law-waiver argument | waiver of sovereign immunity by conduct | waiver of error on appeal |
Jurisdiction is never presumed, cannot be conferred by consent, and cannot be waived. Powell v. Stover, 165
S.W.3d 322, 324 (Tex. 2005) (orig. proceeding).
Waiver
In her final issue, Solomon-Williams contends that Foot Centers waived any objection to her late-filed report
because it did not object to the sufficiency of the report within 21 days after receipt. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(a). We disagree. A health care defendant’s 21-day deadline applies to an
“objection to the sufficiency” of an expert report, not to the fact that an expert report was not served within the
mandatory 120-day deadline. See id.; Smith v. Hamilton, No. 09-07-128 CV, 2007 WL 1793754, at *4 (Tex.
App.—Beaumont June 21, 2007, no pet.) (mem. op.). Solomon served the expert report in connection with
claims that were already subject to Foot Centers’ previously filed motion to dismiss. Once it had moved to
dismiss the case for a failure to timely file the required report, Foot Centers had no obligation to further object
to it. In this case, Foot Centers took no action that was inconsistent with its asserted right to dismissal of the
claims against it. We thus hold that Foot Centers did not waive its request for dismissal of the untimely report.
Solomon-Williams v. Desai (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland)
(med mal suit, failure to timely file expert report, constitution challenges, due process, open courts)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jane N. Bland
Panel members: Justices Keyes, Hanks and Bland
01-08-00733-CV Donna Solomon-Williams v. Shetal Nicholas Desai, Individually, and d/b/a Foot Centers of
America, Foot Centers of Texas, PLLC, and The Methodist Hospital
Appeal from 268th District Court of Fort Bend County
HOUSTON APPELLATE COURT CASES | TEXAS CASE LAW |