Spectrum Healthcare Resources v. McDaniel set for argument on Sep 11

Med-Mal Litigation Procedure: Was there a binding agreement to extend deadline to file expert report?

No. 07-0787 Scheduled for oral argument on Sep 11, 2008

SPECTRUM HEALTHCARE RESOURCES, INC., AND MICHAEL SIMS v. JANICE MCDANIEL AND PATRICK MCDANIEL; from Bexar County; 4th district (04-06-00185-CV, 238 SW3d 788, 08-22-07)

OPINION BELOW: McDaniel v. Spectrum Healthcare Resources, Inc., No. 04-06-00185-CV, 238 S.W.3d 788 (Tex.App.- San Antonio, August 22, 2007, pet. granted)

From the Opinion by Justice Phylis J. Speedlin:

The controlling legal issue presented in this appeal is whether an Agreed Special Setting and Docket Control Order incorporated a written agreement extending the date for serving an expert report under section 74.351(a) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2006).

Because we hold that the docket control order includes within it an unambiguous agreement that extended the date, we reverse the trial court's order and remand the cause to the trial court for further proceedings.

* * *

We hold the parties' written agreement, as reflected in the docket control order as a whole, can be given a definite and certain meaning as a matter of law and includes within it an unambiguous agreement that extended the date for serving the section 74.351 expert report. Accordingly, we reverse the trial court's order granting the defendants' motion to dismiss, and remand the cause to the trial court for further proceedings."