REVERSE and REMAND; and Opinion Filed July 10, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        No. 05-18-00698-CV

   MICHAEL SUTKER, M.D. AND SURGICAL CONSULTANTS OF DALLAS, LLC,
                              Appellants
                                 V.
                      DORCAS SIMMONS, Appellee

                      On Appeal from the 298th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-17-13851

                             MEMORANDUM OPINION
                        Before Justices Brown, Schenck, and Pedersen, III
                                 Opinion by Justice Pedersen, III
       In this interlocutory appeal, Michael Sutker, M.D. and Surgical Consultants of Dallas, LLC

challenge the trial court’s denial of their motion to dismiss Dorcas Simmons’s healthcare liability

lawsuit with prejudice for failure to timely serve an expert report and curriculum vitae pursuant to

section 74.351 of the Texas Civil Practice and Remedies Code. In their sole issue, appellants assert

that the trial court abused its discretion by denying their motion to dismiss because Simmons failed

to comply with the service requirement under section 74.351(a), subjecting her claims to

mandatory dismissal under section 74.351(b). We reverse the trial court’s order denying

appellants’ motion to dismiss, render judgment dismissing Simmons’s claims against Dr. Sutker

and Surgical Consultants of Dallas, LLC with prejudice, and remand for a determination of

reasonable attorney’s fees and costs.
                                                        I. BACKGROUND

           On October 9, 2017, Dorcas Simmons filed a health care liability suit against Michael

Sutker, M.D., and his physician’s group, Surgical Consultants of Dallas, LLC, in connection with

injuries she sustained while a patient under the care of Dr. Sutker.1 On October 30, 2017, Dr. Sutker

filed his original answer denying Simmons’s allegations. In response to Simmons’s request for

disclosures, Dr. Sutker stated that he would make all medical records and bills in his possession,

custody, or control available for inspection and copying at the offices of his attorney at a mutually

convenient date and time.

           On February 27, 2018, Simmons’s attorney called the law office of Dr. Sutker’s attorney

to request the pertinent medical records and bills and to request an extension of time within which

to file Simmons’s expert report. Dr. Sutker’s attorney was unavailable so Simmons’s attorney

explained the nature of his call to an associate of Dr. Sutker’s attorney. The associate informed

Simmons’s attorney that she would call Dr. Sutker’s attorney to see how he wanted to respond to

the inquiries. According to Simmons’s attorney, the associate stated that she would call him back

later that day. Neither Dr. Sutker’s attorney nor his associate called Simmons’s attorney later that

day to discuss either of his requests.

           Notwithstanding the lack of records, Simmons’s attorney attempted to electronically serve

the expert report on Dr. Sutker’s attorney later that day. His first filing, submitted at 12:00 A.M.

on February 28, 2018, served Dr. Sutker’s attorney with the expert’s CV and inadvertently omitted

the expert report. Realizing his mistake, Simmons’s attorney amended the filing to include the

expert report of Dr. Richard Eller and served it again at 12:18 A.M. on February 28, 2018.




    1
       In their appellate brief, appellants note that they use “Dr. Sutker” as shorthand for both Dr. Sutker and his physician’s group, Surgical
Consultants of Dallas, LLC. In light of their representation that their arguments below and on appeal are identical, we will do the same.

                                                                     –2–
       On March 9, 2018, Dr. Sutker filed a motion to dismiss because Simmons had not timely

served him with an expert report as required by section 74.351 of the Texas Civil Practice and

Remedies Code. Because Dr. Sutker’s original answer was filed on October 30, 2017, he asserted

that the 120-day deadline for serving the expert report expired on February 27, 2018. His motion

requested the trial court to dismiss the claims against him with prejudice and to award him

attorney’s fees and costs of court.

       Simmons filed a response to Dr. Sutker’s motion, arguing that Dr. Sutker’s failure to

provide the medical records she requested should preclude his right to seek dismissal. She also

argued that communications between the parties constituted an agreement to extend the statutory

deadline for filing her expert report. The trial court conducted a hearing on the motion to dismiss

and took the matter under advisement.

       On April 11, 2018, and before the trial court had ruled on Dr. Sutker’s motion to dismiss,

Simmons filed a special exception and motion to strike Dr. Sutker’s answer for failing to plead

that he had fully complied with the provisions of sections 74.051 and 74.052. She asserted that Dr.

Sutker could not plead compliance because he had failed to provide requested medical records

within 45 days as required by the statute. Dr. Sutker responded, arguing that it was improper to

file and request an accelerated ruling on a motion to strike before the court ruled on his pending

dispositive motion. He also argued that striking his answer in its entirety was not the proper remedy

for noncompliance with section 74.051.

       The trial court conducted another hearing and, at the outset, announced that Dr. Sutker’s

motion to dismiss was denied. Although the court refused to strike Dr. Sutker’s answer in its

entirety, the court granted Simmons’s special exception, found that Dr. Sutker had not properly

answered the case, and abated the case for sixty days to allow Dr. Sutker time to properly replead




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in compliance with the statute. Dr. Sutker filed this interlocutory appeal of the trial court’s denial

of his motion to dismiss.

                                           II. ANALYSIS

A. Standard of Review

        We review a trial court’s decision to grant or deny a motion to dismiss under section 74.351

for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

875 (Tex. 2001); Broxterman v. Carson, 309 S.W.3d 154, 157 (Tex. App.—Dallas 2010, pet.

denied). Under this standard, we defer to a trial court’s factual determinations, but we review de

novo questions of law that involve statutory interpretation and constitutional challenges. Stockton

v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011). A trial court has no discretion in determining

what the law is or applying the law to the facts. Univ. of Tex. Med. Branch at Galveston v. Callas,

497 S.W.3d 58, 62 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992)). Therefore, the trial court’s failure to analyze or apply the law

correctly is an abuse of discretion. Id. In this case, the facts are undisputed, and the parties’ dispute

concerns purely legal questions. See id.

B. The Parties’ Positions

        The parties do not dispute that the statutory deadline for Simmons to file an expert report

was February 27, 2018. In one issue, Dr. Sutker asserts that the trial court erred in denying his

motion to dismiss with prejudice pursuant to section 74.351 because Simmons failed to serve an

expert report and CV on him within 120 days of the filing of his original answer.

        Simmons concedes that her report—filed on February 28, 2018—was filed after the

deadline. She also concedes there was no agreement between the parties to extend the deadline for

filing the report. Nevertheless, Simmons argues that granting Dr. Sutker’s motion to dismiss would

be unfair because (i) Dr. Sutker did not produce requested medical records, and (ii) Dr. Sutker’s

                                                  –4–
answer failed to properly plead compliance with Chapter 74 and thus, constituted no answer for

purposes of triggering the 120-day time period by which Simmons was required to file the expert

report. She also argues that if her claims are dismissed without an opportunity for a hearing on the

merits, such dismissal would violate her constitutional rights to open courts and due process.

C. Section 74.351’s Expert Report Requirement

       “To proceed with a health care liability claim, a claimant must comply with the expert

report requirement of the Texas Medical Liability Act.” Callas, 497 S.W.3d at 61 n.1. Section

74.351, entitled “Expert Report,” provides in pertinent part:

       In a health care liability claim, a claimant shall, not later than the 120th day after
       the date each defendant’s original answer is filed, serve on that party or the party’s
       attorney one or more expert reports, with a curriculum vitae of each expert listed in
       the report for each physician or health care provider against whom a liability claim
       is asserted. The date for serving the report may be extended by written agreement
       of the affected parties.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Section 74.351 also provides:

       If, as to a defendant physician or health care provider, an expert report has not been
       served within the period specified by Subsection (a), the court, on the motion of the
       affected physician or health care provider, shall, subject to Subsection (c), enter an
       order that:

            (1) awards to the affected physician or health care provider reasonable
            attorney’s fees and costs of court incurred by the physician or health care
            provider; and

            (2) dismisses the claim with respect to the physician or health care provider,
            with prejudice to the refiling of the claim.

Id. § 74.351(b). Thus, section 74.351 presents “a statute-of-limitations-type deadline within which

expert reports must be served.” Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007). It requires

the claimant to “serve” the expert report and CV on the party or the party’s attorney by the 120-

day deadline. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Although the deadline can lead to

seemingly harsh results, Ogletree, 262 S.W.3d at 320, strict compliance with this provision is

mandatory. Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013). If the claimant does not serve an
                                                –5–
expert report by the statutory deadline and the parties have not agreed to extend the deadline, the

statute requires dismissal of the claim with prejudice on the motion of the defendant physician or

health care provider. Zanchi, 408 S.W.3d at 376. In other words, if the report is not filed by the

deadline, the Legislature has denied trial courts the discretion to grant extensions or deny motions

to dismiss. Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009). Further, a trial court’s refusal to

dismiss may be immediately appealed. Id. (quoting Ogletree, 262 S.W.3d at 319–20).

D. Mandatory Dismissal with Prejudice Required

       Here, on October 30, 2017, Dr. Sutker filed his original answer to Simmons’s original

petition naming Dr. Sutker as a defendant. Therefore, the statutory deadline for Simmons to serve

an expert report and CV on Dr. Sutker was 120 days later, on February 27, 2018. Because there is

no dispute that Simmons did not serve Dr. Sutker with the expert report and her expert’s CV by

February 27, 2018, the trial court did not have the discretion to deny Dr. Sutker’s motion to

dismiss. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (b); see Zanchi, 408 S.W.3d at 376.

       1. No Exception for Failure to Produce Medical Records

       Simmons maintains that her claims should not be dismissed because Dr. Sutker failed to

produce medical records that her expert needed to review. She asserts that Dr. Sutker ignored three

separate requests for medical records—her pre-suit request for documents, her post-suit request

for disclosures, and a telephonic request by her attorney on the day the expert report was due.

Simmons complains that instead of receiving the documents requested from Dr. Sutker, she

received a response stating that he would make all medical records and bills in his possession,

custody, or control available for inspection and copying at the offices of his attorney at a mutually

convenient date and time. There is nothing in the record to indicate that Dr. Sutker explicitly

refused to make the records available. Indeed, it appears that neither party contacted the other party

to arrange a mutually convenient date and time to inspect and copy the records—at least not until

                                                 –6–
the date on which the expert report was due. Further, there is nothing in the record to indicate that

Simmons sought assistance from the court to obtain the requested medical records.

        A defendant health care provider’s failure to provide medical records requested under

section 74.051 does not toll the 120-day expert report deadline. See Estate of Regis v. Harris Cty.

Hosp. Dist., 208 S.W.3d 64, 68 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (dismissal

affirmed despite claimant’s assertion that hospital took two years to respond to request for medical

records); see also Sprute v. Levey, No. 04-14-00358-CV, 2015 WL 4638298, at *4 (Tex. App.—

San Antonio 2015, no pet.) (mem. op.) (trial court had no discretion to grant extension of deadline

to serve expert report even when defendant failed to produce requested medical records); White v.

Willenborg, No. 02-10-00272-CV, 2011 WL 678711, at *1 (Tex. App.—Fort Worth Feb. 24, 2011,

no pet.) (mem. op.) (unless the date for serving expert report is extended by written agreement of

the parties, trial court had mandatory, nondiscretionary duty to dismiss claim when plaintiff failed

to timely serve expert report, notwithstanding defendant’s failure to provide medical records);

Ramirez v. Doctors Hosp. at Renaissance, Ltd., 336 S.W.3d 352, 354 (Tex. App.—Corpus Christi–

Edinburg 2011, no pet.) (“[W]e disagree that the failure of a defendant to produce medical records

excuses a health care liability plaintiff’s duty to file a timely expert report.”).

        This Court came to the same conclusion in Broxterman v. Carson, in which Broxterman

argued that the trial court erred in dismissing her case for failure to file an expert report because

the medical facility failed to produce medical records in response to discovery requests.

Broxterman, 309 S.W.3d at 160. Acknowledging Broxterman’s frustration in attempting to obtain

an expert report without her medical records, we nevertheless concluded that the statute does not

provide for an extension on this basis. Id.

        In this case, there is no written agreement by the parties extending the deadline. Therefore,

the trial court had a mandatory, nondiscretionary duty to dismiss Simmons’s claims against Dr.

                                                  –7–
Sutker when she failed to timely serve her expert report. Whether Dr. Sutker produced the medical

records requested by Simmons is irrelevant for the purposes of determining compliance with the

deadline for serving an expert report. Estate of Regis, 208 S.W.3d at 68.

       2. No Exception for Failure to Plead Compliance

       Section 74.051(b) requires that in their pleadings, “each party shall state that it has fully

complied with the provisions of this section and Section 74.052.” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.051(b). Dr. Sutker did not include this statement of compliance in his original answer.

Simmons argues that because Dr. Sutker’s answer failed to plead compliance with Chapter 74 of

the Texas Civil Practice and Remedies Code, his answer was defective as a matter of law and

constituted no answer. She further urges that because the statutory deadline for serving her expert

report runs from the date on which Dr. Sutker’s answer is filed, the 120-day time period should

run from the date on which Dr. Sutker files his amended answer that properly pleads that he has

complied with the statute.

       There are several problems with Simmons’s argument. First, we note that she does not cite,

nor have we found, any authority to support this argument. Second, the trial court refused to strike

Dr. Sutker’s original answer, despite being asked to do so by Simmons. Instead, in its order dated

May 25, 2018, the court abated the case to allowed Dr. Sutker to amend his pleadings after he

provided the records. Therefore, Dr. Sutker’s original answer, filed on October 30, 2017, is still

on file, and section 74.351(a) mandated that Simmons serve her expert report no later than the

120th day after the date the defendant’s original answer was filed. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(a) (emphasis added).

       3. No violation of Simmons’s rights under the Texas Constitution

       Finally, Simmons contends that a dismissal of her claims without regard to the trial court’s

order abating the case for sixty days would violate her right to open courts and due process under

                                                –8–
the Texas Constitution.2 In her special exception and motion to strike, Simmons asked the trial

court to strike Dr. Sutker’s answer or alternatively, to abate Dr. Sutker’s “Chapter 74 affirmative

defenses, including the defense to an untimely served expert report for 60 days, during which time

Defendant can produce the sought after medical records to Plaintiff and amend its pleadings to

demonstrate compliance.” Although the trial court found that Dr. Sutker had not properly answered

and abated the case for sixty days to allow Dr. Sutker time to properly replead in compliance with

the statute, the court did not specifically abate or toll the 120-day deadline by which Simmons was

required to serve her expert report. As discussed above, if an expert report is not filed by the

deadline, the Legislature has denied trial courts the discretion to grant extensions or deny motions

to dismiss. Badiga, 274 S.W.3d at 683.

           While the open courts guarantee prohibits the Legislature from making “a remedy by due

course of law contingent upon an impossible condition,” the party bringing the open courts

violation must raise a fact issue establishing that she did not have a “reasonable opportunity to be

heard.” Stockton, 336 S.W.3d at 617–18; see Tex. Const. art. I, § 13 (“All courts shall be open,

and every person for an injury done him, in his lands, goods, person or reputation, shall have

remedy by due course of law.”). Simmons’s open courts argument necessarily fails because she

does not point to any evidence raising a fact issue that she did not have a reasonable opportunity

to be heard on her claims against Dr. Sutker.

           Simmons cannot make the argument that compliance with the 120-day deadline for filing

an expert report was impossible without Dr. Sutker’s medical records. The record establishes and

the parties agree that she was able to serve Dr. Sutker with an expert report despite not having

those records—albeit eighteen minutes late. It is Simmons’s failure to timely serve an expert report



      2
        Simmons makes the contention that a dismissal would violate her right to due process. Her appellate brief, however, contains no argument
in support of her due process contention; therefore, we do not address it.

                                                                     –9–
that prevents her from pursuing her claims against Dr. Sutker. Texas courts have rejected as-

applied open court challenges under similar circumstances. See, e.g., Stockton, 336 S.W.3d at 618–

19; Univ. of Tex. Health Science Ctr. at Houston v. Joplin, 525 S.W.3d 772, 783 (Tex. App.—

Houston [14th Dist.] 2017, pet. denied); Taylor v. Correctional Med. Servs., Inc., No. 01-11-

00836-CV, 2013 WL 2246052, at *3 (Tex. App.—Houston [1st Dist.] May 21, 2013, no pet.)

(mem. op.); Doan v. Christus Health Ark-La-Tex, 329 S.W.3d 907, 912 (Tex. App.—Texarkana

2010, no pet.). In this case, it was not impossible for Simmons to file the expert report within the

120 days from the date the original answer was filed; therefore, we cannot hold that the open courts

provision of the constitution was violated.

                                      III. CONCLUSION

       We conclude that the trial court abused its discretion by denying Dr. Sutker’s motion to

dismiss. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (b); Zanchi, 408 S.W.3d at 376. We

reverse the denial of Dr. Sutker’s motion to dismiss and render judgment dismissing Simmons’s

claims against Dr. Sutker with prejudice. Because Dr. Sutker is entitled to an award of reasonable

attorney’s fees and court costs, we remand for a determination of the amount of this award.




                                                   /Bill Pedersen, III/
                                                   BILL PEDERSEN, III
                                                   JUSTICE


180698F.P05




                                               –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 MICHAEL SUTKER, M.D. AND                              On Appeal from the 298th Judicial District
 SURGICAL CONSULTANTS OF                               Court, Dallas County, Texas
 DALLAS, LLC, Appellants                               Trial Court Cause No. DC-17-13851.
                                                       Opinion delivered by Justice Pedersen, III.
 No. 05-18-00698-CV         V.                         Justices Brown and Schenck participating.

 DORCAS SIMMONS, Appellee

        In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order
denying appellants’ motion to dismiss; we RENDER judgment dismissing Simmons's claims
against Dr. Sutker and Surgical Consultants of Dallas, LLC with prejudice; and we REMAND
for a determination of reasonable attorney’s fees and costs.

    It is ORDERED that appellants MICHAEL SUTKER, M.D. AND SURGICAL
CONSULTANTS OF DALLAS, LLC recover their costs of this appeal from appellee DORCAS
SIMMONS.


Judgment entered this 10th day of July, 2019.




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