richard C. rist, Thornton, Biechlin, Segrato, Reynolds & Guerra, L.C., Antonio, appellees. San LÓPEZ, Sitting: ALMA L. Chief Justice, STONE, Justice, CATHERINE ANGELINI, Justice, KAREN SANDEE MARION, Justice, BRYAN PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice, dissenting without opinion.
OPINION SPEEDLIN, Opinion by J. PHYLIS Justice. controlling legal presented issue appeal Agreed Sрecial is whether an
Setting and Docket incorpo- Control Order agreement extending rated written date under 74.351(a) of the Texas Prac- Civil Code. See tice and Remedies Civ. 74.351(a) (Vernon PRAc.& Rem.Code Ann. Supp.2006). Because we hold docket control order within it an includes Tex. Civ. PRac. (Vernon Supp.2006). pend- Also unambiguous agreement that extended a motion for date, ing before court was we reverse the trial court’s order and summary judgment filed the United remand the cause to the trial court for *3 asserting it not liable for States that was proceedings. further if negligence, any, Spectrum of and Background they con- independent Sims because were tractors. receiving physical Janice McDaniel was
therapy Army 16, at Brooke Medical Center 2004, the federal court On November attempt- for a “frozen shoulder” when she opinion summary judg- an granting issued fell, States, step breaking to off a ed machine in but ment favor the United pelvis. physical therapist by her Janice’s was filed denying the motion to dismiss Sims, employed by Spec- Michael who Spectrum granting was and Sims. Because Resources, Inc., summary judgment trum Healthcare which in favor of the United apparently by “destroyed” Foundation for the feder- hired States the basis jurisdiction, original the federal Health Federal Foundation was al court’s Services. sponte exercised its to sua employ the United States to court discretion to refil- Army prejudice at Brooke dismiss the case without personnel medical work ing state court. Medical Center. 15, 2004, The McDaniels refiled their claims Patrick April
On Janice and against Spectrum and Sims state court against McDaniel filed suit federal court 25, Thereafter, 15, July May on 2005. on Spectrum negligence and Sims for 2005, Agreed an into entered negligence against medical the United Setting Order. Special and Docket Control negligence. of America for States deadlines, Pursuant the docket control signed scheduling agreed federal court of Ex- 2, Designation the McDaniels filed a July 2004, required ex- order on expert re- 22, 2005, pert Witnesses and attached an perts by April to be identified port and curriculum vitae of their under the Federal Rules of Civil Proce- 11, 2, 26(a)(2)(B) February on 2006. On (par- Fed. R. P. dure. See Crv. 2006, motion Spectrum and filed a a a Sims ty must written asserting dismiss that the McDaniels failed specifically witness who is retained or em- timely their serve section testimony in a ployed provide expert case). After a was filed report.1 response pur- Before were identified by Spec- order, reply McDaniels and a was filed scheduling to the suant federal Sims, conducted trum and the trial court a and Sims to Dis- Spectrum filed Motion an or- 30, hearing and entered on motion August miss the MсDaniels’ claims on dismissing the McDaniels’ claims with 2004, der failed asserting that the McDaniels prejudice. timely serve the 74.351 of Texas Civil Prac- Discussion tice and Remedies Code scheduling by the review trial court’s agreed order entered We on did not the deadline. a motion to based granting federal court dismiss (September Spectrum alleged We note that and Sims filed their state court 2005) filing days passed their motion to to dismiss in court 17 had before motion federal alleged passed, only and then after had received day 120 deadline had dismiss expert report. they waited after the the McDaniels’ but almost months 4-1/2
791
Coker,
timely
(Tex.1999);
failure to
file section 74.351
Coker v.
(Tex.1983).
report undеr an abuse of discretion stan
Whether a contract is
dard. See Am.
ambiguous
question
Transitional Care Ctrs.
that must
law
Tex.,
Palacios,
Inc. v.
by examining
S.W.3d
be decided
the contract as a
(Tex.2001); Lopez v. Montemayor, 131
present
in light
whole
of the circumstances
(Tex.App.-San
S.W.3d
Antonio
Nat’l
when the contract was entered. See
denied).
pet.
A trial
Indus., Inc.,
court abuses its dis
v.
Union Fire Ins. Co. CBI
cretion if it
in an arbitrary
acts
or unrea
(Tex.1995);
v.
Sanchez
sonable manner -without reference to
Services, Inc.,
Energy
Duke
04-
Field
No.
guiding
principles.
rules or
Bowie Mem.
05-00926-CV,
2546365, at *2
2006 WL
(Tex.
Hosp. Wright,
(Tex.App.-San
Sept.
pet.
*4
2002); Lopez,
“In a liability health care a claim- writ) 1986, 769 (Tex.App.-Fort Worth shall, ant not later day thаn the 120th after (court must determine from expressions filed, the date the claim was serve on each used in a written contract whether there party party’s attorney or the one or more minds). has a meeting been of the If a expert reports, with a curriculum vitae of written contract is worded so that it can be expert each listed in for each given a definite or certain legal meaning, physician provider against or health care unambiguous. then it is Nat’l Union Fire whom a claim is asserted.”2 Act Co., 520; Coker, Ins. 2, 2003, 907 S.W.2d at R.S., Leg., 204, June 78th ch. 10.01, ambiguity S.W.2d at 393. An § does not 847, 2003 Tex. Gen. Laws 875. simply arise parties because the offer date for may be diametrically forceful and оpposing extended inter agreement written of the af- Munoz, pretations. v. parties. Lopez fected Hockema & Civ. Pra.c. & Rem. (Tex. 74.351(a) (Vernon Reed, L.L.P., 857, S.W.3d Supp.2006). Code Ann. 2000); Sanchez, 2546365, 2006 WL at *2. appeal issue this is wheth Rather, ambiguous only a contract is if two 15, July er the Agreed Special Set interpretations or more reasonable are ting and Docket Control incorporat Order genuinely possible application ed a written that pertinent interpretation rules of to the face extended the date for serving expert Sanchez, of the instrument. 2006 WL report. id. apply princi See We contract 2546365,at *2. ples in determining whether the parties casе, In this written agree- entered into an agreement to extend the ment, as reflected the docket control deadline. See Corp. Emeritus v. Hi order, given can be a definite and certain 321, ghsmith, 211 (Tex.App. meaning Agreed as a matter of law. The denied). 2006, pet. -San Antonio When a Special Setting and Docket Control Order contract ambiguous, is not the construction provides in pertinent part: of the written question instrument is a law for the court that is day July, reviewed de novo. On this the 6th heard, MCI Telecommunications Corp. Texas came to be all to this Co., Utilities Elec. 650-51 agreed cause of action who have 74.351(a) 2. September Section was amended in 2005 to аccrues on or after 2005. See original petition 74.351(a) substitute "the was filed” for Tex. Civ. Prac. Rem.Code Ann. filed;” however, “the claim was the amend- (Vernon Supp.2006). applies only ment to a cause of action that January one that the Docket Control following dates of for the McDaniels It is there- be the deadline be entered. would Order should ADJUDGED, (1) ORDERED, that fore, “designate expert AND all witnesses to: (2) “pro- as follows: to call at trial” and they DECREED intended and curriculum vitae a written vide all designate 1. Plaintiffs will in this case.” We experts all retained to call at the intend witnesses separate case, deposition, imposing this as two live or read trial of man- The first providе quirements. and shall a written of all retained “all witnesses” curriculum vitae disclosure of dates in this case on or before at trial which testify be called 2006; non-retained includes both retained treating physicians. See all ex- as designate is to such Defendant Kidd, Corp. v. at the Baylor it intends to call Plaza Servs. pert witnesses Med. case, deposition, (Tex.App.-Texarkana live or trial of this denied) (retained report and is an shall a written writ of all retained curriculum vitae his ser- compensated who is February in this case on or before vices); Communi- In re Harvest see also *5 2006; Houston, Inc., ties of 2002, orig. proceed-
(Tex.App.-San
are non-
treating physicians
ing) (noting
to the extent
It is further ORDERED
this case
The crux оf
experts).
retained
in conflict with
may be
these deadlines
con-
requirement
deals with the second
deadlines set
rule
one,
require-
tained within
Docket
by this
deadlines established
report
“a written
providing
ment of
precedence.
Order shall take
in
Control
of all retained
curriculum vitae
prepares
par-
expert who
an
It is further ORDERED
this case.” Since
a re-
generally
as soon as
shall conduct
a
ties
section 74.351
whether
notwithstanding
limiting
determine
we must
practicable,
expert,
tained
74 of the
in
intended for
provisions
parties
found
the section
and Remedies
apply
Texas
Practice
deadline to
Civil
make
In
order
expert report.
74.351
Code.
determination,
give
consider
we
n
n
n
n
n
n
agreed
part
effect
each
Ins.
v. Aetna
Forbau
in the
control order.
language
Based on the
Life
(Tex.1994).3
Co.,
132, 133-34
in
order,
initially agreed
parties
agreed
"re-
it
"testifying experts” because otherwise
language
that the dissent reads
3. We note
requirement
produce
differently
majori-
sults in the
than the
paragraph one
essence,
all ‘retained’
and curricula vitae of
the second
ty.
the dissent reads
In
only'
'consulting
ex-
including any
testify-
necessarily
limited
as
However,
the Texas Rules
perts.”
under
excluding
ing experts,
a section
therefore
Procedure,
identity,
im-
mental
respectfully
“[t]he
Civil
expert report. We
dis-
74.351
consulting exрert
First,
opinions of a
pressions and
by the
agree.
used
opinions have
impressions and
par-
whose mental
impose
a limitation. The
not
such
does
testifying expert are
state,
by a
suggests,
not been reviewed
as the dissent
ties did not
192.3(e)
P.
TexR. Civ.
vi-
not discoverable.”
report and curriculum
"provide a written
added).
(emphasis
Unlike
you
in this case
tae of all retained
Second,
or unlike
74.351
under section
the dissent
to call at trial.”
intend
expert, plaintiff is
testifying
quired
has to be limited
one
reasons
In deciding
agreed
whether
agreement
possibly
could
have intended to
docket control
the instant case
than
reference other
section 74.351. The
incorporated
agreement
an
to extend the
dissenting opinion contends that the refer-
deadline for the
expert report,
74.351
we
ence to “statute”
have been a refer-
first note that the statute allows such an ence to
74.352 of
section
the Texas Civil
agreement
specific
Code,
but does not mandate a
asserting
Practice and Remedies
format
than
agreement
other
must be
that the deadlines in that section would
in writing. Tex. Civ. PRAC. Rem.Code
conflict with the
in the
deadlines contained
74.351(a) (Vernon
(“The
Supp.2006)
disagree.
docket control order. We
Ann.
date for serving
report may
be extend
govern
the ser-
ed
written agreement of the
responses
affеcted vice of
to the
in-
standard set of
parties.”). The dissent states that in
terrogatories
requests
and standard set of
to be valid the
written
must
production
and things
documents
contain a “clear
reference” to section promulgated by the Health
Liability
Care
74.351.
respectfully
We
disagree. Cer Discovery Panel. See PRAC. &
Civ.
tainly,
express
(Vernon
2005).
mention of
the statute
would remove all
parties’
doubt about the
dissenting opinion
explain
does not
intent but the statute
require
does not
it. how these deadlines
could be
conflict
Accordingly, we
agree
must look to the
deadlines,
with the docket control order
ment as a whole to
ascertain the
espеcially
considering
the standard
intent.
of discovery
sets
referenced
74.352 have
promulgated by
never been
Here the
expressly agreed that
Liability
the Health
Discovery
Care
Panel.
written
and curriculum vitae of all
If this court were to decide that the dock-
of Plaintiffs
*6
would be
et
incorporate
control order did not
an
due on
January
Then,
or before
2006.
agreement
to extend the section 74.351
separate
a
paragraph,
parties
the
deadline,
provi-
we would render an entire
agreed the deadlines established within
agreed
sion within the
order meaningless
agreed
the
order would trump any other
ignore
pertinent
which would
a
rule of
rule or statute that
inwas
conflict with the
Sanchez,
contract
interpretation.
See
order, stating, “to the extent these dead-
*2 (noting
WL
at
court must
lines
inbe
conflict with the deadlines
apply pertinent
interpretation
rules of
statute,
by
set
rule or
the deadlines estab-
determining whether contract
ambigu-
is
by
lished
this Docket Control Order shall
ous).
added).
take
precédence.”
(emphasis
Spectrum
Furthermore,
and Sims have not cited this
the docket
control
court to
“statute” this section of
expressly permitted
parties
the
the
to conduct
required
provide
consulting expert’s
a
timing
re-
focused on the deadline or
for the
port
privilege.
absent a waiver of the
See In
plaintiff
provide
plaintiff
the
the
is
City Georgetown,
re
and is not intended to
(Tex.2001) (consulting expert report only dis-
Third,
consulting expert privilege.
waive the
waived);
privilege
coverable if
has been
importantly, by separately attacking
and most
Int’l,
Inc.,
Baytech,
Inc. v.
No.
Weatherford
08-00-00372-CV,
isolation,
report
each
of the
2001 WL
at *6
give any
dissent fails to
consideration to the
(Tex.App.-El
orig. pro-
Paso June
and,
thereby,
give
as a whole
fails to
denied])
ceeding
(consulting expert
[mand.
agreed
effect to each
party seeking
immune from
unless
Forbau,
control order in context.
excep-
information establishes one of three
at 133-34.
tions).
agreed
docket control order is
limiting
months until the federal
discovery “notwithstanding
proximately
seven
length
lawsuit was dismissed. Given
74 of the Tex-
provisions found
litigation had
of time
federal
been
Practice and Remedies Code”
as Civil
already had infor
pending, the defendants
would
have limited discov-
which
otherwise
mation from which
could determine
until the
74.351
ery
section
McDaniels’ claim was
whether the
frivo
Having expressly
was filed.
referenced
26(f) (re
26(a)(1),
lous. See Fed.R.CivP.
chapter
cognizant of
were
parties to file initial
quiring
disclosures
the limitations and deadlines established
and to have a conference of the
statutory
By expressly
provision.
consider the nature
bаsis of their
stating that
the deadlines in the docket
defenses);
U.S.,
claims
McDaniel
over
set
prevailed
control
CIV.A.SA-04-CA-0314, 2004 WL
No.
further
language
chosen
(W.D.Tex.
Nov.16,
*5,
at
*10
parties’ understanding
reflects
2004)
discovery had
(indicating some
been
for
deadline
the section 74.351
during pendency of federal liti
undertaken
port would be extended
Therefore, extending the deadline
gation).
filing
for
74.351
the section
Spectrum
argue
that the dock-
Sims
quid pro quo
for the
is
reasonable
the section
et
order did
extend
McDaniels’
allow immediate
for
purpose
74.351
because the
discovery.
ex-
requiring service of
rely on four
Spectrum and Sims
cases
is
pert report
purpose
different than the
whether a
previously
that have
addressed
discovery.
designating
expert during
incorporated writ
docket control order
Although
purposes
served
different
date
agreement extending
ten
discovery may
chapter
report;
that a
generally lead to the conclusion
however,
prior decisions
each of these
typically
would not
defendant
distinguishable
on the
based
deadline,
already
as we have
chapter
entry of
timing
used or
noted the statute itself envisions situations
the instant
noteworthy,
orders. Most
to en-
willing
where a defendant could be
specific
docket control order contains
agreement.
ter into such an
Tex. Civ.
*7
is
ignоre,
fur
“[i]t
we cannot
74.351(a)(Vernon
PRAC. &
the extent these dead
ther ORDERED to
(providing date can be extend-
Supp.2006)
in
with deadlines set
lines
be
conflict
by written agreement).
ed
estab
by role or
time
present
at the
circumstances
by
Docket Control Order shall
lished
in
order
entered
the docket control
None
the four cases
precedence.”
take
very
and
distinct
unique
this case were
involved a
Spectrum
cited
Sims
in
that is
present
typical
those
case
from
containing a similar
docket control order
Escobar,
first filed
state court where the defen-
No.
Cf., Rugama v.
provision.
receipt
chapter
923701,
anticipating
04-05-00764-CV,
dant is
at *2
2006 WL
2006,
the claim is
74
evaluatе whether
no
(Tex.App.-San
Apr.5,
Antonio
Palacios,
278,
Mieler,
at 878
46
177
280
frivolous.
S.W.3d
Hall
S.W.3d
pet.);
v.
2005,
(noting
purpose
(Tex.App.-Houston
one
[1st Dist.]
claims).
requirement
Sepulveda,
to deter frivolous
v.
S.W.3d
pet.);
Olveda
2004),
Here,
679,
pet.
(Tex.App.-San
order was
before the docket control
(Tex.2006);
court,
denied,
Finley
had
entered
state
n. 2
ap-
Steenkamp,
engaged
litigation
been
in federal
(Tex.App.-Fort
Worth
no pet.).
(rejecting
argument
at *8
Further,
Hall,
Rugama
both
that a section
is “somehow a
orders at
expressly
issue did not
mention
species
different
than that
any expert report. Rugama, 2006 WL required
general
under the
rules of discov-
Hall,
*2;
at
passed. Finley,
2;
already missed. SIMMONS, Justice, joined by KAREN Finally, Spectrum and argue Sims ANGELINI, Justice. the use of identical language in the docket control order for plaintiffs both the SIMMONS, Justice, joined REBECCA the defendants shows that the parties did by ANGELINI, Justice, KAREN not intend to extend the section 74.351 dissenting. deadline because the defendants were not agree I majority with the on one issue: required to file such a report. Although Agreed Special Setting and Dock- 4590i, under article an expert rеport could (“docket order”) et Control Order not be admitted into evidence or used is unambiguous and can given be a definite deposition, trial, or other proceeding, sec- meaning and certain as a matter of I law. 74.351(t) tion permits a section 74.351 ex- disagree, however, with meaning pert report to be admitted and used if the major- confers on the order. The claimant uses the report purpose ity holds that the deadline for from other than to meet the service all experts, which (a). would include subsection Compare May Act of medical experts under R.S., Leg. 1,§ 74th ch. *8 74.351(a) (former of the medical liability Tex. section of Gen. Laws. 986-87 arti- 4590i), the cle Tеxas Civil Practice and repealed by 2, 2005, Act Remedies of June R.S., Leg., 204, 10.09, § 78th Code and retained consulting experts, ch. was 2003 Tex. by Gen. Laws extended the with docket control order. Civ. PRác. & 74.351(t) (Vernon plain Under the terms of the docket con- Supp. Rem.Code Ann. 2006). order, however, Accordingly, trol statutory support only the deadline for currently exists for the testifying experts the notion that the of retained expert who provides chapter the extended. Tex. Civ. PRAC. (b) (Vernon is necessarily 74.351(a), distinct any from other re- Supp.2006). McDaniel, expert. tained See Accordingly, WL McDaniel’s expert report was as, discovery, purpose as well untimely properly trial court dis- to the and the care claim with missed health to the relating and rules respectfully I prejudice. Id. dissent. 74.351(a) of the Prac- under section Civil tice and Remedies Code. Relating Deadline to Plaintiffs’ unambiguously forth Paragraph 1 sets Designation Testifying Experts designating plaintiffs’ the deadline tes- tifying experts requires provision and fairly gener- The control order is and for those of a curriculum vitae ic, desig- with deadlines for the to that are testifying experts retained. Civil they nate intend to call witnesses types two Procedure Rule 192.7 defines case, testify at trial of the a deadline experts: testifying consulting. and comple- a for mediation and deadline Tex.R. tion of as well as the datе of types experts P. 192.7. Crv. Both these majority setting. trial The holds The difference is that be retained.2 1”) following con- paragraph (“paragraph retained, is not consulting expert but stitutes testifying Id. Rule expert. Under for the provision 192.3(e), disclose party is 74.351(a) expert report: expert, his consulting provided a retained designate all Plaintiffs will impressions opinions mental and have not call witnesses that intend to by testifying expert. See been reviewed case, at trial of this live or 192.3(e) only” (“consulting Tex.R. Civ. P. shall a writ- deposition, provide and testify- experts). distinction between The ten vitae of report and curriculum consulting experts is critical. The ing all case on rеtained limit l’s majority’s failure to (em- before testifying experts results application to added) phasis produce reports para- majority reasons that because curricula all “retained” vitae of graph 1 “retained” specifically references “consulting only” including any retained al- expert is experts and a section 74.351 interpretation ge- of this expert. Such an ways expert, provision “retained” given the language neric is unreasonable perforce extends the deadline for “con- by the rules to protection afforded report. interpreta- This sulting only” experts, and the lack the retained recognize tion fails to forego this language indicating an intent to lim- are referenced Here, par- parties. protection to call plaintiffs ited to those that “intend intended, clearly through paragraphs ties at the trial.” Rather than construe desig- modify the deadlines to 1 and meaning, the plain on its paragraph based rather than consult- testifying, nate their paragraphs additional uses two their tes- experts, ing “re- meaning to the word provide new See experts’ reports resumes. tifying majority’s holding tained.” miscon- relating P. 195.1-195.7. procedure the rules of civil strues Tex.R. Civ. party. ject paragraph 2 to the 1. This is mirrored in Civ. Tex.R. *9 194.2(f)(4), provides defen- Generally, parties the for the make which 195.3. P. dеsignate testifying experts. dant to its reports provide from non- no experts subject to their control. retained not expert testifying expert who
2. A is an retained employed by, by, otherwise sub- is retained or
797 application The of paragraph only- 1 to expert expert, is a retained testifying experts supported by is such expert testifying is not a retained very purpose of the section 74.351 expert the plaintiff specifically unless has expert report. To accomplish purpose, its designated him as such. a section 74.351 report must detail Moreover, section 74.351 has a discrete specific plaintiff conduct the has called into sеparate purpose apart from the rules question. Am. Transitional Care Ctrs. of relating discovery. designed It is Tex., Palacios, Inc. v. 878- dispose liability of frivolous medical suits (Tex.2001). Additionally, report at the outset. It specific provisions has must a basis for the trial court to requirements not addressed conclude that the claims have merit. Id. docket control order. The section 74.351 Chapter Under “expert report” means expert report is a “threshold” a “written report by expert that pro- in a care suit health without which vides a fair summary of expert’s opin- plaintiff proceed cannot to trial. ions as of the date of report regarding “Thus, expert report required by applicable care, standards of the manner in § separate 74.351 is designation from the which the care rendered the physician contemplated under the discov or health provider care failed to meet the Escobar, ery rules.” Rugama v. 04- No. standards, and the relationship causal be- 05-00764-CV, (Tex. at *2 WL tween that harm, failure and the injury, or App.-San Apr.5, pet.) damages claimed.” Tex. Civ. PRAC. & Rem. Russell, (mem.op.) (citing Murphy v. 74.351(r)(6). § There is no re- Code Ann. (Tex.2005)).4 purpose quirement any- address of designating testifying experts pro thing other than an issue relating to liabili- ducing expert reports during discovery is ty § or causation. Id. Provided 74.351®. prevent trial ambush and to allow the claimant does not use any the parties knowledge to obtain full of the fashion, no mention of either expert opinions before trial. Gutierrez v. its author be made in the case. Id. Dist., Indep. Dallas Sch. (t). 74.351(k), Like consulting only ex- (Tex.1987). The contrast between the
perts, referenced in section full testify disclosure and 74.351, not, by statute, are testifying ex- ing expert statutory and the restrictions perts under the discovery rules without under section reinforces the dif 74.351© some further action part on the experts. ferences the two between plaintiff.3 Paragraph 1 simply does Civ. Prac. Rem.Code ANN. 74.351®. suffice to transform a section 74.351 report into a report of a testifying expеrt only plain reading para- Not does a under the discovery Although rules. graph application exclude its to a section majority's 3. The statutory port conclusion that "no as contrasted with 1 in this support currently Yet, exists for the notion that the reasoning Rugama, case. the stated provides Chapter who testifying that there is a distinction between necessarily distinct from other retained experts, ap and section 74.351 still expert” ignores statutory scheme set forth at n 2. In plies. Rugama, 2006 WL specifically 74 and rules deed, generic most docket control order in section 74.351. forms, including public those offered to the County, provision Bexar contain a for dеad attempts distinguish Ruga- plaintiff produce expert lines for witness ma because the docket control order did not experts. from retained specific mention a deadline for an re
798 expert previ- our has did not the 4590i report, 74.351 court extend the in deadlines and Hall’s failure to file re- ously language determined that similar port did the did not constitute mistake or acci- a docket control order not extend dent). recognized the ex- Given the distinction deadline article 4590i experts report Liability testifying Chapter between and 74 pert under the Medical experts, Texas.5 without a clear reference to Improvement and Insurance Act оf sec- Essentially reports in tion 74.351 or their in language para- the same 1, any at I cannot intent graph 1 was in the docket control order find on Sepulveda, in behalf of the extend the thresh- issue Olveda v. S.W.3d 679, 2004, pet. expert (Tex.App.-San old deadlines. denied). provid- control order PaRagraphs Additional designate any and all
ed: “Plaintiffs shall and curriculum expert witnesses meaning para- Faced with the clear and of retained on vitaes 1, majority on two graph the relies addi- 11, 2003.” add- (emphasis or before June paragraphs tional the docket control ed). Olveda, In the docket we determined expert convert control order not the articlе did extend expert.” into “retained expert for a number 4590i deadline to the extent It is further ORDERED reasons, including that “the order men- may in conflict with these deadlines be and ex- expert tions witnesses ‘retained’ rule deadlines set perts, indicating testifying experts” rather by this Docket deadlines established the Act. than referenced under precedence. shall take Control Order Thus, recognized in Id. at 684. we Olveda par- It is that further ORDERED important a testi- distinction between discovery shall as soon as ties conduct liability expert a medical fying notwithstanding limiting practicable, in para- under article 4590L The language 74 of provisions found 1 in graph this case is even clearer —it and Rеmedies Texas Civil Practices only applies testifying experts Code. curric- requirement of a written provision first is a “belt and common applies only ulum vitae to the retained indicating the attor- suspenders” provision testifying witnesses. order to neys docket control intend the reviewing discovery Other courts deadlines and other govern have them orders deemed insufficient important is they previously identified. It submission deadline is “these operative to note the either 4590i or under article conflict,” not be conflict, See, Sutker, added) e.g., section 74.351. Brock (emphasis deadlines are 2007, (Tex.App.-Dallas Yet, compelled to find some majority pet.) (schеduling requiring plain- no statutory conflict with will tiff from retained ex- provide report forth in the deadlines set pert did extend section 74.351 construc- auspices under contract Mieler, deadline); “that each Hall v. The rule of construction tion.6 effect” given must (Tex.App.-Houston part [1st contract be (docket new effect to give control order is used whole pet.) Dist.] (Vernon (effective Sept. Supp.2005) repealed by Article Act of June 4590i 1, 2003). S„ 10.09, 204, § Leg., 78th ch. R. has been Tex. Gen. Laws statutory conflict 6. The finds at codified Prac. Tex. Civ. & Rem.Code Ann. the section parties must be envisioned *11 claimants, collectively, may take not meaning to the rather than provision It being construed. is not neces- more than two before the dеpositions sary statutory to give create a conflict required by as expert report is served provision meaning this intended: that (a). Subsection in the conflict event there is a with rule however, I disagree, phrase “not- parties which the did not envi- limiting provisions withstanding the found they sion or have specifically would ad- 74” intent to shows conflict, dressed the spelled the deadlines out in the the expert docket control would be extend the deadline for provision simply maintained. The cannot report.7 parties Rather it shows knew support interpretation that parties applicable how to specifically reference intended to extend thе deadline for the liability medical of provisions the Civil expert report section 74.351 through this they Practice and Remedies Code wanted oblique possible reference to a conflict with extend, discovery and continue the a rule or statute. However, was initiated in suit. the federal I now provision address the the dock- provision purport this does not to address et control order that specifically references section Chapter 74 of the Civil Practice and Reme- 74.351(a). majority opinion correctly The dies majority interprets Code. The the lan- expressly states: “[HJaving referenced guage in this section mean the docket chapter cognizant were parties control order permits parties to con- the limitations and deadlines established discovery duct permitted not otherwise un- Yet, by that statutory the ma- provision.” til the expert report is filed. jority the pertinent ques- never addresses (u). § 74.351(s), agree. I para- This tion-knowing chapter the deadlines of graph is clear of the parties’ evidence in- why expressly didn’t proceed tent to discovery with outside the report? deadline for the The specifically provided by limitations section 74.351(s): specifically need not cite the stat- ute, they but more must do to reach an
Until a claimant has served the report and than referеnce standard dis- curriculum vitae as (a), Subsection all discovery in a covery order Neither provision. health liability stayed care claim is ... paragraphs relied on 74.351(u): support interpretation and section their support application its to the section 74.351 Notwithstanding any provision other section, a claim expert report after is filed all deadline. expert report 74.351 7. originally deadline. No reference This case filed in federal discovery is made to the dead- April scheduling court on lines in health care claims. Tex. Civ. signed July on 2004 sets forth the Prac. 74.352. Should discovery deadlines. federal court dis- implemented, discovery be deadlinеs ref- 16, 2004, missed the suit on November four erenced in the docket control order would discovery process. months into the The case Specifi- conflict with 74.352. those in section May was re-filed on in state court cally, section 74.352 has deadlines for inter- plaintiffs their did not file rogatories requests production days until some 234 comple- would conflict with the deadline for days court and case was filed in state tion of in the docket control order. after the case was filed in federad court. just likely statutory So it is are the as these they "may” deadlines with which conflict implemented. once
Conclusion *12 order, signed by
The July on modified the dis- provided
covery deadlines as under procedure. order,
rules of civil how-
ever, lacks intent to hint deadline expert report. re- 1 and 2 is paragraphs
flected common
many unambigu- docket control orders and
ously providing sets the testifying experts. The
ports additional relied on provisions
two cannot transform standard
docket control order into an expert report
extend the section 74.351 agreement,
deadline. Absent a written
McDaniel’s section 74.351 untimely and the trial court had no
was but
discretion to dismiss McDaniel’s health prejudice
care claims with award rea- fees. attorneys
sonable Civ. Prac. 74.351(b). Because
& Rem.Code Ann. statutorily
trial court’s man- dismissal
dated, I respectfully dissent. Texas, Appellant
The STATE of SIGN AS-
CENTRAL EXPRESSWAY Outdoor, Inc. and Viacom
SOCIATES Outdoor, Inc., Infinity Appellees.
f/k/a
No. 05-06-00003-CV. Texas, Appeals
Court of
Dallas. 31, 2007.
Aug.
Rehearing Dec. Overruled