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Bogar v. Ezparza

The Legislature did not intend for Texas Civil Practice & Remedies Code �74.201 to eliminate the procedural requirement of an expert report at the commencement of litigation. Austin Court of Appeals, No. 03-07-00037-CV

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ON MOTION FOR REHEARING

OPINION

We withdraw our opinion, dissenting opinion and judgment dated June 28, 2007 and substitute the following in its steion to dismiss appellees’ health care liability claims under section 74.351(b) for failure to serve an expert report. Their appeal requires us to consider (1) whether we have subject-matter jurisdiction to consider it; (2) whether appellees served the required expert report; and, if not, (3) the appropriate appellate remedy. We conclude that we have jurisdiction over Dr. Bogar’s interlocutory appeal and that the controlling law and “four corners” of appellees’ report leave us no alternative but to reverse and render judgment dismissing appellees’ claim and awarding attorney’s fees and costs. See id. § 74.351(b). In their motion for rehearing and en banc reconsideration, appellees have urged that our application of section 74.351 violates due process and due course of law. We disagree, for reasons we will explain herein. We will remand to the probate court to determine the amount of attorney’s fees to which Dr. Bogar is entitled.

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