Fulp. v. Miller – Case Brief Summary (Texas)

In Fulp. v. Miller, 286 S.W.3d 501, 513 (Tex. App.--Corpus Christi 2009, no pet.), the Court concluded, in relevant part, that the expert report filed by the claimant in that case was deficient and, accordingly, that the trial court erred in denying appellant's motion to dismiss the claim.

On appeal, appellant added the claimant's attorney as a party and asked that the Court assess section 74.351(b) fees against both the claimant and the claimant's attorney. Id. at 512.

The claimant's attorney filed a motion to dismiss for lack of jurisdiction, arguing that the Court did not have jurisdiction over him because he was not a party to the underlying proceedings. Id.

The Court granted claimant's attorney's motion, concluding that because the trial court had not yet entered an order dismissing the case, appellant's request for attorney's fees was premature and not ripe for our review. Id. at 513.

In so concluding, we further noted the following:

"We express no opinion as to which party, the claimant or the claimant's attorney, is responsible for the payment of an attorney's fees award once the claimant's health care liability claim is dismissed with prejudice for failure to timely serve a compliant expert report. That is a determination to be made by the trial court." Id. at 513 n.7.