                                  NO. 07-06-0454-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                     MAY 31, 2007

                         ______________________________


                  STANTON CLARK PACKARD, M.D., APPELLANT

                                           V.

                    MAURICE ROBERT MILLER, JR., APPELLEE


                       _________________________________

              FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                    NO. 04-81; HONORABLE RON ENNS, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                     MEMORANDUM OPINION ON REHEARING


      Remaining convinced that our original disposition is correct, we overrule Appellee’s

motion for rehearing, but withdraw our original opinion and judgment, and substitute this

opinion in lieu thereof with additional comments.
       Appellant, Stanton Clark Packard, M.D., brings this appeal from an order denying

a motion to dismiss filed pursuant to § 74.351 of the Texas Civil Practices and Remedies

Code.1 Section 74.351(a) mandates that, in a health care liability claim, the claimant shall

serve each party or the party’s attorney with an expert report, with curriculum vitae

attached, not later than the 120th day after the date the claim is filed. Section 74.351(b)

provides that if that report has not been served within the requisite period of time, the trial

court shall dismiss the claim. In this case Appellee, Maurice Robert Miller, Jr., was unable

to serve the expert report until the 130th day after the date of filing because he was unable

to obtain service of process until that date. The issue presented by this appeal is whether

the trial court erred in denying Dr. Packard’s motion to dismiss based upon the failure to

serve the expert report within the statutory 120 day period, when Dr. Packard was not

served with service of process during that period. Finding error, we reverse and remand

for further proceedings.


                                    Background Facts


       In August 2002, Miller went to the emergency room at the Moore County Hospital

complaining of mid and upper chest pain. Three days later he was admitted to the hospital

for treatment of a myocardial infarction. On November 8, 2004, Miller filed suit contending

that his heart was damaged by the failure of Dr. Packard to properly diagnose his heart



       1
       Unless otherwise noted, all statutory references herein are to the Texas Civil
Practice & Remedies Code Annotated (Vernon 2005 & Supp. 2006).

                                              2
condition. Miller was unable to effectuate formal service of process on Dr. Packard until

March 18, 2005, the 130th day after the original date of filing suit.2 The expert report was

attached to the petition when it was served.


       Based on the fact that Miller did not serve his expert report on Dr. Packard within

120 days after the date of filing his claim, Dr. Packard moved to dismiss Miller’s health care

liability claim pursuant to § 74.351(b). The trial court denied Dr. Packard’s motion to

dismiss, and this appeal ensued.


                                   Interlocutory Appeal


       As a general rule, a party is not allowed to appeal an interlocutory order unless

specifically authorized by statute.3 Section 51.014(a)(9) provides that a person may appeal

an interlocutory order that denies all or part of the relief sought by a motion under §

74.351(b).     Because Dr. Packard’s motion was filed pursuant to that statute, he is




       2
        Miller filed suit on November 8, 2004, under the version of § 74.351 that was
effective for claims filed on or after September 1, 2003. See Act of June 2, 2003, 78th
Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 875,
884, 898-99. The Texas Legislature amended § 74.351 in 2005; however, the 2005
changes apply “only to a cause of action that accrues on or after the effective date of this
Act. An action that accrued before the effective date of this Act is governed by the law
applicable to the action immediately before the effective date of this Act, and the law is
continued in effect for that purpose.” Act of May 18, 2005, 79th Leg., ch. 635, § 2, 2005
Tex. Gen. Laws 1590. Because the 2003 version of § 74.351 applies to this case, all
references to § 74.351 herein are to the 2003 version.
       3
           Lehmann v. Har-Con Corp., 39 S.W. 3d 191, 195 (Tex. 2001).

                                              3
authorized to bring this appeal notwithstanding the fact that the order in question is

interlocutory.


                                      Section 74.351


       Miller’s claim against Dr. Packard is a health care liability claim governed by chapter

74 of the Code. Section 74.351(a) provides that a claimant in a health care liability claim

shall, not later than the 120th day after the date the claim was filed, serve on each party or

the party’s attorney one or more expert reports, with a curriculum vitae attached. This

deadline for serving the report may be extended by written agreement of the parties;4

however, there was no such agreement in this case. Furthermore, in situations where a

report has been filed but the elements of that report have been found to be deficient, the

court may grant one 30-day extension to the claimant in order to cure the deficiency.5 This

exception to the general rule is likewise not applicable to the facts of this case because it

applies only in those situations where an initial report has been timely served, but has been

found to be deficient in some material fashion.6 Other than the two statutory exceptions




       4
           Section 74.351(a).
       5
           Section 74.351(c).
       6
        See Estate of Regis ex rel. McWashington v. Harris Co. Hosp. Dist., 208 S.W.3d
64, 67 (Tex.App.–Houston [14th Dist.] 2006, no pet.); Valley Baptist Med. Ctr. v. Azua, 198
S.W.3d 810, 815 (Tex.App.–Corpus Christi 2006, no pet.).

                                              4
set forth above, the trial court has no authority to extend the deadline for filing an expert

report.7


                                      Standard of Review


         The trial court’s ruling on a motion to dismiss pursuant to § 74.351(b) is reviewed

under an abuse of discretion standard.8 A trial court abuses its discretion if it acts in an

unreasonable and arbitrary manner such that the exercise of that discretion amounts to a

“clear and prejudicial error of law.”9


                                            Analysis


         Miller argues that the trial court’s denial of Dr. Packard’s motion to dismiss was

based upon an implied equitable extension of the time to file the expert report. Miller

contends that the equitable extension was based upon a construction of Rule 21a of the

Texas Rules of Civil Procedure which allows the trial court to “extend the time for taking

the action required . . . or grant such other relief as it deems just.” This provision


         7
       Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (c); See also Soberon v. Robinson,
No. 09-06-0067-CV, 2006 WL 1781623 (Tex.App.–Beaumont June 29, 2006, pet.
denied)(not designated for publication); McWashington, 208 S.W.3d at 68; Thoyakulathu
v. Brennan, 192 S.W.3d 849, 853 (Tex.App.–Texarkana, 2006, no pet.); Garcia v.
Marichalar, 185 S.W.3d 70, 74 (Tex.App.–San Antonio 2005, no pet.).
         8
             Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.
2001).
         9
      In re Bass, 113 S.W.3d 735, 738 (Tex. 2003); quoting Walker v. Packer, 827
S.W.2d 833, 839 (Tex.1992) (original proceeding).

                                                5
specifically pertains to a party’s right to seek redress from the consequences of what is

commonly referred to as the “mailbox rule” and has no application to the facts of this case.

Furthermore, because the Legislature has provided the exclusive means by which a trial

court may grant an extension of time to file an expert report, Rule 21a does not give the

trial court authority to enter an order extending the time to file an expert report.


       Miller next argues that the trial court had the discretion to refuse to dismiss the suit

because the failure to timely serve the expert report was due to Dr. Packard’s failure to

make himself readily amenable to service of process, and that by “avoiding” service of

process, a health care provider might prevent an otherwise-entitled claimant from making

a legitimate health care liability claim. While the equities of this argument are apparent to

this Court, it is not within the province of this Court, or the trial court, to adopt an “equitable

extension” to the clear requirements of § 74.351.


       Finally, because Dr. Packard waited almost eighteen months to file his motion to

dismiss, Miller opines that Dr. Packard should be equitably estopped from asserting his

right to file a motion to dismiss pursuant to § 74.351. The Legislature did not include an

explicit deadline for the filing of a motion to dismiss. Miller’s equitable arguments are more

appropriately directed to the reasonableness of any attorney’s fees which Dr. Packard may

claim to be entitled to under the provisions of § 74.351(b).




                                                6
       As stated above, the Legislature has provided two specific exceptions to the

mandatory dismissal provisions of § 74.351(b).10 To engraft an exception based upon

Appellant’s arguments would amount to blatant legislating from the bench. The Legislature

has spoken and the seemingly harshness of this provision does not change the clear

language of the statute.11


                                          Conclusion


        Because the trial court did not have the authority to extend the time to file the

required expert report, it failed to follow clear precedential authority in the interpretation and

application of § 74.351(b). Accordingly, it abused its discretion in denying Dr. Packard’s

motion to dismiss. We sustain Dr. Packard’s issue and reverse the order of the trial court

denying the motion to dismiss. This cause is remanded to the trial court with instructions

to enter an order of dismissal of Miller’s claims against Dr. Packard, with prejudice, and for




       10
            See footnote No. 7.
       11
          See Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892) (holding, “It is the duty
of a court to give to language used in a statute the meaning with which it was used by the
legislature if this can be ascertained; . . . and if, so applying them, the legislation in which
they are found seems to be harsh, or not to embrace and give remedies for acts for which
remedies ought to be given, the courts, . . . are not authorized to place on them a forced
construction for the purpose of mitigating a seeming hardship, . . . . It is the duty of a court
to administer the law as it is written, and not to make the law; and however harsh a statute
may seem to be, or whatever may seem to be its omission, courts cannot, on such
considerations, by construction sustain its operation, or make it apply to cases which it
does not apply, without assuming functions that pertain solely to the legislative department
of the government.”)

                                                7
such further proceedings and orders as the parties may show themselves justly entitled to

receive in accordance with this opinion.




                                               Patrick A. Pirtle
                                                   Justice




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