### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00280- CV

Walter Zawislak , MD, Appellant

v. Dr. John Bruce Moskow, MD, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-1 8-0 0228 6, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

M E M O R A N D U M O P I N I O N

W a l t e r Z a w i s l a k , M

. D

. , a p p e a l s f r o m th e tr ia l c o u

r t’ s o r d e r g r a n ti n g D r . J o h

n M o s k o w ’ s Rule 91a motion to dismiss

. See generally Tex. R. Civ. P. 91a.1–.9 (per mitti ng dismiss al of claims having “no basis in law or fac t”). Z awislak asser ted a neg lige nce claim ag ainst Moskow rela ted to Moskow’s statements as an expert at an administrative disciplinary proce eding initiated by the Texas Medica l Boa

rd (TMB ) ag ainst Z awislak. Moskow timely moved to dismiss the suit under Rule 91a

on the g round that Moskow’s testimony was entitled to absolute immunit y . See id. R. 91a.3 (setting
out timing require ments for motion). The trial court g rante d the motion and awa rded Moskow attorney ’s fee s and costs. See id. R. 91a.5 (stating require ments for dismiss al ),

. 7 (providing for costs and attorne y ’s fe es). F or the re asons stated be low, we a ffirm.BACK GR OUND 1 On J une 4, 2012, TMB filed a complaint ag ainst Z awislak for viol at i o n s of the Medica l Practice Act. The disciplinary proce eding s wer e assig ned to an Administrative L aw J udg e ( A L J) f o r th e State Offic e of Administrative Hea ring s (SOAH). “TMB reta ined/contra cted with the ir
ag ent .

. . Moskow

. . . to provide an e x pert medic al i nvestig ative report, ex pert report, and expert witness deposition,” and Moskow “is/was an expert revie w panelist for [TMB] pursuant to Tex. Occ

. Code § 154.056(e) .” See Tex. Occ

. Code § 154.056(e) (providing that expert phy sician panel shall be appointed by board to assist with complaints and investiga tions rela ting to medical competenc y by acting as expert phy sician revie wer s). Z awislak moved to strike Moskow’s expert testimony on five g rounds:
(1) Dr. Moskow should be stricken as an expert fo r l ac k of qualifica tions by education, training or

experience from testify ing in the SOAH proce eding [; ] (2) that Dr. Moskow is not qualified to testify beca use Dr. Moskow was not actively prac ticing medicine or rende ring emer g ency medical trea tment afte r, at best, 2008[; ] (3) that he did not rende r emerg ency med i ca l trea tment during the t ime rele vant t o responde nt[ ;] (4) that Dr. Moskow indicated in his expert witness deposition that he d i d n ot prac tice emer g ency medicine in his office s - Emerg ency Service s Partners - and that he did not provide medical car e to any patients outside of an emer g ency room at the time of the TMB’ s Under ly ing Complaint in the case and Substantive issues of L aw and F act be fore the SOAH cour t ag ainst the Plaintiff; and

T h e fa ct s o f this case are draw n from Z awislak’s live petition and supporting Rule 59 1 exhi b i t s . S

ee Tex. R. Civ. P. 91a.6 (“[T]he court

. . . must decide the motion based solely on the pleading of the c ause of

action, tog ether

with any pleading exhibi ts permitted by

Rule 59.”). 2(5) that [] Dr. Moskow spends all of his time handling administrative matters for his

business [Em erg ency

Service s Partners], and not providing medical tre atment.
(I nterna l marks, footnotes, and citations omitted.) The AL J overr uled the motion. After a hear ing

on the m erits, t he AL J issued a proposa l for decision on Dec ember 5, 2014, finding that Z awislak violated the Medica l Practice Act and TMB’ s Rules. On Fe bruar y 13, 2015, TMB adopted the AL J ’s proposal, publicly repr imanded Z awislak, imposed continuing medical educa tion and testing require ments, and require d Z awislak’s prac tice to be monitored by a phy sician for a specifie d time period, a mong othe r re quirements.

On J anuar

y 2, 2018, and as amended on J anuar y 19, Z awislak filed suit ag ainst Moskow and other s. Z awislak a lleg ed that Moskow committed neg lige nce be cause : 2

Defendant violated statute(s) Title 3, Subtit le B, of the Texas Occ upations Code § 156.007(a) and (b); § 164.05(a) (1) and (3); § 1 6 4

. 0 5 2 (a) (1) and (5); and § 164.053(a) (1), the Texas Administrative Code § 163.11 (a) and (b), as well as the Am eric an College of Emerg ency Phy sicians to qualify as an expert witness i n t h e specia lty of emer g ency medicine Code of Ethic s fo r E m erg ency Phy sicians Ann Emerg Med. 2008; 52(5):581-590.

Zawislak’ s complaint appea rs to be that Moskow’s “admitted action(s) /conduct” in hi s “e x p er t medical investiga tive repor t, expert repor

t, and exper

t witness deposition to the SOAH Court” shows that Moskow had not “ac tively p ra cticed medicine

. . . from 2004 throug h 2015” and that he there fore was “an unqualified phy sician to be an expert witness who is asked to rende r opinions as

On May 7, 2018, the trial court signe d an ag ree d order of sever ance that sever ed out 2 Z awislak’s c laims ag ainst Moskow. 3to assess the requisi te standard of car e perta ining to emer g ency phy sicians in case s of alleg ed

medical malpr actice and pee r re view” unde r the c ited statutes, rules, and pr ofessional g uidelines.

Moskow answe red and, on F ebrua ry 13, timely filed a Rule 91a motion to dismiss 3 based on one gro u nd: his “testimony and opinions” during the administrative proce eding s “ar e protec ted by ab s o l u t e i m m unity .” See generally Tex. R. Civ. P. 91a.1–.9 (setting out dismiss al
proce dure)

. Z awislak did not file a response to the Rule 91a motion, but he did file a s econd amende d p et i t i o n o n Marc h 5, purporting to amend his cause of action to asser t that Moskow’s
statements constituted perjury

. See id. R. 91a.4 (re quiring response to be filed “no later than 7 day s befor e the date of the hear ing” ), .5(b) (per mitti ng responde nt to amend cause of action “at least 3 day s befor e the date of the hear ing” ). Two day s later, on Marc h 7, the trial court hear d the Rule 91a motion to dismiss

. See id. R. 91a.6 (providing that court may conduct oral hear ing on motion). On Marc h 20, the trial court timely g rante d Moskow’s Rule 91a motion to dismiss

. See id. R. 91a.3(c ) (re quiring court to g rant or deny motion within 45 day s afte r it was filed), .5(d) (providing that trial
court “must decide the motion based solely on the pleading of the cause of action, toge ther with any pleading exhibi ts permitted by R u l e 5 9”). The trial court also awa rded Moskow $5,250 for

reas o nable and nece ssary attorney ’s fee s and costs. See id. R. 91a.7 (providing for costs and attorney ’s fee s). After filing a motion to rec onsider, Z awislak appea led from the trial court’s Rule 91a dismissal order.

Moskow counter claimed that the action was broug ht in bad faith, without any basis in law 3 or fa ct, and solely

for the pur

pose of ha

rassment. See Tex. Ci v. Prac. & Rem. Code § 9.011; Tex. R. Civ. P . 13. The c ounterc laim was nonsuited in the ag ree d order of seve ranc e. 4STANDARD OF REVIEW AND AP P LICABLE LAW Rule 91a permits a party to move t o dismiss a cause of action on the gr ound that it has no basis in la

w or fac t. See Tex. R. Civ. P. 91a.1. There is no leg al basis for a cause of action if “the alleg ations, taken as true, toge ther with infere nces rea sonably draw n from them, do not entitle the claimant to the relief soug ht” and no fac tual basis if no rea sonable person could believe the fac ts pleade d. Id. Other than evidenc e reg arding costs and fee s, “the court may not consider evidenc e in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, toge ther with any pleading exhibi ts permitted by Rule 59.” Id

. R

. 91a.6; see also id. R. 59 (explaining whe n document may be dee med par

t of petition). Our revie w of a trial court’s Rule 91a dismiss al is de novo “bec ause the availability of a reme dy under the fac ts alleg ed is a que stion of law and the rule’s fac tual-plausibility standard is akin to a leg al-suff

iciency revie w.” City of

Dallas v. Sanchez , 494 S.W .3d 722, 724 (Tex. 2016). We “construe the pleading s liberally in favor of the plaintiff, look to the pleade r’s intent, and acc ept

as true the fac tual alleg ations in the pleading s to de termine if the cause of action has a basis in la w or fa ct.” Koenig v. Blaylock , 497 S.W .3d 595, 599 (Tex. App.—Austin 2016, pet. denied) (citing W ooley v . Schaffer , 447 S.W .3d 71, 76 (Tex. App.—Houston [14t h Dist.] 2014, pet. denied) ).

DISCUSSIO N I n two issues, Z awislak challeng es the trial court’s dismiss al under Rule 91a. First, Z awislak arg ues there is a basis in both law and fac t for the cause o f ac t i o n an d t h at the asser ted
g round for dismiss al in the Rule 91a motion—im munity from suit—does not apply to Mos k o w’ s

5statements. Second, Z awislak claims that Moskow’s statements constitute perjury and that the trial

court e rre d in determining that Moskow’s statements “did not constitute per jury .” As the trial court must decide the motion solely on the pleading and pleading exhibi ts, T ex . R

. Civ. P. 91a.6, we first must deter mine the rele vant live pleading at the time of the tr i al court’s deter

mination. Z awislak filed a second amende d petition on Marc h 5, 2018, two day s befor e the M ar ch 7 h ea ri n g o n the m otion. I f t he respondent amends the cause of action “at least 3 day s befor e the date of the hear ing,” the movant may withdraw or amend the motion under para g raph (b) of Rule 91a.5. Id. R. 91a .5(b). Otherw ise, “[i] n ruling on the motion, the court must not consider a[n]

. . . amendment not filed as permitted by para g raph[]

. . . (b),” unless the parties ag ree otherwise. Id. R

. 9 1 a.5(b)–(c) ; see Ruth v. Crow , No. 03-16-00326- CV, 2018 WL 2031902, at *2 (Tex. App.—Austin May 2, 2018, pet. denied) (mem. op.) (re cog nizi ng that “rule 91a has fairly strict time constraints” and “it does not inc lude a ‘g ood cause ’ exception”). The rec ord does not indicate any ag ree ment on this issue. Be cause Z awislak’s second amende d petition was not filed “at least 3 day s befor e the da te of the he aring ,” we will not consider it and will ins tead c onsider the f irst amended petition as the live petition for purpose s of this analy sis. See Tex. R. C iv. P. 91a.5(c). 4

At the hear ing, it was claimed that the s ec o n d amende d pleading was filed on Sunday , 4 Marc h 4, 2018, and thus was amende d “at least 3 day s befor e t h e h earing .” See Tex. R. Civ. P. 91a.5(b) –(c)

. Howeve r, “[p] arties may amend their pleading s . . . b y f i ling such pleas with the cler k,” id. R. 63, and “[a]n elec tronically filed document is deem ed fi l ed wh en transmitted to the filing party ’s elec tronic filing service provi d er , except

. . . if a document is transmitted on a

. . . Sunday

. . . it is deemed filed on the ne x t day that is not a Saturday , Sunday , or leg al holiday ,” id. R. 21(f) (5). Thus, even if Z awislak transmitt ed the amendment t o t he electronic filing service provider on Sunday , it was not deeme d filed until Monday

. Moreove r, even if the amendment was co n s i d ered filed on Sunday , “Saturda y s, Sunday s, and leg al holiday s shall not be counted for any purpose in any

time period of f

ive day s or less in these rule s.” Id. R. 4.

6Absolu te Im m uni ty The parties dispute whether Mos k o w is entitled to immunit y under common law absolute immunit y

—also called the judicial proce eding s privileg e—or under subsection 160.010(e) of the Texas Occ upations Code. Mosko w al s o ra i s es for the first time on appea l a statute of limit ations arg ument as an alterna te g round, which Zawislak arg ues was waived. Be cause we conclude that subsection 160.010(e) provides Moskow w it h im mu n it y a n d is d ispositi ve of this issue, we do not addr ess the other arg uments raised on a

ppeal. See Tex. R. App. P . 47.1, 47.4. Subsection 160.010(e) states:

A member of an expe rt panel under Section 154.056(e) and a person serving as a consultant to the board are immune from suit and judgme nt and may not be subjected to a suit for damag es for any investi gat ion, repor t, rec ommendation, statement, evalua tion, finding , or other action taken without fra ud or malice in the course of perf orming the per son’s duties in evaluating a medica l competenc y case .
Tex. Occ

. Code § 160.010(e)

. Z awislak does n o t d i s pute that Moskow is a member of an expert panel, the statements at issue wer e made in the co u rs e o f perf orming his duties in evalua ting Z awislak’s medical competency case , and the statem en t s wer e without malice. I nstead, Za wislak

asse rts that subsection 160.010(e) does not apply beca use Moskow’s statements wer e fra udulent. Acc ording ly , if Moskow’s statements are “without fra ud,” then subsection 160.010(e) provides him with “immun[ ity ] from sui t and judgment,” and the trial cour t did not err in g ranting the Rule 91a motion. See id.

I n his reply brief befor e this Court, Z awislak alleg es Moskow made fra udulent
statements in the admi n i strative proce eding and attache s exhibi ts from third-par ty discovery and

7other documents that , Zaw i s lak alleg es, support the fra udulent nature of the statements. These documents, howeve r, wer e not proper ly included in the rec ord on appea l, and we may not consider them. See Tex. R. App. P

. 34.1, 38.1(g ); Save Our Spri n g s A l l

. , In c. v. C ity of Dripping Springs , 304 S.W .3d 871, 892 (Tex. App.—Austin 2010, pet. denied) (“We are limit ed to the appellate rec ord provided.” ); Burke v. Ins. Auto Auctions Corp. , 169 S.W .3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (explaining that documents t hat are cited in brief and attache d as appendic es may not be considere d by appellate courts if they are not formally included in rec ord on appea l). Moreove r, the
scope of this Court’s revie w of the trial court’s Rule 91a dismiss al is limit ed to the pleading and any Rule 59 pleading exhibi ts. See Tex. R. Civ. P. 91a.6 (“[T]he court

. . . must decide the motion based solely on the pleading of the cause of action, toge ther wi t h an y pleading exhibi ts permitted by Rule 59.”). Her e, the live pleading and plead i n g ex h i b i t s do not alleg e that Moskow’s medical investiga tive repor

t, expert report, a

nd expert witness deposition were fra udulent. I n fac t, the live pleading states that the claims are based on Mo s k o w’ s “admitted conduct/ac tions” in his expert deposition, expert repor

t, and testimony befor e S OA H, and that the “admitted conduct/ac tions” alleg edly violated statutory provisions, TMB rules, or profe ssional o r g a n iz a ti o n g u id e li n e s . I

n eff ect,

as pleade d, Z awislak’s neg lige nce claim depends on the truth, not the falsity , of the sta t em ents that wer e made in the administrative proce eding s to show that the “adm i t t ed conduct/ac tions” constitute neg lige nce.

Acc ording ly , Zawislak failed to plead a false repr esenta tion in Moskow’s “expert medical investiga tive repor t, expert repor t , an d expert witness deposition” submitt ed in the administrative proce eding that Z awislak alleg es cause d the injury or to alleg e that Moskow made a

8repr esenta tion that he knew was false or made rec klessly without any knowledg e of the truth and as

a p o s it iv e a s s e r

ti o n . S e e I ta li a n Co wb o

y P a r tn e r s , Lt d

. v
. P r u d e n ti a l I n s
. Co

. o f A m
. , 3 4 1 S. W. 3 d 3 2 3 , 337 (Tex. 2011) (noting el em en t s of fra ud). I n sum, Z awislak has not pleade d how “any investiga tion, repor

t, rec ommendation, statement evalua tion, finding , or other action taken

. . . in the

course of perf

orming the person’ s duties in evalua ting a medical competenc y case ” was fra udulent

or malicious. See Tex. Occ

. Code § 160.010(e)

. On these pleading s, Moskow is there fore “immune from suit” under subsection 160.010(e) , and the trial court did not err in dismissing the case under Rule 91a. See id. ; cf. DeVoll v. Demonbre un , No. 04-14-00116- CV, 2014 WL 7440314, at *3 (Tex. App.—San Antonio Dec

. 31, 2014, no pet.) (mem. op.) (holding that beca use “De Voll did not alleg e fac ts de monstrating relianc e or harm, his f raud claim has no basis in la w,” and af

firming Rule 91a dismiss al). We over

rule Z awislak’s f

irst issue.

P erj ury I n his second issue, Z awislak claims that the trial court err ed “whe n it deter mined that [Mos kow’s] Ex pert Report, Ex pert Sworn Oath Deposition, an d Testimony did not constitute perjury .” I n ruling on a Ru l e 91a motion, the court “must not consider” an amendment of a

5

I t is unclea

r exactly what Z awislak is arg uing beca use Texas law does not rec og nize a civil 5 cause of action for perjury

. See Trevino v. Ortega , 969 S.W .2d 950, 953 (Tex. 1998) (re cog nizi ng “line of ca s es ref

using to rec og nize a separate cause of action for perjury ”); Tumlinson v. Barnes , No. 03-15-00642- CV, 2017 WL 1 8 3 2 488, at *3 n.17 (Tex. App.—Austin May 5, 2017, no pet.) (mem. op.) (“Te x as does not reco gn i z e a ci v i l cause of action for perjury and that witnesses and parties who testify

in judicial proce eding s are entitled to absolute immunit y from subsequent civil liability for their testimony , even perjure d testimony .”). I n his briefing on this issue, Z awislak cites only cr i m i n al authorities, but fails to explain how the criminal authorities have rele vance to this civil suit. 9challeng ed cause of action unless the responde nt amends the challeng ed cause of action at least three

day s befor e the he aring or obtains ag ree ment to amend fr om the opposing pa rty

. See Tex. R. C iv. P. 91a.5(c ). Her e, Z awislak did not raise the issue of p er j u ry u n t i l his second amende d petition, which was filed on Marc h 5, 2018—two day s befor e the Marc h 7, 2018 hear ing—nor does the rec ord indicate that he obtained ag ree ment to amend from Moskow. Acc ording ly , the trial court “must not consider” Z awislak’s perjury issue that was untimely raised, nor does it appea r that the trial court did so. We overrule Z awislak’s se cond issue.

CONCLUSION Having overr

uled Z awislak’s issues, we a ffirm the tria l c ourt’s Rule 91a dismiss al.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Goodwin, B aker , and Tria na Affir med Filed: May

22, 2019

10