## In t he Court of Appeals Second Appellate Di strict o f Texas at Fort Worth

___________________________ No. 02

- 22

- 00282

- CV

___________________________

On Appeal from the 415th District Court Parker County, Texas Trial Co urt No. CV21

- 1067

Before Kerr, Birdwell, and Walker, JJ. Opinion by Justice Birdwell 

### CSL S W EATHERFORD 

### , LLC AND 

### C APITAL 

### S ENIOR 

### M ANAGEMENT 

### S, I NC 

### ., Appellan ts

V



### . S HIRLEY 

### J EAN 

### A RENS 

### , App ellee2 O PINION This is an interlocutory appeal challenging the trial court ’ s denial of a motion to
dismiss , with prejudice , the health care liability claims of Appellee Shi rley Arens against Appellants CSL S Weatherfo rd, LLC ( “ Weatherford ” ) a nd Capital Senior
Mana gement S , Inc

. d/b/a 1 Martin Crest ( “ Management ” ) due to her alleged failure to

serv e them with an expert repor t as required by the Texas Medical Liability Act (TMLA)

. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351( b) ; see also id. § 51.014 (a) ( 9) (allowing inte rlocu tory app eal for de nial of motion under Se ction 74.351 (b) )

. Because (1) the TMLA authorizes service upon a “ party or the party ’ s attorney ”
even be fore the filing of a health car e liability cl a im and (2) the record re flects A rens
accomp lished s uch pre

- suit servi ce upo n Appellants through the ir attorney , we hold
that the trial court did not abuse its discretion by denying the motion

. Accordingly, we

a ff i r m .

1 “ D/b /a means ‘ doing business as. ’ ” Perkins v. Hicks , N o. 02

- 17

- 00227

- CV, 2018 WL 396 8489, at * 4 (Tex. Ap p.

— Fort Worth Aug. 16, 2018, no pet .) (mem . op.). U se of the acrony m “ d/ b/a ” indicates t hat the person or business name d immediately pr eceding conducts busi ness under an assumed name. See Fettner v. Dan iel Jackson & Assocs., P.C. , No. 1 4

- 19

- 00497

- CV, 2021 WL 126396, at *2 & n.2 (Tex. App.

— H ouston [14 th D is t. ] Jan. 14, 202 1 , no pet.) (mem. op. ). “ An ‘ assumed name ’ is a word or phrase by wh ich a person may be k nown to the public, and is not a legal entity. ” Id

. at *2 ( quotin g CA Partners v . Spears , 274 S.W.3d 51, 69 n. 11 (Tex. App.

— Houston [14 t h Dist

. 2008, pe t. de nied) ). In effec t, the acronym “ d/b/a ” identifies two or more names as synon yms , “ each of which ref ers to the same person o r business. ” Id.3 I. Backgroun d
A. The Fir st Lawsuit
On October 6, 2 020, Arens fi led suit against C apital S enior Living , Inc. d/b/a
Martin Crest Assisted Living ( “ Living ” ) and Mar k Sanders, D.O

. , in the 43 rd District Court of Parker County , a sserting health care li ability claim s arising from her
residenc y a t t he assisted li ving facility

. By way of h er p etition , Arens alleged the negligence of the nursing staff at the facility proximately c au sed her physical i njuries
due to falls , poor nutrition and hydrat ion, an d the development of a S tage III bed

so re . She sp e cifically identified Beck y Phillip s as the facility d irector responsible for
the poor care she received and alleged the facil ity was vicariously l iable for the negligence of its nursing staff

. On November 25, 2020 , Living filed its original answer , speci fi cally denying
tha t it was the proper par ty t o be sued or that it d i d b usine ss as Marti n Crest Assisted Living

. By electronically signing th e answer, Michael L. Hurst of the T hompson , Coe , Cousins & Iron s, LLP firm appear ed as the attorney of record for Liv ing

. Arens subsequently nons uited her law s uit o n March 12, 2021 , “ for the sole purpose of getting the expert report. ”
B
. The Second Lawsuit and the Chapter 74 Expert R e port
On Aug ust 17 , 2021, Arens refiled her lawsui t in th e 415 th District Court of
Par ker County , nam ing Living as the sole defendant. Contemporaneously with the filing o f her original petition, Are ns f iled a Chapter 74 ex per t repo r t , s ee id. § 74.351 ,4 a uth ored by Donna S. Jones, R.N. The exp e rt report add r essed the sta ndard of nursing car e ow ed by “ M artin Cr est A ssi sted Living Facility ” to Arens and nam ed Becky Phillips and one of the facil it y ’ s licensed vo cati onal nurses, T. Tidwe ll , as

res ponsible nursing care providers, but d i d not identi fy Living or any o ther entity as the owner or ma nager of the facility

. Soon after fili ng , c ounsel for Arens received a

“ Noti fication of Service ” from the e l ectron ic filing m anager , wh ich id enti f ied Hu rst

— by both name a nd the email addre ss he e mployed in the fir st lawsui t

— as a s ervice

c on t act for the exp ert r eport , although “ not [ one] associated with a party on the case

. ”
The e lectronic fil ing envelope f urther con firmed that Hurst ope ned the file at 9:02 a.m. the following day , August 18

. S h ortly before filing the s econd lawsuit on August 17 , counse l for Arens had
emailed Hurst in quiring , “ Will yo u be accepting service on Martin Crest in this case? ”
When Hur st did not immediately respond , counsel sent a se cond email on Augu st 19
foll owing up on t he or i ginal

. Finally, on Augu st 25, H urst re sponded affirmati vely :

“ Sorry, I was out on vacati on

— back today. I can accept serv ice if still an optio n . We

can say service was today a nd the answer will be due on or before Monda y, Septemb er 20. Does that w o rk? ” Counsel for Arens resp onde d a few minutes later: “ Yes, sir. ”
The next day, another attorney representing A rens forward ed pdf ve rsions of the original petition and the expert report to H urst , copying Arens ’ s lead couns el on the
email : “ T hat work s. Attac h ed is th e Origi nal Petition and Expert Report we filed.
Ans wer dat e on or before September 20 th

. Thank you. ”5 Consiste nt with th is email agreement, Living fi led its original a nswer in the
second lawsuit on S eptember 20, 2021, 2 and again specifica lly deni ed th at it was the
p roper party to be sued or that it d id busine ss as Martin Crest Assisted Living

. Hurst
ag ain signed the ans wer as t he attorney of recor d for Living and , also under his signature, contem p oraneously file d Living ’ s initial disclosures, specifically denying Living did business as Martin Cre st Assisted Living b ut identifying six diffe rent poten tial def endants

— two o f whom were Appellants Weatherford and Managemen t
. Significantly, Exhibit A attached to the se disclosures identif ie d Ap pellants in the following man ner as persons with know ledge of re l evant fa cts : (8) Employees, age nts , and repr esentatives of Capital Senior Ma na gement S, Inc. i n cluding Becky Phillip s, Terrlynn Tidwell, LVN, Christine Lang, Laurie M ayber ry, RN, and J essica M cDonald, RN

2 “ It h as l ong been the law in Texas that waiver of s e rvice of proc ess m ay not be made pr i or to the in itiation of the suit. ” Ga mboa v

. Alecio , 604 S.W.3d 513 , 517 (Tex. App.

— Houston [14 th D ist. ] 2020, no pet.) ( first citing McAnelly v. Wa rd , 12 S .W . 206, 20 6

– 07 (T ex. 1888) ; and then citing Tex. Ci v. Prac. & Rem. Code Ann. § 30.001 )

. Rule 119 requires the f iling of a ver if ied writt en mem orandum by the defendant or by its duly authori zed a gent or attorney “ after suit is brought ” to effectuate the waive r and f ormally su b ject the defendant to t he tr ia l co u rt ’ s perso nal ju risdiction . Tex. R. Civ. P. 119. No such verifi e d wr it ten memoran dum a p pears in this record. See Macs v. Lenahan , No. 04

- 1 7

- 00033

- CV, 2018 WL 280 469, at * 2

– 3 (Tex. App.

— San Antonio J an. 3 , 2018, pet
. d e nie d ) (mem. op.) ( holding u nswor n Rule 11 ag reeme nt bet ween attorneys c ould not serve as valid Rule 11 9 wai ve r of citat ion ) ; C ombustion Eng ’ g, Inc. v. Vukich , No. 13

- 01

- 750

- CV , 2002 WL 34231010, at * 4 (Tex. Ap p
. — Corp us Chris ti

– Edinburg Nov. 21, 20 02, no pet

. ) ( not designated for publication ) (s ame)

. Ne verth eless , the subsequent f ilin g of a n answer on behal f of Living cure d an y de fe ct in the email agreement reac hed between counsel. Tex. R. Civ. P. 121 ( “ An
ans wer shall co nstitut e an appearance of the defenda nt so as t o dispense w ith the
nece ssi ty for the iss uance or se r vice of cit ation upon him. ” )

.6 c/o Michael L. Hurst Thompson, Coe , Cousi ns & Irons P laza of the Ame r icas 700 N. Pea rl Street, 25 th Floor Dallas, Texas 7520 1 (2 14) 871

- 8200
Mana g

er of Martin Crest during Shirley Arens ’ [ s ] residency ( 9 ) C S L S Weather fo rd LL C c/o M ichael L. Hurs t Thompson, Coe , Cousins & Irons Plaza of the America s 700 N. Pea rl Stre et, 25 th Floor Dallas, T exas 7520 1 (214) 871

- 820 0 Owner of the facil ity during Shirley Arens [ ’ s ] residency at Martin Crest
S o, in addition to identifyin g hi m self as the a ttorney of record for Living , Hurst
furt her identified himself as the at torney through w hom counsel for Arens could

con tact Appellants as owner and manager of Ma r tin Crest Assisted Living , as well as those employees identified as knowledgeable o f the nursing care provided to Arens at

t he facilit y, i n cluding Becky Phillips and Terrlynn Ti d well

— bo th of wh om were implicated by the expert report
. 3

3 Wh en asked to de scribe d ocum ents t hat may be used to support a c laim or def ense on the part of Living , the disc l osures deny possession o f any such document s as to Living but conf irm that “ records h ave b een produ ced b y a se parate pote ntial Defendant and ba t e

- stamp ed [sic] ARENS 0 0 0001 thr ough ARENS 000361

. ” S ee Texaco, Inc. v. Dominguez , 812 S.W.2d 451 , 457 (Tex. Ap p.

— San Antonio 1991, orig. procee ding) ( describing B ates

- s tamp i ng as a numb er ing system by w h ich documen t s ex changed in a nticipation o f or durin g litigation facilitate d iscover y

)

.7 C
. Arens ’ s First Amended Petition
O n January 4, 2022, Arens filed her f irst a mended p etition , alle ging the same health care liability clai ms, but a dd ing Appellants Weathe rford a nd Management ( incorre ctly na m e d Capital Senior Managemen t ) as ne w d efendants. Arens did not , however, file and serve an ex pert report co ntemporaneously with her amended pleading , as she had wi th her original petition. Before filing the amended pleadin g , c ounsel for A rens had e mailed Hurst inquiring whether he would be ac cepting service of proc ess on behalf o f the new defendants

. Indeed, the a mended petition stated , “ it is anticipated that attorneys for
Martin Crest will accept s ervice on behal f of the defenda nts. ” Having not re ceived a
response, c ounsel f o r Arens followed u p by email t he next day

. Hurst res ponded immediately , in d i c a ting that he had emailed a recommend ation to “ th e people on my
end ” that he b e aut horized to acce pt service for t he new defendants but had not yet
he ard bac k. Neither of these e m ails referenc ed any expert re port as part o f t he s ervice

to be accepted. O n Jan uar y 8, Hurst emailed counsel for Aren s confirm ing that he
ha d bee n given “ permis sion to accept s erv ice ” for the new defendants but that Managemen t had bee n misnamed

. Consistent with this ema il agreement b etween

Thi s confirm atio n of a pre

- suit document exchang e between A rens and a separate “ potential Defendant ” identif i ed in t he disclosu res

— which included Weatherford and Mana gement whom Hurs t specifi call y ide nti f ied as the faci lity ’ s owner a nd manager

— reasonably s uggests Hurst ’ s participation in the exchan ge on the

“ pot ential Defendant [ ’ s ] ” b eh alf

.8 counsel , Appellants filed their original answer on Janu ary 31, 2022. Hurst sign ed the

answ er as Appellant s ’ attorney of r ecord

. D
. Appellants ’ Motion to Dismiss
On June 6 , 2022, pur suant to Se ction 7 4.351(b), Hurst filed a motion to dismiss
Arens ’ s health care liability claims against Appellants asserting as grounds he r failure

to t imel y serve an y expe rt report on Appellants and req uesting reasonable atto rney ’ s fees and court cost s . The motion concede d that Arens had timel y served an expert

r eport on Living but categorically denied tha t su ch service coul d be imputed to Appellants

. Aren s responded that the expert repo rt timely served on Living asserted

n e gligenc e s pe cific ally against Mar ti n Crest Assi st ed Living , the assisted li ving facilit y Living was alleged to be doing bus iness a s, a nd ar gued t hat s ervice on H urst

— as

c ounsel for “ Martin Crest ”

— constitut ed service on couns el f or Appe llants, particular l y since Hur st identified himself as retained to rep resent “ ALL D efendants

. ”
After hearing t he motion and considering tes timony and docu mentary evidence , the
trial court denie d the motio n in its entiret y . Appellants now c hal lenge that ruli n g i n th is interl ocutory a ppeal

. II . Discussion
A. Standard of Revi ew T o prosecute a health care lia bility claim, a claima nt must comply wi th the
expert re po rt requirement of the TMLA. Id. § 7 4 .351

. Section 74.3 5 1(a) provides th at ,9 as a prerequisite for filing an d ma intaining such a claim, “ a claimant shall, not later
than the 120 th day after the date each def endant ’ s origina l answer is filed

. . . , serve on that party or the party ’ s attorney one or more expert rep orts
. ” Id. § 7 4.351(a )

.

“ Strict compliance with that provision is ma ndatory. ” Z anchi v. Lane , 408 S.W.3d 373,
3 76 ( Tex. 201 3)

. “ If a claimant does not serve a n expert r eport by the statutory
deadline and the parties have not agr eed to extend t he d e adlin e, the stat ute requires, with one exception not relevant here, dismissa l of the claim with prejudice ‘ on the
motio n of the affected p hys ician or health care prov ider

. ’ ” Id

. (quoting Tex. Civ. Pr ac. & Rem. Code Ann. § 74 .351 (b)).
A tri al court ’ s ruli n g on a motion to di smiss pursuant to Se ct ion 74.351 (b) is subject to review f or an abuse of discretion. Am

. Transitional C are C trs. o f T e x., Inc. v. Palacios , 46 S.W. 3 d 87 3 , 8 75 (Tex. 2001) ; Jackson v. Kindred Hosp s . Ltd. P ’ ship , 565
S.W .3d 75, 80 (Tex . Ap p
. — Fort W orth 201 8, pet. denied)

. “Under an abuse of discretion standard, the appellate court defers to the trial court ’ s factual
deter minations if they are supported by evide nce, but reviews the tria l court ’s legal
dete rminations de nov o. ” Stockton v. Off e nbach , 336 S.W.3 d 610, 615 (Tex. 2011). “ A
trial co urt abuses its discret ion if it acts in an arbitrary or unreasonable manner without reference to any g ui ding rules or princ iples

. ” Walker v. Gutierr ez

, 11 1 S.W.3d
56 , 6 2 (Tex. 200 3 )

. I n applying this stan d ard, an appellat e co urt may not substitute its own judgment for that of the trial court, or otherwise find an abus e of discretion

me re ly because it would hav e ruled d ifferent ly on the same

. See id. T o that end, i f the10 trial court did no t file findings of f act or conclusio ns of law, the reviewing court may

“ uphold the trial court ’s ru ling on any theory supported by the reco rd and imply an y findin gs of fact necessary to support its ruling. ” Rinkle v. Gr af

, 658 S.W.3d 821, 824 (Tex. App.

— Ho uston [ 14 th Dist .] 2 0 22, n o pet. ).
B
. The Meaning of “ the Party ’ s Attorney ” Under t he T M L A
In Z a n ch i , the Supreme Court of Texas interpret ed the TMLA ’ s requirement of
service of an expe rt report on a “ party ” to authorize such service up on a health c are li ability d e f e n d a n t n o t y e t s u b j e c t t o t h e t r i a l c o u r t ’ s p e r s o n a l j u r i s d i c t i o n t h r o u g h
servi ce of process
. 408 S.W.3d at 377

– 7 9

. In so holdin g, the court expressly
di sappro ved of the reasoning of t hi s court and four of our sister courts of appe als
inter preting th e term “ par ty ” to mean “ one who has been named i n a [ health care liability claim ] and serve d with citation and a copy of the petition, accepted or waived
such servic e , or made an appearance. ” 4 See id. at 377

– 78. In particular, the court found
per su asive that the TMLA expressly defined “ defendant ”

— or the intended “ party ” to be served

— to mean a “ p hysician or hea lth care provider against wh om a health care
liabilit y clai m is asserted ” without rega rd to whether the physician or provider has
been serve d with citation

. Id. a t 378 (quoting T ex. Civ. Prac. & Rem. Code Ann.

4 See , e.g . , Key v. M use , 352 S

. W.3d 857, 860

– 64 (Tex. App.

— Da llas 2011 , no pet. ) ; Carroll v . Humsi , 3 42 S.W.3d 693 , 701 (Tex. Ap p.

— A u stin 2011 , no pet
. ) ; Din gler
v. Tucker , 3 01 S. W.3d 761 , 766

– 6 8 (Tex. App.

— Fort Worth 20 0 9 , pe t s . denied ) ; Carreras v

. Zamo ra , 294 S.W.3d 3 4 8 , 35 0 (Tex. Ap p
. — Corpus Chris ti

– Edin burg 20 09 , no pet. ) ; Y i lmaz v. M cGregor , 265 S.W.3d 631 , 640 (Tex. App.

— Hous ton [ 1 st Dist .] 2008 , pet
. d enied )

.11 § 74 .35 1 (r) (4) )

. C onsistent wit h this reasoning, t he cou rt held that servi ce of a repo rt need not c omply with the strict dictates of Rule 106 of the Texas Rules of Civil
Procedure for se rv ice of citation but could be accomplished by one of the methods set forth by Rule 21a. Id. at 380

– 8 1. Accordingly, the court held that the exp ert report served upon th e defe ndant anesthesiologist via certified mail before the claimant accomplished servic e of citation complie d with Section 74.351(a). See id. at 379

– 81. The supreme court subsequently cla rified its interpretation of the term “ part y ”
in Hebner v. Reddy , to incl ude a physician or health care provid er serve d with an expert
report “ concurr ently ” with th e pre

- suit notice man dated by the TMLA , expressly rejecting the filing of a petition formal l y naming the recipient as a defendant as a necessary predicate for com pli ance . 498 S.W.3d 37, 4 1

– 43 (Tex. 2016 )

. After serving

a n expert report concur rent ly with pr e

- suit n otice of thei r claim approxi mately six months before filing suit, the claimant s

— pare nts of a baby girl who tragically did not

s urvive a delivery by emergency cae sarean section

— thereafter m istake nly served the defendant physician with a second r eport authored by t h e same expert but cri tiquing

care provided to a di fferent patient by a diffe rent doctor

. See id. at 3 8

– 3 9. In respons e

to the defendant physician ’ s a rgum ent that Zanchi requ ired h er form al naming in an existing lawsuit as a predicate to service of a repor t , the court observed that “ we did not mandate that physicians or health [ ] care providers on t he receiving end of a
heal th [ ] care liability claim must be a ‘ p arty ’ to a lawsu it before they co u ld be properly served with an expert report. ” Id

. at 42 (emphasis in origin al). Indeed, the court noted12 that “ the st atute does not say that the party must be a party at the time the re port is served, and none of the statut e ’ s other provis ions expressly or implicitly prohibit
service before the defendant i s name d as a party to the suit. ” Id. Accordingly, the
court held that service of the expert r eport concurrently with pre

- suit notice c omplied with Section 74.351(a). I d. at 43 ; see also Ransom v. Eaton , 50 3 S.W.3d 411, 411

– 12 (Tex. 2016) ( hol d ing expert report p roperl y served on “ party ” concurrently with pre

- suit
notice ). Although the supreme cou rt has not yet interpreted t he meaning of the phrase

“ the party ’ s attorn ey ” in Section 74.351(a), Zanchi , Hebne r , and Ransom strongly suggest

t hat the referenced atto rney need not make a forma l appearance on behalf of a named
defendant in an existing lawsu it before he becomes eligible to accept s ervice of an
expert report. See Villar real v. Fowler , 526 S.W.3d 633, 6 34

– 35 & n.1 (Tex. App.

— Fort
Wo r th 2017, no pet.) ( obse rving tha t , given email service of expert report on her
attorney t wo weeks before the fili ng of suit , defendant licensed profession al counselor

“ und erstandably as serted no argument challenging the pre

- s uit service ” ). The question pre sente d by this appeal , t herefore, is w het her the evidentiary record supports the trial cour t ’ s implicit conclusio n that Hur st was the attorney for Appella nts when he accepted service of the ex pert report concurrently with Are ns ’ s original petition naming Living as the sole heal t h care li abili ty defendant. Absent the filing of find ings of fact and conclusions of law, see Ri n kle , 658 S. W.3d at 8 24 , we conclud e that it d oes .13 C. Ana lysis
A ppellan ts argue the failure of Arens to serve an expert report on them

concu rrent ly with or afte r filing her f irst a mended p etition should decide the question decisively in their favor , particularly since Hurst never for mally appeared on their
behalf until he sig ned and filed their original an sw er and had previously appeared in
the fir st and second laws u its solely on beha l f of Living

. Relying on the supreme

court ’ s clarification of Zan chi in H eb ne r , Are ns counters that she serv ed Appellants
when she served the re port on Hurst concurrently with h er o riginal p etition and that
Hurst accepted service as the att o rney for “ M artin C rest ” and l ater confirmed his authority to do so by filing an orig inal answer for Appellant s . Appellants respond that
Hebner is factually disting uishable because , unlike Arens, t he claimant parents ser ved
the defendant phys ician

— not her attorney

— with the expert report b ef ore fi lin g suit against her

. Unfortunately, ne ithe r A rens nor A ppellants support their ar guments with
any post

- Zanchi auth ority d escribing under what circumstance s an attorney is

co nsidered “ the party ’ s attorn ey ” for purposes o f pre

- suit service of an expert report , particularly when representing multiple health care l iability defe ndants, actu al or
eventual

. 5

5 Appell ants cite Matthews v. Lenoir as post

- Zanchi au thor ity suggesti ng a “ p arty ’ s attorney ” becomes so only a fter a form al appeara nce. 439 S.W.3d 489 , 495

– 97 (Tex. Ap p.

— Houston [1 st Di st.] 20 1 4 , pet. denied ) ( holding timel y service of e xpe rt repor t on a ttorney general after forma l ap pear ance on behalf of defendant state employer, but before formal appearance on b ehalf of de fendant n u rse employee , did no t satisf y Sec tio n 74.351(a) ). But Matthews turne d on the u nique statutor y requ irements for14 Ironically, the suprem e court ’ s di s approval of our reas oning in Dingler v. Tucker provides helpful guidance. 6 3 01 S.W.3d 761 , 766

– 6 8 ( Tex. App.

— Fort Worth 20 0 9 , pet s . denied ) , abrogate d by Zanchi , 40 8 S.W.3d at 377

– 79

. By inc orre c tly fore closing th e possibility of “ p art y ” status under Section 74.351(a) absent s ervice of process u pon a

t rigge r ing attorney general represe ntat ion of a defendant state emplo y ee . See id. at 496

– 97 ( citing Tex. Civ. Prac. & Rem. Code Ann. § 104.005 ). “ A st ate e mployee is not serve d through ser vic e on the s tate att orney general [, however] ; se rvice on the att orney gen eral is simpl y a mechanism necessary to ens ure that the state is liable for the conduct of its emp loyees. ” Id. at 497 (citing Ha milton v. P echac ek , N o. 02

- 12

- 00383

- CV, 2 014 WL 109601 8, at * 2 (Tex . App.

— F ort Worth Mar. 20 , 2014, no pet.) (mem. op.) ). Becaus e Sec tion 104.005 “ does not designate the atto rney general as an agent for serv ice of process for public servants ” and service o f process o n th e defe ndant nurse employee did not trig ger attorney general representation until after t he deadline for serving a n exp ert report had already passed, as a m atte r of l aw, the attorn ey general wa s not a “ party ’ s attorney ” upon whom service of t he expert r epor t sati sfied Section 74.351 (a) as to the de fendant nur se emplo yee. See id. at 496

– 97.
Th e other post

- Zanchi case c ited by Appellants is also distinguishable. Se e Uni v. of Tex. Heal th Sci. Ctr. at Houston v. Joplin , 525 S .W.3d 772 (Tex. App.

— Houston [1 4th Dist. ] 201 7 , pet. den ied)

. In Joplin , the clai mant s served their expert report on the def endant phy sician , who the n for warde d the report to her former government employer, the health center , reque sting defense and representation. Id. at 775. The claima nt s subs equ ently amended their petition a nd substitute d the he alth center for the p hysician a s a defendant but never s erved their expert report o n the health center
or its attorney , the attorney gener al. Id. The Joplin court reject ed the argument tha t service may be satisfied w hen one def endant ( physician employee) pr ovi des a copy of the expert re port to ano ther defendant ( government employer)

. I d. at 781 (ci ting Tex. Ci v. Prac. & Rem. Code Ann. § 74.35 1(a ) ) . But this ca se contemplates pre

- suit service of the report by the clai ma nt herself on a defendant “ party ’ s attorn ey. ” Moreover, Appel lants are not governmental units r epresented by the attorney ge neral, lik e the health center in Jop lin , and this is n ot a case involving employee

– employer defend ants.

6 T he supreme cou rt ’ s disapprov al of the very argument ur ged by t h is auth or during his representat ion o f Dr. D ingler before this court render s th at “ victory ” retrospectively P yrr h i

c in nature , p a rticularly give n th e ne ce ssity of documenting the erro r in this opin ion

. See Dingler , 301 S.W.3d at 766

– 68.15 named health care liability d efendant, this court avoided the question presented by
pre

- suit legal representation of m ultiple defe ndants. Considerat i on of th e factual
circumsta nces of Di ngl er in lig ht of Zanchi and Hebner supports the trial court ’ s r uling
in this case.
1
. Dingl er v. Tucker
In Dingler , the Tuckers filed their original petition on November 5, 2007, allegin g health care liability claims against D r. Dingler a nd Nocona Medical C linic. 3 01
S.W.3d at 763. They served Noco na with citation b y c ertified mail the following day.
Id. Nocon a subsequently filed its original answer on November 26, 2007 , signed by its

att orney of record

. Id. at 764. That same day , th e Tucker s served Noc ona ’ s counsel

— havi n g formall y appeared on behalf of Nocona

— with their expert report in compliance with Section 74.351(a)

. Id. Nocona subsequently challenged the suffici ency of the expert report, both as to
its direct l i ability al leged th er ein and as to any vicari ous liability asse rted due to the

n egligence of Dr. Dingler

. See i d. “ On Ju ne 6, 2008, Nocona filed a motion to dismiss
the Tuckers ’ claims. ” Id. Sig nificantly, three of Nocona ’ s filings in this time frame

— its

or i ginal ans wer, its ob jection s to the expert report, and its special exceptions to th e Tuckers ’ original petition

— list ed its attorneys with the designation “ Attorneys for Defendant Dingler ” or “ Attorneys for Def endant Len Dingler, M.D. ” in the ir signature blocks

. Id. at 766 n. 2

.16 Th en, “ ap p roximately seven months after the Tuckers filed the laws uit, they served Dr. Dingler with c itation by personal ser v

ice

. ” Id. at 764. Dr. Di ngler subsequently filed his original answer with a nother attorney

— from the same firm as

couns el for Nocona

— f ormally a ppearing as his attorney of recor d by sign ing t he pl eading on his behalf

. Id. “ T he Tuck ers never personally serv ed Dr. Dingler with [the expert] report

— either before or after s ervice of citation. ” Id. H e thereafter filed a motio n t o d ismiss “ on th e ground that the Tuckers had failed to c omply wit h [Section ] 74. 351(a) by failing to serve eit her him or his attorneys with an e xpert report with in 120 days after the date the original petition was filed. ” 7 Id. (emphasis added).
The tr i al c ourt ultimat el y sustai n ed Nocona ’ s objections to the rep ort and gra nted its motion to dismiss, but it denie d D r. Dingler ’ s motion to dismiss , prompting the appeal. Id. at 764. On appeal, Dr. Dingler argue d that the Tuckers failed to comply with Section
74 .351(a) becaus e (1) h e was not served with the report a t any t ime betw een the fi l ing of the origina l petition and the filing of his motion to dismiss and (2) the Tuckers ’ service of [the expert] repor t upon co unsel for Nocona in November 2007 constituted s ervice on be half of o n ly Nocona, not him too, because

— e ven tho ugh he share[d] at t orneys with Nocona

— at that

7 Counting February 29 for the leap ye ar 20 08 , the T uckers ser v ed Dr. Dingler with citation 219 days after filin g their original petition

— well beyond the 120

- da y deadl ine for se rving th eir expert report

. See id. a t 763

– 64, 76 6

– 67

. During that time frame , t hey had attem pted per sonal ser vice of citation throu gh certified mail , “ but t he citation, w hich issued N ovember 5, 2007, was returned unclaimed after the post o ff ice mad e severa l atte mpts to serve it

. ” Id. at 76 3

– 6 4

.17 p oint in time, he had not been served with citation nor had he made an appearance in the cas e. Id. at 766. A majority of this court agreed, interpre ting the t erm “ party ” to require
service of citation u pon a d efendant named in a n existing health care l iabi lity lawsuit , thereby foreclosing se rvice of an expert report upon that “ party ’ s attorney ” a bsent
such serv ice of c itation. See i d. at 766

– 67. Accor dingl y , th e majority expressly rejected
the Tuckers ’ a rgum ent that service of t h e report upon Noco na ’ s couns el should be imputed to Dr. Dingler since they subsequently appeared on his behalf. See id. The majority further re jected the Tuckers ’ equitable arg ument tha t the cour t should impute timely service of the ex pert report due to Dr. Ding l er ’ s consci ous dec isi on n ot to claim certified mail from the clerk of the court , noting the Tuc kers ’
failure to p resent any evidence of improper avoidance of service or to cite a ny a uthori t y by which w e could do so , even i f we so found such gamesm anship

. Id. at 7 67

– 68. Finally, th e m ajority implicitly dismissed as a basis for imputation the s igning of
Nocona ’ s pleadi ngs on behalf of Dr. Dingler by Nocona ’ s attorney becaus e the
sub stance of t he pleadings unequivocally demons trated advocacy on beh alf of
Nocona , not Dr. Ding l er . See id. at 766 n. 2. Finding an abuse of discretion in the trial

court ’ s refusal to grant Dr. Dingler ’ s motion to dismiss, the majority reversed the t rial

cour t ’ s ruling and remanded with instructions to enter an order of dismissal wit h prejudice including an a w a rd of reasonable a tto rney ’ s fees. See id. at 768 , 771

.18 Dissenting from the majority ’ s d ecision in favor of Dr. Dingler , Justice Terrie Livingst on found persuasive the Tuckers ’ argume nt imputing se rvice of the expert
report upon Nocona ’ s attorney to Dr. D i ngler : I believe t hat once Dr. Dingler became a party to the suit

— when he was served wit h citation

—he was served with the expert report that sam e day bec ause the a t torneys who actually represent hi m in this litigation had already been served with the repo r t on behal f of Noc ona. While Dr. Dingler was not an actual “ party ” to the suit until Jun e 11, 2008, when he was finally served with citation, th e service of the ex p ert report on Nocona ’ s and Dr. Di ngler ’ s mutual attorneys , which had occurred previously, r i pene d as to Dr. Di ngle r on the day he became a party. In other words, as to Dr. Dingler, it was a prematurely served report, but once service on Dr. Ding ler was pe r fected, so too was service of the expert report. Id. at 771

– 72 ( Livingston, J., concurring and dissenting ) (f ootn otes omitted)

. F urther

o bserv ing that the majority ’ s interpretatio n of Section 74.351(a) impaired the ability of
health ca re l iabil ity claima n ts to comply as to defendants sub ject to delayed service of
citat ion and otherwise e ncouraged a voidanc e of such se rvic e until expiration of th e 120

- day deadline , Justice Livingston conclude d that “ the duty to serve the report

cannot beg in to run until the particular defenda nt has been mad e a party ” a nd that

“ Dr. Dingl e r ’ s couns el was ti mely se rved with the expert repo rt. ” Id. at 772. 8

8 Bec ause we unanimous ly sustained the T uckers ’ cross

- app eal complaini ng of the trial court ’ s d ismissal of their vica rious liability claims agai nst Nocona , they were ultimately able to prosecute their allegati ons of n eglige nce against Dr. Dingler through Nocona

. See id. at 771

.19 2. St. Luke ’ s Episcopal Hosp it

al v. Poland
Ano ther pre

- Zanchi dissenting opi nion, the reasoning of whi ch we fi nd equally
per s uasive, is that of Justice Terry J ennin gs in St. Luke ’ s Episcopal Hosp ital v. Poland , wherein he and Justice Jane Bland rejected the majority ’ s ruling that an expert report
coul d be served on a party ’ s attor ney only after the filing of a la wsuit

. 288 S.W.3d 38,
4 9

– 55 ( T ex. App.

— Houston [ 1st Dist.] 2009 , pet. denied) (op. on r eh ’ g) ( Jennings, J., dissenting from denial of en banc re consideration)

. The dissent interpreted former
Se ction 74.351(a ) to contemplate pre

- suit service of an ex pert re port upon a party ’ s attorney when counsel fo r the defendant health care provid ers respon ded to the
claima nts ’ properly served pre

- suit notice of claim by identifying the mselves as counsel for the health care providers and inviting s ettlement negotia tions and counsel
for the c l aim a nts faxed a c opy of an expert report to them in furtherance of such negotiations. See id. Indeed, Justice Jenning s ’ s dissent, joined by Just ice Blan d, anticipated Hebner in concluding that “ [n]othing in for mer [S]ection 74. 351(a) precludes a claimant from
servi ng an implicated physic ian or health care provider with her expert report

. . . along with an original petition or prior to the actual fil in g o f such a claim in court , ” so

“ service of the expert rep ort directly upon co unsel for [the health care pr o vide rs] was more than adequate

. ” See id . at 53. The St . Luke ’ s dissent would have held that the trial
court did not abuse i ts discretion in conclu ding the same

. S e e i d. at 53 , 54 ( “ Setting
aside the trial c ourt ’ s express findi ng that the [claimants] had t i mely served their20 expert report o n the [health care provider s ’ ] attorneys . . . under these ci rcumstances
constit utes a misapplication of the form er Se ction 74.351(a)

. ” ).
3 . Abr ogation of Dingler and St. Lu ke ’ s Given the Zanc hi court ’ s abrogation of the majo rity ’ s interpreta tion of Secti on 74.351(a) in Dingler and St. Luke ’ s

, the Ding ler and S t. Luke ’ s dissent s p rovide
p ersuasi ve author ity contempl atin g service of an expert report on a party ’ s atto rney befo re the attorney make s a formal app ear ance on its beh alf, even after the attorney ha s appeared formally on behalf of another related defen dant

. Nevertheless, neither Z anchi

nor its progen y e mbrace d the retrospective imputation of s e rvice the Di ngler dissen t suggests; instead, the evidentiary record must demonstr a te the existence of an attorney

– cl ient relationship between the party and the attorney concerning the very health car e liability claim made the subject of the expert report

. S ee Ransom , 503
S.W.3d a t 41 1

– 12 ; Hebner , 498 S.W.3d at 41

– 43 ; Za n ch i , 408 S.W.3d at 377

– 7 9 ; see also
St. Luke ’ s

, 2 8 8 S.W.3d at 53 (Jennings, J., dissenting from denial of en banc reconsideration)

. For example, in Dingler , couns el for Nocona signed Nocona ’ s original answer identifying h imself and his firm as counsel of reco rd for both Nocona an d
Dr

. Dingler

. The Tuckers thereafter served thei r expert report (which imputed
Dr. Dingler’s medical negligence to Nocona vicariously) on said counsel in support of their health care liability claims against bo th. T h e trial court cou ld h a ve reasonabl y infer red from that exchange that counsel for N ocona and counsel ’ s firm were21 Dr. Dingler ’ s attorney s for purposes of Section 74.351(a) service , despite the undisputed f act that Dr. Dingler had yet to be served with citation

. T he trial court ’ s inferen ce could have been confirme d by (1) the two subse qu e nt pl eadings with signature blocks referencing the firm ’ s representation of Dr. Dingler as a defendant in
the la wsuit and (2) the firm ’ s eventual formal appearance on hi s behalf

. See Dingl er

, 301
S.W

. 3d at 766 n.2. By way of contra st, given that none of the thr e e pleadings substantively a d vocate d for any party o ther than Nocona , the trial court would not
have abu sed its discretion by dec lining to find a sufficient attorne y
– client relationshi p at th e time of the Tuck e rs ’ service of t he report on counsel for Nocona

. See id. ( “ The
substan ce of the f iling s demonstrat e that they are made on behalf of only Nocona. ” )

. 4 . T he Evidentiary Record in th e Current Lawsuit Appellants ca tegorically deny that Hur st was their att orney for servi c e o f an expert r eport until , at the ea rliest, h e obtained their permission to accept se rv ice of
process on their b ehalf and emailed counsel f or Arens to that effect

. During the hearing on Appellants ’ motion to dismiss , Hurst testified : My name is Mic ha el L

. Hurst ; I ’ m an attorney in Dallas, Tex as [,] with the law firm of Thompson, Coe, Cousin s, and Irons. I was retained to represent Cap ital Senior Living, Inc. in a lawsuit brought by Ms. Arens. In that capaci ty, I f iled an original answer for that def e nda nt. At the time that the original petition w as filed against Capital Senior Living, Inc. , an expert report was served on me as counsel o f Capital Senior Living, Inc. on or about August 17 [] , 202 1.22 Ca pit al Senior Living , Inc. ’ s original answer was filed 0 9 /20 /20 21. In that answer, it was asserted that Capital Senior Living, Inc. was not a proper par ty to the action. Subsequent to the answe r being filed for Capital Senior Living, Inc., the plaintif f chose t o sue Capital

-- CSL We atherford, LLC and Capital Se n ior Ma nagement S, Inc. Su bsequent to the filing of that pet ition, I was retained to repres ent t hese two defendants. The original answe r was filed on January 31 [] , 2022. From the time tha t the F irst A men ded Petition was filed , on January 4, 2022, until May 31 [] , 2022, no expert report was s erved upon
me as counsel for CSL Weatherford, LLC or on me as counsel for Capital Senior Managem ent S, Inc. I have never received any type of
ex pert report during the t ime period that I r epres ented these two new defendant s . On cros s, Hurst denied that he represented Martin Crest Assi sted Living or knew w ho
did busin ess as Martin C rest Assisted Living

. More specifically, when aske d which of the two legal entit ies he repre sent ed “ d oes business ” as Martin Crest Assiste d Living

— Weatherford or Ma n age men t

— Hu rst dissembled: “ I ’ m not prepared to tell you that un der oath, I ’ m sorr y. I don ’ t know if it ’ s them, Capital Senior Living, Inc., or somebody else. I don ’ t know. ” Finally, w hen confronte d wi th the email from counsel for Arens inquirin g whether he wou l d accept service on “Martin Crest ” and his affirmative res ponse th ereto, Hurst testified: “I don ’t know. I ’m not denying it ; I just don ’t know the

e

- mai l. ” Asked the same que stio n a s e con d t ime, Hu rst again denied familiarity with the email exchange: “I don ’t know wh a t the e

- m ail says, but if you just want to pu t it
into evidence. But I don ’t know what the e

- mail says. ”23 Hurst ’ s te stimony i s not suppo rte d by the evidentiary recor d

. S ign if ic antly,
Hurst hims elf introduced the d ocumentary evidence that contradicted critical portions
of his swor n testimony , i ncluding Living ’ s original answer and its initial disclosures

. 9
M oreover , b y identifying Appellants and Martin Cr est e m plo yee s as persons with knowledge of the health care liability claims asserted by Are ns and instructin g that they be contacted not by the ir indiv i du al or business addresses and telephon e numbers b ut strictl y “ c/o Michael L. Hu rst [ of ] Thompson, Coe , Cou si n s & Ir ons , ” Hurst formally confirmed his a u t h o r i t y t o a c c e p t correspondence and

9 H urst testified t o not knowing which , if any , of t he three entities he repre s ented d id busine ss as Martin Crest Assisted Living : Living , Weatherford , or Management . On the contrary, Hurst intr oduced for the trial co urt ’ s consideration the original answer he signed and f iled on behalf of Living , which specif ically de n ied “ t hat it does busin e ss as M artin Crest Assisted Living. ” See W.C. Turnbow Pet roleum Co. v. Fulton , 194 S.W.2d 256, 257 (Tex. 1 946) ( “ Counsel should sign their names to motions and pleadin gs ‘ to make themse lv es resp onsible for what is s tated in t hem, and so a s to leave no doubt as to the parties for whom they appear. ’ ” (quoting Simmons v. Fisher , 46 Tex. 126, 129 (1876)) ) ; In re V alliance Bank , 422 S.W.3d 722, 726 (Tex. App.

— Fort Worth 2012 , orig. proceeding [mand. d enied] ) ( en banc op. on reh ’ g ) ( “ An attor ney ’ s signature on a pleadin g certifies that he has read the do cument and that to the best of his knowledge, informatio n, and belief, formed after reasonable inquiry , the instrument is not groundless and not brought in ba d faith or for the purp ose of haras sme nt. ” ( emphasis a dded) (ci ting Tex. R. Civ. P. 13 ) )

. Hurst also i ntroduced Living ’ s initial disclosures wher ein , by his si gna t ure , he
s pecifically i dentified Weatherford and Management as the owner and manager , respe ctively, of “ Martin Crest

. ” See T ex. R. Civ. P. 1 9 1

. 3 (b ) ( “ The si gnature of an at torney or party on a disclosure constitutes a cer tification that to the b est of t he signer ’ s knowledge, information, and belief, forme d after a reasonab le inquiry , the disclosure is comple te and correct as o f the ti me it is made. ” (emphasis added) ) ; In re Allied Chem. Corp. , 227 S.W.3d 652, 657 (Tex. 200 7) (orig. proceeding) ( observi ng that parties and the attorneys who sign discovery respon ses on their behal f certify that a response is c omplet e “ based on all in f orma tion reasonably available to the responding party or its at torney at the time the respons e is made ” )

.24 communicat ions o n b ehalf of Appellants as their attorney the very same day and
contemporan eously wi t h his making a forma l appearance on behal f of Living

. See Regalado v. State , 934 S.W.2 d 852, 854 (Tex. App.

— Corpus Christi

– E dinburg 1996, no writ) ( affirming default judgment in a bon d forfeiture proceedi ng and concluding that the only fair and r easo nable construction of the re t urn of citation identifying “ Name: c/o Maria Regalado ” as the r ecipient indicated “ that the executing officer left the
citat ion in the c are of Maria Regalado; that is , in Mari a Regalado ’ s own hand s ” (empha s is in original) ) ; see also W

. Union Tel. Co. v . Yo ung , 13 S.W. 985, 985 ( Tex. 1890 ) ( “ The direction to ‘ Mrs. N. Y oung, care of W.R. Henry & Co. , ’ has the same meaning and leg al effe ct as it wo uld have had if the directio n had been ‘ to W.R. H en ry & Co

. , f

or Mrs. Young

. ’ ” ) ; In re Panek

- Hortman , 593 B. R 40 0, 402 ( Bankr. W.D

. N.Y. 2018) ( observin g letter s “ c/o ” are “ a com mon abbreviation that stands fo r the words ‘ in
care of ’ ” typically used “ to ide ntify a third par ty to who m mail is being sent o n behalf
of the intended recip i ent ” )

. In other words, the e vid entia ry record considered by the trial court supported a reasonable inference that Hurst was the “party ’s attorney ” for Living , Wea th erford , and Ma nagement not only at th e time of his formal appearance on behalf of Living
but a lso at the time he agre e d t o and did accept service of both the or iginal petition
and the expert report on behalf of “Marti n Crest

. ” This inference is supported by
both Hurs t ’ s apparent pre

- suit parti cipation in the productio n of records from Martin25 Crest 10 and b y his formal appe a ran ce on behalf of Living , Weather ford , and Management in defense of the he alt h care liability claims brought by Arens

. And t he subsequ ent email exc hang e between counsel for Arens and H urst con firm ing Hurst ’ s authority to a ccept ser vice of citation on behalf of Appellants d id not c onc lusiv ely
contradict the reasonable inferenc e that he was the “ party ’ s attorney ” for Appellants
at the time he accepted serv ice on behal f of “ Martin Crest , ” given the more restrictive
process due for formally appearing

. See supra note 2 (observi ng that e ffective service of citation upon a nam ed defe ndant ’ s attorney requires the filing of a verified written
memorandum ).
Acco rdin gly, d eferring as we must to the trial court ’s implicit finding th at Hurst
was the attorn ey for Appe llants when counsel for Arens served h im with t he expert
report by email on August 2 5 , 202 2 , w e conclude th e trial court did not abuse i ts d iscretion in denying the mo tion to dis miss. See United Healthcare of Tex

. , Inc. v. Low

- T Physicia ns Serv., P.L.L. C. , 660 S.W.3 d 545, 552 (Tex. App.

— Fort Wo rth 2023, n o pet. ) ( observing the tri al court “ i s the sole judge of the witnesses ’ credibility and th e wei g ht

to be given their testimony ” when acting as the factfin der )

.

10 As noted above, Hurst reasonably suggested his participatio n in a pre

- suit document exchange on behalf of a separate “potential Defendant” identified in the initial disclosures

— w ell before making a formal appearance on behalf of Living or Appellants

— particularly when he identified Weatherford and Management “c/o M ichael L. Hurst.26 I II . Conclusion
Ha ving overrule d Appellants ’ sole issue on appeal, we affirm the trial court ’ s

o r der de nying Appel l ants ’ motion t o di smiss in its entirety

. /s/ Wade Birdwell
W ade Birdwell Justice
Delivered: April 6, 2023