                                                                                           ACCEPTED
                                                                                       14-15-00449-CV
                                                                       FOURTEENTH COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                10/26/2015 11:42:55 AM
                                                                                 CHRISTOPHER PRINE
                                                                                                CLERK

                                  No. 14-15-00449-CV

                                                           FILED IN
                                                   14th COURT OF APPEALS
                                                        HOUSTON, TEXAS
                        IN THE COURT OF APPEALS
                FOR                                10/26/2015 11:42:55 AM
                      THE FOURTEENTH JUDICIAL DISTRICT
                                                    CHRISTOPHER A. PRINE
                            HOUSTON, TEXAS                  Clerk



   THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
                                              APPELLANT,
                             V.

CAROLYN CALLAS, RAY CALLAS AND JAMIE CALLAS, INDIVIDUALLY
AND AS THE REPRESENTATIVES OF THE ESTATE OF GERALD CALLAS
      AND FOR AND ON BEHALF OF ANY WRONGFUL DEATH
                      BENEFICIARIES,
                                               APPELLEES.


                 On Appeal from the 212th Judicial District Court
                           Galveston County, Texas
                               No. 14-CV-0927


                        APPELLANT’S REPLY BRIEF


KEN PAXTON                                S. RONALD KEISTER
Attorney General of Texas                 Assistant Attorney General
                                          Attorney-In-Charge
CHARLES E. ROY                            State Bar Number 11185300
First Assistant Attorney General
                                          Tort Litigation Division
JAMES E. DAVIS                            P.O. Box 12548, MC-030
Deputy Attorney General for               Austin, Texas 78711-2548
Civil Litigation                          TEL: (512) 463-2197
                                          FAX: (512) 457-4435
KARA L. KENNEDY                           ronny.keister@texasattorneygeneral.gov
Chief, Tort Litigation Division           COUNSEL FOR APPELLANT
                                        TABLE OF CONTENTS


TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.....................................................................................iv

APPELLANT’S REPLY BRIEF ............................................................................... 1

        I.       OBJECTION TO STATEMENT OF FACTS ...................................... 2

        II.      THE APPROPRIATE STANDARD OF REVIEW FOR THIS
                 APPEAL IS DE NOVO ........................................................................ 2

        III.     SUFFICIENCY OF THE EXPERT REPORT OR THAT IT
                 CONSTITUTES “NO REPORT” ARE NOT ISSUES BEFORE
                 THE COURT .........................................................................................5

        IV.      CONSTRUCTIVE SERVICE DOES NOT APPLY TO THIS
                 CASE .....................................................................................................7

        V.       APPELLANT’S COMPLAINT IS NOT THAT THE APPELLEES
                 FAILED TO SERVE MEDICAL RECORDS ....................................11

        VI.      THE TEXAS SUPREME COURT DID NOT APPLY RULE 4,
                 TRCP, TO THE CALCULATION OF THE 120-day DEADLINE IN
                 Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009) ...................................14

        VII. THE COURTS OF APPEAL DECISIONS APPLYING RULE 4,
             TRCP, TO THE CALCULATION OF THE 120-day DEADLINE
             WERE WRONGLY DECIDED..........................................................18

        VIII. Eikenhorst v. Wellbrock, 2008 WL 2339735 (Tex.App-Houston
              [1st Dist.] 2008, no petition) IS NOT APPLICABLE TO THE CASE
              BEFORE THE COURT ......................................................................21

        IX.      EMAIL SERVICE AFTER 5:00 P.M. IS DEEMED COMPLETED
                 THE NEXT DAY ................................................................................25



                                                            ii
         X.       ELECTRONIC SERVICE WAS REQUIRED PURSUANT TO
                  RULE 21a(a)(1), TRCP.......................................................................28

PRAYER FOR RELIEF ..........................................................................................31

CERTIFICATE OF COMPLIANCE .......................................................................32

CERTIFICATE OF SERVICE ................................................................................33

APPENDIX ..............................................................................................................34


    A)        Badiga v. Lopez, BRIEF ON THE MERITS OF THE PETITONER

    B)        Badiga v. Lopez, RESPONDENT’S NOTICE OF INTENT TO RELY ON
              RESPONDENT’S RESPONSE TO PETITION FOR REVIEW AND THE
              RESPONDENT’S RESPONSE TO PETITION FOR REVIEW




                                                           iii
                                      INDEX OF AUTHORITIES

CASES

Badiga v. Lopez,
     274 S.W.3d 681 (Tex. 2009) .........................................................................14

Badiga v. Lopez,
     2005 WL 1572273 (Tex. App.-Corpus Chrisiti-Edinburg 2005, rev’d, 274
     S.W.3d 681 (Tex. 2009) ................................................................................15

Badiga v. Lopez,
     2009 WL 4893565 (Tex. App.-Corpus Chrisiti-Edinburg 2009,
     no petition) .....................................................................................................15

Carpinteyro v. Gomez,
     403 S.W.3d 508 (Tex. App.-San Antonio 2013, pet. denied) .................19, 21

Christus Santa Rosa Health Care Corporation v. Vasquez,
       427 S.W.3d 451 (Tex. App.-San Antonio 2014, no petition) ......................24

Eikenhorst v. Wellbrock,
      2008 WL 2339735 (Tex. App-Houston [1st Dist.] 2008,
      no petition) ...................................................................................21, 22, 24, 25

Fung v. Fischer,
     365 S.W.3d 507 (Tex. App-Austin 2012, no petition) ......................19, 20, 21

Jacobs v. Jacobs,
     448 S.W.3d 626 (Tex. App.-Houston [14th Dist.] 2014, no petition).............. 7

Lewis v. Funderburk,
      253 S.W.3d 204 (Tex. 2008) .........................................................................24

Zanchi v. Lane,
     408 S.W.3d 373 (Tex. 2013) .........................................................................22




                                                           iv
STATUTES

V.T.C.A., Civil Practice & Remedies Code § 74.351(a) .............................................
..................................................................................... 3, 5, 14, 18, 22, 23, 24, 25, 30

V.T.C.A., Civil Practice & Remedies Code § 74.351(b).........................................14

RULES

Rule 38.1(g), Texas Rules of Appellate Procedure .............................................2, 16

Rule 38.3, Texas Rules of Appellate Procedure ........................................................ 1

Rule 55.2(g), Texas Rules of Appellate Procedure .................................................16

Rule 55.3(b), Texas Rules of Appellate Procedure .................................................16

Rule 4, Texas Rules of Civil Procedure ................ 3, 6, 14, 15, 17, 18, 19, 20, 22, 25

Rule 5, Texas Rules of Civil Procedure ...................................................................23

Rule 21, Texas Rules of Civil Procedure ...........................................................23, 28

Rule 21a, Texas Rules of Civil Procedure ...............................................8, 25, 27. 30

Rule 21a(a)(1), Texas Rules of Civil Procedure ................. 3, 5, 8, 10, 11, 26, 28, 29

Rule 21a(b), Texas Rules of Civil Procedure ............................................................ 3

Rule 21a(b)(1), Texas Rules of Civil Procedure......................................................26

Rule 21a(b)(2), Texas Rules of Civil Procedure......................................................23

Rule 21a(b)(3), Texas Rules of Civil Procedure......................................................26

Rule 21a(c), Texas Rules of Civil Procedure ..........................................................23

Rule 21a(e), Texas Rules of Civil Procedure ....................................................23, 26

Rule 74, Texas Rules of Civil Procedure .................................................................23

                                                          v
                               No. 14-15-00449-CV



                      IN THE COURT OF APPEALS
                FOR THE FOURTEENTH JUDICIAL DISTRICT
                          HOUSTON, TEXAS


   THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
                                              APPELLANT,
                             V.

CAROLYN CALLAS, RAY CALLAS AND JAMIE CALLAS, INDIVIDUALLY
AND AS THE REPRESENTATIVES OF THE ESTATE OF GERALD CALLAS
      AND FOR AND ON BEHALF OF ANY WRONGFUL DEATH
                      BENEFICIARIES,
                                               APPELLEES.


                 On Appeal from the 212th Judicial District Court
                           Galveston County, Texas
                               No. 14-CV-0927


                        APPELLANT’S REPLY BRIEF



TO THE HONORABLE COURT OF APPEALS:

      COMES NOW the Appellant, The University of Texas Medical Branch at

Galveston, by and through the undersigned Assistant Attorney General, and pursuant

to Rule 38.3, Texas Rules of Appellate Procedure, files this the “Appellant’s Reply

Brief” to the “Appellees’ Brief”.




                                         1
                                         I.


                 OBJECTIONS TO STATEMENT OF FACTS

      The Appellant objects to the Appellees’ Statement of Facts, [Appellees’ Brief,

pages 2-6], to the extent they include factual and legal arguments contrary to

Rule 38.1(g), TRAP. The Appellant disagrees with the Appellees’ arguments: that

their expert report was timely served; that the Appellant did not accept their email;

that they constructively served their expert report; that the Appellant had knowledge

that the second email contained medical records “which Appellees originally

received from UTMB”; that the Appellant’s motion to dismiss was based upon not

“receiving its own medical records”. The Appellant will further discuss these

misstatements of fact and argument throughout this Reply Brief.


                                         II.

            THE APPROPRIATE STANDARD OF REVIEW FOR
                     THIS APPEAL IS DE NOVO

      The Appellees, at pages 6 – 9 of the Appellees’ Brief, assert that the proper

standard of review for this appeal is an abuse of discretion. However, the Appellees

clearly acknowledge by the case law that they cite and quote that questions of law

are reviewed de novo as argued by the Appellant in the Appellant’s Brief at page 14.

As stated by the Appellant in its Brief, the underlying facts in the trial court, and

now on appeal, were not in dispute. The disputed issues presented to the trial court,

                                          2
and now on Appeal, were questions of law as follows: 1) as the Texas Supreme

Court has held that the 120-day deadline of V.T.C.A., Civil Practice & Remedies

Code § 74.351(a) must be strictly applied, can Rule 4, TRCP, be applied to extend

the 120-day deadline to 122 days; 2) as the Appellees electronically filed their expert

report prior to attempting to serve the Appellant’s counsel, was their attempted email

service proper as Rule 21a(a)(1), TRCP, mandates electronic service; 3) as Rule

21a(b), TRCP, does not specify when service by email is complete, is email service

after 5:00 p.m. deemed complete on the next business day? The underlying facts of

this case, to which the above legal questions apply, are not in dispute: 1) the 120th

calendar day after the Appellant filed its Original Answer was January 31, 2015; 2)

the Appellees attempted to electronically file their expert report on January 31, 2015;

and, thereafter, at 6:27 p.m., attempted to email the expert report to the Appellant’s

counsel by two emails; 3) the Appellant’s counsel received the first email on

February 1, 2015; however, the second email was never received; 4) the Appellees’

expert report and curriculum vitae were noted as electronically filed on February 2,

2015; 5) the Appellees did not electronically serve their expert report and curriculum

vitae; 6) after Appellant’s counsel notified the Appellees’ counsel that the second

email had not been received, the Appellees attempted to complete service of their

expert report by a series of emails sent on February 3 and 12, 2015. As set forth in




                                           3
both the Appellant’s Brief and the Appellees’ Brief, the above facts are not in

dispute.

      On pages 8 – 9 of the Appellees’ Brief, they assert that as the Appellant did

not request findings of fact and conclusions of law, this Honorable Court should

“imply any necessary findings of fact to support the ruling” of the trial court.

However, the Appellees fail to articulate any factual findings that should be implied

by this Court in this appeal. The Appellees, at page 9 of their Brief, suggest that the

trial court may have determined that: “Appellant is actually asserting a sufficiency

argument, and Appellees’ expert report is sufficient.” However, as will be discussed

later in this Reply Brief, the Appellant did not raise a sufficiency argument in the

trial court. Further, the Appellees suggest that the trial court may have found that

the Appellees “constructively” served their expert report timely. However, as will

be discussed later in this Reply Brief, the Appellees did not raise constructive service

in the trial court and there is neither a legal nor factual basis to support a finding of

constructive service in the record on appeal. Finally, each of the “multiple theories”

upon which the Appellees posit the trial court could have ruled turns upon the proper

resolution of the legal issues set forth above and in the Appellant’s Brief.

      As stated in the Appellant’s Brief at page 14, de novo review is the proper

standard of review as the underlying facts were not in dispute in the trial court and

this case turns upon the question of whether the Appellees timely completed proper


                                            4
service of their expert report and curriculum vitae according to the appropriate

construction and interpretation of the statutes and rules at issue.

                                        III.

     SUFFICEINCEY OF THE EXPERT REPORT OR THAT IT
CONSTITUTES “NO REPORT” ARE NOT ISSUES BEFORE THE COURT


      The Appellees argue throughout their Brief that the issue before this Court on

appeal is whether their expert report is sufficient or constitutes “no report”. See

[Appellees’ Brief, pages 6, 9, 10, 12-13, and 25-33]. However, contrary to their

assertions, no such issues are raised, argued, or even alluded to in the Appellant’s

Brief. The only issue raised in the Appellant’s Brief is that the Appellees failed to

timely complete service of their expert report within the mandatory 120-day deadline

created by V.T.C.A., Civil Practice & Remedies Code § 74.351(a).

      In the trial court, the Appellant’s motion to dismiss was based upon the fact

that the Appellees did not timely complete service of their expert report as their

attempted email service was contrary to the mandatory electronic service

requirements of Rule 21a(a)(1), TRCP; and, that the attempted email service, if

completed, would have been deemed completed on February 1, 2015, which was

beyond the 120-day deadline of January 31, 2015. Further, the Appellant asserted

that the email service had not been complete as the Appellees’ second email was

never received by the Appellant’s counsel. [C.R. 36-43].


                                           5
      In the Appellant’s reply to the Appellees’ response to the motion to dismiss

in the trial court, the Appellant elaborated on the reasons that the Appellees’

attempted service of their expert report had not been completed within the 120-day

deadline and contested the Appellees’ assertion that Rule 4, TRCP, extended the

120-days to Monday, February 2, 2015. The Appellant did not raise the issue that

the Appellees’ late served documents were insufficient as an expert report or

constituted “no report”. [C.R. 72-82].

      In the Appellant’s post hearing submission in the trial court, the Appellant

advised the trial court that the only issue being raised was the Appellees’ failure to

timely complete service of their expert report. The Appellant specifically advised

the trial court that it was not arguing the insufficiency of the expert report as asserted

by the Appellees during the hearing on the motion to dismiss. [C.R. 110-117].

      The Appellees, at page 12 of the Appellees’ Brief, assert that: “Appellant is

actually making a sufficiency argument, which was tacitly admitted at oral

argument. [R.R. 9:4-12].” Thereafter, at page 25 of the Appellees’ Brief, they quote,

out of context, statements of Appellant’s counsel to the trial court in order to assert

the sufficiency of the expert report was being challenged during the hearing on the

motion to dismiss. Appellant’s counsel was not making a sufficiency argument. As

the trial court brought to the Appellees’ counsel’s attention during the hearing: “I

believe he is saying the report was incomplete, not that it was insufficient. And


                                            6
according to your expert’s report, he incorporates all the exhibits as part of his report,

which tells me that is the full report.” [R.R. 15]. The trial court’s observation is

supported by the Appellant’s motion, reply, and post hearing submission filed in the

trial court and the complete argument of Appellant’s counsel located at [R.R. 5-9,

28-34 and 36].

      As the Appellant has not raised the argument that the documents that the

Appellees late served on the Appellant’s counsel are not sufficient to be an expert

report or constitute “no report,” the Appellant has not raised or briefed these issues

in this appeal and they need not be considered by this Honorable Court.

                                           IV.

     CONSTRUCTIVE SERVICE DOES NOT APPLY TO THIS CASE


      For the first time on appeal, the Appellees assert that they achieved

constructive service of their expert report upon the Appellant’s counsel. See

[Appellees’ Brief, pages 4, 5-6, 9, 21]. Contrary to the Appellees’ assertion, there

are no facts in the record that would support a finding of constructive service.

      As authority for their assertion of constructive service, the Appellees, at page

21 of their Brief, cite the Court to Jacobs v. Jacobs, 448 S.W.3d 626 (Tex. App.-

Houston [14th Dist.] 2014, no petition), and its discussion of “constructive notice.”

The Appellees quote from Jacobs v. Jacobs, at 632, as follows:



                                            7
      Even when a party does not have actual notice, the serving party may
      establish “constructive notice” by demonstrating compliance with rule
      21a and presenting evidence that the intended recipient engaged in
      instances of selective acceptance or refusal of certified mail relating to
      the case.

Initially, the Appellant would show the Court that constructive service does not

apply in this case as the Appellees did not comply with Rule 21a, TRCP, in their

attempted email service of the Appellant. As shown in the Appellant’s Brief, pages

20-24, the Appellees electronically filed their expert report; therefore, electronic

service was mandatory pursuant to Rule 21a(a)(1), TRCP, and the Appellees failed

to comply with the rule. Further, there are no facts upon which to base an argument

that the Appellant’s counsel “engaged in instances of selective acceptance or refusal

of” emails from the Appellees’ counsel related to this case. The Appellees state at

page 21 of their Brief:

      ...Appellant’s counsel’s selective decision whether to read emails is at
      best selective acceptance or refusal under Jacobs and does not convert
      service on Saturday, January 31, 2015 to service on Monday, February
      1, 2015.

The Appellant is at a loss as to what the Appellees believe is the basis for such an

assertion. With respect to email one, both the Appellant and the Appellees agree

that it was read by the Appellant’s counsel on Sunday, February 1, 2015. [Appellees’

Brief, page 3]. The Appellant’s assertion is that February 1, 2015, was outside the

120-day deadline. With respect to email two, both Appellant and Appellees agree

that it was never delivered to Appellant’s counsel’s email inbox; therefore,

                                          8
Appellant’s counsel never had the opportunity to read the email. The Appellees’

assertion that the Appellant’s counsel made a “selective decision” not to read the

email has no support in the record.

      The Appellees, at page 4 of the Appellees’ Brief, state:

            Appellees’ counsel’s paralegal, Darlene Lee, also transmitted
      and thereby “constructively” served the medical records to Appellant’s
      counsel on Saturday, January 31, 2015, which was email “2 of 2”. [2ND
      SUPP. C.R. 1561-1563; 2ND SUPP. C.R. 1545-1620, generally]. Those
      medical records were Appellant University of Texas Medical Branch’s
      medical records, which Appellees actually originally received from the
      Appellant UTMB. The medical records were 1297 pages of Decedent
      Callas’s UTMB medical records, but were not accepted by Appellant
      apparently due to the size of the file exceeding the limit of attachments.
      [2ND SUPP. C.R. 1561-1563, 1566-1574; 2ND SUPP. C.R. 1545-1620,
      generally].

There is no evidence in the record on appeal to support the Appellees’ assertion that

email number 2 was “not accepted by Appellant apparently due to the size of the file

exceeding the limit of attachments.” The second email was never received by

Appellant’s counsel and this fact was confirmed by the Appellees’ counsel’s office.

See [Appellant’s Brief, page 4]. The Appellant has no way of knowing if the second

email was actually sent by the Appellees other than their own self-serving statement

that “the 2nd email actually got kicked back...” [C.R. 55]. The Appellant’s counsel

never received email 2 and has no way of knowing if it was sent, why it was not

delivered, or what were the actual contents of the second email. Further, the

Appellees did not attempt to retransmit email 2, or the contents thereof, until


                                          9
Appellant’s counsel notified them that their referenced second email had not been

received. The Appellees refer the Court to the affidavit of Darlene Lee, litigation

paralegal to Appellees’ counsel, wherein she states:

         The second email (2 of 2), that was 1297 pages of Decedent Callas’
         UTMB medical records, was returned unbeknownst to me, due to its
         size as the file exceeded the allowable limit of being attached and was
         undeliverable.

[2ND SUPP. C.R. 1562]. This statement does not support the Appellees’ assertion

that the Appellant’s counsel refused to accept or read the email. Further, unlike

email 1, the Appellees did not produce any email records to show that the second

email was actually sent or any records that demonstrate why, if the second email was

sent, it was not delivered to Appellant’s counsel’s email inbox. The evidence

certainly does not support their assertion that Appellant’s counsel engaged in

“selective acceptance or refusal” of their email communications.

         As the Appellees did not raise the issue of constructive service in the trial

court; and, as the Appellees failed to comply with the mandatory electronic service

requirement of Rule 21a(a)(1), TRCP, and have presented no evidence to support

their assertion that Appellant’s counsel engaged in “selective acceptance or refusal

of” their emails related to this case, their assertion of constructive service has no

merit.




                                           10
                                          V.

      APPELLANT’S COMPLAINT IS NOT THAT THE APPELLEES
             FAILED TO SERVE MEDICAL RECORDS

      The Appellees, as they did in the trial court, attempt to mischaracterize the

issue in this appeal as being their failure to serve medical records upon the Appellant.

See [Appellees’ Brief, pages 4-6 and 25-33]. The Appellant’s motion to dismiss in

the trial court was not based upon the Appellees’ failure to serve medical records;

but, was based upon the fact that the mandatory 120-day deadline for the Appellees

to serve their expert report ended on January 31, 2015; and, the Appellees’ service

of their expert report was not completed until February 12, 2015. As the Appellees

electronically filed their expert report, Rule 21a(a)(1), TRCP, mandated that they

electronically serve the Appellant with their expert report.          Contrary to the

mandatory electronic service rule, the Appellees attempted to improperly piecemeal

serve their expert report by email. A portion of the expert report was received by

the Appellant’s counsel on February 1, 2015, with additional portions being served

by email on February 3rd and February 12th, 2015. Thus, the Appellees failed to

timely complete service of their expert report prior to the expiration of the 120-day

deadline, January 31, 2015. [C.R. 36-43, 72-82, 110-117] [R.R. 5-9, 28-34, 36].

The Appellant has raised the same issue on appeal that was raised in the trial court.

      As set forth in the Appellant’s Brief, the Appellees electronically “filed” their

expert report with the trial court; however, they failed to timely “serve” the

                                           11
Appellant with a “true copy” of the “filed” report. [Appellant’s Brief, pages 3-5].

Further, the Galveston County District Clerk sealed much of the Appellees’ filed

documents and they were not accessible by the Appellant until they were unsealed

for this appeal. Thus, the Appellant was unable to verify that the documents it

received by piecemeal email from the Appellees were in fact the same as the

documents that were filed with the trial court. [Appellant’s Brief, pages 4, 5].

      The Appellees’ expert stated: “I have read and reviewed the two volumes of

medical records consisting of 1297 pages, (which are incorporated by reference as

if fully set forth at length)...” [2ND SUPP. C.R. 1567]. The Appellees acknowledged

that their expert intended the referenced records to be part of his expert report and

that they were “filed” with the trial court as their expert report; however, they were

not timely served on the Appellant. [R.R. 8-9 and 15-16]. Thus, the Appellant’s

complaint is not that the Appellees failed to serve medical records, the Appellant’s

complaint is that the Appellees failed to timely complete service of their expert

report.

      The Appellees state at page 25 of the Appellees’ Brief: “Appellant argues that

it wasn’t served with the expert report until it also received its own medical records.

[Appellant’s Brief at p.p. 14-19].” As stated above, this is not the Appellant’s

argument and it was not an argument made in the Appellant’s Brief. Further, the

expert did not clearly identify the medical records to which he was referring. The


                                          12
expert did not relate that he was only reviewing medical records that had been

obtained from The University of Texas Medical Branch at Galveston and the record

on appeal does not support the Appellees’ repeated assertion that the Appellant had

knowledge of the exact medical records that the expert included as his report, or had

any knowledge of how, or from where, the expert obtained the medical records. The

Appellees’ attempt to falsely impute knowledge to the Appellant of the content and

source of the medical records does not alter the fact that the Appellees failed to

timely complete service of their expert report that they electronically filed with the

trial court.

       On page 26 of the Appellees’ Brief, they state:

            “Appellant’s argument is disingenuous in that the body of
       Appellees’ expert report includes inserted copies of the relevant
       medical records referenced and fully complies with CPRC 74.351(a).”

Contrary to Appellees’ statement, the expert did not include the “copies of the

relevant medical records referenced” in the body of the document. As stated above,

the expert specifically included 1297 pages of medical records as part of his report

that was filed with the trial court but that was not timely served. [2ND SUPP. C.R.

1567]. However, the body of the document to which the Appellees refer only sets

out two physician orders [2ND SUPP. C.R. 1569] and one radiological study. [2ND

SUPP. C.R. 1570]. The orders and study would constitute less than a single page of

medical records. The limited medical record set out in the body of the document


                                          13
does not alter the fact that the Appellees failed to timely complete service of their

expert report.

                                         VI.

 THE TEXAS SUPREME COURT DID NOT APPLY RULE 4, TRCP, TO
THE CALCULATION OF THE 120-day DEADLINE IN Badiga v. Lopez, 274
                   S.W.3d 681 (Tex. 2009)

      On pages 11-12 and 16-19 of the Appellees’ Brief, they incorrectly assert that

the Texas Supreme Court, in Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009), applied

Rule 4, TRCP, to extend the 120-day deadline of V.T.C.A., Civil Practice &

Remedies Code § 74.351(a), as the 120th day fell on a Saturday. As will be shown

below, the Texas Supreme Court did not consider whether Rule 4 applies to Section

74.351(a); and, the Texas Supreme Court did not apply Rule 4 to extend the Section

74.351(a), supra, 120-day deadline.

      In Badiga v. Lopez, the Texas Supreme Court addressed the question of

“whether an interlocutory appeal of the denial of a motion to dismiss under section

74.351(b) is permitted when an extension has been granted even though the claimant

served no expert report within the 120-day period”. Id., at 683. Rule 4, TRCP, was

not applied, discussed, cited, or even mentioned in the opinion and played no part in

the Court’s determination of the case. Further, whether the plaintiff served an expert

report within the 120-day deadline, or on what calendar day the 120th day fell, were

not contested issues before the Texas Supreme Court or the Corpus Christi- Edinburg


                                          14
Court of Appeals. On remand, the Court of Appeals noted in its opinion that: “Both

parties agree that Lopez’s expert report was served after the 120-day period had

expired.” Badiga v. Lopez, 2009 WL 4893565 (Tex. App.-Corpus Chrisiti-Edinburg

2009, no petition). Thus, neither the calculation of the 120-day deadline nor the

specific calendar day upon which it fell were issues for determination by the

appellate courts in this case; and, Rule 4, TRCP, was not applied, discussed, cited or

even mentioned by any court in the resolution of this case. See also, Badiga v. Lopez,

2005 WL 1572273 (Tex. App.-Corpus Chrisiti-Edinburg 2005, rev’d, 274 S.W.3d

681 (Tex. 2009).

      On page 17 of the Appellees’ Brief, the Appellees quote the following

language from Badiga v. Lopez, supra, at 682, and assert that it demonstrates that the

Texas Supreme Court applied Rule 4, TRCP, in the calculation of the 120-day

deadline:

            Maricruz Lopez filed a health care liability claim against S.
      Murthy Badiga, M.D. on October 24, 2003, alleging that Doctor Badiga
      committed medical malpractice by perforating Lopez’s colon during a
      colonoscopy. Lopez was required to serve an expert report on Dr.
      Badiga by February 23, 2004 - the 120th day after she filed suit.

There is nothing in the above quoted language to suggest that the court undertook to

calculate the 120-day deadline, or the specific calendar date upon which it fell, as it

was uncontested that the plaintiff had served the expert report well after the 120-day

period had expired. As the Appellees correctly point out, the above quoted language


                                          15
appears in the opinion under the heading “Factual and Procedural Background”.

Rule 38.1(g), TRAP, with respect to the “statement of facts” on appeal, states: “In

a civil case, the court will accept as true the facts stated unless another party

contradicts them.” As set forth above, in the court of appeals, the parties agreed that

the plaintiff did not serve an expert report prior to the expiration of the 120-day

period; therefore, the court of appeals did not determine the specific calendar date

upon which the 120th day fell.

       Further, Rule 55.2(g), TRAP, states, with respect to the “statement of facts”

in a petitioner’s brief:

             (g) Statement of facts. The brief must affirm that the court of
       appeals correctly stated the nature of the case, except in any particulars
       pointed out. The brief must state concisely and without argument the
       facts and procedural background pertinent to the issues or points
       presented. The statement must be supported by record references.

Thereafter, Rule 55.3(b), TRAP, states with respect to the respondent’s brief:

              (b) a statement of the case and a statement of the facts need not
       be made unless the respondent is dissatisfied with that portion of the
       petitioner’s brief.

Thus, the petitioner’s statement of facts are accepted by the Texas Supreme Court

unless contested by the respondent.

       The briefing in Badiga v. Lopez, supra, is still available on the Texas Supreme

Court website. The Appellant has attached to this Reply Brief, as Appendix “A”,

the “Brief on the Merits of the Petitioner” taken from the Texas Supreme Court


                                           16
website. Further, the Appellant has attached to this Reply Brief, as Appendix “B”,

the Respondent’s notice that it intended to rely on the Respondent’s Response to the

Petition for Review and the “Response to Petition for Review” taken from the Texas

Supreme Court website. The petitioner in Badiga v. Lopez, supra, stated in the Brief

on the Merits, under the heading “Statement of Facts”, the following:

             On October 24, 2003, Respondent filed her health care liability
      claim against Petitioner. (1 CR 5). Pursuant to Texas Civil Practice
      and Remedies Code section 74.351(a), Respondent’s deadline to serve
      the required expert report was February 23, 2004. See TEX. CIV. PRAC.
      & REM. CODE § 74.351(a).

[Appendix “A” – Petitioner’s Brief, page 1]. As the Respondent did not challenge

the Petitioner’s “statement of facts”, [Appendix “B” – Respondent’s Response],

pursuant to the above cited Texas Rules of Appellate Procedure, the Texas Supreme

Court would have accepted the Petitioner’s “statement of facts” as true.

      Further, as set forth above, the Petitioner in Badiga v. Lopez, supra, did not

demonstrate how he calculated the calendar date upon which the 120th day fell.

Absent any elaboration on how the 120th day calendar date was calculated or any

reference to Rule 4, TRCP, one can surmise that the Badiga petitioner made an error

in calculating the specific calendar date upon which the 120th day fell, as did the

Appellees in the trial court in the current case before this Honorable Court. [2ND

SUPP. C.R. 1546, 1551, 1552, 1553, 1556]. The Court should note that the

Appellees miscalculated the actual 120th calendar date even having available the


                                         17
ability to count the days on the calendar as well as the utilization of a circular

calendar wheel. [2ND SUPP. C.R. 1551, 1561, 1564]. Further, even after the

Appellant filed its motion to dismiss and stated the correct calculation of the 120th

day falling on January 31, 2015, the Appellees continued to miscalculate the actual

120th day calendar date and stated under oath that it fell on February 1, 2015. [2ND

SUPP. C.R. 1559 - Verification of Brian D. Sutton and 2ND SUPP. C.R. 1561-1563

- Affidavit of Darlene Lee]. Be that as it may, it is abundantly clear, by comparing

the language that the Texas Supreme Court used in Badiga v. Lopez, supra, to the

language that the Badiga petitioner used in the “statement of facts” with respect to

the 120th calendar day, the Texas Supreme Court relied upon the Badgia petitioner’s

calculation of the calendar date.

      The Appellees’ assertion that the Texas Supreme Court has applied Rule 4,

TRCP, to extend the 120-day deadline mandated by V.T.C.A., Civil Practice &

Remedies Code § 74.351(a), is incorrect and it is not supported by their citation to

Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009).

                                       VII.

 THE COURTS OF APPEAL DECISIONS APPLYING RULE 4, TRCP, TO
 THE CALCULATION OF THE 120-day DEADLINE WERE WRONGLY
                        DECIDED


      The Appellees, at pages 17-18 of the Appellees’ Brief, assert that three courts

of appeal have applied Rule 4, TRCP, to the Section 74.351(a), supra, 120-day

                                         18
deadline and cite to Carpinteyro v. Gomez, 403 S.W.3d 508 (Tex. App.-San Antonio

2013, pet. denied), Christus Spohn Health System Corp. v. Lopez, 2014 WL 3542094

(Tex. App.-Corpus Christi 2014, no petition), and Fung v. Fischer, 365 S.W.3d 507

(Tex. App-Austin 2012, no petition).

      The Appellant, in the Appellant’s Brief, at pages 32-36, has presented its

arguments as to why Carpinteyro v. Gomez, supra, and Christus Spohn Health

System Corp. v. Lopez, supra, were wrongly decided. The Appellees do not respond

to the Appellant’s arguments other than referring to the flawed reasoning of those

opinions.

      As to Fung v. Fischer, supra, while the Austin Court of Appeals cited Rule 4,

TRCP, at page 526 of the opinion, the issue before the court was not whether the

case should be dismissed based upon one of the expert reports being “filed and

served” after the 120-day deadline; but, was whether the trial court acted correctly

in finding that the defendants’ objections to the expert reports had not been timely

filed. While the opinion is somewhat confusing, it is important to recognize that the

trial court did not consider whether the two reports referenced on page 526 of the

opinion had been timely “served” or whether the defendants had “filed” their

objections within the 21 days following “service” of the reports. Instead, the trial

court found that the defendants’ failure to object to reports that had been served two




                                          19
years earlier made their objections to the “supplemental” reports under consideration

untimely. The court of appeals set out the issues at page 521, as follows:

              The ADC appellants’ first issue, phrased somewhat differently
      than Minicucci’s and Urukalo’s issues, similarly contends that the
      original ADC defendant’s objections to the 2009 expert reports were
      timely and that the original ADC defendant’s lack of objection to the
      2007 reports did not waive its right to seek dismissal as to the Fischers’
      health care liability claim asserting the original ADC defendant’s direct
      liability, which was not mentioned by any expert report within the 120-
      day deadline. The ADC appellants argue that because the 2007 reports
      did not address the Fischers’ direct liability claim against the original
      ADC defendant alleging a lack of adequate policies and procedures, the
      cause of action based on those facts in the Fischers’ 2007 original
      petition was not supported by timely report and as such, the original
      ADC defendant had no duty to object. The Fishers contend that because
      the original ADC defendant did not object to the 2007 reports, it waived
      all of its objections, including its objections to the 2009 reports and its
      corresponding right to seek dismissal. Apparently persuaded by this
      argument, the probate court overruled ADC’s collective objections to
      the 2009 reports, specifically “find[ing] that the objections were
      untimely under Texas Civil Practice & Remedies Code § 74.351(a).”

Thus, as the issue in the trial court and court of appeals was not whether the 2009

expert reports had been “served” within the 120-day deadline; and, as none of the

parties contested whether the actual calendar date had been calculated correctly or

made any argument with respect to whether Rule 4, TRCP, can be applied to extend

the 120-day deadline, the court of appeals reference to Rule 4, TRCP, was not

discussed and is dicta.

      Further, as the question of whether Rule 4, TRCP, can extend the 120-day

deadline to serve expert reports was not a contested issue in Fung v. Fischer, supra,


                                          20
the court of appeals did not address the issues that are raised in the case before this

Honorable Court or the issues addressed in Carpinteyro v. Gomez, supra, and

Christus Spohn Health System Corp. v. Lopez, supra. Therefore, Fung v. Fischer,

supra, is not authority supporting the Appellees’ arguments in the case before the

Court.

                                          VIII.

Eikenhorst v. Wellbrock, 2008 WL 2339735 (Tex. App-Houston [1st Dist.] 2008,
no petition) IS NOT APPLICABLE TO THE CASE BEFORE THE COURT

         On pages 11-12 of the Appellees’ Brief they state:

         ...TRCP 4 has also been applied generally to health-care liability claims
         by the First District Court of Appeals. See, Eikenhorst v. Wellbrock,
         No. 01-07-00459-CV, 2008 WL 2339735 (Tex.App-Houston [1st
         Dist.] June 5, 2008, no pet)(mem. Op) (“Because December 16, 2006
         was a Saturday, the deadline to file was extended to December 18, the
         date Eikenhorst served his objectons”) (applying TRCP 4 to the
         Defendant’s 21-day deadline to object in CPRC 74.351(a))[Appendix
         K].

See also, Appellees’ Brief page 18. Further, on page 19 of the Appellees’ Brief they

state:

               Although Appellant urges that there is a conflict in applying
         TRCP 4 to the 120-day calculation, there is simply no conflict in
         applying TRCP 4. Indeed, not applying TRCP 4 would be directly
         contrary to what is stated in the Texas Rules of Civil Procedure. If TRCP
         4 applies to the Defendant’s 21-day deadline to object, as in
         Eikenhorst)[Appendix K], then it certainly applies to the Plaintiff’s 120-
         day deadline to serve an expert report and CV.




                                            21
As set forth in the Appellant’s Brief at page 32, Eikenhorst v. Wellbrock, supra, is

not applicable to the case before the Court as it did not address the question of

whether the mandatory 120-day deadline for the “service” of the expert report and

curriculum vitae can be extended by the application of Rule 4, TRCP; but, addressed

only the application of Rule 4, TRCP, to the defendant’s 21-day deadline to “file”

and “serve” objections to the expert report and curriculum vitae under V.T.C.A.,

Civil Practice & Remedies Code § 74.351(a). As will be shown below, the method

of, or the rationale for, the application and calculation of the two deadlines created

by Section 74.351(a) are not the same.

      Initially, as set out in the Appellant’s Brief at pages 8-10 and 33, the Texas

Supreme Court has determined that strict compliance with the 120-day deadline

created by Section 74.351(a) is mandatory. See Zanchi v. Lane, 408 S.W.3d 373,

376 (Tex. 2013). The Texas Supreme Court has not held that the 21-day period to

“file” and “serve” objections to the expert report and curriculum vitae must be

strictly applied; therefore, Eikenhorst v. Wellbrock, supra, does not conflict with

Zanchi v. Lane, supra. While the defendant has the option to object or not object

without consequence, the plaintiff’s failure to timely serve an expert report and

curriculum vitae triggers automatic dismissal of the case with prejudice.

      Further, the wording of Section 74.351(a) demonstrates that the two deadlines

necessarily require different applications and calculations. As the Appellees point


                                          22
out in their Brief, unlike the defendant’s objections to the expert report and

curriculum vitae, Section 74.351(a) only requires that the expert report and

curriculum vitae be “served”, not “filed”.       Therefore, unlike the defendant’s

objections, the plaintiff can meet its deadline for the “service” of its expert report

and curriculum vitae without concern for, or consideration of, the rules related to the

“filing” of documents with the trial court. See, for example, Rules 5, 21 and 74,

TRCP.    As the defendant must “file” its objections to the expert report and

curriculum vitae, the timing and manner of the “service” of the objections is dictated

by the timing and manner of the “filing” of the objections.

      Further, under the current version of Section 74.351(a), applicable to the case

before this Court, the beginning of the 120-day period to “serve” the plaintiff’s

expert report and curriculum vitae is triggered by the defendant’s “filing” of its

original answer. The beginning of the 120-day period is in contrast to the beginning

of the defendant’s 21-day period to “file” and “serve” objections which is triggered

by the plaintiff’s “service” of the expert report and curriculum vitae. Therefore,

while the plaintiff’s 120-days begins to run the day that the defendant “files” its

original answer, regardless of the method of “service” of the original answer upon

the plaintiff, the beginning of the defendant’s 21-day period to object is dependent

upon the method of “service” chosen by the plaintiff and potentially the date of the

actual receipt. See Rule 21a(b)(2), Rule 21a(c) and 21a(e), TRCP. The decision to


                                          23
begin the running of the 120-day period from the date of the actual “filing” of the

original answer, without consideration of the method or date of the “service” of the

original answer upon the plaintiff, demonstrates that the legislature intended for the

120-day period to be strictly applied and unaffected by the Texas Rules of Civil

Procedure.

      Further, while the defendant’s opportunity to object to the expert report and

curriculum vitae begins and ends within the 21-day period, Section 74.351(a), supra,

was not drafted with the intent that the plaintiff would have only one opportunity to

“serve” an expert report and curriculum vitae within its 120-day period. In fact, the

statute was specifically written so as to allow the plaintiff to “serve” multiple reports

and curriculum vitaes during the 120-day period. The diligent plaintiff, if he so

desires, has the opportunity to “serve” an expert report and curriculum vitae during

the 120-day period and, if objections are filed, have objections to the sufficiency of

the expert report and curriculum vitae ruled upon by the trial court without the risk

of having the case dismissed during the 120-day period. See, Christus Santa Rosa

Health Care Corporation v. Vasquez, 427 S.W.3d 451 (Tex. App.-San Antonio

2014, no petition); Eikenhorst v. Wellbrock, supra, at *7; Lewis v. Funderburk, 253

S.W.3d 204, 207 (Tex. 2008). If the trial court sustains the objections to the

sufficiency of the expert report, the plaintiff has the opportunity to “serve” additional

reports and curriculum vitae up to and including the 120th day.


                                           24
       As the purpose of Section 74.351(a), supra, was to encourage that only

meritorious health care liability lawsuits be filed, the statute necessarily includes the

assumption that the validity of the cause of action will be evaluated by a medical

expert prior to the filing of the lawsuit. Therefore, the 120-day period is more than

sufficient for the medical expert to provide an expert report.

       As Eikenhorst v. Wellbrock, supra, does not address the application of

Rule 4, TRCP, to the 120-day deadline of Section 74.351(a), supra, it does not

support the Appellees’ arguments on appeal.

                                          IX.

       EMAIL SERVICE AFTER 5:00 P.M. IS DEEMED COMPLETE
                        THE NEXT DAY

      The Appellees, at pages 12, 13, and 19-24 of the Appellees’ Brief, while

acknowledging that Rule 21a, TRCP, is silent as to when service by email is

“complete”, argue that email service is complete when the server transmits the

document to the intended recipient’s email address. In support of their position, the

Appellees cite, as their only authority, commentary contained within “O’Connor’s

Texas Rules of Civil Trials 2015”. [Appellee’s Brief, pages 12 and 24]. The lone

statement that the Appellees rely upon as authority supporting their argument is:

“Although not specified under TRCP 21a, service by email is presumably complete

on transmission of the document to the receiving party.” Far from being authority

supporting the Appellees’ position, O’Connor’s commentary recognizes that there

                                           25
is no existing authority to support this statement and it is making a “presumption”,

or better stated an “assumption”, as the rule is silent as to when email service is

complete. Absent from O’Connor’s statement is any discussion of how other

statutes, rules of procedure, or local rules of court determine when email service is

complete.

      Further, the O’Connor’s “presumption” is incorrect as email service by a party

directly to the intended recipient’s email address is not comparable to electronic

service pursuant to Rule 21a(a)(1), TRCP. For electronic service to apply, as

required, the intended recipient’s email address must be on file with the “electronic

filing manager”.    Under Rule 21a(b)(3), TRCP, the serving party completes

electronic service by transmitting the document to the serving party’s “electronic

service provider”. Thereafter, the “electronic filing manager” sends confirmation of

service. Under this electronic service procedure, the serving party is relying upon

the established rule that service is complete upon transmission to its “electronic

service provider”, not directly to the recipient to be served, and is comparable to

service being complete when a document is deposited in the mail, Rule 21a(b)(1), as

opposed to being delivered directly by the serving party to the intended recipient.

However, no matter which form of service is used, the document must be delivered

to the intended recipient. Rule 21a(e), TRCP.




                                         26
         The Appellees, at pages 22-24 of the Appellees’ Brief, argue that Local Rule

12.5.2, “Amended Local Rules of the District Courts for Galveston County, Texas”,

which establishes that email service after 5:00 p.m. should be deemed completed

“the next day that is not a Saturday, Sunday or legal holiday”, does not apply as it

was established prior to the electronic filing and service rules contained in the Texas

Rules of Civil Procedure. However, the Appellees have not established that the local

rules have been rescinded by the District Courts of Galveston County and have not

shown that Local Rule 12.5.2 has been preempted by the Texas Rules of Civil

Procedure. While the Appellees direct the Court to several local rules that arguably

conflict with the current Texas Rules of Civil Procedure, the Appellees have not

directed the Court to a current rule of the Texas Rules of Civil Procedure with which

Local Rule 12.5.2 conflicts. As all parties agree, Rule 21a, TRCP, does not mandate

any procedures with respect to email service and does not establish when email

service is complete; therefore, as argued in Appellant’s Brief, pages 24-31, the

appropriately adopted and approved “Amended Local Rules of the District Courts

for Galveston County, Texas”, with respect to the completion of email service, do

not conflict with the Texas Rules of Civil Procedure and apply to the case before this

Court.

         Therefore, pursuant to Local Rule 12.5.2(c), if the Appellees had completed

email service after 5:00 p.m. on January 31, 2015, which they did not, their expert


                                          27
report and curriculum vitae would have been deemed served on Monday, February

2, 2015.

                                          X.

        ELECTRONIC SERVICE WAS REQUIRED PURSUANT TO
                     RULE 21a(a)(1), TRCP


      The Appellees, at pages 13 and 34-35 of the Appellees’ Brief, contend that

while they electronically filed their expert report and curriculum vitae pursuant to

Rule 21(f), TRCP, they were not required to comply with the mandatory electronic

service requirement of Rule 21a(a)(1), TRCP.

      The Appellees, at page 34 of the Appellees’ Brief, contend that the “Appellant

cites no authority for this proposition” that once the Appellees chose to electronically

file their expert report and curriculum vitae, electronic service was mandatory.

Contrary to their assertion, the Appellant, at pages 20-24 of the Appellant’s Brief,

specifically cites to the Rule 21(f), TRCP, mandatory requirement that “attorneys

must electronically file documents in courts where electronic filing has been

mandated”. The Appellees have not presented alternative authority or procedure for

their electronic filing of their expert report other than what is found in Rule 21(f).

Further, the Appellant specifically cited as authority Rule 21a(a)(1), TRCP, and its

mandatory language that “a document filed electronically under Rule 21 must be

served electronically through the electronic filing manager.” This language is clear


                                           28
and does not require interpretation. Further, the Appellees have repeatedly asserted

that they attempted to “serve” their expert report and curriculum vitae by email

pursuant to Rule 21a(a)(2), TRCP; [Appellees’ Brief, pages 2-3], however, this rule

is explicit that only “a document not filed electronically may be served...by email...”.

Thus the authority is abundantly clear that only electronic service was permissible

once the Appellees electronically filed their expert report and curriculum vitae.

Further, considering the inherent risk that service by email may not be timely

completed or may not be completed at all, the wisdom of mandatory electronic

service under Rule 21a(a)(1), TRCP, is obvious.

      The Appellees state at page 34 of the Appellees’ Brief: “Indeed, if an attorney

attempts service in two or more different manners, only one form of successful

service is required”. The Appellees’ statement is not applicable to the case before

the Court as they attempted only one form of service, by email, and it was not

successfully completed service within the mandatory 120-day deadline.

      The Appellees state at page 35 of the Appellees’ Brief: “Instead, as shown

above, service via email is expressly permitted, and by Appellant’s counsel’s own

admission, service was complete on February 1, 2015 when he ‘actually’ received

and read the email containing the expert report and CV”. Once again the Appellees

attempt to mischaracterize the Appellant’s position and the issue on appeal. The

Appellant asserted in the trial court and asserts on appeal that email service was not


                                           29
completed on February 1, 2015, as the portion of the expert report contained in the

second email was not delivered to Appellant’s counsel. Further, even if both emails

had been received on February 1, 2015, the service of the expert report and

curriculum vitae would still have been outside the 120-day deadline.

      On page 35 of the Appellees’ Brief, the Appellees state:

             The rules governing discovery provide an analogous example.
      Under the rules governing discovery, discovery requests and responses
      are to be served, but not filed, just as expert reports and CVs under
      CPRC 74.351. Under Appellant’s theory, a party “e-filing” a discovery
      response (though not required) and also “serving” the discovery
      response via email would be deemed to not have “served” the discovery
      response, despite proper “service” by email. Appellees’ counsel is
      aware of no authority which would create such a scenario.

The Appellees’ argument is incorrect. Unlike the expert report provision of Section

74.351(a), supra, Rule 191.4(a), TRCP, prohibits the filing of discovery materials

except for certain specifically articulated situations set out under Rule 191.4(b) and

(c), TRCP. When discovery materials are “filed” pursuant to Rule 191.4(b) and (c),

the “service” rules of Rule 21a, TRCP, apply. While the “filing” of the expert report

and curriculum vitae under Section 74.351(a) is not required, it is not prohibited.

Just as with the “filing” of discovery materials, once a claimant “files” an expert

report and curriculum vitae, “service” under, and in accordance with, Rule 21a,

TRCP, is required.

      As argued in the trial court and in the Appellant’s Brief on appeal, electronic

service of the expert report and curriculum vitae were mandatory under the facts of

                                          30
this case; therefore, the Appellees failed to timely complete service within the 120-

day deadline.

                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, the Appellant, The University

of Texas Medical Branch at Galveston, prays that this Honorable Court reverse the

order of the trial court denying “Defendant, The University of Texas Medical Branch

at Galveston’s Motion to Dismiss with Prejudice for Failure to Timely Serve an

Expert Report Pursuant to Section 74.351 of the Civil Practice and Remedies Code”;

and, render judgment dismissing this cause of action in its entirety and with prejudice

to its refiling. Further, the Appellant prays that all costs, in the trial court and Court

of Appeals, be taxed against the Appellees. The Appellant further prays for all other

relief, legal and equitable, to which it may be entitled.


                                       RESPECTFULLY SUBMITTED,

                                       KEN PAXTON
                                       Attorney General of Texas

                                       CHARLES E. ROY
                                       First Assistant Attorney General

                                       JAMES E. DAVIS
                                       Deputy Attorney General for Civil Litigation

                                       KARA L. KENNEDY
                                       Chief, Tort Litigation Division



                                            31
                                      /s/ S. Ronald Keister
                                      ___________________________________
                                      S. RONALD KEISTER
                                      State Bar No. 11185300
                                      Assistant Attorney General
                                      Attorney-In-Charge
                                      Tort Litigation Division
                                      P.O. Box 12548, Capitol Station
                                      Austin, Texas 78711-2548
                                      Ronny.Keister@texasattorneygeneral.gov
                                      (512) 463-2197
                                      FAX (512) 457-4435




                          CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. 9.4(i)(3), this is to certify that this brief complies

with the type-volume limitations of TEX. R. APP. 9.4(i)(2)(B)(must not exceed 7,500

words). This brief contains 7,441 words in a proportionally spaced typeface,

exclusive of the exempted portions set forth in TEX. R. APP. 9.4(i)(1). This brief has

been prepared using Times New Roman 14 point in text and Times New Roman 12

point in footnotes produced by Microsoft Word 2013 software.


                                       /s/ S. Ronald Keister
                                       _______________________________
                                       S. RONALD KEISTER
                                       Assistant Attorney General




                                          32
                CERTIFICATE OF ELECTRONIC SERVICE

      I certify that on October 26, 2015, at approximately 11:40 a.m., I served a

copy of Appellant’s Reply Brief on the party listed below by electronic service

concurrently with the electronic filing of the document. The electronic transmission

was reported as complete.

      My e- mail address is Ronny.Keister@texasattorneygeneral.gov.


Brian D. Sutton                               Via e-service
Sutton & Jacobs, LLP
Attorneys and Counselors at Law
850 Park Street
Beaumont, Texas 77701
(409) 833-1100
(409) 833-0711, fax
brians@sutton-jacobs.com
ATTORNEY FOR PLAINTIFF

                                      /s/ S. Ronald Keister
                                      ____________________________________
                                      S. RONALD KEISTER
                                      Assistant Attorney General




                                         33
                            No. 14-15-00449-CV



                    IN THE COURT OF APPEALS
              FOR THE FOURTEENTH JUDICIAL DISTRICT
                        HOUSTON, TEXAS


     THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
                                                APPELLANT,
                               V.

CAROLYN CALLAS, RAY CALLAS AND JAMIE CALLAS, INDIVIDUALLY
AND AS THE REPRESENTATIVES OF THE ESTATE OF GERALD CALLAS
      AND FOR AND ON BEHALF OF ANY WRONGFUL DEATH
                      BENEFICIARIES,
                                               APPELLEES.


               On Appeal from the 212th Judicial District Court
                         Galveston County, Texas
                             No. 14-CV-0927


                                APPENDIX



A)     Badiga v. Lopez, BRIEF ON THE MERITS OF THE PETITONER

B)    Badiga v. Lopez, RESPONDENT’S NOTICE OF INTENT TO RELY ON
      RESPONDENT’S RESPONSE TO PETITION FOR REVIEW AND THE
      RESPONDENT’S RESPONSE TO PETITION FOR REVIEW




                                      34
                    APPENDIX A

Badiga v. Lopez, BRIEF ON THE MERITS OF THE PETITONER
            ORAL ARGUMENT REQUESTED


        NO. 05-0801
                      IN THE
              SUPREME COURT OF TEXAS


               S. MURTHY BADIGA, M.D.,
                         Petitioner,

                             v.

                   MARICRUZ LOPEZ,
                      Respondent.


              On Petition for Review from the
Thirteenth District Court of Appeals at Corpus Christi, Texas
                    No. 13-04-00452-CV


        BRIEF ON THE Ml;RITS OF PETITIONER


                           Respectfully submitted,

                           R. BRENT COOPER
                           Texas Bar No. 04783250
                           DIANA L. FAUST
                           Texas Bar No. 00793717
                           WILLIAM J. AKINS
                           Texas Bar No. 24011972

                           COOPER & SCULLY, P.C.
                           900 Jackson Street, Suite 100
                           Dallas, Texas 75202
                           (214) 712-9500
                           (214) 712-9540 (fax)

                           COUNSEL FOR PETITIONER
                             IDENTITY OF PARTIES AND COUNSEL
. ;.
       Maricruz Lopez                                            Plaintiff/Appellee/Respondent

       S. Murthy Badiga, M.D.                                   Defendant/Appellant/Petitioner

                             - Trial and Appellate Counsel for Petitioner

.·.
       Mr. R. Brent Cooper                                     Appellate Counsel for Petitioner
       Ms. Diana L. Faust                                          in Supreme Court of Texas
       Mr. William J. Akins
       Cooper & Scully, P.C.
       900 Jackson Street, Suite 100
       Dallas, Texas 75202

       Mr. Steven M. Gonzalez                                         Counsel for Petitioner in
       Mr. Edward J. Castillo                                 Trial Court and Court of Appeals
       Gonzalez, Gaytan, Garza
       & Castillo, L.L.P.
       1317 E. Quebec Avenue
       McAllen, Texas 78503

                             Trial and Ap,pellate Counsel for Respondent

       Mr. E. A. Villarreal, Jr.                    Trial and Appellate Counsel for Respondent
       Law Office of E.A. Villarreal, Jr.
       1320 South 10t11 Street
       Edinburg, Texas 78539




                                                  -i-
'\   ~ "·'
                                                      TABLE OF CONTENTS



             IDENTITY OF PARTIES AND COUNSEL .................................                                                 -1-


             TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-

             TABLE OF AUTHORITIES ............................................. -vi-

             STATEMENT OF THE CASE ........................................... -xi-

             STATEMENT OF THE JURISDICTION ................................. .
                                                                                                                                ..
                                                                                                                             -Xll-


             ISSUES PRESENTED

                      1.       Whether the trial court's refusal to dismiss the case under Chapter 74
                               of the Texas Civil Practice and Remedies Code, where no expert report
                               was served within 120 days following the filing of suit, is subject to an
                               interlocutory appeal under section 51.014(a)(9) of the Texas Civil
                               Practice and Remedi~s Code ................................. -xiii-

                      2.       Whether the Court ofAppeals' interpretation of section 51.0 l 4(a)(9) of
                               the Texas Civil Practice and Remedies Code (to preclude an
                               interlocutory appeal when case involves both the subject matter of an
                               appealable and a non-appealable interlocutory order) conflicts with
                               other courts of appeals' interpretations of jurisdiction (in cases
                               presenting the subject matter of both appealable and non-appealable
                               interlocutory order or orders), including Letson v. Barnes, 979 S. W.2d
                               414 (Tex. App.-Amarillo 1998, pet. denied); America Online, Inc. v.
                               Williams, 958 S.W.2d268 (Tex. App.-Hous. [14Dist.] 1997, no writ);
                               American Express Travel Related Servs. Co. v. Walton, 883 S.W.2d
                               703 (Tex. App.-Dallas 1994, orig. proceeding); and Texas R.R.
                               Comm 'n v. Air Prods. & Chems., Inc., 594 S.W.2d 219 (Tex. Civ.
                               App.-Austin 1980, writ refd n.r.e.) ............................ -xiii-

             STATEMENT OF THE FACTS .......................................... -1-

                      A.       October 24, 2003: Respondent Filed her Original Petition . . . . . . . . . . . -1-




                                                                      -ii-
        B.      February 27, 2004: Petitioner Filed bis Motion to Dismiss Because
                Respondent Failed to Serve Required Expert Report by Statutory
                Deadline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

        C.      March 31, 2004: Respondent Filed Motion for Extension of Time .... -1-

        D.      The Trial Cowt Granted Respondent's Motions and Extended Time for
                Serving Expert Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

        E.      Petitioner Re-Urged Dismissal Pursuant to Section 74.35l(b) of the
                Texas Civil Practice and Remedies Code ........................ -3-

        F.      The Cowt of Appeals Refused to Consider Petitioner's Appeal . . . . . . . -3-

SUMN.lARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-

ARGUMENT .................................. : . . . . . . . . . . . . . . . . . . . . . . -5-

        A.      Texas Civil Practice and Remedies Code Chapter 74 Mandates that a
                Health Care Liability Claimant Must Serve an Expert Report Within
                120 days After the Claim is Filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-

        B.      Respondent Failed to Serve an Expert Report as Mandated by Section
                74.351 Within 120 Days After the Date of Filing the Health Care
                Liability Claim; Thus, the Trial Court Was Required to Dismiss the Suit
                with Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

                1.        Respondent Failed to Timely Serve Any Expert Report . . . . . . . -9-

                2.        The Trial Court Abused its Discretion in Denying Petitioner's
                          Motion to Dismiss When No Expert Report Had Been Served on
                          Petitioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

        C.      Proper Statutory Construction of Section 51.014(a)(9) Permits Appeal
                of the Denial ofa Motion to Dismiss a Health Care Liability Claim for
                Failure to Serve an Expert Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

                1.        Standard for Statutory Construction . . . . . . . . . . . . . . . . . . . . . . -12-




                                                           -iii-
              2.   Section 51.014(a)(9) Specifically Authorizes Jurisdiction over
    ....,-.
                   the Interlocutory Appeal of the Trial Court's Failure to Dismiss
                   the Chapter 74 Health Care Liability Claim Where no Expert
                   Report is Served by !20th Day After Suit is Filed ........ " .. -13-

                   a.    The Interlocutory Appeal Statute is to be Strictly
                         Construed, and Strict Construction Favors Interlocutory
                         Appeal ....................................... -14-
.   ;.:·.j
     r.;,_;
"
     '    I
                   b.    The Interrelatedness of an Extension of Time Under
                         Section 74.351 and the Denial of a Motion to Dismiss
                         Under Section 74.351 Does Not Defeat Jurisdiction over
                         the Interlocutory Appeal, and the Court of Appeals'
                         Holding Conflicts with Other Courts of Appeals'
      ·--                Exercise of Jurisdiction Where One Issue is Properly the
     ·-·"
                         Subject of Interlocutory Appeal and One is Not ....... -15-

                   c.    Additionally, Other Courts Have Recognized a Right to
                         an Interlocutory Appeal Under Section 51.014(a)(9) from
                         the Denial of a Motion to Dismiss .................. -17-

              3.   The Basis for Petitioner's Appeal fit Precisely Within the Court
                   of Appeals' Jurisdiction over the Interlocutory Appeal ....... -19-

              4.   The Legislative History Underlying House Bill 4 Supports the
                   Court of Appeals' Jurisdiction Over an Interlocutory Appeal .. -20-

              5.   The Court of Appeals' Ruling Precludes an Appeal of a Trial
                   Court's Denial of a Motion to Dismiss for No Expert Report
                   Where the Trial Court Also Grants an Extension ............ -21-

                   a.    The Court of Appeals Improperly Construed Petitioner's
                         Appeal, Disregarding Petitioner's Single Issue, the
                         Arguments of Petitioner and Respondent, Sections
                         74.35l(a) and (b), and Petitioner's Right to Appeal
                         Under Section 51.014(a)(9) ....................... -21-

                   b.    The Issue is Likely to Recur ...................... -23-

              D.   This Court has Jurisdiction Over this Interlocutory Appeal .... -28-




                                         -iv-
:   .
        .,                I.    The Court has Jurisdiction to Determine if the Court of Appeals
                                Properly Declined to Exercise its Jurisdiction . . . . . . . . . . . . . . -28-

                          2.    This Court has Also Jurisdiction Over This Interlocutory Appeal
                                Because of A Conflict in the Courts of Appeals . . . . . . . . . . . . -30-

                                a.     This Court has Recognized Jurisdiction Where Courts of
                                       Appeals' Decisions Conflict ...................... -30-

                                b.     Courts of Appeals' Decisions Conflict on Jurisdiction
                                       Over Case When Appeal Involves Appealable and Non-
                                       Appealable Issues in the Context of an Interlocutory
                                       Appeal ....................................... -31-

             CERTIFICATE OF SERVICE .......................................... -34-

             APPENDIX TO BRIEF ON THE MERITS OF PETITIONER . . . . . . . . . . . . . . . . . -35-




                                                          -v-
                             TABLE OF AUTHORITIES

                                                                                Page(sl

Acad. of Oriental Med., L.L.C. v. Andra,
      173 S.W.3d 184 (Tex. App.-Austin 2005, no pet.) ...... 11, 12, 14, 18, 24, 25, 31

America Online, Inc. v. Williams,
      1958 S.W.2d 268 (Tex. App.-Houston [14 Dist.] 1997, no writ)
       ............................................... ii, ix, x, 16, 17, 27, 31

American Express Travel Related Servs. Co. v. Walton,
      883 S.W.2d 703 (Tex. App.-Dallas 1994, orig. proceeding) . . ....... xii, xiii, 16

Awde v. Dabeit,
      938 S.W.2d 31 (Tex. 1997) ....................................... xii, 29

Badiga v. Lopez,                  .
      No. 13-04-00452-CV, 2005 WL 1572273
      {Tex. App.-Corpus Christi 2005, pet. filed) .................. 3, 15, 17, 31, 35

Bally Total Fitness Corp. v. Jackson,
       53 S.W.3d 352 (Tex. 2001) ....................................... 11, 14

Bexar Metro. Water Dist. v. City ofBulverde,
      156 S.W.3d 79 (Tex. App.-Austin 2005, pet. denied) ..................... 14

Christus Health Southeast Texas v. Griffin,
       175 S.W.3d 548 (Tex. App.-Beaumont Oct. 20, 2005, no. pet. h.) ........... 17

City ofSan Antonio v. City of Boerne,
       111 S.W.3d 22 (Tex. 2003) .......................................... 12

De Los Santos v. Occidental Chem. Corp.,
      933 S.W.2d 493 (Tex. 1996) ...................................... xii, 29

Del Valle lndep. Sch. Dist. v. Lopez,
      845 S.W.2d 808 (Tex. 1992) ................................... xii, 28, 29

Downer v. Aquamarine Operators, Inc.,
     701 S.W.2d 238 (Tex. 1985) ......................................... 10



                                          -vi-
Fitzgerald v. Advanced Spine Fixation Systems, Inc.,
       996 S.W.2d 864 (Tex. 1999) ....................................... '. . 12

Fort Worth Southwest Nursing Ctr., L.L.C. v. Bly,
      2004 WL 314907 (Tex. App.-Fort Worth Feb. 19, 2004, no pet.) ...... 18, 19, 28

Gross v. Innes,
      988 S.W.2d 727 (Tex. 1998) ...................................... 30, 31

Group Ill D. C. v. Vincento,
      164 S.W.3d 724 (Tex. App-Houston [14th Dist.] 2005, pet. filed) ........... 32

Heart Hosp. ofAustin v. Matthews,
      _ S.W.3d __, 2006 WL 1194881
      (Tex. App. -Austin, May 5, 2006, no pet. h.) ................... 13, 23, 24, 31

Kendrick v. Garcia,
      171S.WJd698 (Tex. App.-Eastland, Aug. 18, 2005, pet. filed) .......... 9, 32

Letson v. Barnes,
       979 S.W.2d 414 (Tex. App.-Amarillo 1998, pet. denied) xii, xiii, 15, 16, 17, 27, 31

Lewis v. Funderburk,
      No. 10-05-00197-CV, 2006 WL 870943
       (Tex. App.-Waco April 5, 2006, no pet. h.) ....................... 26, 27, 31

Liberty Mut. Ins. Co. v. Garrison Contractors,
       966 S.W.2d 42 (Tex. 1998) .......................................... 12

Long v. Humble Oil & Refining Co.,
      380 S.W.2d 554 (Tex. 1964) ..................................... xii, 28

McCauley v. Consolidated Underwriters,
     304 S.W.2d 265 (Tex. 1957) ......................................... 28

Methodist Health Care System ofSan Antonio, Ltd. v. Rangel,
     No. 04-05-00500-CV, 2005 WL 3445994
     (Tex. App.-San Antonio Dec 14, 2005, pet. filed) ......................... 6

Mokkala v. Mead,
      178 S.W.3d 66 (Tex. App.-Houston [14th Dist.] 2005, pet. filed)
       ................................................ 12, 13, 19, 20, 27, 32

                                           -vu-
               Murphy v. Russell,
                    167 S.W.3d 835 (Tex. 2005) .......................................... 9

               Reardon v. LightPath Technologies, Inc.,
                     183 S.W.3d429 (Tex. App.-Hous. [14Dist.] 2005, pet. denied) ............. 23

               Sterner v. Marathon Oil Co.,
                      767 S.W.2d 686 (Tex. 1989) ......................................... 23
..   :·   -·
t•   :•.""

               Texas R.R. Comm'n v. Air Prods. & Chems., Inc.,
                     594 S.W.2d 219 (Tex. Civ. App.-Austin 1980, writ refd n.r.e.)
                       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii, xiii, 16, 17, 27, 31

               Thomas v. Long,
                    No. 03-0204, 2006 WL 1043429,
                    49 Tex. Sup. Ct J. 532 (Tex. April 21, 2006) ........................... 30

               Thoyakulathu v. Brennan,
                     No. 06-05-00070-CV, 2006 WL 1096191
                     (Tex. App.-TexarkanaApril 27, 2006, no pet. h.) ............ 11, 14, 17, 27, 31

               University of Texas Medical Branch at Galveston v. Barrett,
                     159 S.W.3d 631(Tex.2005) ...................................... xii, 28

               University of Texas Southwestern Medical Center ofDallas v. Margulis,
                     11 S.W.3d 186 (Tex. 2000) ....................................... xii, 29

               Van LS.D. v. McCarty,
                     165 S.W.3d 351 (Tex. 2005) ........................ . .......... . ..... 30

               Walker v. Packer,
                     827 S.W.2d 833 (Tex. 1992) ......................................... 10

               In re Women's Hosp. o/Texas, Inc.,
                      141S.W.3d144 (Tex. 2004) ......................................... 18

               Statutes, Rules & Constitutions                                                                                     Paa;eCsl

               Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1-, 1995 Tex. Gen. Laws 985 .......... 14

               Act of June 2, 2003, 78th Leg. R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847 ... 9, 20



                                                                           -viii-
          Act of Sept. 1, 2003, 78th Leg., R.S. ch. 204, § 1.03, 2003 Tex. Gen. Laws 847 ...... 20

          Debate on Tex. H.B. 4 on the Floor of the House,
                78th Leg., R.S. 317 (Mar. 19, 2003) ................................... 20

          TEX. CIV. PRAC. & REM. CODE ANN.§ 51.014(a)(9) ......................... 17, 27
                                          § 74.3Sl(a) ........ 1, 6, 10, 13, 19, 21, 22, 28, 31

          TEX. GoV'T CODE§§ 22.22S(bX3) ......................................... 30
:.;..


          Miscellaneous                                                                   Page(s)

          Michael S. Hull, et al., House Bill 4 and Proposition 12: An Analysis with
                 Legislative History, Part Three, 36 TEX. TECH L.R. 169, 212 (2005) ... 20, 21, 28




::. ...




                                                     -ix-
                                        ORAL ARGUMENT REOVESTED
.   "   ..
'   ..


                                   NO. 05-0801
                                                  IN THE
        ..                                SUPREME COURT OF TEXAS
    :.::-.



                                            S. MURTHY BADIGA, M.D.,
                                                        Petitioner,

                                                            v.
                                                MARICRUZ LOPEZ,
                                                   Respondent.


                                        On Petition for Review from the
                          Thirteenth District Court of Appeals at Corpus Christi, Texas
                                               No.13-04-00452-CV


                                   BRIEF ON THE MERITS OF PETITIONER


             TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

                    Petitioner Dr. S. Murthy Badiga, M.D., ("Petitioner'' or "Dr. Badiga"), submits this

             Brief on the Merits, pursuant to the Court's letter request and in compliance with Rule 55 of

             the Texas Rules of Appellate Procedure, seeking reversal of the Court of Appeals' judgment

             and reversal of the trial court's order.




                                                            -x-
                                    STATEMENT OF THE CASE

         Nature of the Case:                On October 24, 2003, Respondent Maricruz
                                            Lopez ("Lopez'' or "Respondent'') brought this
                                            health care liability claim, pursuant to Chapter 74
                                            of the Texas Civil Practice and Remedies Code,
                                            alleging that Petitioner S. Murthy Badiga, M.D.
                                            was negligent in his medical care and treatment of
                                            Lopez, proximately causing a perforation of her
                                            colon during an esopyagogastroduodenoscopy and
                                            colonoscopy. (1 CR 1-10). Respondent was
                                            required to serve an expert report within 120 days
                                            after filing suit in accordance with section
                                            74.3Sl(a) of the Texas Civil Practice and
                                            Remedies Code. Upon expiration ofthe deadline,
                                            Petitioner filed a motion to dismiss based on
                                            Respondent's failure to serve an expert report. ( 1
                                            CR 16-31). Respondent then filed a Motion to
                                            Extend Expert Report Submission on April l,
                                            2004 (1 CR 32-34), which the trial court granted
                                            on May 18, 2004. (1 CR 149). The trial court
                                            never ruled on this motion to dismiss. Petitioner
                                            then filed a another motion to dismiss rearguing
                                            dismissal based on Respondent's failure to serve
                                            an expert report within the statutorily mandated
                                            120-day deadline. (1 CR 153-184). On August
                                            10, 2004, the trial court denied Petitioner's
                                            motion to dismiss. (1CR196). Petitionertiniely
                                            filed his Notice of Appeal onAugust30, 2004. (1
                                            CR 197-198).

         Trial Court:                       The Honorable Rodolfo Delgado, 193rc1 District
                                            Court, Hidalgo County, Texas.

         Trial Court Disposition:           The trial court denied Petitioner's Motion to
                                            Dismiss.
·:··..

         Parties in the Court of Appeals:   S. Murthy Badiga, M.D. - Appellant; Maricruz
                                            Lopez - Appellee.



  ·.:

                                             -XI-
           Court of Appeals:                          Thirteenth District Court of Appeals at Corpus
                                                      Christi, Texas.

           Court of Appeals Dispo~ition:              Unpublished memorandum opinion, by Chief
                                                      Justice Rogelio Valdez, with Justice Federico
                                                      Hinojosa and Justice Nelda Rodriguez concurring,
                                                      dismissal of appeal due to lack of jurisdiction.
                                                      Badiga v. Lopez, No. 13-04-00452-CV, 2005 WL
;..   ..                                              1572273 (Tex. App.-Corpus Christi 2005, pet.
                                                      filed).

                                   STATEMENT OF THE JURISDICTION

                  This Court has jurisdiction over this appeal under Texas Government Code section

           22. 001 (a)(2) because the Court ofAppeals' decision in this matter conflicts with other courts

           of appeals' decisions in Letson v. Barnes, 919 S.W.2d 414 (Tex. App.-Amarillo 1998, pet.

           denied); America Online, Inc. v. Williams, 958 S.W.2d 268 _(Tex. App.-Hous. [14 Dist.]

           1997, no writ); American Express Travel Related Servs. Co. v. Walton, 883 S.W.2d 703 (Tex.

           App.-Dallas 1994, orig. proceeding); and Texas RR. Comm 'n v. Air Prods. & Chems., Inc.,

           594 S.W.2d 219 (Tex. Civ. App.-Austin 1980, writ refd n.r.e.), on a question of law

           material to a decision of the case.

                  This Court has jurisdiction to determine whether or not the Court of Appeals erred in

           deciding that it lacked jurisdiction over Petitioner's interlocutory appeal. See University of

           Texas Medical Branch at Galveston v. Barrett, 159 S.W.3d 631, 633 n.8 (Tex. 2005); see

           also University ofTexas Southwestern Medical Center ofDallas v. Margulis, 11 S. W.3d 186,

           187 (Tex. 2000); Awde v. Dabeit, 938 S.W.2d 31, 32 (Tex. 1997); De Los Santos v.

           Occidental Chem. Corp., 933 S.W.2d 493, 494 (Tex. 1996); Del Valle /ndep. Sch. Dist. v.

           Lopez, 845 S.W.2d 808, 809 (Tex. 1992); Long v. Humble Oil &Refining Co., 380 S.W.2d
          554, 555 (Tex. 1964).

                 This Court also has jurisdiction over this matter under Texas Government Code

          section 22.001 (a)(3) because this is a matter of first impression in statutory construction and

          the Court of Appeals erred in interpreting sections 74.351(a) and(b) and section 51.014(a)(9)

          of the Texas Civil Practice and Remedies Code in determining that it lacked jurisdiction over

          Petitioner's interlocutory appeal.

                 This Court also has jurisdiction under Texas Government Code section 22.00l(a)(6)

          because it appears that an error of law has been committed by the Court of Appeals, and that

          error is of such importance to the jurisprudence of the State that it requires correction.

                                               ISSUES PRESENTED

                 1.      Whether the trial court's refusal to dismiss the case under Chapter 74 of the
                         Texas Civil Practice and Remedies Code, where no expert report was served
                         within 120 days following the filing of suit, is subject to an interlocutory
                         appeal under section 51.014(a)(9) of the Texas Civil Practice and Remedies
                         Code.

                 2.     Whether the Court of Appeals' interpretation of section 51.014(a)(9) of the
                        Texas Civil Practice and Remedies Code (to preclude an interlocutory appeal
                        when case involves both the subject matter of an appeal.able and a
                        non-appealable interlocutory order) conflicts with other courts of appeals'
                        interpretations of jurisdiction (in cases presenting the subject matter of both
                        appealable and non-appealable interlocutory order or orders), including Letson
                        v. Barnes, 919 S.W.2d414 (Tex. App.-Amarillo 1998, pet. denied); America
                        Online, Inc. v. Williams, 958 S.W.2d 268 (Tex. App.-Hous. [14 Dist.] 1997,
                        no writ); American Express Travel Related Servs. Co. v. Walton, 883 S.W.2d
·... ·.
  ~
                        703 (Tex. App.-Dallas 1994, orig. proceeding); and Texas R.R. Comm 'n v. Air
                        Prods. & Chems., Inc., 594 S.W.2d 219 (Tex. Civ. App.-Austin 1980, writ
                        rerd n.r.e.).




                                                       -xiii-
                                      STATEMENT OF THE FACTS

                A.     October 24, 2003: Respondent Filed her Orifdnal Petition

                On October 24, 2003, Respondent filed her health care liability claim against

         Petitioner. (1 CR 5). Pursuant to Texas Civil Practice and Remedies Code section 74.351 (a),

......
:        Respondent's deadline to serve the required expert report was February 23, 2004. See TEX.

         Crv. PRAC. & REM. CODE§ 74.35l(a).

                B.     February 27. 2004: Petitioner Filed his Motion to Dismiss Because
                     · Respondent Failed to Serve Required Expert Report by Statutory
                       Deadline

                Respondent failed to serve any expert report on Petitioner by February 23, 2004. On

         February 27, 2004, Petitioner filed his motion to dismiss on the grounds that Respondent had

         failed to comply with section 74.35l(a) by not serving anexpertreportbythe 12om day after

         the lawsuit was filed. (See I CR 16). Petitioner requested dismissal of Respondent's cause

         of action with prejudice, as required under section 74.35l(b). (1 CR 16).

                C.     March 31. 2004; Respondent Filed Motion for Extension of Time

                Despite the expiration of the expert report deadline a month earlier, Respondent

         sought relief from the trial court through her Motion to Extend Expert Report Submission

         Date. ( 1 CR 32). Therein, she urged that "good cause" existed to extend the submission date

         of the report because Respondent had provided medical reports and records on October 31,
'!.·.

         2003 to Petitioner's insurer, Texas Medical Liability Trust ("TMLT'') for forwarding to

         Petitioner's counsel. (Id.). Respondent further stated that the reports included those from

         the medical treating physician Dr. Rodolfo Guerrero, and no objections or requests for further


                                                      -1-
                 information were filed thereafter. (Id.).

                        On April l, 2004, Respondent filed a Second Motion to Extend Expert Report

                 Submission Date re-urging "good cause" to extend the submission time of the expert report

                 in that it was not a conscious indifference of Respondent or her attorney, but a clerical error.

        iL       (1 CR42).

                        D.      The Trial Court Granted Respondent's Motions and Extended Time for
                                Sen1na Expert Report

                        On April 5, 2004, the trial court heard Petitioner's Motion to Dismiss. (2 RR 4-17).

                 Respondent's   COWlSel   argued that the case law under former Article 4590i of the Texas

                 Revised Civil Statutes would continue to apply and the trial court could grant a thirty-day

                 extension within its discretion for a mistake in not serving any expert report by the 120-day

                 deadline. (2 RR 5-6). The trial court requested additional briefing on the legislative intent

                 behind the 120-day requirement, and did not rule on the motion to dismiss. (Id. at 13-17).

                        The parties filed supplemental briefing on the interpretation of Chapter 74. (I CR 45-

                 132). Petitioner's brief clarified that the trial court could not grant a thirty-day extension

                 when no expert report had been served. (1 CR 46-48). Respondent's brief argued for the

                 application of fonner Article 4590i to extensions where no report had been served. (I CR

                 129-13 0). Respondent contended that the failure to serve the report was a "clerical error and

:..,.   ;•.•.·
                 not conscious indifference;,, thus, the trial court should grant the thirty-day extension to

                 initially serve the expert report. (1 CR 130-131 ).

                        On May 18, 2004, almost four months after the expiration of the expert report

                 deadline, the trial court granted Respondent's Motion to Extend Expert Report, extending the

                                                               -2-
date to submit Respondent's expert report to June 18, 2004. {l CR 149). The trial court did

not sign any order disposing of Petitioner's motion to dismiss. On June 8, 2004, Respondent

served the expert report of Rodolfo Guerrero, M.D. (1 CR 177-78).

       E.     Petitioner Re-Urged Dismissal Pursuant to Section 74.35l(bl of the Texas
              Civil Practice and Remedies Code

       On June 21, 2004, Petitioner filed a second motion to dismiss rearguing that the case

must be dismissed due to Respondent's failure to serve an expert report within 120 days, and

further arguing that Respondent's expert report was deficient pursuant to Texas Civil Practice

and Remedies Code section 74.35l(r)(6). (1 CR 153). On August 9, 2004, the trial court

heard Petitioner's second motion to dismiss (3 RR 4-12), and on August 10, 2004, the trial

court signed an order denying Petitioner's motion to dismiss. (1CR196).

       F.     The Court of Appeals Refused to Consider Petitioner's Appeal

       On August 30, 2005, Petitioner timely appealed the trial court's August 10, 2005 order

denying Petitioner's motion to dismiss.        (1 CR 197-198).       The Court of Appeals

misinterpreted the interlocutory appeal provided for in section 51.014(a)(9) of the Texas

Civil Practice and Remedies Code and misconstrued the substance of Petitioner's appeal.

The Court of Appeals concluded that Petitioner was challenging "solely" the trial court's

granting of an extension, not the trial court's disregard ofthe requirement for dismissal under

section 74.35l(b) oftheTexas Civil Practice and Remedies Code. SeeBadigav. lopez, No.

13-04-00452-CV, 2005WL1572273 (Tex. App.-Corpus Christi July7, 2005, pet. filed) (See

Tab A). Based on that conclusion, the Court of Appeals decided that it lacked jurisdiction

over the appeal, and dismissed it for want of jurisdiction. (See id.).

                                              -3-
                                   SUMMARY OF THE ARGU1\'1ENT

         This Court should grant the petition, reverse the judgment, and order that this case be

dismissed.        This case of first impression raises an important issue of the statutory

construction ofsection 51.014(a)(9) and, necessarily, sections 74.351 (a) and (b) ofthe Texas

Civil Practice and Remedies Code. 1 Section 51.014(a)(9) authorizes jurisdiction in the courts

of appeals over interlocutory appeals arising from a trial court's denial of a motion to dismiss

for failure to serve an expert report as required under section 74.351 (a) within 120 days after

the filing of a-health care liability claim under section 74.35 l(b). It is indisputable that

Respondent failed to serve any expert report within the statutorily prescribed 120-day time

period. Despite the clear statutory language mandating dismissal, the trial court denied

Petitioner's motion to dismiss for failure to serve an expert report.

         Petitioner appealed the trial court's order, specifically limiting the appeal only to the

issue expressly authorized by section 51.014(a)(9) (the denial of the motion to dismiss), as

reflected in Petitioner's single issue and the arguments within Petitioner's and Respondent's

briefs. However, the Court of Appeals improperly conducted the statutory interpretation of

section 51.0 l 4(a)(9) by failing to strictly construe the section according to its plain language

which allows the interlocutory appeal of a trial court's denial of all or part of a motion under

section 74.35l(b). Instead, the Court of Appeals erroneously considered only the exception

to section 51.014(a)(9), and construed the appeal as challenging "solely" the grant of the

extension of time to serve the expert report, an issue that does not give rise to jurisdiction


                   Whenever reference is made to a particular "section" or "subsection," it is referring to that section or
subsection of the Tex.as Civil Practice and Remedies Code.

                                                           4-
       through interlocutory appeal.

              Under the Court of Appeals' reasoning, when a trial court grants an extension of time

       in connection with a motion to dismiss, a defendant's discussion on appeal of the granting

       of an extension precludes the exercise of its statutory right to appeal the denial of the motion

.. .
.,~.
       to dismiss. This result conflicts with the plain language of 51.014(a)(9), which allows for

       an interlocutory appeal of a denial of all or part of a motion to dismiss, and it conflic~ with

       the legislative intent behind sections 74.35l{a) and(b) and section 51.014(a)(9). Further, the

       Court of Appeals' opinion conflicts with the decisions from other courts of appeals'

       decisions that have exercis~djurisdiction over an appealable issue despite the presence of a

       non-appealable issue.           Because this matter presents an issue of importance of the

       jurisprudence of the state concerning statutory construction, conflicts between the Courts of

       Appeals, and because this problem is likely to recur given the Court of Appeals' reasoning,

       this Court should exercise its jurisdiction to review this matter.

                                                        ARGUMENT
              A.       Texas Civil Practice and Remedies Code Chagter 74 Mandates that a
                       Health Care Liability Claimant Must Serve an Expert Report Within 120
                       days After the Claim is Filed

              Under section 74.351 of the Texas Civil Practice and Remedies Code, a claimant

       must, not later than the I 20th day after the date a health care liability claim is filed, serve on

       each party one or more expert reports2 addressing liability and causation and a curriculum

              2
                       An expert report is:

              a written report by an expert that provides a fair summary of the expert's opinions as of the date of the
              report regarding applicable standards of care, the manner in which the care rendered by the physician
              or health care provider failed to meet the standards, and the causal relationship between that failure

                                                                -5-
        vitae for each expert:
' ···

                In a health care liability claim, a claimant shall, not later than the 120th day
                after the date the original petition was filed, serve on each 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. Each defendant physician or health
                care provider whose conduct is implicated in a report must file and serve any
                objection to the sufficiency of the report not later than the 21st day after the
                date it was served, failing which all objections are waived.

        TEX. CIV. PR.Ac. & REM. CODE§ 74.35l(a) (Vernon 2005). If the expert report is not timely

        served, the ·trial court must dismiss the health care liability claim with prejudice. TEX. CIV.

        PRAC. & REM. CODE § 74.351 (b)(2); see also Vickv. Rangel, No. 04-05-00362-CV, 2005 WL

        2438375 (Tex. App.-San Antonio Oct 5, 2005) (mem. op.) ("Because Rangel failed to meet

        the deadline set forth in section 74.351(a), the trial court abused its discretion in vacating its

        earlier order granting Vick's motion to dismiss."), rev'd sub. nom. Methodist Health Care

        System of San Antonio, Ltd. v. Rangel, No. 04-05-00500-CV, 2005 WL 3445994 (Tex.

        App.-San Antonio Dec 14, 2005, pet. filed).

                The requirement of timely serving an expert report is based on the legislature's

        findings that the medical malpractice insurance crisis in Texas had a material adverse affect

        on the delivery of medical and health care in Texas, including the significant reductions of

        availability of medical and health care services to the people of Texas, and a likelihood of

        further reductions in the future, that the direct cost of medical care to the patient and public


                and the injury, harm, or damages claimed.

        TEX. CIV. PRAC. &REM. CODE§ 74.35l(r)(6).


                                                            -6-
materially increased due to rising costs of malpractice insuranc~. The legislature included

within House Bill 4 of the 78th Legislative Session, the following at section 10.11 of the bill

that enacted Chapter 74:

              SECTION 10.11.

              (a)     The Legislature of the State of Texas finds that:

                     ( 1)  the ll1:1ffiber ofhealth care liability claims (frequency) has
       increased since 1995 inordinately;

                     (2)    the filing of legitimate health care liability claims in
       Texas is a contributing factor affecting medical professional liability rates;

                     (3)    the amounts being paid out by insurers in judgments and
       settlements (severity) have likewise increased inordinately in the same short
       period;

                       (4)  the effect of the above has caused a serious public
       problem in availability of and affordability of adequate medical professional
       liability insurance;

                      (5)    the situation has created a medical malpractice insurance
       crisis in Texas;

                      (6)    this crisis has had a material adverse effect on the delivery
       of medical and health care in Texas, including significant reductions of
       availability of medical and health care services to the people of Texas and a
       likelihood of further reductions in the future;

                     (7)    the crisis has had a substantial impact on the physicians
       and hospitals of Texas and the cost to physicians and hospitals for adequate
       medical malpractice insurance has dramatically risen, with cost impact on
       patients and the public;

                      (8)   the direct cost ofmedical care to the patient and public of
       Texas has materially increased due to the rising cost of malpractice insurance
       protection for physicians and hospitals in Texas;




                                              ·1-
                       (9)     the crisis has increased the cost of medical care both
        directly through fees and indirectly through additional services provided for
        protection against future suits or claims, and defensive medicine has resulted
        in increasing cost to patients, private insurers, and Texas and has contributed
        to the general inflation that has marked health care in recent years;

                      (I 0) satisfactory insurance coverage for adequate amounts of
        insurance in this area is often not available at any price;
-.·
-~~ ·

                       ( 11) the combined effect of the defects in the medical,
        insurance, and legal systems has caused a serious public problem both with
        respect to the availability of coverage and to the high rates being charged by
        insurers for medical professional liability insurance to some physicians, health
        care providers, and hospitals; and

                     (12) the adoption of certain modifications in the medical,
        insurance, and legal systems, the total effect of which is currently
        undetermined, will have a positive effect on the rates charged by insurers for
        medical professional liability insurance.
··.
•..
                (b)    BecauseoftheconditionsstatedinSubsection(a)ofthis section,
        it is the pwpose of this article to improve and modify the system by which
        health care liability claims are determined in order to:

                       (1)    reduce excessive frequency and severity of health care
        liability claims through reasonable improvements and modifications in the
        Texas insurance, tort, and medical practice systems;

                       (2)    decrease the cost of those claims and ensure that awards
        are rationally related to actual damages;

                     (3)    do so in a manner that will not unduly restrict a claimant's
        rights any more than necessary to deal with the crisis;

                     (4)    make available to physicians, hospitals, and other health
        care providers protection against potential liability through the insurance
        mechanism at reasonably affordable rates;

                      (5)     make affordable medical and health care more accessible
        and available to the citizens of Texas;




                                              -8-
                                  (6) make certain modifications in the medical, insurance, and
                    legal systems in order to determine whether or not there will be an effect on
                    rates charged by insurers for medical professional liability insurance; and

                                   (7)    make certain modifications to the liability laws as they
                    relate to health care liability claims only and with an intention of the
                    legislature to not extend or apply such modifications of liability laws to any
                    other area of the Texas legal system or tort law.
     ..·
:.   ,.
             Act of June 2, 2003, 78th Leg. R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847 (current

             version at TEX. Crv.PRAc.&REM.CODE §§ 74.001-.507 (Vemon2005)). In order to ensure

             the legitimacy of health care liability claims, the legislature made the service of an expert

             report a "threshold" requirement to pursuing a health care liability claim. See Murphy v.

             Russell, 167 S.W.3d 835, 838 (Tex. 2005)(discussingformerstatute). Thus, in keeping with

             the legislative intent, when no expert report is served within the 120-day deadline, the trial

             court will abuse its discretion when it denies a motion to dismiss. See Kendrick v. Garcia,

             171 S.W.3d 698, 704 (Tex. App.-Eastland, Aug. 18, 2005, pet. filed) (reversing trial court's

             order denying motion to dismiss where experts' reports were served before 120-day deadline,

             but never served). When a trial court abuses its discretion in this manner, section

             51.014{a)(9) gives the health care provider the right to have the trial court,s decision

             reviewed by on appeal.

                    B.     Respondent Failed to Serve an Expert Report as Mandated by Section
                           74.351Within120 Days After the Date ofFilin& the Health Care Liability
     :-:;·
                           Claim; Thus. the Trial Court Was Required to Dismiss the Suit with
                           frejudice

                           1.     Respondent Failed to Timely Serve Any Expert Report

                    Section 74.35l(a) mandated that Respondent serve a sufficient expert report on


                                                          -9-
         Petitioner before the expiration of the I 20th day since filing the health care liability claim.

         See TEX. C1v.PRAc. &REM. CODE§ 74.35l(r)(6). Respondentfiledherhealthcare liability

         claim against Petitioner on October 24, 2003. {l CR 5). Pursuant to section 74.35l(a),

         Respondent's deadline to serve the required expert report was February 23, 2004. See TEx.
..       Crv. PRAC. & REM. CODE§ 74.351 (a). Because Respondent failed to serve any expert report
:    .
         on Petitioner by Fe~ruary 23, 2004, Petitioner filed his motion to dismiss on the grounds that

         Respondent had failed to comply with section 74.3 51 (a) by not serving an expert report by

         the 120111 day after the lawsuit was filed. (See 1 CR 16). Petitioner requested dismissal of

         Respondent's cause of action with prejudice, as required under section 74.351 (b). (I CR 16).

         The trial court was required to dismiss Respondent's health care liability claim to satisfy the

         legislative mandate that suits be dismissed for failure to timely serve any expert report.

                        2.     The Trial Court Abused its Discretion in Denying Petitioner's Motion
                               to Dismiss Wlien No Expert Report Had Been Sened on Petitioner

                The trial court abused its discretion in denying Petitioner's motion to dismiss under

         section 74.3 51. A trial court abuses its discretion if it acts without reference to any guiding

         rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine

         Operators. Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court has no "discretion" in

         determining what the law is or applying the law to the facts. Walke,. v. Packer, 827 S. W.2d

         833, 840 (Tex. 1992). Thus, a clear failure by the trial court to analyze or apply the law

         correctly will constitute an abuse of discretion. Id.

                Because no expert report had been served on Petitioner by the 120111 day after the filing

         date, the trial court abused its discretion in denying Petitioner's motion to dismiss. Dismissal

                                                       -10-
...
       was mandatory. See Thoyakulathu v. Brennan, No. 06-05-00070-CV, 2006 WL 1096191,
.,,.

       at *4 (Tex. App.-Texarkana April 27, 2006, no pet. h.). The Brennan Cowt of Appeals

       acknowledged what is apparent from the statute itself, that without service of an expert

       report, the case must be dismissed:

              Brennan concedes he did not timely serve Appellants with an expert report of
              any kind. There is no provision under which Brennan could seek or be granted
              an extension. Section 74.35l(c) applies only when an expert report was not
              "served" because it was inadequate, not when no report was served at all.

       Id. Employing strict construction ofsection'51.014(aX9), the Brennan Court of Appeals

       reasoned that its review was limited to the portion of the trial court's ruling that denied the

       motion to   dismi~s.   See id. at *l n.2 ("We strictly construe Section 51.014 as a narrow

       exception to the general rule that only final judgments or orders are appealable and,

       therefore, limit our review to the trial court's order denying the doctor's motion to dismiss.")

       (citing Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)).

              Perhaps most importantly, the Brennan Court of Appeals resolved the tension in the

       appealability of the denial of a motion to dismiss infavor of exercising its jurisdiction to

       consider the denial of the modon to dismiss:

              Inevitably, however, our holding that the trial court erred in denying
              Appellants• motion to dismiss affects the trial court's order granting the
              extension. 1bis consequence is consistent with and unavoidable under the
              structure of the statute. "[T]he relief a court grants under (b) is always 'subject
              to Subsection (c),' which allows a trial court to deny a defendant's motion to
              dismiss with fees and costs and instead grant a 30-day extension even where
              'an expert report has not been served within the period specified .. · because
              elements of the report are found deficient"' Acad. of Oriental Med., L.L. C.
              v. Andra, 173 S.W.3d 184, 188 (Tex. App.-Austin 2005, no pet). So, our
              actual determination will be whether, under Section 74.35l(b), the trial court
              was required to dismiss Brennan's claims against Appellants, in effect

                                                     -11-
                          determining whether the trial court lacked the authority to do anything else,
                          including granting an extension.

                   Id. The reasoning in Brennan is important here. There being no expert report, the trial court

                   had no discretion but to dismiss Respondent's health care liability claim. The CoW1 of

                   Appeals' refusal to exercise its jurisdiction to consider this specific issue constituted an error
      ~. · . w

•••   !...;":...

                   of law that this Court should review.

                          C.      Proper Statutory Construction of Section 51.014Ca)C9) Permits Appeal of
                                  the Denial of a Motion to Dismiss a Health Care Liability Claim for
                                  Failure to Serve an E:x;pert Report

                                  1.     Standard for Statutory Construction

                          Section 51.0 l 4(a)(9) gives the courts of appeal jurisdiction to consider the denial of

                   a motion to dismiss a health care liability claim for failure to file an expert report. Proper

                   statutory construction of section 51.014(a)(9} supports the Court of Appeals' jurisdiction.

                          It is "cardinal law in Texas that a court construes a statute, 'first by looking to the

                   plain and common meaning of the statute's words."' Fitzgerald v. Advanced Spine Fixation

                   Systems, Inc., 996 S.W.2d 864, 865 (Tex. 1999) (quoting Liberty Mut. Ins. Co. v. Garrison

                   Contractors, 966S.W.2d42,44(Tex.1998)};seealsoMokkalav. Mead, 178 S.W.3d66, 71-

                   72 (Tex. App.-Houston [14th Dist.] 2005, pet. filed).

                          In construing a statute, this Court's objective is to determine and give effect to the

                   legislature's intent. City ofSan Antonio v. City ofBoerne, 111S.W.3d22, 25 (Tex. 2003);

                   Mokkala, 178 S. W.3d at 71-72. The intent is detennined from the entire act, not just isolated

                   portions, and the statute is read as a whole, interpreting it so that every part is given effect

                   Mokkala, 178 S. W.3d at 71. Finally, even if a statute is unambiguous on its face, this Court

                                                                  -12-
              may consider matters including (1) the object the legislature sought to obtain; (2) the
f -· ·
'.
              circumstances under which the legislature enacted the statute; (3) the legislative history; (4)

              common law or former statutory provisions, including laws on the same or similar subjects;

              and (5) the consequences ofa particular construction. See id. (citing TEX. Gov'TCODEANN.

.": .......
              § 311.023 (Vernon 2005)) .

                            2.      Section 51.014(a)(9) Specifically Authorizes Jurisdiction over the
                                    Interlocutory Appeal of the Trial Court 1s Failure to Dismiss the
                                    Chapter 74 Health Care Liability Claim Where no Expert Report is
                                    Served by 12(/11 Day After Suit is Filed

                     Section 51.014(a)(9) grants jurisdiction in the courts of appeals to review an

              interlocutory appeal ofa denial of all or part of a motion to dismiss under section 74.35l(b)

              for failure to timely serve an expert report:
L·.
                     (a) A person may appeal from an interlocutory order of a district court, county
                     court at law, or county court that:
                                                              ***
                     (9) denies all or part of the relief sought by a motion under Section 74. 351 (b),
                     except that an appeal may not be taken from an order granting an extension
                     under Section 74.351;

              TEX. CIV.   PRAC.   & REM. CODE§ 51.014(a)(9); see also Raley v. Arboretum Group, No.

              10-06-00053-CV, 2006 WL 1280933, at *l (Tex. App.-Waco May 10, 2006, no pet. h.)

              (recognizing that the right to interlocutory appeal of an "order 'den[ying ] all or part of the

              relief sought by a motion under Section 74.351(b)"' but dismissing for lack of jurisdiction
····:
              where the claimant had appealed the granting of a motion to dismiss). Further, inMokkala,

              the Fourteenth Court of Appeals interpreted the legislative intent underlying section

              74.35 l(a) to determine that a "claim" means "a health care liability claim." Mokkala, 178



                                                              -13-
        S.W.3dat71 (interpreting section 74.351inaccordancewithActofMay5, 1995, 74thLeg.,
-··.·
        R.S., ch. 140, 1, 1995 Tex. Gen. Laws 985, 986 (setting forth expert-report procedure)).

        When sections 54.014(a)(9) and 74.351 of the Texas Civil Practice and Remedies Code are

        interpreted together in accordance with the legislative intent, it becomes apparent that the

        Court of Appeals had jurisdiction here to consider the appealable issue even though a non-

        appealable issue was present.

                             a.     The Interlocutory Appeal Statute is to be Strictly Construed,
                                    and Strict Construction Favors Interlocutory Appeal

               Section 51.014(a)'s authorization of interlocutory appeals is an exception to the

        general rule that only final judgments and orders are appealable. Andra, 173 S. W.3 d at 184-

        85. Thus, section 51.0l4(a}(9) must be strictly construed. Id. (citing Bally Total Fitness

        Carp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); Bexar Metro. Water Dist. v. City of

        Bulverde, 156 S.W.3d 79, 85 (Tex. App.-Austin 2005, pet. denied)).

               The Court of Appeals failed to strictly construe section 51.014(a)(9). Instead, the

        Court of Appeals applied only the exception to jurisdiction of interlocutory appeals found

        within subsection (a)(9). The Court of Appeals did not apply subsection (a)(9)'s general

        allowance for interlocutory appeals. Ifthe Court ofAppeals had strictly construed subsection

        (a)(9) and applied all of the statutory language, it should have concluded that it had

        jurisdiction over Petitioner's appeal because Petitioner challenged solely the trial court's

        denial of the motion to dismiss, a basis for jurisdiction in subsection (a)(9). This was

        precisely the construction of the statute noted in Brennan. See Brennan, 2006 WL 1096191,

        at *4. Because the Court of Appeals conducted an improper construction of section

                                                    -14-
51.014(a)(9), this Court should exercise its jurisdiction to review this matter.

                      b.      The Interrelatedness of an Extension of Time Under Section
                              74.351 and the Denial of a Motion to Dismiss Under Section
                              74.351 Does Not Defeat Jurisdiction over the Interlocutory
                              Appeal, and the Court of Appeals' Holding Confficts with
                              Other Courts of Appeals' Exercise of Jurisdiction Where
                              One Issue is Properly the Subject of Interlocutory Appeal
                              and One is Not

       Petitioner directed the Court of Appeals to a specific issue: the trial court 1 s failure to

dismiss the health care liability claim where no expert report had been served within 120 days

after the filing of the claim. Nevertheless, the Court of Appeals construed the brief against

Petitioner and interpreted it as focusing on the trial court's granting of an extension of time

to serve the expert report. See Badiga, 2005 WL 1572273, at *I. The Court of Appeals

claimed:

       Although appellant maintains that this interlocutory appeal is based on the
       120-day filing requirement wider section 74.35l(b), the briefs argwnents
       revolve solely around the legality of the trial court's granting of the 30-day
       extension under 74.35l(c). In other words, the substance of the appeal is
       directed at the legality of the 30-day extension.

Id. The lack ofjurisdiction over that ruling does not preclude statutory jurisdiction from the

Court of Appeals. Instead, the Court of Appeals maintained the jurisdiction specifically

provided for in subsection (a)(9)-jurisdiction over a trial court's denial of a motion under

section 74.351 (b).

       Other courts of appeals have recognized that they have jurisdiction over a case even

if one issue is properly the subject of an interlocutory appeal and one is not. See, e.g., Letson

v. Barnes, 919 S.W.2d 414, 417 (Tex. App.-Amarillo 1998, pet. denied) ("Yet, to the extent


                                               -15-
that the subject matter of a the non-appealable interlocutory order may affect the validity of

the appealable order, the non-appealable order may be considered."); America Online, Inc.

v. Williams, 958 S.W.2d 268, 271 (Tex. App.-Hous. [14 Dist.] 1997, no writ) (although the

appellate court lacked jurisdiction over certain matters, "the appellate court has jurisdiction

over matters related to certification that are also included in the order.") (citing American

Express Travel Related Servs. Co. v. Walton, 883 S.W.2d 703, 707 (Tex. App.-Dallas 1994,

orig. proceeding) (since the trial court had disposed of issues of class size and notification

in its order certifying the class, the appellate court had jurisdiction to review those collateral

issues)); Texas R.R. Comm'n v. Air Prods. & Chems., Inc., 594 S.W.2d 219, 221-22 (Tex.

Civ. App.-Austin 1980, writ refd n.r.e.) ("Non-appealable interlocutory orders cannot be

attacked in an appeal from an appealable interlocutory order, except insofar as the question

raised might affect the validity of the appealable order.'l The Court of Appeals erred by

refusing to exercise its jurisdiction over the appealable issue.

       In fact, to allow the inextricable presence of an non-appealable matter to defeat the

grant of jurisdiction over an appealable matter would render the specific statutory grant of

jurisdiction a nullity. Cf Letson, 919 S.W.2d at 417; Williams, 958 S.W.2d at 271; Air

Prods. & Chems., Inc., 594 S.W.2d at 221-22. Here, the reasoning of the Court of Appeals

- applying the exception to appealability first - did indeed render section 51.014(a)(9) a

nullity. The Court of Appeals' opinion demonstrates that it did not first consider and apply

the primary language of section 51.0 l 4(a)(9), which permits appeal. Instead, the Court of

Appeals first applied the exception:
       The language of section 51.014(a)(9) excludes the possibility of an
       interlocutory appeal regarding the 30-day extensions granted under section
       74.351(c), and thus does not create the exceptionaljwisd.iction necessary for
       this Court to hear appellant's claim. See Tex. Civ. Prac. & Rem. Code Ann.
       § 51.014(a)(9).

Badiga, 2005 WL 1572273, at *1. By jumping to the exception first, the Court of Appeals

overrode the legislature's specific allowance permitting the appeal of the denial of a motion

to dismiss under Chapter 74.

       Accordingly, while the Court of Appeals certainly had express jurisdiction over the

trial court's denial ofPetitioner's motion to dismiss filed pursuant to section 74.351 (b). And

to dismiss the appeal for lack of jurisdiction constituted a failure to properly construe the

grant of jurisdiction contained in section 51.014(a)(9). See Letson, 919 S.W.2d at 417;

Williams, 958 S.W.2dat271;Air Prods. & Chems., Inc., 594 S.W.2d at221-22. The Court

of Appeals' decision in this matter conflicts with other courts of appeals' decisions on a

question of law material to the decision regarding a court of appeals' jurisdiction over

interlocutory appeals. See Brennan, 2006 WL 1096191, at *1 n.2; see also Letson, 979

S.W.2d at 417; Williams, 958 S.W.2d at 271; Air Prods. & Chems., Inc., 594 S.W.2d at

221-22.

                      c.     Additionally, Other Courts Have Recognized a Right to an
                             Interlocutory Appeal Under Section Sl.014(a)(9) from the
                             Denial of a Motion to Dismiss

       Other courts have recognized a legislatively-enacted right to pursue an interlocutory

appeal from an order denying a motion to dismiss where no expert report was timely served.

See, e.g., Christus Health Southeast Texas v. Griffin, 175 S.W.3d 548, 552 (Tex.



                                             -17-
              App.-Beaumont Oct. 20, 2005, no. pet. h.) ("The additional legislation authorizing

              interlocutory appeal when a trial court denies a ~otion to dismiss for failure to [serve] an

              adequate expert report also applied 'only to an action filed on or after the effective date' of

              September 1, 2003."); Fort Worth Southwest Nursing Ctr., L.L.C. v. Bly, 2004 WL 314907,

...           at* 1 (Tex. App.-Fort Worth Feb. 19, 2004, no pet.); see also In re Women's Hosp. ofTexas,
•t   ......




              Inc., 141 S.W.3d 144, 148 (Tex. 2004) (Owen, J., concurring and dissenting) {noting that

              interlocutory appeal is available only in health care liability cases filed on or after September

              1, 2003).

                     In Bly, the Forth Worth Court of Appeals recognized that section 51.014(a)(9) allows

              interlocutory appeals from "orders denying motions to dismiss based on untimeliness of

              expert reports(.]" Bly, 2004 WL 314907, at *1 n.4 (emphasis added). Here, the issue in the

              trial court was the witimeliness of the expert report - in that no expert report at all had been

              timely served. Section 51.014(a)(9) specifically provides for an appeal for the failure to

              dismiss a case when no expert report has been timely served. See id. The issue was properly

              the subject of Petitioner's interlocutory appeal, and it did not fall within the "exception" to

              the interlocutory appeal. See Andra, 173 S.W.3d at 184-85 (recognizing that section

              51. 014(a)(9) " includes an exception: 'an appeal may not be taken from an order granting an

              extension under Section 74.351 "). Here, because the only issue appealed was the denial of

              the motion to dismiss, the issue fell within the statutory grant of jurisdiction in section

              51. 014(a)(9), and the Court of Appeals erroneously failed to exercise jurisdiction over the

              interlocutory appeals from the order denying the motion to dismiss. See TEX. CIV. PRAC. &


                                                            -18-
                              4.        The Legislative History Underlying House Bill 4 Supports the Court
.......:
                                        ofAppeals' Jurisdiction Over an Interlocutory Appeal

                     Section 51.014(a)(9) was added to the Texas Civil Practice and Remedies Code by

           legislation effective September 1, 2003. See Act of Sept. 1, 2003, 78th Leg., R.S. ch. 204,

           § 1.03, 2003 Tex. Gen. Laws 847 (current version at TEX. CIV. PRAC. & REM. CODE §§

           74.001-.507 (Vernon 2005)). It is noteworthy that the enactment coincided with the

           enactment of Chapter 74, and that the legislature specifically chose to codify the grant of

           jurisdiction in the section of the Texas Civil Practice and Remedies Code governing

           interlocutory appeals. Although there is little legislative history explaining the statutory

           addition of section 51.014(a)(9), the reference to "relief sought by motion under Section

           74.351 (b)" gives rise to consideration of the legislative history behind Chapter 74. 3 And in

           interpreting the enactment of section 51.014(a)(9), the Court may refer to the circumstances

           under which the legislature enacted sections 74.351(a) and (b) and section 51.014(a)(9). See

           Mokkala, 178 S.W.3d at 71-72.

                    Commentators recognize the House Bill 4 amendment to section 51.014 of the Texas

           Civil Practice and Remedies Code. See Michael S. Hull et al., House Bill 4 and Proposition

           12: An Analysis with Legislative History, Part Three, 36 TEX. TECH L.R. 169, 212 (2005)

           ("H.B. 4 amended Section 51.014 of the Civil Practice and Remedies Code, the section

.......
                               In speaking on the intent behind Chapter 74's expert report requirement, Representative Joe Nixon
           stated, "[T]be herd reality is we just need to make a hard and fast deadline, like we do on statue [sic] oflimitations-as
           we do on other requirements." Debate on Tex. H.B. 4 on the Floor of the House, 78th Leg., R.S. 317 {Mar. 19, 2003)
           (statement ofRep. Nixon) (transcript available from Capitol Research Services, Austin, Texas). He agreed that, ifHouse
           Bill 4 were passed, it meant that, if an attorney missed the deadline for "filing [sic]" the expert report. the plaintiffwould
           be barred from prosecuting that claim. Id. Thus, in keeping with the intent behind Chapter 74, the legislature's objective
           behind section 51.0 I 4(a}(9) was to authorize jurisdiction in the Courts ofAppeals overa trial court's failure to recognize
           that the plaintiff would be barred from prosecuting the claim for failing to serve any expert report within 120 days from
           the filing of suit.

                                                                       -20-
           regarding appeals from interlocutory orders ..."). Further, "the right of an interlocutory
.'.;', .

           appeal applies to cases in which either no report has been filed or a deficient report has been

           filed." Id. at 214. Here, no report was served by the 120-day deadline. Thus, in accord with

           the legislative intent underlying section 51.014(a)(9) in keeping with the intent behind

           Chapter 74, the Court of Appeals had jurisdiction over Petitioner's interlocutory appeal of

           the denial of the motion to dismiss. See id.

                          5.     The Court ofAppeals' Ruling Precludes an Appeal ofa Trial Court's
                                 Denial ofa Motion to Dismiss for No Expert Report Where the Trial
                                 Court Also Grants an Extension

                                 a.         The Court of Appeals Improperly Construed Petitioner's
                                            Appeal, Disregarding Petitioner's Single Issue, the
                                            Arguments of Petitioner and Respondent, Sections 74.351(a)
                                            and (b), and Petitioner's Right to Appeal Under Section
                                            51.014(a)(9)

                  As stated, section 51.014(a)(9) provides for a right to appeal any denial of a motion

           to dismiss for failure to serve an expert report under section 74.351 (a). Petitioner filed his

           interlocutory appeal as authorized by this section. Within his briefing, Petitioner repeatedly

           emphasized that the appeal concerned the trial court's denial of the motion to dismiss:

                  Appellant requests the Appellate Court vacate the trial court's order ofAugust
                  10, 2004, denying Appellant's Motion to Dismiss pursuant to TEX. CIV. PRAC.
                  & REM. CODE § 74.3 51 (b) and order this case dismissed with prejudice.
                                                          ***
                                                 ISSUES PRESENTED
                  Issue 1:
!··:


                  Did the trial court err in denying Appellant's Motion to Dismiss under Texas
                  Civil Practice & Remedies Code§ 74.351(b), when Appellee failed to file an
                  expert report within 120 days after the date Appellee's claim was filed?

           (Appellant's Brief at I, 2, ).

                                                          -21~
       Appellant is not challenging the adequacy of Plaintiffs expert report through
       this appeal. To do so would be improper. Appellant is challenging the trial
       court's ruling denying Defendant's Motion to Dismiss based on Plaintiffs
       failure to file an expert report within 120 days ofthe filing of suit as prescribed
       by TEX. Crv. PRAc. &REM. CODE§ 74.35l(a) and (b).
                                             ***
       Therefore, the only issue on appeal is whether the trial court erred in denying
       the Appellant's Motion to Dismiss under TEX. Crv. PRAC. & REM. CODE§
       74.35l(b). when theAppelleefailed to file an expert report within 120 days of
       the date the claim was filed.

(Appellant's Reply at 3-4). Even Respondent recognized that the scope of the appeal was

limited to the denial of Petitioner's motion to dismiss:

       This appeal stems from an Order denying Appellant's Motion to Dismiss the
       medical malpractice action filed by Appellee against Appellant (Ct. R., at 5).
       The basis of Appellant's Motion to Dismiss was that Appellee failed to file an
       expert report within 120 days after filing suit in accordance with the Texas
       Civil Practice & Remedies Code§ 74.351.
                                              ***
       [T]he Defendant/Appellant's challenge is rooted only in the 120-day
       requirement, which the trial court denied.

(Appellee's Brief at 1, 3). Despite the stated scope of the appeal, the Court of Appeals

construed Petitioner's argument as concerning solely the granting of the extension:

       Although appellant maintains that this interlocutory appeal is based on the
       120-day filing requirement under section 74.35l(b), the briefs arguments
       revolve solely arowid the legality of the trial court's granting of the 30-day
       extension under 74.35l(c). In other words, the substance of the appeal is
       directed at the legality of the 30-day extension.
                                              ***
       Any relief that appellant could obtain from section 74.351 (b) would turn upon
       appellee's failure to produce a sufficient report within the required 120-day
       time period. However, this time period was extende.d 30 days by the trial court
       pursuant to section 74.35l(c) .... Since the sufficiency of the report is not an
       issue, this Court is left only to consider the issue of the legality of the 30-day
       extension provided by the trial court.

(Tab A at 3). The Court of Appeals disregarded Petitioner's plainly-stated issue, the thrust

                                              -22-
              of Petitioner's and Respondent's arguments, and Petitioner's statutory right to appeal the

              denial of the motion to dismiss, to conclude that Petitioner appeared to have argued "solely''

              the legality of the extension.

                     In construing Petitioner's briefing narrowly to only encompass the non-appealable

.,   ~·   r
              issue, the Court of Appeals failed to liberally construe Petitioner's issue to obtain a just, fair,

              and equitable adjudication of Petitioner's rights. See Sterner v. Marathon Oil Co., 767

              S.W.2d 686, 690 (Tex. 1989) ("[I]t is our practice to construe liberally points of error in

              order to obtain a just, fair and equitable adjudication of the rights of the litigants."); see also

              Reardon v. LightPath Technologies, Inc., 183 S.W.3d 429, 443 (Tex. App.-Hous. [14 Dist.]

              2005, pet. denied) ("We construe briefing rules reasonably yet liberally, so that the right to

              appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of

              a rule.,,)(citing Republic Underwriters Ins. Co. v.Mex.-Texlnc., 150 S.W.3d423,427 (Tex.

              2004); Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54-55 (Tex. 1998V'). The Court

              of Appeals effectively denied Petitioner the right to appeal specifically provided for in

              section 51.014(a)(9). The Court of Appeals should have considered the appealable issue

              even though a non-appealable issue was present.

                                     b.     The Issue is Likely to Recur

                     The issue presented is likely to recur. In fact, the Third Court ofAppeals recently held

              that no right to appeal exists unless the trial court denies a motion to dismiss under section

              74.351 only ifit does not also grant an extension of time to cure the deficiencies. See Heart

              Hosp. ofAustin v. Matthews,_ s. W.3d _,No. 03-05-00317-CV, 2006 WL 1194881 (Tex.


                                                             -23-
                    App. -Austin, May 5, 2006, no pet. h.). In Matthews, a similar situation arose entailing the

                    denial of a motion to dismiss and grant of an extension to cure deficient expert reports:

                           In this case, appellees filed several reports attempting to satisfy section 74.3 51.
                           Ogletree objected to those reports and also moved for dismissal under
                           subsection 74.351(b). The trial court agreed that the reports were deficient as
                           to Ogletree, but exercised its discretion to grant appellees an extension of time
      ~·~..: ·. -
                           to file satisfactory reports under subsection 74.351(c) and denied Ogletree's
                           motion to dismiss. Because the trial court's denial of Ogletree's motion also
                           granted an extension under subsection 74.3Sl(c), an interlocutory appeal may
                           not be brought from the court's order. We lack jurisdiction over Ogletree's
                           appeal and therefore dismiss Ogletree's appeal for want of jurisdiction.

                    Id. at *3. The Third Court of Appeals reasoned that no right to appeal exists where the

                    appealable portion of the trial court's order was combined with the non-appeal able portion:

                           [A]n interlocutory appeal from the denial of a motion to dismiss under
                           subsection 74.3 51 (b) is proper only ifthe trial court's order does not also grant
                           an extension under subsection 74.35l(c). Id. To hold otherwise would
                           essentially eliminate the phrase "an appeal may not be taken from an order
                           granting an extension under Section 74.351,, from subsection 51.014(a)(9).

                    Id. Apparently, the Matthews Court of Appeals employed the same erroneous reasoning as

                    the Court of Appeals here in concluding that the presence of the non-appealable grant of an

                    extension eliminated· the right to appeal. Although Matthews is similar to Petitioner's

                    situation in some respects, it is also distinguishable from the instant situation. Contrary to

                    the Matthews facts, here, no expert report was served on Dr. Badiga. Thus, the trial court had

                    before it no expert report and was required to dismiss the lawsuit.
·:~   '   ..
                           The Third Court of Appeals in Matthews followed a footnote in its prior opinion in

                    Andra, 173 S. W.3d 184 (Tex. App.-Austin 2005, no pet.). In Andra, the Third Court of

                    Appeals addressed the argument of whether the trial court's denial of a motion to strike an


                                                                   -24-
expert report was appealable under section 51.014(a)(9). See id. at 184. The appellants had

requested that the trial court strike the report but did not request the relief outlined in section

74.351(b): dismissal with prejudice and attorney's fees. See id. at 186. The appellants also

did not assert that no expert report had been timely served because the deadline had not run

at the time appellants filed the motion. See id. Consequently, the Third Court of Appeals

construed the appellants' motion to strike as a motion for relief under section 74.351(1), not

under section 74.351 (b); thus, there was no interlocutory jurisdiction under 54.0 l 4(a)(9). See

id. In a footnote, the Third Court of Appeals noted:

          The grant of an extension to the plaintiff can be a denial of a defendant's
          motion under 74.35l(b). Section 51.014(a)(9) generally makes such denials
          the proper subject of an interlocutory appeal. Id. § 51.104(a)(9) (West Supp.
          2004-05).

Id. at 188 n.7. However, the Andra Court of Appeals continued:

          Rather than inviting us to assume jurisdiction over interlocutory appeals of
          denials of motions other than motions for relief under section 74.35l{b), the
          exception in 51.014(9) clarifies that an interlocutory appeal is only available
          when the court had denied a defendant's motion but had not granted the
          plaintiff additional time to cure deficiencies. See id. §§ 51.014(9); 74.35l(b),
          (c).

Id. Under the reasoning of the Third Court of Appeals and the Court of Appeals in this case,

the granting of an extension eliminates the right to appeal the denial of the motion to dismiss.

See id.

          One other court of appeals, the Tenth Court of Appeals, has recognized the need for

clarity regarding the appealability of interlocutory orders denying relief requested under

section 74.351 and granting an extension: "Though it is not entirely clear where the line is


                                                -25-
            to be drawn between the denial of a motion to dismiss under section 74.35l(b) and the

            granting of an extension under section 74.3 51 (c), the defendant is expressly prohibited from

            bringing an appeal from an order granting such an extension." Lewis v. Funderburk, No.

            10-05-00197-CV, 2006 WL 870943, at *3 (Tex. App.-Waco April 5, 2006, no pet. h.).

::   ~~~:   Funderburk had filed suit on December 22, 2003, so the 120-day statutory deadline for

            Funderburk to serve an expert report on Lewis was April 20, 2004. There being on timely

            served expert report, Lewis filed a motion to dismiss on June 28, 2004. The court denied

            Lewis' motion to dismiss and granted Funderburk's motion for a 30-day extension. See id.

            at *1. Thereafter, Funderburk timely served an expert report. See id. Lewis responded with

            a second motion to dismiss due to the inadequacy of the expert report, coupled with a motion

            for reconsideration of the prior denial of the first motion to dismiss and an objection to the

            sufficiency of plaintiffs expert report. See id. The trial court denied the motions, and Lewis

            filed a notice of appeal.

                   The majority determined that notice of appeal was filed too late after the denial of the

            first motion to dismiss; thus, there was no appellate jurisdiction to consider the trial court's

            ruling that combined the denial of the motion to dismiss with the grant of an extension. See

            id. at *2. The Tenth Court of Appeals characterized the second motion to dismiss and

            objections to adequacy of the expert report as challenges to the expert report under section

            74.3 51 (/). See id. at *3. There being no appellate jurisdiction for a defendant's appeal of the

            denial of a section 74.351(/) motion, the majority dismissed the appeal for want of

            jurisdiction. See id. at *4.


                                                          -26-
       Chief Justice Gray dissented, recognizing that the first order bad denied the motion

to dismiss and granted an extension. See id. at *4-5. But even then, the court of appeals had

jurisdiction because the following expert report was deficient:

       the challenge to the sufficiency of an extended report is still a challenge
       pursuant to section 74.351(b) that no compliant report has been timely served
       as required by section 74.351(a). And the denial of all or part of the relief
                                                                11


       sought by a motion under Section 74.351(b)" by a defendant can be reviewed
       by interlocutory appeal. Tex. Civ. Prac. & Rem. Code Ann.§ 51.014(a)(9).

See id. at *4-5. However, the dissent followed Andra, reasoning that in order "to give effect

to all parts of the statute, the exception requires that the defendant must wait and appeal

objections to the extended report, including that there was never a report upon which the

extension could be based!' Id. at *8 (citing Andra, 173 S.W.3d at 188 n.7).

       The interpretation adopted by the Third and Thirteenth Courts of Appeals (and

recognized by the Tenth Court of Appeals in dissent) conflicts with the line of case authority

considering appealable interlocutory rulings even when coupled with non-appealable

interlocutory rulings. See, e.g., Brennan, 2006 WL 1096191, at *4; Letson, 919 S.W.2d at

417; Williams, 958 S.W.2d at 271; Air Prods. & Chems., Inc., 594 S.W.2d at 221-22. Such

interpretation also works an injustice because it precludes any defendant's right to appeal the

denial of the motion to dismiss for failure to serve an expert report when the trial court grants

an extension - even if no expert report had been served. As stated above, the legislature

intended the 120-day deadline to be a mandatory date - only if the claimant had served a

deficient report could an extension be granted. The legislature provided no such leeway for

the failure to serve a11y expert report. See Mokkala, 118 S. W.3d at 74-76.


                                              -27-
                  According to the Court of Appeals' opinion, if the trial court refuses to dismiss and

           grants an extension, or if the trial court grants an extension because a report was timely

           served but was deficient, any appeal therefrom would "revolve solely around the legality of

           the trial court's granting of the 30-day extension under74.351(c)." (Tab A at2). The Court

_: --. :   of Appeals' reasoning is based on a misconstruction of section 51.014(a)(9) which is likely

           to recur and which would preclude any defendant's right to appeal the denial of a motion to

           dismiss for no expert report when the trial court grants an extension. Because this result

           conflicts with a defendant's right interlocutory appeal, this Court should exercise its

           discretion to review this matter. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9); Bly, 2004

           WL 314907, at *I n.l; Michael S. Hull et al., House Bill 4 and Proposition 12: An Analysis

           with Legislative History, Part Three, 36 TEX. TECH L.R. 169, 212-214 (2005).

                  D.     This Court has Jurisdiction Over this Interlocutory Appeal

                         1.     The Court has Jurisdiction to Determine if the Court of Appeals
                                Properly Declined to Exercise its Jurisdiction

                  This Court has jurisdiction "to determine whether or not the Court of Civil Appeals

           has jurisdiction of the interlocutory orders from which the appeals were attempted." Long

           v. Humble Oil & Refining Co., 380 S.W.2d 554, 555 (Tex. 1964) (citing McCauley v.

           Consolidated Underwriters, 304 S.W.2d 265 (Tex. 1957)), cited in University of Texas

           Medical Branch at Galveston v. Barrett, 159 S.W.3d 631, 633 n.8 (Tex. 2005); see also Del

           Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). "[E]ven when an appeal

           is interlocutory, we have jwisdiction to determine whether the court of appeals has

           jurisdiction of the appeal." University of Texas Southwestern Medical Center ofDallas v.

                                                       -28-
Margulis, 11S.W.3d186, 187 (Tex. 2000) (citingAwde v. Dabeit, 938 S.W.2d31, 32 (Tex.

1997); De Los Santos v. Occidental Chem. Corp., 933 S.W.2d 493, 494 (Tex. 1996); Del

Valle, 845 S.W.2d at 809; Long, 380 S.W.2d at 555).

       In Del Valle, the issue was whether the court of appeals had properly declined to

exercise its jurisdiction over an interlocutory appeal of an order granting a temporary

injunction. "Though appellate review is generally limited to final judgments, a court of

appeals may consider an interlocutory order that grants a temporary injunction." Del Valle,

845 S.W.2dat809 (citingTEX.CIV.PRAc.&REM.CODE §§ 51.012, 51.014(4)). Jurisdiction

turned on whether the trial court's order could have been "properly be characterized as a

temporary injunction.,, ld. The trial court's order provided mandatory, temporary relief

pending final resolution of the case. Id. But it did not state that it was a writ of injunction.

Id.   Determining that the character and function of the order itself determines its

classification, the Court reasoned that the order was a temporary injunction.                Id.

Consequently, the court of appeals should have exercised jurisdiction over the interlocutory

appeal. Id.

       Here, this Court has jurisdiction to determine whether the court of appeals erred in

refusing to consider the trial court's denial of Petitioner's motion to dismiss. The Court may

exercise its jurisdiction commensurate with its reasoning in Long and Del Valle and review

the court of appeals' detennination that it lacked jurisdiction over Petitioner's interlocutory

appeal under section 51.014(a)(9).




                                              -29-
                            2.       This Court has Also Jurisdiction Over This Interlocutory Appeal
                                     Because ofA Conflict in the Courts ofAppeals

                                      a.       This Court has Recognized Jurisdiction Where Courts of
                                               Appeals' Decisions Conflict

                   This Court has jurisdiction over this interlocutory appeal because of a conflict in the

;_. _·•
          courts of appeals concerningjurisdiction to consider rulings that involve appealable and non-

          appealable issues.          See   TEX. GOV'T CODE            §§ 22.225(b)(3), 22.225(c), 22.00l(a)(2).4

          Although this Court generally does not have jurisdiction to consider a petition from an

          interlocutory appeal, there is an exception for cases in which one of the courts of appeals

          holds differently from a prior decision of this Court. See Thomas v. Long, No. 03-0204, 2006

          WL 1043429, at *2, 49 Tex. Sup. Ct. J. 532 (Tex. April 21, 2006) ("We have jurisdiction

          over this interlocutory appeal because there is a conflict among the courts of appeals on

          whether a governmental unit's challenge to subject matter jurisdiction is appealable if raised

          in a motion for summary judgment."); Van LS.D. v. McCarty, 165 S.W.3d 351, 352 (Tex.

          2005) (concluding conflict existed between opinion of court of appeals and prior decision of

          this Court and, thus, exercising jurisdiction over interlocutory appeal of denial of plea to

          jurisdiction and reversing denial and dismissing case for want of jurisdiction). Thus, this

          Court may consider an interlocutory appeal where there is a bona fide conflict between

          appellate courts. See id. at§ 22.225(c); see also Gross v. Innes, 988 S.W.2d 727, 729 (Tex.

          1998) (per curiam). In Gross, this Court concluded:


                   4
                             Section 22.001 was amended in 2003 to add subsection (e), which provides that one court "holds
          differently from another" for purposes ofsection 22.002(a)(2) "when there is inconsistency in their respective decisions
          that should be clarified to remove unnecessary uncertainty in the law and unfairness to the litigants." TEX. GoYI'CODE
          §§ 22.00l(e), 22.22S(c).

                                                                   -30-
             Thus, we can exercise jurisdiction over an appeal from a [sic] interlocutory
:;:
             order under section 51.014(a)(5) only when there is a dissent or a conflict.

      Id. (recognizing the exception in the context of an interlocutory appeals from certain

      summary judgments involving immunity. See              TEX.   CIV.   PRAC.   &   REM. CODE   § 51,

      014(a)(5)).

                            b.      Courts of Appeals' Decisions Conflict on Jurisdiction Over
                                    Case When Appeal Involves Appealable and Non~
                                    Appealable Issues in the Context of an Interlocutory Appeal

             Here, there is a conflict among the courts of appeals on the important issue of

      appellate jurisdiction over a case where one issue is properly the subject of an interlocutory

      appeal and one is not. As explained above, several courts of appeals recognize their

      jurisdiction over mixed interlocutory issues. See, e.g., Letson, 979 S.W.2d at 417; Williams,

      958 S.W.2d at211;Air Prods. & Chems .. Inc., 594 S.W.2dat221-22. The decisions by the

      Third5 and Thirteenth Courts of Appeals 6 (and as recognized by the Tenth Court of Appeals

      in dissent7) that no appellate jurisdiction exists when a interlocutory appeal involves

      appealable and non-appealable issues conflicts with the line of case authority considering

      appealable interlocutory rulings even when coupled with non-appealable interlocutory

      rulings. See, e.g., Brennan, 2006 WL 1096191, at *4; Letson, 979 S.W.2d at 417; Williams,

      958 S.W.2d at 271; Air Prods. & Chems .. Inc., 594 S.W.2d at 221-22. Such interpretation

      also works an injustice because it precludes any defendant's right to appeal the denial of the



                    Matthews, 2006 WL 1194881, at *3;Andra, 173 S.W.3d at 184.

                    Badiga, 2005 WL 1572273.

                    Lewis, 2006 WL 870943, at *3.

                                                      -31~
                motion to dismiss for failure to serve an expert report when the trial court grants an extension

                - even if no expert report had been served.

                       Moreover, to date, no Texas authority instructs that this Court does not have

                jurisdiction in this matter (i.e., an interlocutory appeal involving the denial of a motion to

-. ;: .....~:
~;     ~~
                dismiss pursuant to section 74.351). Likewise, no Texas authority instructs that the courts

                of appeals are the courts of last resort over this particular type of interlocutory appeal. And

                at this point, the Court has before it petitions for review in at least three other cases involving

                section 74.351 of the Texas Civil Practice and Remedies Code. See, e.g., Mokkala, 178

                S.W.3dat66;Kendrick, 171 S.W.3d698; Group/IL D.C. v. Vincento, 164S.W.3d 724(Tex.

                App-Houston [14th Dist.] 2005, pet. filed).           This Court has jurisdiction over these

                interlocutory appeals concerning rulings on motions to dismiss for failure to comply with the

                statutory expert report requirements of section 74.351 of the Texas Civil Practice and

                Remedies Code where the court of appeals opinion in such matters conflicts with an opinion

                of a sister court of appeals.

                       WHEREFORE, PRE1\1ISES CONSIDERED, Defendant/Appellant/Petitioner S.

                Murthy Badiga, M.D. respectfully moves this Court grant his Petition for Review, and set this .

                matter for oral argument, and upon submission or within a per curiam opinion, reverse and

                remand the case to the Court of Appeals for consideration of Petitioner's substantive issues.

                Petitioner also prays for such other and further relief, general or special, at law or in equity,

                as this Court deems just.




                                                               -32-
Respectfully submitted,

COOPER & SCULLY, P.C.



By:-~---·     ' ...___...<i.:..._...·.._~-1-~"-----­
     ..............
        R. BRENT COOPER ~
        Texas Bar No. 04783250
        DIANA L. FAUST
        Texas Bar No. 00793717
        WILLIAM J. AKINS
        Texas Bar No. 24011972

900 Jackson Street, Suite 100
Dallas, Texas 75202
TEL: (214) 712-9500
FAX: (214) 712-9540

ATTORNEYS FOR PETITIONER
S. MURTHY BADIGA, M.D.




 -33-
                                     CERTIFICATE OF SERVICE
.·.. .
•' •


                The undersigned certifies that on May ~~ 2006, a true and correct copy of the
         foregoing Brief on the Merits was served on counsel of record as indicated below.

         Mr. E. A. Villarreal, Jr.                                             VIACMRRR
         Law Office ofE. A. Villarreal, Jr.
         1320 South 10th Street
         Edinburg, Texas 78539
         Counsel for Respondent
         Maricruz Lopez

         Mr. Steven Gonzalez                                      VIA FIRST CLASS MAIL
         Mr. Edward Castillo
         Gonzalez, Gaytan, Garza & Castillo, L.L.P.
         1317 E. Quebec Avenue
         McAllen, Texas 78503
         Trial Counsel for Petitioner
         S. Murthy Badiga, M.D.




                                                  -34-
                                  ORAL ARGUMENT REQUESTED
.·. •·

                                              NO. 05-0801


                                           IN THE
                                   SUPREME COURT OF TEXAS


                                     S. MURTHY BADIGA, M.D.,
                                            Petitioner,

                                                    v.

                                         MARICRUZ LOPEZ,
                                            Respondent.


                                  On Petition for Review from the
                    Thirteenth District Court of Appeals at Corpus Christi, Texas
                                         No. 13-04-00452-CV


                    APPENDIX TO BRIEF ON THE MERITS OF PETITIONER


               In compliance with Rule 38. lG) of the Texas Rules ofAppellate Procedure, Petitioner

         S. Murthy Badiga, M.D. submits this Appendix to his Brief on the Merits containing the

         following items:

               Tab A:        Memorandwn Opinion and Judgment of the Court of Appeals: No. 13-
                             04-00452-CV, 2005 WL 1572273 (Tex. App.-Corpus Christi 2005, pet.
                             filed) (copy and Westlaw version included)

               TabB:         August 10, 2004 Order Denying Motion to Dismiss (1CR196)
                      APPENDIXB

Badiga v. Lopez, RESPONDENT'S NOTICE OF INTENT TO RELY ON
RESPONDENT'S RESPONSE TO PETITION FOR REVIEW AND THE
     RESPONDENT'S RESPONSE TO PETITION FOR REVIEW
                                                                                   LAW OFFICE OF
                                                             E. A. VILLARREAL, JR., P.C.
                            FILED                                                 1320 South 10th Street
                    1N SUPREME COURT                                              Edinburg, Texas 78539
                        OF1'EXAS                                      E-Mail: attoneybetovlU1rreal@Y1hoo.com
                                                                                              (956) 383-6902
                    JI 'N   1 4 2006                                                       Fu (956) 383-6995

June 13, 2006
                   ANOAEW WEBER. O.rtt
                    By
VIA: Lone Star Ovemi&flt
                              Deputy                                          ORIGINAL
Mr. Andrew Weber, Clerk
Supreme Court of Texas
Supreme Court Building
201 W. 14th Street, Rm 104
Austin, Texas 78701
512-463-1312

Re:     S. Murthy Badiga, M.D. Petitioner vs. Maricruz Lopez, Respondent
        Supreme Court of Texas, No. 05-0801
        Cause No. C-2711-03-B; Maricruz Lopez vs. S. Murthy Badiga, M.D .
      . Court of Appeals Cause No. 13-04-00452-CV

Dear Mr. Weber:

This letter will serve as notice that we intend to rely on the Respondent's Response to Petition for
Review which is already on file and as such will not be filing a response to Petitioner's Brief on the
Merits. We have enclosed twelve copies ofthis letter with the original which we respectfully request
be filed with the above-reference matter.

Further, please return a file-stamped copy of one of the letters in the enclosed self addressed stamped
envelope.

By copy of this letter, we are forwarding a copy of same to all counsel ofrecord. Thank you for your
cooperation in this matter.

Sincerely,

LAW OFFICE OF E. A. VILLARREAL, JR., P. C.

                 ~L/6
                                    R.
       Attorney at Law

EAV:ch
XC: Our File No.
cc:  Edward Castillo, Via Fax 956-618-0445 and Regular Mail.
     R. Brent Cooper, Cooper & Scully, Via Fax 214-712-9540 and Regular Mail
     Rosmarie Kanusky, Fulbright & Jaworski, Via Fax 210-270-7205 and Regular Mail
                   No. 05-0801




                      IN THE
              SUPREME COURT OF TEXAS




              S. MURTHY BADIGA, M.D.
                    Petitioner

                        v.

                  MARICRUZ LOPEZ
                    Respondent




On Petition for Review from the Thirteenth Court of
          Appeals at Corpus Christi, Texas
                 No. 13-04-00452-CV




          RESPONSE TO PETITION FOR REVIEW
                 TABLE OF CONTENTS

1.   TABLE OF CONTENTS                ii

2.   INDEX OF AUTHORITIES            iii

3.   STATEMENT OF JURISDICTION        vi

4.   ISSUES PRESENTED                  v

5.   SUMMARY OF THE ARGUMENT           1

6.   ARGUMENT                          2

7.   PRAYER                            9




                                       II
                      INDEX OF AUTHORITIES

Case

America Online v. Williams,
    958 S.W. 2d 268 (Tex. App.-Hous.     [14 Dist.]
    1997, no writ)                                            6

American Express Travel Related Servs. Co v. Walton,
    883 S.W. 703 (Tex. App.-Dallas 1994, orig.
    proceeding)                                      6

American Transitional Care Ctrs. V. Palacios,46
    S.W.3d 873, 875 (Tex.2001)   . . .                       12

Black v. Bankers Ins. Co.,
     478 S.W.2d 434, 437 (Tex. 1972)                          7

Christus Health Southeast Texas v. Griffin,
     2005 WL 2666473 .                                        9

Coastal Corp. v. Garza,
    979 S.W.2d 318 Tex.1998)                                 10

Fort Worth Southwest Nursing Center, LLC v. Bly,
     2004 WL 314907 (Tex.App. Ft. Worth)                      9

Gonzalez v. Avalos,
    907 S.W.2d 443 (Tex.Sup.Ct. 1995)                 2,    4, 5

Hajek v. Bill Mowbray Motors, Inc.,
     647 S.W.2d 253 (Tex.1983)                                5

Kilroy v. Kilroy,
     (Tex. App. Houston [1st Dist.] May 6th, 2004, no

       pet) .                                                 1

Letson v. Barnes,
     979 s.w.2D 414    (Tex. App.-Amarillo 1998, pet.
     denied)                                                   6



Mokkala v. Mead,
178 S.W.3d 66, 2005 WL 1377766 (Tex.App.-Hous.        (14
Dist.))                                                      12

                                                              iii
           •



New York Underwriters Ins. Co. v. Sanchez,
    799 S.W.2d 677, 679 (Tex. 1990).                                 1

Resendez v. Johnson,
     52 S.W.3d 689, 156 Ed. Law Rep.1450,       44
     Tex.Sup.Ct.J.336 (Tex.2001).                                10

Russ v. Titus Hospital District,
     128 S.W.3d 332 (Tex.App. - Texarkana 2004) 12, 13

Sayre v. Mullins,
     681 S.W.2d 25, 27-28         (Tex. 1984)                        8


Statues, Rules & Constitutions

Civil Practice & Remedies Code

               Chapter 74                                            9
               §§51. 014 (a) (4                 3,    4,   5,   7,
               9I   11
               §§51.014(a) (9)
                       vi, 1, 2, 3, 4, 6, 7, 8, 9, 10,13,14
               §§74.351(b)      viii, 1, 2, 3, 4, 6, 12, 13
               §§74.351(c)                             2I 3


V.T.C.A.        Government Code

               §§22.00l(a) (1,2,3)                   vi, vii,     4
               §§22.225(b) (3)                                   10
               §§22.225(c)                                           5


Miscellaneous

Michael S. Hull et al., House Bill 4 and Proposition
    12:   An Analysis with Legislative History
    36 Tex.Tech L.R. 169, 212 (2005 .          11, 13


The Medical and Insurance Improvement Act of Texas
     (article 4590i, Vernon's Texas Civil
    Statutes)                                   11,12



                                                                     iv
v
                 STATEMENT OF THE JURISDICTION

        Appellant's Petition fails to assert valid grounds

for jurisdiction.          Contrary to Appellants assertion, the

statutory         construction           provision        found        in    Texas

Government        Code    section       22.001(a)(3)       does    not      confer

jurisdiction upon this Court where,                    as   in the present

case,     the     Court    of     Appeals        applied    the    plain       and

unambiguous terms of the statute:                    Texas Civil Practice

&   Remedies Code Ann.            §51.014(a) (9)     expressly prohibits

interlocutory           appeals     of    orders     denying      motions       to

dismiss where an extension has been granted.

        The     legal     authority       that     proscribes          appellate

jurisdiction of           this    matter    is    contained       in    a   single

provision, comprised of only one sentence:

        "A person may appeal from an interlocutory order of
        a district court, county court at law, or county
        court that ... denies all or part of the relief sought
        by a motion under section 74.351(b), except that an
        appeal may not be taken from an order granting an
        extension under Section 74.351."      Tex. Civ. Prac. &
        Rem.  Code      Ann.  Section  51.014(a) (9)   (emphasis
        added).

        Thus,     Section        51.014(a) (9)       is     a     one-sentence

provision        pertaining        to     expert     reports       in       medical

negligence suits that provides for one thing: it provides

                                                                                  vi
statutory authority for the interlocutory appeal for an

order denying a motion to dismiss unless the motion to

dismiss was denied because an extension was granted for

the deadline to file the expert report.                The Court of

Appeals    correctly    applied   the    plain   and    unambiguous

language    of   the   statute,   thus    jurisdiction     for   the

Supreme Court under Section 22.001 is not warranted.




                                                                  vii
                  ISSUES PRESENTED

1.   Whether the Courts of Appeals correctly

     dismissed this interlocutory appeal for lack

     of jurisdiction because appellate courts are

     proscribed from reviewing an interlocutory

     order denying a 74.351(b} motion where the

     denial was based on the granting of an

     extension.

2.   Whether    the      Appellant       can    circumvent        the

     prohibition      against        interlocutory      appeals    of

     orders    denying    a    motion    to    dismiss    where    an

     extension has       been granted by separating               the

     denial     ruling        from     the     reason     for     the

     denial-the extension ruling.




                                                                   viii
                    SUMMARY OF THE ARGUMENT

    Courts of appeals have no jurisdiction to hear appeals

from interlocutory orders unless specifically authorized by

statute. See New York Underwriters Ins.    Co. v. Sanchez, 799

S.W.2d 677,   679 (Tex. 1990).   A statute authorizing an

appeal from an interlocutory order is in derogation of the

general rule that only final judgments are appealable;

therefore, Texas courts strictly construe those statutes

authorizing interlocutory appeals. Kilroy v. Kilroy,       (Tex.

App. Houston [1st Dist.] May 6th, 2004, no pet).     The

Legislature enacted an express provision for interlocutory

appeal of orders denying motion to dismiss brought under

74.35l(b);it specifically directed that an interlocutory

appeal could not be taken from a trial court's decision to

grant an extension.

    Petitioner asserts that Peitioner's issue on appeal

deals only with the issue of the Trial Court's denial of

Petitioner's Section 74.35l(b) Motion to dismiss.     Further,

Petitioner requests relief pursuant to section 51.014(a) (9)

but ignores the specific exception, or limiting of

jurisdiction, contained therein. Rather, the exception under
Section 51.014(a) (9) clarifies that an interlocutory appeal

is only available when the court had denied a defendant's

motion but had not granted the plaintiff an extension.         See

§§51.014(a) (9);       §74.351(b) (c).


      The Court of Appeals correctly construed Section 51.014

(a)   (9)    in determining that that section excludes the

possibility of an interlocutory appeal.        Accordingly, the

exceptional jurisdiction necessary for the Court of Appeals

to hear Appellant's claim was not created.

      The conclusion reached by the court of appeals here was

the direct result of strict statutory construction and

interpretation.         For Petitioner to suggest otherwise - that

there are conflicts among the courts of appeals, that this

"problem" is likely to recur, or that this is an issue of

importance of the jurisprudence of the state concerning

statutory construction is without merit.

                                   ARGUMENT

      A. The Court of Appeals conducted a proper construction

            of section 51. 014 (a) ( 9) .

      Appellee asserts that construction of a statute as

grounds for jurisdiction does not apply in this case.         These



                                         2
grounds for jurisdiction do not apply in the context of an

interlocutory appeal.       See Gonzalez v. Avalos, 907 S.W.2d

443   (Tex.Sup.Ct. 1995).




      In the instant case, Petitioner sought relief under

section 74.35l(b).     The court of Appeals initially

considered the major of its own jurisdiction.       In doing so,

the court of appeals first looked to Section 51.014 in order

to determine in fact whether jurisdiction actually exists.

There, the court of appeals strictly construed Section

51.014 as narrow exception to the general rule that only

final judgments or orders are appealable. The specific

language of Section 51.014(a) (9) excludes the possibility of

an interlocutory appeal in this case.

      "a person may appeal from an interlocutory order of a
      district court ......... that:

      ............ "denies all or part of the relief sought by a
      motion under section 74.35l(b), except that an appeal
      may not be taken from an order qrantinq an extension
      under Section 74.351" (emphasis added)

                                          Section 51.014(a) (9)

      The relief sought under section 74.351(b) is always

subject to subsection "c".      See Sections 74.35l(b),   (c);

Section 51. 014 (a) (9).   It was because of the court of


                                  3
appeals'    strict construction of these statutes and the

application of all of the specific and express statutory

language the court of appeals determined no jurisdiction




existed.     See Sections 51.014(a)(9);   74.351(b),     (c).

      B. Construction of Statute as grounds for jurisdiction

          does not app1y in this case.

      Petitioner asserts that the Court of Appeals did not

Construe Section 74.351 and 51.014 accurately and in so

doing,    that the Court Appeals concluded it had no

jurisdiction.     Basically, Petitioner asserts that this

Honorable Court should exercise its jurisdiction because the

Court of Appeals did not Properly construe these statutes.

      Construction of a statute is not a valid ground for

exercising jurisdiction in this case.       See Gonzalez v.


Avalos,    907 S.W.2d 443,   38 Tex.Sup.Ct. J.    335.   In Gonzalez,

this Honorable Court held that "in interlocutory appeals

made final in Court of Appeals, Supreme Court jurisdiction

must be sustained on basis of dissent or conflict, with

other opinions,    not on basis of construction of statute."

Id.   at 444.   See V.T.C.A.    Government Code

§22.00l(a) (1,2,3).          The Gonzalez Court further held that


                                  4
"as an appeal from an interlocutory order, the case is

appealable to the court of appeals only because of a special

statute, Texas Civil Practice and Remedies Code §51.014,

which does not itself

state or necessarily imply that the Supreme Court also has

the authority to review the appeal. The appeal therefore

falls under the provisions of Texas Government Code

§22.00l(c), stating that all interlocutory appeals are final

in the court of appeals, absent dissent or conflict

jurisdiction."   Id at 444.

    Similarly, the instant case presents an appeal from an

interlocutory order, which was itself appealable to the

Court of Appeals only because of the very same statute,

§51.014.   Like the case in Gonzalez, this appeal therefore

falls under the provisions of Texas Government Code

§22.225(c), which states that all interlocutory appeals are

final in the court of appeals, absent dissent or conflict

jurisdiction.

    Respondent asserts then that construction of a statute

does not foster jurisdiction in this case.     In interlocutory

appeals made final in the court of appeals, supreme court

jurisdiction must be sustained under subsection (a)     (1)

(dissent) or subsection (a)   (2)   (conflicts), and not under

                               5
subsection (a)     (3)   (statutory construction).   Gonzalez v.

Avalos, at 444; See also Hayek v. Bill Mowbray Motors,         Inc.,

647 S.W.2d 253     (Tex.1983).

     Accordingly, Respondent asserts then that construction

of a statute does not support the exercise of jurisdiction

in this case.

        C. The one-sentence provision in Section 51.014

           specifically "excepts" interlocutory appeals in

           those cases where the trial court grants Plaintiff

           additional time and thereby denies a §74.351

           Motion to dismiss.

     The granting of the extension in this case necessarily

defeats Petitioner's request for the dismissal pursuant to

§74.351.     That is why the statute is written in terms of

appealing "denials" of dismissal orders, except where

extensions are "granted."        See §74.351; See also

51. 014 (a) (9).

     Appellant's reliance on the cited case law providing

for interlocutory appeal of the appealable portion of the

order is grossly misplaced.        See Letson v. Barnes, 979

s.w.20 414    (Tex. App.-Amarillo 1998, pet. denied); America

Online v. Williams, 958 S.W. 2d 268        (Tex. App.-Hous.   [14

Dist.] 1997, no writ); American Express Travel Related

                                   6
Servs.   Co v. Walton, 883 S.W. 703    (Tex. App.-Dallas 1994,

orig. proceeding).     These cases are inapplicable here.



     The cases cited by Appellant address the interlocutory

appeal of an order granting or denying of temporary

injunctions. Unlike 51.014(a) (9) and the express exception

to appealing denial orders based on the granting of an

extension, the temporary injunction provision in Section

51.014(a) (4) does not limit or qualify the types of

injunctive relief orders that can be appealed.       The various

appellate courts noted that appellate courts have

jurisdiction to review interlocutory orders involving

injunctions, and may review the injunctive relief ruling

without assuming jurisdiction of other non-appealable

matters.    Each of these cases involves distinct, separate

and unrelated rulings made together with a ruling on

injunctive relief. In the present case, however, Defendant's

requested relief was denied because the extension was

granted.

     Here, Appellants cannot pick and choose what half of

the single-sentence statutory provision they wish to use to

create jurisdiction. See Black v. Bankers Ins.       Co., 478

S.W.2d 434,   437   (Tex. 1972)   {noting that statutory terms

cannot be given a meaning out of harmony with other terms of

                                   7
the statute.)

    Similarly, a statute must be construed in its entirety

and consideration given to the consequences that would

follow from each construction.       See Sayre v. Mullins, 681

S.W.2d 25, 27-28   (Tex. 1984). A look at the end result of

Appellant's requested relief illustrates the absurdity of

the way it construes Section 51.014(a) (9).      If Appellant was

to succeed in his efforts, he would have this Court assume

jurisdiction only on the portion of the order denying the

motion to dismiss, refuse jurisdiction on the portion of the

order granting the extension, and dismiss the case for

failure to file a report, without ever reviewing or

reversing on appeal the trial court's order granting the

extension. And this would all be accomplished through their

reliance on a statute that provides for interlocutory

appeals of dismissal orders except where extensions have

been granted.   This forced approach allows a court to

determine that the trial court's conduct was unreasonable-

i.e. without reason-while expressly refusing to consider the

reason. Appellee urges that this approach would preclude

this Court from conducting an appropriate abuse of

discretion review of the trial court's denial of the motion

to dismiss: a review that necessarily requires the appellate

court to consider the extension and the trial court's

                                 8
reasons for granting the extension in lieu of dismissing the

case.



    D.No conflict exists among Courts regarding any

          legislatively enacted right to interlocutory appeal

          under section 51.014(a) (9).

        Petitioner suggests this Court should exercise

jurisdiction over the instant case because "other courts

have recognized a right to interlocutory appeal under

section 51.014(a) (9)    from the denial of a motion to

dismiss."     First, Petitioner's reliance on Christus Health

Southeast Texas v. Griffin, 2005 WL 2666473 is misplaced.

The issue in that case dealt with whether the party was

entitled to interlocutory relief pursuant to Chapter 74

and/or § 51.014.     While the    Court 'recognized' that the

interlocutory relief may be authorized in those cases filed

after September 1, 2003, it did not address the

applicability of §51.014(a) (9). There, the plaintiffs filed

the health care liability claim prior to the effective date

of any of the provisions of Chapter 74.      What's more,   the

Griffin Court did not render any ruling in conflict with



                                  9
that rendered by the court of appeals in the instant case.

Christus Health Southeast Texas v. Griffin, 2005 WL 2666473.




    Petitioner also directs this Court's attention to Fort

Worth Southwest Nursing Center, LLC v. Bly, 2004 WL 314907

(Tex.App. Ft. Worth)   for the proposition that §51.014(a) (9)

allows interlocutory appeals from "orders denying motions to

dismiss based on untimliness of expert reports.H          Id at *1.

This reliance however is also misplaced and does not address

the issue present in the instant case.      Rather,   conflict, as

is necessary for review of a unanimous decision of the Court

of Appeals on appeal of an interlocutory order, exists only

if the rulings in the two cases are so far upon the same

state of facts that the decision of one case is necessarily

conclusive of the decision in the other.       V.T.C.A.

Government Code §22.225(b) (3),     (c); See Resendez v.    Johnson,

52 S.W.3d 689,   156 Ed. Law Rep.1450,    44 Tex.Sup.Ct.J.336

(Tex.2001)     The conflict then "must be on the very question

of law       actually involved and determined,    in respect of

an issue in both cases, the test being whether one would

operate to overrule the other in case they were both


                               10
rendered by the same court."       Resendez v. Johnson at 691,

citing Coastal Corp. v. Garza,          979 S.W.2d 318 Tex.1998).

Under this standard, the court of appeals' decision in this

case does not conflict with any of the cases cited by

Petitioner.    Therefore,   this case does not present a

conflict among courts such as would warrant this Court

exercising jurisdiction as the Petitioner suggests.

    E.The Leqis1ative History under1yinq House Bi11 4 does

       not support the Court of Appea1s'          jurisdiction over

       inter1ocutory appeais such as that in the instant

       case.

    The legislature must have contemplated such situations

as those involved in the instant case and intended to

provide a "safety valve" for those meritorious claims that

might otherwise be lost to a procedural "misstep."             Civil

Practice   & Remedies Code    §   74.351 still has some sections

"reserved," presumably because they haven't passed

constitutional muster yet.        Obviously, the legislature is

not finished with this section.           After all,   since the

legislature "intended" to provide a safety valve before

September 1, 2003,   surely the legislature "intended and


                                   11
intends" to provide some safety valve for those claims filed

after September 1, 2003.

        This ultimately leads the Court to a "quandary" because

pursuant to section 10.09 of HB4, The Medical and Insurance

Improvement Act of Texas    (article 4590i, Vernon's Texas

Civil Statutes) is repealed.     To date, there is at least one

unanswered question:     If all or part of the new legislation

is found to be unconstitutional (remember the new law isn't

finished yet), and article 4590i has been repealed, then

what law governs?     This speaks volumes for affording the

trial court and vesting it with discretion, an abuse of

which,    for purposes of appellate review, occurs only when a

trial court acts in an arbitrary or unreasonable manner or

without reference to any guiding rules or principles. See

American Transitional Care Ctrs. V.    Palacios,   46 S.W.3d 873,

875   (Tex.2001) where the court held that "a trial court's

decision to dismiss a case under §13.01 [now §74.35l(b)] is

reviewed for an abuse of discretion."     See Mokkala v.

Mead,    178 S.W.3d 66, 2005 WL 1377766 (Tex.App.-Hous.    (14

Dist.)), where the court held that "We apply an abuse-of-

discretion standard in reviewing a trial court's decision on

a motion to dismiss in which a defendant claims the expert



                                 12
opinion was untimely served."               A necessary question then

becomes if the dismissal sought by Petitioner under §74.351

is a trial court's ministerial duty and affords no "leeway"

as suggested by Petitioner, then why is the review of the

decision to grant or deny a §74.351(b) motion reviewed for

an abuse of discretion?           See Russ v.        Titus Hospital

District, 128 S.W.3d 332          (Tex.App. - Texarkana 2004) where

the Court held that the trial court abused its discretion in

refusing to grant 30-day extension to file report:

    "If the Court finds that the failure of the

    claimant or the claimant's attorney was not

    intentional or the result of conscious

    indifference but rather was the result of an

    accident or mistake, the court shall grant a grace

    period of 30 days to permit the claimant to comply

    with that subsection"

    Russ, 128 S.W. 3d at 336.

    Even    Pe ti ti oner    admits    there    is   little    legislative

history    explaining       the   addition      of   section    51.014 (a) (9).

Senator    Joe   Nixon's    comments    on     the   debate    regarding   HB4,

however,    shows us that "of HB4 were passed,                 it would mean

there would be a procedure barring plaintiffs from prosecuting

claims if deadlines were not met."              This however does not shed


                                       13
any   more   light   on   the   legislature's        intent   in   codifying

§54.014(a} (9)than the plain meaning of the words and phrases

contained in the statute itself!            Accordingly, when taking the

plain meaning     of the    statute        into   consideration,   and when

strictly construing the statute as the court of appeals did in

the instant case, the interlocutory order in the instant case

is not an appealable order.        §74.351; §51.014(a) (9)

                           CONCLUSION AND PRAYER

Appellate Courts have no jurisdiction to hear appeals from

interlocutory orders unless specifically authorized by

statute.     Appellants'    rely solely on Section 51.014           (a) (9)

for their authority to appeal this interlocutory order.

Section 51.014(a) (9) allows for the interlocutory appeal of

an order denying a motion to dismiss only when the order

does not involve a denial based on the granting of an expert

deadline extension.        The interlocutory order in this case is

precisely the type of order expressly prohibited by the

statute.

      Respondent Maricruz Lopez respectfully moves this Court

to deny Petitioner's Petition for Review and affirm the

ruling of the Thirteenth Court of Appeals.                Respondent


                                      14
further prays for such other and further relief, general or

special, at law or in equity, as this Honorable Court deems

just.




                             15
                              Respectfully submitted,



                              By:~~~~~~~~~~~~~~
                              E. A. Villarreal, Jr.
                              Texas-- Bar Number 20582200
                              Law Office of E.A. Villarreal,
                              Jr., P.C.
                              1320 South lOth Street
                              Edinburg, Texas 78539
                              Tel. ( 956) 383-6902
                              Fax. ( 956) 383-6995

                              Attorney For Plaintiff/appellee,
                              Maricruz Lopez


                      CERTIFICATE OF SERVICE

     I certify that on February 2, 2006, a true and correct copy of
the forgoing Response to Petition for Review was served on counsel
of record as indicated below.

R. Brent Cooper               VIA CMRRR #7002 2410 0007 0562 9777
Cooper & Scully, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
Tel: (214)712-9500
Fax: (214)712-9540
Appellate Attorney for Petitioner
S. Murthy Badiga, M.D.


Mr. Steven Gonzalez          VIA CMRRR #7002 2410 0007 0562 9784
Mr. Edward Castillo
Gonzalez, Gaytan, Garza & Castillo, L.L.P.
1317 Quebec Avenue
McAllen, Texas 78503
Tel: (956) 618-0115
Fax: (956) 618-0445
Trial Counsel for Petitioner
S.Murthy Badiga, M.D.




                                 16
     E.A. Villarreal, Jr.




17
