ssc-robstown-operating-company-lp-dba-retama-manor-nursing ( 2013 )

NUMBER 13-12-00318-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SSC ROBSTOWN OPERATING
COMPANY LP D/B/A RETAMA
MANOR NURSING CENTER/ROBSTOWN
AND TRISUN HEALTHCARE, LLC
D/B/A TRISUN CARE CENTER, Appellants,
v.
SANDRA PEREZ, INDIVIDUALLY
AND AS REPRESENTATIVE FOR
THE LEGAL HEIRS OF THE ESTATE
OF ESPIRIDION AVILA, DECEASED, Appellee.
On appeal from the County Court at Law No. 4
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
In this interlocutory appeal,1 appellants SSC Robstown Operating Company LP
d/b/a Retama Manor Nursing Center/Robstown (“Retama Manor”) and Trisun Healthcare,
LLC d/b/a Trisun Care Center (“Trisun”), appeal the trial court’s order denying their
respective motions to dismiss the health care liability claims of appellee Sandra Perez,
Individually and as Representative for the Legal Heirs of the Estate of Espiridion Avila,
Deceased (“Perez”). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (a–c) (West
2011). By two issues, Retama Manor and Trisun argue that the trial court should have
granted their respective motions to dismiss Perez’s lawsuit because (1) she served her
amended expert report one day late; and (2) the amended expert report was deficient.
See id. We reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Perez sued Retama Manor and Trisun alleging that their failure to provide proper
nursing-home care caused Espiridion Avila to suffer serious personal injury and death.
On June 9, 2011, Perez filed her original petition. On October 7, 2011, Perez filed the
mandatory expert report on the last day of the 120-day deadline. See § 74.351(a).
Retama Manor and Trisun objected that the expert report was insufficient under section
74.351(a) and moved to dismiss Perez’s suit. See id.
On January 10, 2012, the trial court held a hearing on Retama Manor and Trisun’s
respective objections and motions to dismiss. At the hearing, the trial court found that
Perez’s expert report was deficient, but granted Perez a 30-day extension to cure the
deficiency. See id. § 74.351(c). During the hearing, the trial court stated on the record
1
This appeal is brought pursuant to Texas Civil Practice and Remedies Code section 51.014(a)(9).
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2008).
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that it was granting the 30-day extension. The trial court stated that it found Perez’s
expert qualified and asked Perez’s counsel whether he could have the deficiencies in the
report corrected “in 30 days.” Perez’s counsel answered, “Yes, sir, I’ll be glad to do it.”
The record shows that the trial court signed the order granting the extension in open court
after giving Perez’s counsel an opportunity to review it. The trial court stated the
following:
What do you call this order I’m signing here? I’ll put this—today is the
10th, 2-10-12 [sic.]. Plaintiff to amend expert report in 30 days from
tomorrow. How about that?
In response, Retama Manor’s counsel pointed out that the order presented to the
trial court for signature included Trisun, but did not include Retama Manor. Retama
Manor’s counsel asked whether he should submit a separate order. The trial court
responded by telling counsel, “[h]ere take it and interlineate it yourselves. Fix it.” The
reporter’s record ends at that point. The clerk’s record shows that the trial court signed
the 30-day extension order on January 10, 2012, and that it was interlineated to add
Retama Manor as a defendant. The record does not show that the court modified the
order in any way after that date.
On February 10, 2012, Perez filed the amended expert report. Retama Manor
and Trisun both objected to the amended expert report and moved to dismiss Perez’s
suit, arguing that the amended expert report was untimely because it was filed on the
thirty-first day after the January 10, 2012 order granting the extension. They both further
objected to the amended expert report, arguing that it was still insufficient.
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The trial court denied Retama Manor’s and Trisun’s motions to dismiss. This
accelerated appeal followed.
II. STANDARD OF REVIEW
Chapter 74 of the Texas Civil Practice and Remedies Code requires a health care
liability claimant to serve providers with expert reports within 120 days of filing suit. Id.
§ 74.351(a). If the claimant fails to timely serve a report, the trial court must grant the
provider's motion to dismiss the claim; the failure to do so is subject to interlocutory
appeal. Id. §§ 51.014(a)(9), 74.351(b) (West 2008 & 2011). If a report is timely served,
but is deficient as to one or more elements, the court may grant one 30–day extension to
cure the deficiency. Id. § 74.351(c) (West 2011). Subject to the 30-day extension
provision, the trial court must grant a motion challenging the adequacy of an expert report
if it appears to the court, after hearing, that the report does not represent an objective
good-faith effort to comply with the requirements of an expert report as set forth in section
74.351(r)(6). Id. § 74.351(l).
We review a trial court’s order on a motion to dismiss filed under section 74.351 for
an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877–78 (Tex. 2001); Salinas v. Dimas, 310 S.W.3d 106, 108 (Tex.
App.—Corpus Christi 2010, pet. denied). A trial court abuses its discretion if it acts in an
arbitrary or unreasonable manner or without reference to guiding rules or principles.
Salinas, 310 S.W.3d at 108 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985)). A trial court has no discretion in determining what the law is
or in applying the law to the facts. See id. (citing Walker v. Packer, 827 S.W.2d 833, 840
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(Tex. 1992)). Therefore, when, as here, the issue presented is purely a question of law,
we conduct a de novo review. Id. (citing Pallares v. Magic Valley Elec. Coop., Inc., 267
S.W.3d 67, 69–70 (Tex. App.—Corpus Christi 2008, pet. ref’d)); see also Davis v. Webb,
246 S.W.3d 768, 771–72 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Univ. of Tex.
Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied).
III. ANALYSIS
By their first issue on appeal, Retama Manor and Trisun both argue that the trial
court erred as a matter of law by not dismissing Perez’s suit because she served the
amended expert report one day late. We agree.
Section 74.351(c) of the Texas Civil Practice and Remedies Code states that a
plaintiff may be given one 30-day extension to file an amended expert report if its original
report is found deficient, and thus considered no report at all. Id. § 74.351(c); see also
Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008). Section 74.351(c) provides
that when, as here, the original 120-day period for filing an expert report has expired, the
30-day extension shall run from the date the plaintiff first receives notice of the 30-day
extension. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). If a 30-day extension is
granted and the plaintiff fails to timely cure the deficient report, dismissal of the plaintiff’s
health care liability claim is mandatory. See id.; Nexion Health at Beechnut, Inc. v. Paul,
335 S.W.3d 716, 718–19 (Tex. App.—Houston [14th Dist.] 2011, no pet). A trial court
has no discretion to alter the length of an extension granted under section 74.351(c).
See Constancio v. Bray, 266 S.W.3d 149, 162 (Tex. App.—Austin 2008, no pet.) (holding
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trial court abused its discretion by effectively granting a seven-day extension of the
120-day deadline to serve an expert report; “[e]ither the claimant gets one ‘30-day
extension’ of the deadline or no extension at all.”).
In Paul, the Fourteenth Court of Appeals addressed whether dismissal of a health
care liability claim was mandatory because the claimant failed to timely serve her
amended expert report after being granted a 30-day extension. Paul, 335 S.W.3d at
718. The Paul Court granted the extension at a hearing and signed the order granting
the extension that the same day. See id. Paul’s amended expert report was served
one day late. Id. In the trial court, Paul argued, in response to the second motion to
dismiss her claim, that the extension was granted at the hearing on the first motion to
dismiss. Id. at 719. No transcript of the hearing on the first motion to dismiss was
available on appeal. Id. On appeal, however, Paul argued that she did not receive
notice of the trial court’s order granting the 30-day extension until several days after the
hearing on the first motion to dismiss. Id. at 718. In support of her argument, Paul
attached to her appellate brief a post card giving notice of the trial court’s signed order
that granted the extension. Id. at 719. There was no evidence in the record to support
Paul’s assertion that she did not receive notice of the trial court’s ruling when it was made
in open court. Id. at 719. Because there was no basis in the record to show Paul was
correct and a later deadline applied in the case, the appeals court held that the trial court
had no discretion to take any action other than dismissing Paul’s claim. Id. at 718.
In this case, as in Paul, Perez’s position in the trial court is inconsistent with her
position on appeal. In the trial court, Perez acknowledged that she received notice of the
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30-day extension at the January 10, 2012 hearing on Retama Manor and Trisun’s first
motion to dismiss, the day the extension order was signed. Relying on the transcript of
the first dismissal hearing, Perez argued in the trial court that the 30-day extension started
to run on January 11, 2012, and that her amended expert report was thus timely when she
served it on February 10, 2012.2
On appeal, however, Perez argues that the earliest date she could have received
notice of the 30-day extension was January 12, 2012, because that is the date the
Nueces County Clerk stamped the order “filed.” Like the post card in Paul, the file mark
stamp on the extension order is no evidence of the date when Perez first received notice
of the trial court’s ruling. The trial court’s record is devoid of any evidence whatsoever
that Perez first received notice, or any other notice for that matter, on a date after the
January 10, 2012 hearing. Perez did not include any comment or argument regarding
the date of receipt in her response to the motion(s) to dismiss, did not provide any affidavit
or testimony regarding the date that she received notice, and did not make any comment
or argument during the hearing regarding the date that she received notice. In short, the
trial court’s record is completely silent in that regard.
Appellant can find no support in the Willens case. See Willens v. Johnson, No.
09-11-00524-CV, 2012 WL 586685, at *2 (Tex. App.—Beaumont 2012, pet. denied)
(mem. op.) In Willens, the claimant presented evidence showing when he first received
actual notice of the trial court’s order granting a 30-day extension under section
74.351(c). Id. The appeals court correctly concluded that the trial court did not abuse
2
The trial court properly stated the period would run from “30 days from tomorrow” Beginning
the day count on January 11, 2012, the day after the date the order was signed, the deadline for the
amended report would have been February 9, 2010, and not February 10, 2012.
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its discretion in denying the motion to dismiss because evidence was presented which
allowed the trial court to reasonably conclude the claimant timely served the amended
expert report within thirty days of receiving notice of the extension.
The Texas Legislature created clear deadlines under section 74.351. While we
recognize this may sometimes result in seemingly harsh consequences, this Court lacks
the authority to extend the statutory deadlines. See Paul, 335 S.W.3d at 719. We
sustain Retama Manor and Trisun’s first issue on appeal. In light of our disposition of
issue one, we need not reach issue two. See TEX. R. APP. P. 47.1
IV. CONCLUSION
We reverse the trial court’s order denying Retama Manor and Trisun’s respective
motions to dismiss and remand this case for proceedings consistent with this opinion.
GREGORY T. PERKES
Justice
Delivered and filed the
28th day of February, 2013.
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