Opinion filed December 10, 2009




                                                          In The


    Eleventh Court of Appeals
                                                       ___________

                                               No. 11-09-00280-CV
                                                   __________

     IN RE WAL-MART STORES, INC., AND WAL-MART PHARMACY


                                         Original Mandamus Proceeding


                                    MEMORANDUM OPINION
         Real party in interest, David Jakobot, brought a health care liability claim against relators,
Wal-Mart Stores, Inc., and Wal-Mart Pharmacy (collectively “Wal-Mart”). Wal-Mart filed a motion
to dismiss, contending that Jakobot’s expert report did not comply with the requirements of TEX .
REV . CIV . STAT . art. 4590i, § 13.01 (1997).1 The trial court denied the motion, and Wal-Mart filed
a petition for writ of mandamus in this court. We deny mandamus relief.
         The trial court entered findings of fact and conclusions of law in support of its order denying
Wal-Mart’s motion to dismiss. The trial court made a number of findings and conclusions that are
relevant to deciding the issues presented in this mandamus proceeding:
         FINDINGS OF FACT:
               3. David Jakobot filed his Original Petition against Wal-Mart and Dr. Luther
         Key on November 27, 2000.




         1
          Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now
governed by TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon Supp. 2009).
                4. The initial statutory 180-day deadline for Plaintiff to file an expert report
          was May 26, 2001.

                  5. Dr. Paul Mani, Plaintiff’s original Article 4590i expert, prepared an expert
          report and curriculum vitae dated April 11, 2001, however it was not filed and served
          until August 30, 2001.

                 6. Dr. Key filed a Motion for Sanctions for failure to file an expert report
          pursuant to Section 13.01(f) of Article 4590 on June 13, 2001. Wal-Mart filed no
          such motion or objection.

                  7. On August 30, 2001, Mr. Jakobot filed and served an expert report and
          curriculum vitae of Dr. Paul Mani pursuant to Section 13.01(d) of Article 4590i.

                   8. On August 30, 2001, prior to time of the November 1, 2001 hearing on
          Dr. Key’s Motion for Sanctions on plaintiff’s failure to file and serve an expert
          report, Mr. Jakobot filed a Motion for Grace Period, requesting an extension of time
          for filing his expert report.

                  9. On November 2, 2001, the Court found that Jakobot’s expert report was
          not timely filed and served due to an inadvertent error on the part of Plaintiff’s
          counsel, and granted Mr. Jakobot’s request for an extension of 30 days to file an
          expert report, with a new deadline of December 2, 2001. The Court ordered Jakobot
          to pay Dr. Key’s attorney’s fees incurred in bringing the Motion for Sanctions or face
          dismissal of Plaintiff’s claims against Dr. Key.

                 10. On December 6, 2001, the Court ordered the dismissal of Dr. Key as a
          defendant because the Plaintiff refused to pay Dr. Key’s attorney’s fees before the
          deadline pursuant to the Order dated November 2, 2001.

                  14. The deadline for objecting to the expert report and qualifications of
          plaintiff’s expert report expired on the deadline set in this case for the filing of
          dispositive motions, which was January 28, 2008.2

                  15. Wal-Mart raised no objection to the sufficiency of the Plaintiff’s expert
          report or qualifications until October 27, 2008, when Wal-Mart filed a motion to
          dismiss for failure to file an adequate expert report.3




          2
             This date appears to be a typographical error. The trial court entered an amended scheduling order in which it required
that all dispositive motions be filed by January 25, 2008. The trial court referred to the January 25 deadline in its conclusions of law.
          3
              The record shows that Wal-Mart filed its motion to dismiss on October 29, 2008.

                                                                   2
       CONCLUSIONS OF LAW:

               17. Mr. Jakobot served his expert report of Dr. Paul Mani pursuant to
       Article 4590 on August 30, 2001, which was within the Court-ordered grace period
       deadline of December 2, 2001. Wal-Mart had over seven years to object to the
       adequacy of the Plaintiff’s expert report or qualifications prior to the deadline of
       January 25, 2008, set forth in the Court’s amended scheduling order. Instead it has
       conducted discovery, including expert depositions, filed motions, and proceeded
       toward trial.

                18. No leave of court was requested or granted to allow Wal-Mart to file a
       dispositive motion beyond the court-ordered deadline for the filing of dispositive
       motions. Wal-Mart’s motion to dismiss was filed on October 27, 2008, over nine
       months after the court-ordered deadline and on the eve of trial previously scheduled
       on October 30, 2008. Wal-Mart’s motion to dismiss based on any objection to the
       Plaintiff’s expert report is therefore untimely. Moreover, by waiting over seven years
       after first receiving the Plaintiff’s expert report of Dr. Paul Mani, Wal-Mart has
       waived any objection it may have had to the sufficiency of the report. Therefore, the
       Court concludes that the Defendants’ Motion to Dismiss for Plaintiff’s Failure to File
       an Adequate Expert Report is a deficient dispositive motion filed after the deadline
       for the filing of same.

       A trial court’s decision to deny a motion to dismiss because of an inadequate report is
reviewed under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary
or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
       The trial court concluded that Wal-Mart had waived any objections to the sufficiency of
Dr. Mani’s report. Waiver is defined as the intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right. Jernigan v. Langley, 111 S.W.3d 153, 156
(Tex. 2003); In re Sheppard, 197 S.W.3d 798, 800 (Tex. App.—El Paso 2006, orig. proceeding).
Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions,
intent must be clearly demonstrated by the surrounding facts and circumstances. Jernigan, 111
S.W.3d at 156; Sheppard, 197 S.W.3d at 800-01.
       The trial court’s findings of fact are supported by the record. Jakobot filed Dr. Mani’s expert
report on August 30, 2001. The trial court entered an amended scheduling order on October 10,

                                                   3
2007. The order required that all dispositive motions be filed by January 25, 2008. Wal-Mart failed
to comply with the deadline. Instead, Wal-Mart filed its motion to dismiss on October 27, 2008,
which was about seven years after Jakobot filed Dr. Mani’s report. Before filing its motion to
dismiss, Wal-Mart conducted discovery, including taking the deposition of an expert witness, and
filed no-evidence and traditional motions for summary judgment, which the trial court denied. Based
on Wal-Mart’s seven-year delay in filing its motion to dismiss, its failure to comply with the trial
court’s deadline for filing dispositive motions, and the other facts found by the trial court, we cannot
conclude that the trial court abused its discretion in concluding that Wal-Mart waived its right to
seek dismissal based on the insufficiency of Dr. Mani’s report. See Sheppard, 197 S.W.3d at 801-
02.
        Therefore, we deny Wal-Mart’s petition for writ of mandamus.




                                                        TERRY McCALL
                                                        JUSTICE


December 10, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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