*1 clearly trial court did not abuse its denying MOKKALA, M.D., Jeffrey Sandhya-Rani discretion two of three motions original proceeding. issue More- Carter, D.O., Arlington D. Ortho over, motion, regard to the third rela- Associates, P.A., Appellants, pedic pending tors have before the trial court a v. request for reconsideration and amended designate motion to Southwestern Bell as MEAD, Jr., James F. and Diane P. responsible party. third Mead, Individually and As Next court, emphasized by supreme As Mead, III, Friends of James Franklin appropriate whether mandamus relief is Mead, Mead, Mi Robert Thomas “depends heavily on the circumstances nors, Appellees. Prudential, presented.” See In re Here, any S.W.3d at 137. benefits to man- Sandhya-Rani Mokkala, outweighed by damus review are the detri- M.D., Appellant, Accordingly, agree ments. we with the reasoning persuasive authority of In Martin, re and we hold that relators have adequate remedy by appeal an re- with Mead, Jr., Mead, James F. and Diane P. spect to the trial court’s of its mo- denial Individually and As Next Friends of designate tion for leave Southwestern Mead, III, Robert James Franklin party. a responsible Bell as third Because Mead, Mead, Minors, Ap and Thomas adequate remedy by ap- relators have an pellees.
peal, petition for writ of mandamus must be denied. 14-04-00708-CV, Nos. 14-04-00845-CV. Conclusion Texas, Appeals Court of Because trial court did not its abuse (14th Dist.). Houston in denying discretion relators’ second mo- designate tion for leave to unknown van- 2, 2005. responsible parties dals as third or in de- 8, 2005. Rehearing Sept. Overruled nying third relators’ motion leave designate Centerpoint responsible as a Rehearing En Banc Overruled party, third and because relators have 3, 2005. Nov. adequate remedy appeal respect the trial court’s denial of its motion for designate
leave to Southwestern Bell as a
responsible party, third in all respects.
writ mandamus is denied
Having disposed original proceed- of this
ing, stay we lift the our order imposed January
dated NUCHIA, concurring
Justice result
only. *2 Lovett,
Mary Olga Christopher Cord Miller, Ervin, Houston, ap- for R. Wendi pellants. Proctor, Tommy Ray Hastings,
Lori D. Houston, appellees. EDELMAN,
Panel of Justices consists SEYMORE, and GUZMAN. OPINION
MAJORITY GUZMAN, EVA M. Justice. interlocutory ap- consolidated these sec- peals, upon called to construe we are (b) 74.351(a) and of the Texas Civil tion Code, per- Practice Remedies which reports tains to Appellants, claims.1 care the trial challenge providers, healthcare denying their motions court’s orders care dismiss their health with 74.351, under part: provides in relevant (a) In a health shall, later the 120th claimant than filed, after the date claim was party party’s attor- serve on each interlocutory repealed added Legislature legislation This also the Texas arti- provides jurisdic- cle 4590i of the Revised Civil Statutes and appeal appellate provisions 1.03, substantially moved amended present case. tion See id. Chapter 74 of Civil former article 4590i to (codified at Tex. Civ. Tex. Gen. See Act Practice Remedies Code. 2003, (Vernon 51.014(a)(9) Prac. & Rem.Code 10.01, §§ Supp.2004-05)). 10.09, 864-82, Gen. Laws (the case”).2 ney one expert reports, or more “2003 After nonsuiting twice curriculum vitae of each listed in against their claims the health provid- physician for each or health ers in the 2003 the Meads then filed provider against whom a the same claims *3 claim is serving asserted. The date for (the providers in cause number 04-23671 may be extended written case”). “2004 We conclude the agreement of parties.... the affected period set forth in section runs (b) If, physician as to defendant or from the date the Meads filed the first provider, expert report health care petition asserting their health care period has been served within the which, claim, case, period in this had (a), court, specified by Subsection on expired before the Meads nonsuited their the motion physician of the affected against providers.3 claims the health care shall, provider, subject health care to Therefore, hold the trial court erred in we (c), Subsection enter an order that: denying providers’ motions (1) physician awards to the affected case, Accordingly, dismiss. in the 2004 provider or health care at- reasonable we reverse and remand with directions to torney’s fees and in- costs of court trial court to award the health care physician curred or health care providers attorney’s their reasonable fees provider; and judgment and costs of court and to render (2) respect dismisses the claim with dismissing preju- with Meads’ claims physician to the provid- or health care Presuming dice. See id. for the sake of er, refiling to the of the argument that we would otherwise have claim. appellate jurisdiction Dr. over Mokkala’s Tex. Civ. Prac. & Rem.Code Ann. appeal regarding the 2003 we dismiss 74.351(a)(b) (Vernon 2005). appeal as moot because the Meads Here, undisputed appellees nonsuited their claims the 2003 case (“the Meads”) served their before the trial court Dr. denied Mokkala’s and expert’s curriculum vitae and 122 motion to dismiss.4 days, respectively, filing their origi- nal petition against Sandhya- appellants, I.PROCEDURAL BACKGROUND Mokkala, M.D., Carter, Rani Jeffrey D. form, summary D.O., following proce- Associates, Arlington Orthopedic (the transpired underly- dural events in the two P.A. providers”) “health care and oth- ers, in trial court cause trial number 03-64427 court cases: Date_2003 Case 2004 Case petition claiming 11-24-03 The Meads file a providers negligent health care were Hubert, 2. The Meads named several other defendants 4.See McNeill v. 119 Tex. parties interlocutory ap- (Tex.1930) who are not to this (indicating 332-33 peal. plaintiff’s nonsuit of his when defen- dant had not filed a claim for affirmative Thus, 120-day period expired before the relief, necessarily any questions in- rendered Meads nonsuited their claims moot, appeal volved in because there was providers. We therefore need not nothing upon judgment ap- which the filing decide whether of nonsuit before the pellate effectively operate). court could expiration 120-day period would toll elapses the 120 for the be- refiling of the nonsuit and the tween of the same health care claim. diagnose appellee cancer in failing to Mead, Jr.__ _James expert report._
03-24-04 The Meads serve their expert’s The Meads serve the 03-25-04 vitae.____
_curriculum file motion to nonsuit 04-02-04 The Meads against the health care
_providers.____ grants The trial court the motion 04-07-04
_nonsuit.____ again petition, 04-12-04 The Meads amend their providers naming the
_defendants._ Dr. Mokkala files a motion dismiss
04-16-04 untimely serving based on the Meads’ expert’s report and curriculum
_vitae.__ by grants a motion again 05-03-04 The trial court Meads to nonsuit them claims providers.5_
_against health care ap- claiming file The Meads 05-06-04 pellants negligent failing to di- were Mead, appellee cancer in James agnose _Jr._ alleged untimely Based on Meads’ 06-07-04 expert’s serving inadequacy and Dr. files motion report, Carter requests attorney’s fees.6 and
_dismiss orally The trial court denies Dr. 06-11-04 _Mokkala’s dismiss._ motion to denying signs trial court an order 06-30-04 The dismiss, Dr. Mokkala’s motion to but the order filed with 2004 cause
_number._ serving untimely 07-06-04 Based on Meads’ and curriculum expert’s report vitae, Dr. Mokkala files a motion to attorney’s requests fees. and _dismiss signs denying cases._ 07-19-04 The trial court orders motions to dismiss both appeal. a notice appeal._Dr. 07-22-04 Dr. a notice of Mokkala files Mokkala files Orthopedic Arlington and 08-06-04 Dr. Carter appeal. file Associates a notice denying their II. Discussion tion or otherwise erred Meads’ claims with to dismiss the motions A. Issue Presented and of Re- Standard Meads failed prejudice because the view report their serve issue, single provid- In a care the health argue They vitae. expert’s curriculum argue trial court its discre- ers abused appellate rec- part appellate indication in the 6. There is no 5. This motion is or the Meads served ord of whether when record. expert’s and curriculum vitae 2004 case. that the time (Tex.App.-Houston under no [14th Sec- Dist.] pet.). tion began when the Meads filed case, “claim” in their the 2003 and it was Interpretation B. of Texas Civil Prac-
not affected nonsuit in their that case tice and Remedies Code Section their refiling of the same claims in the 2004 case. (1) In this the Meads law- filed a The Meads contend have an abso- alleging health care right lute to nonsuit under Texas Civil providers permit- and, Procedure Rule 162 under the current ted the 120-day period serving an ex- law, statutes and case the health pro- pert report expire serving without required viders were to move for dismissal (2) providers report; before Meads filed their nonsuit. The before, and thereafter nonsuited the claim Meads assert nonsuiting their after, again providers claims, they placed were then in the same a motion to dismiss under subsection position they have would been had they 74.351(b); (3) then filed a new lawsuit case, i.e., brought the 2003 the dead- alleging the same health care line for serving their was 120 *5 Thus, claim. following question the is be- from the date filed the 2004 circumstances, fore us: does Under these lawsuit. 120-day statutory period for the expert report run from the date the second apply We an abuse-of-discretion us question requires lawsuit is filed? This in reviewing standard a trial court’s deci to construe the statute. on a sion motion to dismiss which a Legal construing 1. In a standards. defendant opinion claims the statute, objective our is to determine untimely Jacobs, served. See v. 29 Pfeiffer give legislature’s City effect to the intent. 193, S.W.3d 195-96 (Tex.App.-Houston Boerne, 111 City San Antonio v. of of denied) 2000, pet. [14th Dist.] (applying 22, (Tex.2003); S.W.3d Corp. 25 Nabors abuse-of-discretion standard dismissal Servs., Co., Inc. v. Ins. 132 Northfield 13.01(d)(g) under sections of former article 90, (Tex.App.-Houston S.W.3d 96 [14th 4590i).7 An abuse of discretion occurs 2004, pet.). Dist.] no We look first to the when trial court in an acts unreasonable “plain meaning and common of the stat manner, arbitrary or when it acts words,” in presuming legislature ute’s any guiding princi without reference to meaning tended the plain of those words. Garza, 718, ples. Rittmer v. 65 S.W.3d Servs., Corp. Nabors 96. S.W.3d at (TexApp.-Houston 721-22 [14th Dist.] We legislative also determine intent from 2001, pet.). no defer We to the trial act, just the entire portions, not isolated determinations, court’s factual but review whole, and read as a interpret the statute of questions law de novo. Id. at 722. To every part it so given is effect. the extent resolution of the issue before Id. trial requires interpretation of itself, apply addition, the statute we de novo stan Code Act Construction Blum, 285, applies dard. Buck v. 74.351. to section See Tex. Civ. 25, 1993, R.S., 985-87, 2, 2003, May Leg., See Act of repealed 7. 73rd ch. Act of June 78th 625, 3, 10.09, § Laws Tex. Gen. Leg., § R.S. 2003 Tex. Gen. ch. amended Act Laws Tex. Gen. (Vernon 74.351(a), 120-day period is triggered 1.002 PRAC.& Rem.Code Ann. petition the claimant files pro- on the date (stating, expressly unless otherwise alleging particular Remedies by the Civil Practice and vided another law- Code, claim, she files applies Act date the Code Construction asserting that same claim. provision to the construction of each code). Act, Under Code Construction interpretation Our consistent on unambiguous if a its even Appeals in Puls the Dallas Court face, may including we consider matters City at Dal- Hospital Medical Columbia (1) sought object L.P., Subsidiary, 617- las (2) obtain; the circumstances under denied).9 (TexApp.-Dallas (3) statute; enacted the the Puls, initially asserted appellants (4) history; legislative common law for- City, hospital, Medical statutory provisions, including laws mer on al- its vicarious based on (5) subjects; and the same or similar (techni- leged negligence perfusionists of a consequences particular construction. management cians specialized (Ver- See Code Ann. Gov’t machine) heart-lung during the decedent’s non surgery. coronary artery bypass appellants subsequently 615. The amend- Statutory language. Section hospital’s ed to assert their “In a health care liabil provides: alleged negligent for the vicarious shall, ity later a claimant than post-operative providing conduct of nurses the 120th after the date the claim was care. filed, reports serve ... one or more criticizing the nurses’ physician pro ... or health care each *6 statutory liability within the against vider whom a claim is conduct was served of the amended but petition, asserted.” deadline Tex. & Civ. PRAC. Rem.Code Ann. 74.351(a) added). (emphasis petition. appeal, § in the On court original “Claim” City’s rejected Medical contention section 74.351 “means health care liabili 74.351(r)(2). § A to measured from the date ty claim.” Id. “health deadline was be action,” original filed their suit liability care claim” is a “cause of claimants 74.001(a)(13).8 they alleged in against City, § Medical which not a lawsuit. id. See Thus, liability on the language hospital’s perfu- of section the based plain under 2002, denied). (a)(l provides: (Tex.App.-Dallas 8. Section 74.001 617-18 Nevertheless, language specific Puls liability care "Health claim” means of against pro- interpreting action care was and the definition cause of health court treatment, physician liability vider or treatment, lack of care claim” on which it relied "health departure or claimed from other respects those are in all material identical to care, accepted of or standards medical May present Act in the statute. See of found care, safety professional or or or health 140, 1, Leg., Tex. 74th ch. 1995 directly to administrative services related 985, (setting expert-re- 986 forth Gen. care, proximately in which results 2, port repealed by procedure), Act June claimant, injury to or death of a whether 204, 10.09, 2003, Leg., ch. 78th R.S. of action claim or cause claimant’s 847, 30, 884; Act of Tex. Gen. Laws sounds in tort or contract. R.S, 1.03(a)(4), Leg., ch. 65th 74.001(a)(13) § Ann. Tex. Civ. Prac. Rem.Code (defining "health Tex. Gen. Laws (Vernon claim”), liability repealed Act care 204, 10.09, construing The court was former arti- R.S. 9. Puls Hosp. at v. Columbia Med. cle 4590i. See Puls 884. Tex. Gen. Laws L.P., City Subsidiary, Dallas sionists’ conduct. The nishing Puls court ex- an expert report as to that plained: Nothing claim. the statute distin-
Here,
guishes
lawsuit
between claims for direct
appellants’
against Med-
Thus,
ical City
liability.
was initiated with a single
vicarious
the amend-
care
claim
asserted
ment
to
of a
add a new claim
original petition
August
2000.
constitutes
that claim
pursuant
13.01(d)
That claim alleged
City
that Medical
triggers
section
the ex-
vicariously
perfusionists’
liable for the
pert report
any
as to
deadline
defendant
13.01(d)
during surgery.
actions
Section
sued in
direct
ca-
either 'a
or vicarious
(cid:127)
report
states that an
is due “[n]ot
pacity.
later than
the later of the 180th
Furthermore,
Id. at
legisla-
617-18.
after the
which a
date on
health care
ture
had intended to set the
time
”
liability claim is filed....
Tex.Rev.Civ.
limit in
relation to
date
claimant files
4590i, 13.01(d)
§
Stat. Ann. art.
(empha-
lawsuit,
so,
it
could have done
as it did
added).
sis
13.01(d),
Pursuant to section
74.051,
provides:
an expert
regarding
report
the standard
...
Any person
asserting a health
of care
applicable
per&sionist’s
acts
shall give
written no-
during surgery
days
was due Í80
after
tice
...
physician
of such claim
to each
that claim was filed.
provider
or health
against
whom
interpretation
Medical City’s
being
such claim is
made at
least
phrase
require
above
would
days
fíling
any
before the
of a
furnish an expert
upon
of this state based
a health
13.01(d)
filed,
suit is
plainly
but section
claim.
says
and unambiguously
not suit.
Civ. Prac. & Rem.Code Ann.
A health care
claim is “a cause
(Vernon 2005)
added).
(emphasis
provider
action
a health care
...
treatment,
treatment,
lack
or
Purported
conñict with Texas Civ-
departure
accepted
claimed
Meads,
il Procedure
Rule
how-
standards of
care or
medical
ever,
right
contend
had
absolute
1.03(a)(4).
safety.”
is,
That
nonsuit their claims under Rule
*7
is a theory of a
care provider’s
providers
that
were re-
Here,
liability.
appellants pleaded two quired to move for dismissal before the
claims, alleging
City
that Medical
was Meads filed
nonsuit. Having
their
non-
vicariously
perfusionists’
liable for the
claims,
they
suited their
the Meads assert
surgery
conduct during
and for the
effectively
the
occupied
position
same
had
post-operative
nurses’
actions. Section
is,
they
case;
brought
not
the 2003
that
13.01(d) requires experts’ opinions as to their
serving
deadline for
their
re-
applicable
the standards of care
to each port
was 120
from
the date
claim.... By amending
petition
its
on the 2004 case.
appellants alleged, for the
162
time,
provides
part:
Rule
relevant
first
a
claim
any
plaintiff
“At
time
the
intro
for
before
has
City
Medical
vicarious liabili-
all
ty
duced
of his
rebut
arising
alleged post-
from the nurses’
evidence
than
evidence,
operative
may
tal
a
According
plaintiff
dismiss
actions.
to the
13.01(d),
non-suit,
plain
be
meaning of section
a
take a
shall
claim
minutes.”
arising from the nurses’
entered in
P.
negli-
thé
Tex.R.
Civ.
gence began
right
fur-
162. A
to take a
is
plaintiffs
nonsuit
petition
files a
controls when she
long
plaintiff
as the
unqualified and absolute so
not made a
for affir-
defendant has
there-
alleging a health
sanctions,
mative relief or a motion for
commencement
by triggering the
Millard,
v.
BHP Petroleum Co.
serve
120-period within which she must
(Tex.1990).
Nothing in
expert report.
Subject only to the
of Civil Practice and
interpretation
our
limitations,
plaintiff
a
can there-
statute of
Remedies
section
interferes
Code
74.351
a
until she has
fore wait to file
to
plaintiffs right
with a
take
nonsuit.10
serve,
obtained,
expert report.
can
Although under our
interpretation
Thus,
refiling previously
that
holding
our
74.351(a)
plaintiff
arguably
section
claim fails to
nonsuited
position”
in the
she was
placed
not
“same
con-
does not
120-day period,
restart
action,
brought
before she
least
162, i.e.,
Rule
purpose
flict
she has to
in relation to
amount
time
the suit in
allowing a means to discontinue
expert report,
our
serve
section
unexpected contingencies.
the event
not conflict with the
interpretation does
Rule
v.
purpose of
162.11 See Alvarado
Moreover,
a conflict
even
there were
Co.,
167, 170
Hyundai
885 S.W.2d
Motor
74.351(a)
and Rule
between
Antonio
Rule
(Tex.App.-San
(noting
legislature
has determined section
designed
162 is
to avoid
allow
“In
of a con
prevails:
the event
Roy
emergencies,
unexpected
citing
W.
law,
chapter and another
flict between this
McDonald,
27:39
Texas
Civil Practice
rule of
or evidence
including
procedure
(John
ed., 1992)),
S. Covell
rev’d on other
rule,
chapter
controls to the
or court
(Tex.1995);
grounds,
75 an 90-day, nonnegotiable, dismiss with within expert support not have judge to up set such file, interlocutory appeal that is days it’s on those de- the first all now, lawyer can hide the defense will not be incurred. that fense costs you discovery, discovery all and stop of doctors expense The heartache and I think the go forward. What sup- who have been sued that cannot be cannot is, approach would be ported will not be suffered. more reasonable expert report have an ex-an absolute days. a within 180 Have requirement if attorneys to extend that mean [sic] that the increased number cases On necessary. dismissed within the first 180 being are the Senate Hearings on Tex. H.B. 4 Before days of the failure an because Comm., Leg., R.S. State Affairs way If was a to make the report. there (statement of Jim (April tape firm, requirement solid and 180-day Jr.) Perdue, (transcript available M. requirement the expert report clear and Office).13 Staff Senate Services file, on venue shop- then and allow you backdrop, enacting sec- ping judges Against where have who arent’ 74.351, it, signifi- made something legislature that that tion dismissing [sic] is I, changes expert-report to to suggest will stick. I will the Com- cant the former claims. procedure mittee that the 2002 data for health when comes that, al- you’re provisions removed the going out to see an in- The in lieu lowing deposit a or cash malpractice creased number of medical cost bond days successfully expert report served 90 after a cases have been dismissed an and, plaintiff and those costs now have defense permitting a provisions and nonmeritori- removed the been incurred that and case, expert report that an if was not filed sup-
ous
is
cannot
nonsuit
an
get
days
filed the claim.
port
you
the case out
5,1995,
system.
goal
Leg.,
That
See Act of
74th
valid
(d),
13.01(a),
way
140, §
1995 Tex. Gen.
to achieve a real result on the front
sec.
dangerous
(repealed
I think it’s
end....
take Laws
Cf.
it,
attorney’s ability
out
& Rem.Code Ann.
extend
Civ. PRAC.
(Vernon 2005).14
you’re
re-
especially
gonna
it a firm
The
also
make
support
position
of its
that a health
13. The senate committee version of House
files
without
claimant who
a non-suit
4Bill
reflected some of the
ex-
concerns
quo
should be returned
status
pressed by those who had testified before the
initiating
prejudice to
without
another
ante
Senate
In contrast
State Affairs Committee.
suit, the
v. Lakshmi
dissent cites Martinez
to House Bill which set
deadline
kanth,
(Tex.App.-Corpus
record is devoid of and it Justice, W. SEYMORE, CHARLES is undisputed the Meads served their re- dissenting. port on March 2004. Under section 74.351(b), on providers’ I respectfully majority’s dissent to the motions, required the trial court was to reversal as to cause number 14-04-00708- ” Martinez, Martinez, been filed.’ at 148. lature S.W.3d Ob removed 2003. See serving legislature, enacting that the House S.W.3d at 147-49. Frac. & Rem. Cf. Civ. Bill did address Rule the dissent (Vernon 2005). Because Code Ann. suggests good Op. is still law. Martinez provisions removed the J., (Seymore, dissenting). at 78 nonsuits, predecessor referring to however, Martinez, court in consider arguably there was no need for the statutory containing specific structure separately to address Rule 162.
provisions provisions legis nonsuits — *11 120-day the period Puls is as follows: strictly applied CV the trial court because liability begins a care on the precedent by and the statute written health I that Legislature. Accordingly, day the Texas claimant files suit and asserts a liability conclude that trial court abused claim within particular cannot the health Otherwise, appellants motion a denying its discretion the claimant pleadings. adding to dismiss. might find himself barred from existing claim to an law- meritorious new was, in Appellant’s motion to dismiss simply passing of 120 because reality, request for the court to trial suit was filed. I from the date first impose the on proverbial penalty death respectfully submit that the Dallas court appellees. This court should exercise eliminating an unintend- appropriately was great concluding caution before that the procedural for the claimant. trap ed unreasonably, arbitrarily, trial court acted any princi or guiding without reference to Here, majority trap the creates for the Garza, ples. See Rittmer 65 S.W.3d claimant, allowed to reason- who should be (Tex.App.-Houston 721-22 [14th Dist.] ably rely procedural on af- safeguards the pet.). no under Rule Texas Rules of forded To proce- Civil Procedure. eliminate the 74.351(a) applied The trial court safeguard, majority dural the describes a Legisla- strictly as written the Texas applica- “purported conflict” between the ture. Civ. PRAC. & Rem.Code Ann. 74.351(a) 74.351(a)(Vernon and Rule 162 tion of section § Pamph.2004-05). The conflict, By creating a where none exists. merely expresses statute claimant the majority neatly dispose Rule shall, the can “not than later the 120th by deferring to the statute. See ... filed, date claim was serve one Tex. Civ. (Ver- Ann. reports more ...” In con- Id. PRAC. Rem.Code. (stating non trast, Pamph.2004-05) Chapter majority has added a word that extent with an- controls it conflicts did include. The stat- law). footnote, majority express ute does language in stat- predecessor refers to serving expert reports begins on permitting ute to non-suit an the date the claim was filed. first ex- action if he fails to furnish an Moreover, majority mistakenly relies pert report. Act of See on Hospital Puls v. Columbia at Medical 13.01(d)(2), 1,§ sec. L.P., City Subsidiary, Dallas (n), Tex. Gen. Laws denied) 613 (Tex.App.-Dallas (repealed Tex. Civ. Prac. & Rem. Cf support its conclusion that 74.351(a). Notwithstanding Code Ann. period began appellees when first filed the has from majority inferences the drawn distinguishable. 2003 case. Puls legislative history, my it considered Puls, appeals con- the Dallas opinion that there is no conflict between struing language predeces- similar Obviously, and the rule. when sor health care statute. comprehensive enacted prosecuting claimants Puls were more Texas, overhaul than one health care claim the eliminated the claim- expressly have could appeals suit. The court of same Dallas safeguard ants of a Rule 162 procedural that the “amendment properly concluded prejudice, without but it did not. non-suit of a to add a claim constitutes new today, appellate court in Texas that claim.” Until no filing of 618. Succinct- ly, ruling in has concluded that proper deduction *12 prej- claimant who a non-suit without acted arbitrarily files without reference to may udice not be quo returned status guiding principles. prejudice
ante without to initiate another Accordingly, respectfully I dissent. facts, contrary, suit. On the under similar Corpus our sister court in Christi conclud-
ed the trial court erred when it dis-
missed the second after a case claimant prejudice non-suit without in the Lakshmikanth,
first case. v. Martinez 144 (Tex.App.-Corpus Christi denied). Martinez, Importantly, period prescribed pre- PHILLIPS, David Henderson expired plain- decessor statute before the Appellant, tiff filed a non-suit. See Tbx.Rev.Civ. Stat. 1301(d)(2). 4590i, § ANN.art. Corpus The correctly court concluded that Texas, Appellee.
Christi The of STATE right to a remedy defendant waived his No. 01-04-00759-CR. seeking under the statute dismissal expiration 180-day period. of the Appeals Texas, Court of Instead, at 148. court acknowledged (1st Dist.). Houston that Rule 162 controlled. Id. at 149. In 9, 2005. words, act, former under the medical malpractice claimants could avail them- Discretionary Review Refused selves benefits Rule even 7, 2005. Dec.
when failed to file a non-suit expiration
before period. painstaking enacted reform
of health care in Texas. The tacti- litigants
cal benefit afforded all under Rule Procedure, Texas Rules of Civil Accordingly, I respectfully
not addressed.
disagree majori- with the conclusion
ty preclude that the intended to
litigants exercising right file without prejudice prescribed
non-suit Rule 162 when it enacted House Bill 4. my opinion
It is considered adequately defendants are statutory
protected through entitlement to
a dismissal with if a motion is
timely filed before claimants file a non-
suit. Tex. Civ. PRac. Rem.Code Ann. 74.351(b)(2) (Vernon Pamph.
Moreover, in undisput- consideration events, I chronology of would not
ed en- legislative in an
gage analysis history that the trial
support conclusion