                            NUMBER 13-09-00111-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


CLAUDIA GARZA,                                                             Appellant,

                                           v.

JAVIER A. SAENZ, M.D., IMPROPERLY NAMED
JAVIER A. SAENZ, D/B/A JAVIER A. SAENZ, M.D., P.A.,
AND F/K/A SAENZ MEDICAL CENTER,                                            Appellee.


              On appeal from the County Court at Law No. 1
                       of Hidalgo County, Texas.


                         MEMORANDUM OPINION

            Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Rodriguez

      Appellant Claudia Garza challenges the trial court's dismissal of her health care

liability claims against appellee Javier A. Saenz, M.D. Improperly Named Javier A. Saenz,

d/b/a Javier A. Saenz, M.D., P.A., and f/k/a Saenz Medical Center (Dr. Saenz) for failure
to file an expert report within 120 days of the filing of her case, as required by section

74.351. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a)-(b) (Vernon Supp. 2009). By

two issues, Garza complains that: (1) Dr. Saenz's failure to provide medical records to

Garza waived his right to dismissal under section 74.351; and (2) a "motion to dismiss" is

not the proper vehicle for dismissal of Garza's claims. We affirm.

                                                 I. BACKGROUND

         Garza states that, in August 2006, she underwent a dermabrasion procedure at Dr.

Saenz's offices for the treatment of acne scars on her face.1 Garza alleges that the

treatment was performed negligently, and as a result, she suffered severe burns on her

face. Garza claims that she sent three requests for her medical records to Dr. Saenz but

that Dr. Saenz never provided any records to her. See id. § 74.051(d) (Vernon 2005).

These requests do not appear in the record.2

         On October 24, 2007, Garza filed her original petition against Dr. Saenz, alleging

health care liability claims in connection with the dermabrasion treatment.3 No expert


         1
            Derm abrasion is a cosm etic procedure that surgically rem oves a "superficial layer of the skin with
a rapidly turning wire brush or gritty paper or cloth." ID A G. D OX ET AL ., A TTO R N EY 'S ILLUSTR ATED M ED IC AL
D IC TIO N AR Y D13 (1997).

         2
             The record does, however, contain three letters from Dr. Saenz to Garza inform ing her that her
requests for m edical records did not com ply with section 74.052 of the civil practice and rem edies code. See
T EX . C IV . P R AC . & R EM . C O D E A N N . § 74.052(c) (Vernon 2005) (prescribing the requisite form and content for
all requests for m edical records in health care liability claim s). Despite these notices from Dr. Saenz, nothing
in the record indicates that Garza ever am ended her requests to com ply with the provisions of section 74.052.
Moreover, once suit was filed, Garza filed no m otion to com pel production of the records.

         3
          The parties do not dispute that Garza's claim s are health care liability claim s covered by chapter 74
of the civil practice and rem edies code. See id. § 74.001(c)(13) (Vernon 2005).

         For reasons unclear from the record, Garza filed a second "original" petition on March 18, 2008, that
was recorded by the trial court under a separate cause num ber but contained the sam e allegations as the
original petition filed on October 24, 2007. The parties seem to agree that the case filed in 2008 was
consolidated with the case filed in 2007 and that the trial court considered the cases together, albeit under the
cause num ber of the second-filed case. For our purposes on appeal, however, we consider October 24, 2007

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report appears in the record.4 Dr. Saenz filed his answer and motion to dismiss pursuant

to section 74.351 for failure to serve an expert report within 120 days of the filing of the

original petition. See id. § 74.351(a)-(b). Thereafter, the trial court granted Dr. Saenz's

motion and dismissed Garza's claims against Dr. Saenz with prejudice. This appeal

ensued.

                           II. STANDARD OF REVIEW AND APPLICABLE LAW

        We review a trial court's decision on a motion to dismiss under section 74.351 of the

civil practice and remedies code for abuse of discretion. Jernigan v. Langley, 195 S.W.3d

91, 93 (Tex. 2006); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

878 (Tex. 2001). The trial court abuses its discretion if it acts unreasonably or arbitrarily

or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d

56, 62 (Tex. 2003).

        Under section 74.351 of the Texas Civil Practice and Remedies Code, a claimant

must "serve on each party or the party's attorney" an expert report and curriculum vitae

"not later than the 120th day after the date the original petition was filed." TEX . CIV. PRAC .

& REM . CODE ANN . § 74.351(a). Where no report has yet been filed, an extension of the


to be the date of the original petition in this case. See Mokkala v. Mead, 178 S.W .3d 66, 68, 76 (Tex.
App.–Houston [14th Dist.] 2005, pet. denied) (holding that a plaintiff's 120-day expert report period runs from
the inception of her first lawsuit against the sam e health-care provider and that she cannot revive an expired
expert report deadline through a new suit raising the sam e claim s); see also Outpatient Ctr. for Interventional
Pain Mgmt., P.A. v. Garza, Nos. 13-07-00411-CV, 13-07-00762-CV, 2008 W L 2525609, at *5 (Tex.
App.–Corpus Christi June 26, 2008, no pet.) (m em . op.).

        4
           In her brief on appeal, Garza alleges that she served a "doctor's affidavit" within 120 days of the
March 18, 2008 petition. However, the record contains no such docum ent. Even if it did, the relevant date
for purposes of the expert report deadline is October 24, 2007, the date Garza's original petition was filed.
See Mokkala, 178 S.W .3d at 68, 76; see also Outpatient Ctr., 2008 W L 2525609, at *5. Moreover, Garza
m akes no argum ent on appeal that she filed a tim ely expert report in this case; her only contention is that, by
failing to provide m edical records to her, Dr. Saenz waived the protections of section 74.351. See T EX . C IV .
P R AC . & R EM . C O D E A N N . § 74.351 (Vernon Supp. 2009).

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expert report deadline is available only by agreement of the parties. See id. § 74.351(a),

(c) (providing for an extension in the event a report has been filed but is deemed deficient

by the trial court); Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810, 814 (Tex.

App.–Corpus Christi 2006, no pet.). However, absent any agreement, if the claimant fails

to serve the report within 120 days, "the court, on the motion of the [defendant], shall . . .

enter an order that dismisses the claim with respect to the [defendant], with prejudice to

the refiling of the claim." TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(b)(2) (emphasis

added). In other words, the trial court has no discretion to do anything but dismiss the case

when there is no agreement between the parties and the claimant fails to meet the 120-day

deadline.   Estate of Regis v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex.

App.–Houston [14th Dist.] 2006, no pet.); see Azua, 198 S.W.3d at 815.

                                      III. DISCUSSION

       By two issues, Garza complains of the trial court's dismissal of her health care

liability claims for failure to serve an expert report within 120 days of filing her case. See

TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a)-(b).

                          A. Dismissal Under Section 74.351

       In her first issue, Garza contends that Dr. Saenz waived his right to seek dismissal

for failure to timely file an expert report because Dr. Saenz did not provide to Garza

medical records sought under section 74.051 of the civil practice and remedies code. See

id. § 74.051(d) ("All parties shall be entitled to obtain complete and unaltered copies of the

patient's medical records from any other party within 45 days from the date of receipt of a

written request for such records."). Citing Jernigan v. Langley, Garza reasons that Dr.



                                              4
Saenz's failure to provide the allegedly properly-requested records is conduct inconsistent

with an intent to rely upon the protections of chapter 74, including the right to dismissal

under section 74.351. 111 S.W.3d 153, 157 (Tex. 2003); see also TEX . CIV. PRAC . & REM .

CODE ANN . § 74.351(a)-(b). The case law does not support her reasoning, however. A

claimant's efforts to obtain medical records under section 74.051 do not serve to toll or

extend the expert report deadline. See Estate of Regis, 208 S.W.3d at 68 (holding that the

plaintiff was not entitled to an equitable extension of the deadline for filing her medical

report on the basis that she made a good-faith effort to obtain her medical records from the

defendant and the defendant did not provide them); see also Offenbach v. Stockton, 285

S.W.3d 517, 521 (Tex. App.–Dallas 2009, no pet.) (noting that section 74.351 does not

contain a "good faith" or "due diligence" exception to the 120-day expert report deadline);

Gulf Coast Med. Ctr., LLC v. Temple, No. 13-09-00350-CV, 2010 WL 196972, at *5 (Tex.

App.–Corpus Christi Jan. 21, 2010, no pet. h.) (mem. op.).

       Here, the deadline for service of Garza's expert report was February 24, 2008, 120

days after the October 24, 2007 filing of her original petition in the case. It is undisputed

that no expert report was filed on or before this date. It is also undisputed that the parties

had no agreement to extend the expert report deadline. Absent such an agreement

between the parties, the trial court here had no discretion but to dismiss the case because

Garza failed to file a timely report. See Estate of Regis, 208 S.W.3d at 68; Azua, 198

S.W.3d at 815. We therefore conclude that the trial court did not abuse its discretion in

dismissing Garza's health care liability claims against Dr. Saenz. Garza's first issue is

overruled.



                                              5
                           B. Propriety of "Motion to Dismiss"

       Although she never expressly argues as much in her brief to this Court, by her

second issue Garza appears to contend that a "motion to dismiss" is not the proper vehicle

by which to dismiss a health care liability claim for failure to file the requisite expert report.

Garza seemingly claims that Dr. Saenz was required to file either a motion for summary

judgment or a plea to the jurisdiction to obtain dismissal of Garza's claims under section

74.351 of the civil practice and remedies code. However, Garza cites no authority, and we

find none, supporting this proposition. Rather, Texas law is clear that a defendant properly

invokes the protections of chapter 74 by filing a "motion to dismiss" the plaintiff's health

care liability claims. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(b)(2) (providing that

"on the motion of the affected physician," the court shall dismiss the claim with prejudice);

see, e.g., Hill Reg'l Hosp. v. Runnels, 253 S.W.3d 213, 214 (Tex. 2008) (reviewing a

defendant physician's "motion to dismiss"); Lewis v. Funderburk, 253 S.W.3d 204, 206

(Tex. 2008) (same); Carreras v. Trevino, 298 S.W.3d 721, 722 (Tex. App.–Corpus Christi

2009, no pet.) (same). We therefore overrule Garza's second issue.

                                        IV. CONCLUSION

       The judgment of the trial court is affirmed.



                                                       NELDA V. RODRIGUEZ
                                                       Justice

Delivered and filed the
4th day of March, 2010.




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