Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 16, 2009

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Dingler v. Tucker,   No. 02-09-00002-CV    (Nov. 19, 2009)   (Meier, J., joined by McCoy, J.; Livingston, J., concurs and dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The trial court abused its discretion by denying Dr. Dingler’s motion to dismiss the Tuckers’ health care liability claim against him because the Tuckers did not comply with section 74.351(a)’s requirement that they “serve on each party or the party’s attorney” an expert report and curriculum vitae not later than the 120th day after the date the original petition was filed. Further, the trial court abused its discretion by dismissing the Tuckers’ vicarious liability claims against Nocona.

Concurrence and dissent:    The trial court did not abuse its discretion by denying Dr. Dingler’s motion to dismiss. Because the report was served on Dr. Dingler’s attorneys before he was served by substituted service (as they also represented Nocona, who had accepted certified mail service), Dr. Dingler was, in effect, prematurely served with the expert report, and we should thus consider the expert report served on the day he was served in the case by substituted service. To hold otherwise would reward a party who is able to effectively evade service of citation.

« Return to Case Summaries Home Page «