Opinion issued J u ly 6, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 22 - 00455 - CV

——————————— AREEZO DANESHVAR , Appella nt

V. DR. YAMUNA POORNIMA JALADANKI AND DR. AGNES EZIKE , Appell e e s
On Appeal from the 125th Dis t ri ct Court

Harris County, Texas Trial Court Ca se No. 2020 - 65457

MEMORANDU M OPINION In th is interlocutory appeal, a ppellant Areezo Daneshvar challenges the trial
court ’ s grant of a ppellees Dr. Y amuna Poornima Jaladanki and Dr. Agnes Ezik e ’ s (collectively , t he Doctors ) motion s to dismiss Daneshvar ’ s he althcare liability claims . We affirm.2 Background On October 13, 2020, Daneshvar filed suit against the Doctors, alleging that she s u ffered permanent heart damage after the Doctors failed to timely recog nize
t ha t she was having a heart attac k. Daneshvar then filed two expert reports with the trial court on February 2, 202 1 , before the Doc tors were served with proc ess or otherwise appea r ed in the action

. Dr. Ezike claims Daneshvar did not serve h er wit h the cita ti on and petition until M arch 8, 2021. Counsel for Dr. Jaladanki accepted service of Daneshvar ’ s amended petition on April 1, 2021

. 1 Dr. Ezik e answered Dan eshvar ’ s complain t on M a rch 18, 2021 ; Dr. Jalada nki answered on April 23, 2021. T hereaf ter , o n Novem be r 12, 2021, the Do ctors filed separate motion s to dismiss Daneshvar ’ s claims with prejudice on the grounds that Daneshvar did not prop erly serve her expert reports. I n their mot i ons, the Doctors argued t hat filing an expert report with the dist rict court c l erk di d not satis fy Texas Civil Prac tice and Rem e dies C o de section 74.351(a) ’ s service requirement

. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351(a). Danes hva r filed her response s to the Doctor s ’ motions on January 13, 2022, argui n g that because t he Doc tors a dmittedly had knowledge of the expert reports,

a nd were not harmed by any failure to serve the reports, she satisf ied the “ spirit and purpose ” of section 74.351(a).

1 Dr. J aladanki claims no expert report was referen ce d or attached at that time.3

The court held a hearin g on the motions on January 14, 2022. A fter additional briefing, th e trial cou rt en tered an order dismissing Dane sh var ’ s claims

a gains t the Doctors with prejudice on May 13, 2022. Daneshvar appeals.

Dismissal Under Section 74.351 In her so le issue, Daneshvar argues that the trial court erred i n granting the Do ctors ’ mot io ns to dismiss b ecause the filing of her exp ert r eport s with the court clerk equates to service under s ection 74.351 (a) , and the Doctors had knowledge of the expert reports

. 2 We disagree

. A. Standard of Review We revie w a tria l court ’ s ruling on a motion t o dismiss under section 74.351 for an a buse of discretion. Amer

. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001) (applying former Medical Liability and Insurance Improvement Act of Tex a s, T EX
. R EV
. C IV
. S TAT
. art. 4590i, § 1 3.01(d), (e)); Univ. of Tex. Health S ci. Ctr. v. Gutierrez , 237 S.W. 3d 869, 871 (Tex. App.

— Houston [1st Dist.] 2007, pet. denied ). We defer to the trial court ’ s factual determinations if they are supported by the rec o rd and review de novo questions of la w involving statutory interpretation. S tockton v. Offenbach , 336 S.W.3d 610, 615 (Tex. 2011); Univ. of Tex. Health Sci. C tr. at Hous. v. Joplin , 525 S.W.3d 772, 776 (Tex.

2 A representative of Dr. Jala danki ’ s attorney admittedly accesse d the expert repo rts on lin e. Dr. Ezike ’ s at torney contend s that he did not access the expert reports b ut was aware o f their existence

.4

App.

— Houston [14th Dist.] 2017, pet. denied)

. The rulin g under r eview in this

case co nc erns a pur ely legal question

— whethe r the filin g of an expert report with the court clerk compo rts with the service requirement of the Texas Medical L iability Act (TMLA). See Gutierrez , 237 S .W.3d at 871; see also Ri nkle v. Gr a f , 658 S.W.3d 821 , 823 (Tex. A pp.

— Houston [14th Dist.] 2 022, no p et.). We re view
qu estions of law de novo. Gutierrez , 237 S.W.3d at 871. B. Governing Law A claimant must satisfy the expert report requirement s of the TMLA to proceed with a health ca re liabili t y claim

. Rinkle , 658 S.W.3d at 824

– 25 ( quoting Univ . of Tex. Med. Branch at Galveston v. Callas , 497 S.W. 3d 58, 61 n

. 1 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied ) ). Section 74.35 1 provides, in relevant part: In a health care liability cl aim, a claimant sh all, n o t later than t he 120 th day after th e date each defen d ant ’ s original answer i s filed, serve on that party or the party ’ s attorney one or more exper t reports w ith a curriculum vitae of each expert listed in t he report for each physic ian or health care provi d er against who m a liability claim is asserted. The d ate for serving the repo rt may be extended by written agreement of the affect ed p arties. T EX
. C IV
. P RAC
. & R EM
. C O DE § 74 .351(a). The Texas S u pre me Court has explained that th e exper t report requ iremen t serves a dual p urpose: (1) to inform the defendant of the specific conduct questioned by th e plaintiff; and (2) to provide a basis for the trial court to find the claims meritorious

. Hebner v. Reddy , 4985

S.W.3 d 37, 41 (Tex. 2016). “ [ K]nowing what s pecifi c conduct the p la intiff ’ s expe rts have called into qu estion is critical to bo th the defendant ’ s ability to prepare for trial and the trial court ’ s ability to evaluate the viability of the plaintiff ’ s clai ms. ” Palacios , 46 S.W.3d at 877

.

“ [ S ] trict co mpliance with this pr ov ision is mandatory. ” Rinkle , 658 S .W

. 3d at 825 (c iting Zanchi v. Lane , 408 S.W.3d 373, 376 ( Tex. 2013 ) ; Joplin , 525 S.W. 3d at 778 ; Callas , 497 S.W.3d at 63

– 64) . If a plaintiff fails to serve his expert report within the 120

- day deadl ine pres c ribed by s ec ti on 74.351, the trial court must dism iss the claim with pre judi c e. T EX
. C IV
. P RAC
. & R EM
. C O DE § 74.351(b). C. Service Requirement Although s ection 74.351 does not define “ serve, ” Texas courts (including this one ) have interpreted the L egislatu r e ’ s use of t he word to mean Texas R ule of Civil Proced ure 21a service. See e.g. , Stockton , 336 S.W.3d at 615 ; Gutier rez , 23 7 S.W. 3 d at 872 ; Rinkle , 658 S.W.3d at 825

. Rule 21a provides for four methods of servi ce: (1) in person, by agent, or by co ur ier r eceipted deliv er y; (2) certifie d or registered mail to the party ’ s last known address ; (3) telephonic document tran sfer to the rec ipient ’ s current telecopier number ; or (4) by such other mann er as the court in its d iscretion may di rect. T EX
. R. C IV
. P

. 21 a. Daneshvar d oe s not argue that she attempted serv i ce under any method outlined in r

ule 21 a. Inst ead, she asks us to h old that because the reports were6

“ delivered and received ” prior to the 120

- day d eadline, she effectively satisf ie d

s ection 74. 351 ’ s service requiremen t
. More specifically, D an eshvar point s to t he fact that at least one of the Doc tors accessed and dow nloaded the expert reports from the district clerk ’ s webs it e within the operative time frame

. We have previously held that “ fil in g an ex pert report with the di strict clerk does not satis fy ‘ service ’ on a party under section 74.351(a). ” Acosta v. Chheda , No. 01

- 07

- 00398

- CV, 2007 WL 3 227650 , at *2 (Tex. App.

— Houston [1st Dist.] Nov. 1, 2007 , pet. denie d) ( mem . op.)

. In Acos ta , we re je cted th e appellant ’ s argumen t that her expert report was timely served bec a use it was filed in the trial
court contemporaneously with her petitio n , noting that s ection 74.351(a) expressly required she “ serve ” the report “ on each party or the par ty ’ s atto rn ey ” wit hin the 12 0

- day perio d

. Id. ( emphasis in original ) (c iting Quint v. A l exander , 03

- 04

- 008 19

- CV, 2005 WL 2805576, at *2

– 3 (Tex. App.

— Austin Oct. 2 8, 2005, pet. denied ) (mem. op.) ). B ecause the appellant failed to serve the d octor or the doc tor ’ s attorney wit hi n the relevant time fr ame, we affirmed the trial court ’ s dismissal fo r failur e to comply with s ection 74.351(a ). Id. at * 3. More recently, th e Four teenth Court of Appeals decided Rinkle , which

concerns virtually identical f act s . See 658 S.W.3d 821

. Th ere , th e appellant s sued a phy sician pursuant to the TM LA

. I d . at 824. Just like Daneshvar, th e appellant s filed a copy of their expert report with the court before the physi cian had been7

served or appeared in the lawsuit. I d

. T he app ellant s in Rin k le like wis e did no t attempt to ef

fectuat e serv ice by any me thod outlined in r u le 21a. I d . at 82 6. Rather, the appellants argued , as Danes hvar does here, that “ [the physician ’ s] lawyers had delivery and actual knowledge of the expert report because [the physician ’ s] lawyers access ed t he do cument on the distric t clerk ’ s website. ” Id. In re jecting the ap pellant s ’ argument, the Rinkle court first noted that several
courts a cross the state “have already concluded that filing an expert [report] with th e court clerk doe s n ot satisfy th e requir em ents of Rule 21a or section 74.351(a). ” Id. ( c iting Breiten v . Sh atery , 365 S.W.3d 829, 832 (Tex. App.

— El Paso 2012, no pet.); Thoyakulathu v. Brennan , 192 S.W.3d 849, 851 n.3, 853

– 54 (Tex. App.

— Texarkana 2006, no p et.); Acosta , 2 007 WL 3227650 , at *2 ) ; se e also Hogue v. Ste ward , N o. 11

- 21

- 00124

- CV, 2022 WL 16640834 , at *3 (Te x. App.

— Eastland N o v. 3, 2022, no pet.) (mem. op.) ( “f iling an expert report with the trial court clerk does not constitute service of the r epo rt as required by Section 74. 351(a) ” ) ; Qu int , 2005 WL 2805576, at *2

– 3 ( “ Quint ’ s filin g of the report with the di strict clerk did not satisfy section 74.351 (a) ’ s service requirement ” )

. T he R inkle court w ent on to distinguish the cases rel ied up on by the appel lant s , all of which in volved som e e ff ort to serve the defendant with an expert
rep ort in accordance with r u le 21a. See Ri nkle , 658 S.W.3d at 827. Similarly, here, the cases relied upon by Daneshv ar concern atte mpts at r ule 21a service. See8

Zanchi , 408 S.W.3 d at 380 ( ho lding tha t service of he alth care provider by certified mail after th e complaint was filed but b efore provider was served with process satisfied prior version 3 of s ection 74.351(a) ); Hebner , 498 S.W.3d at 38

– 39 (holding that pre

- suit serv ice of expert re po rt via certified ma il s a tisfied s ection 74.351 (a)). In the instant ca se, however, Daneshvar made no such attempt
. Instead, she relies upon the fact that the Doct ors i ndependently loc ated the reports on the district court ’ s website . No cas e h olds that th i s is sufficient under se ct ion 74. 35 1 (a). “ The plain language of the TMLA places the burden on the claimant to serve the rep ort, not on the defendant to find the report

. ” Rinkle , 658 S.W.3d at 82 7

. We hold that Daneshvar failed to “ serve ” h er expert report s as required by

s ection 7 4.351(a ). F iling the expe rt rep orts with the trial cou rt clerk , without more, does n ot cons titute service. See id. at 826

– 2 8; Hogue , 2022 WL 16640834 , a t *3; Breiten , 365 S.W.3d at 832 ; Acosta , 2007 WL 3227650, at *2 ; Thoyakulathu , 192 S.W.3d at 851 n.3, 8 53

– 54 ; Qu int , 2005 WL 2805576, at *2

– 3

.
3 In 2013, the L egislat ure amended section 74.351(a) of the Texas Civil Practice and Remedies Code to require each heal th care liability claimant to serve an ex pe rt report “not later than the 120th day after the date each def endant ’ s o riginal answer is fil ed .” See Act of May 26, 2013, 83 rd Leg. R.S., ch. 870, § 2 (emphasis added). Under the earlier vers ion, health care l iability claimant s were required to serve a n expert report on each health care provider defendant no later than 120 days after filing the ir initial petition. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 T EX
. G EN
. L AWS 1590 (amended 2013) (c urrent version at T EX
. C IV
. P RAC
. & R EM
. C O DE § 74.351 ).9

D. Waiver of Rig ht to Seek Dismissal Daneshvar also argues that the Doctors waived any right to seek dismissal under s ection 7 4.351( b ) b ecause they “ proce eded with discovery

. . . as if the

re p o rts had been properly se rved

. ” Th e Rinkle court rejected a similar argumen t, noting that although “ gamesmans hip in TMLA suits has been denounced by Texas courts, ” the physician did n ot have a responsibility to inform the appellants of th eir noncompliance w ith s ection 74.351(a)

. R inkle , 65 8 S.W.3d at 827 n.5 (citing Joplin , 525 S .W. 3d at 782 ( “ The statute c onta in s no exc eption based on the
p urported u nprofessional conduct of opp osing counsel or the alleged failure of opposing counsel to po int out a service m istake. ” )). Furth er, w e conclud e that Daneshvar has failed to demonstrate a n

“ intentional relin quishment of a known right or intentional conduct in c onsistent with claiming that right ” as required to s upport waiver. See Mem . Hermann Ho sp. Sys

. v . Hayden , N o . 01

- 13

- 00154

- CV, 2014 W L 276 71 28 , at *4 (Tex. App.

— Houston [1st Dist.] J u ne 17, 2014, pet. denied) (mem. op.) (citing Jernigan v. Langley , 111 S.W. 3d 153, 1 56

– 57 (Tex. 20 03 ) ). In Hayden , this court held that , considering the totality of the circumstance s , the hospital waived i t s right to seek dismissal for f

ai lure to file an e xpert report after it “ a ctively engag ed in extensive trial preparations, ” moved for summary judgment , prop ounded multiple sets of discovery to th e plaintiff , pa rtic ipated in ten fac t and expert witness dep o s itions10

(the majority of which we re initiated by the hospital ) , completed discovery , moved for a trial setti ng, and annou nced ready for trial on two occasions. Id. at *9. Further, the hospital waited 670 days after the plaintiff ’ s a mended petition to move f or dismissal. 4 Id. at *3. Here , ho wever, at the time that the D octors mov ed to dism iss Daneshvar ’ s claims, the parties had engaged in some limited written discovery, discussed scheduling party d epositions and the provisi ons of an a greed schedu ling order, a nd
agre ed to a trial continuan ce . No depositions had been taken. Fur ther, Dr. Jaladanki moved to dismiss 83 days after Dan e sh var ’ s deadline for serving an expert report, and Dr. E zike waited 149 days. This conduct does not amount to waiver. See Jernigan , 1 11 S .W.3d at 15 5 (no waiver fo un d where physician did not object to
exper t report fo r over 600 days, engage d in discovery, filed sum mary judgment motion on other grounds, an d amended answer to remove re fere nces to pla intiff ’ s f ail ure to follow statutory pr erequ isites to suit ); see also Jalara m Med Spa , Inc. v. Durbin , No. 14

- 21

- 00060

- CV, 2023 WL 1460539, at *10 (Tex. A pp.

— Houston [14th Dist.] Feb. 2, 2 023, pet. filed ) (mem . op.) ( “ [T]o establish an in tent to waive the right to dism issa l unde r section 74.3 51 , a def end ant ’ s si lence or inaction mu st be inconsistent with the inten t to rely upon the right to dismissal

. ” ).

4 Ha yden involved the prior version of s ection 7 4.351(a)

. See Hayden , 2014 WL 2 76 7128, at *1 n.2 (discussi ng wh ich version of statute applied to that case and dis tinctions between them).11

C onsidering the undisputed facts in this case, we determine that the Doctors did not waive th eir ri ght to seek dismi ssal of Daneshvar ’ s heal th care lia bility claim under s ection 74.3 51

. We overrule Daneshvar ’ s sole issue. C onclusion Havi ng found no error in the trial court ’ s grant of the Doc tors ’ moti ons to dismiss, w e affirm the orde r of the trial cou rt.

Amparo Guerr a Justice Panel C onsists of Chief Justice Adams and Just ic es Guerra and Farris.