                            NUMBER 13-14-00241-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

RICARDO MARTINEZ, M.D. AND
ALBERTO PEÑA, M.D.,                                                     Appellants,

                                          v.

MARIA GONZALES,                                                            Appellee.


                   On appeal from the 206th District Court
                         of Hidalgo County, Texas.


                        MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
      This interlocutory appeal brought by appellants Ricardo Martinez, M.D. and Alberto

Peña, M.D. asks us to determine whether the trial court abused its discretion in denying

Martinez and Peña’s respective motions to dismiss under section 74.351 of the civil

practice and remedies code.    See TEX. CIV. PRAC. REM. CODE ANN. § 74.351 (West,
Westlaw through Ch. 46, 2015 R.S.). We affirm.

                                           I.      BACKGROUND

          On September 11, 2012, appellees Maria Gonzales, Noel Gonzalez, Gloria

Gonzalez, Minerva Luna, Roberto Gonzalez, Carolina Perez, and Arturo Gonzalez

(collectively “Gonzales”) filed suit against Doctor’s Hospital at Renaissance, Edgar

Hernandez, M.D., and Gerard William O’Callaghan, M.D., as wrongful death beneficiaries

of Dominga S. Gonzalez, a patient who died while admitted at Doctor’s Hospital at

Renaissance.1

          On September 11, 2013, Gonzales filed a first amended original petition naming

Dr. Peña and Dr. Martinez as defendants.               Dr. Martinez filed his answer on October 13,

2013, and Dr. Peña filed his answer on October 21, 2013.                       On January 31, 2014,

Gonzales served Dr. Martinez and Dr. Peña with an expert report.                      On February 20,

2014, Dr. Martinez filed a motion to dismiss Gonzales’s lawsuit on the grounds that

Gonzales’s expert report was untimely served because the report should have been

served by January 9, 2014.            See id. § 74.351(b). On February 21, 2014, Dr. Peña filed

a similar motion to dismiss making the same argument as Dr. Martinez.                          Gonzales

responded to the motions to dismiss by arguing that since Dr. Martinez and Dr. Peña were

sued after the 2013 amendments to section 74.351(a) were in effect, January 31, 2014

was within the statutory 120-day deadline to serve an expert report.                     The trial court

agreed with Gonzales and denied Dr. Martinez and Dr. Peña’s motions to dismiss. This




          1   Doctor’s Hospital at Renaissance, Dr. Hernandez, and Dr. O’Callaghan are not parties to this
appeal.

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interlocutory appeal followed.    See id. § 51.014(a)(9) (West, Westlaw through Ch. 46,

2015 R.S.).

                                 II.    MOTION TO DISMISS

       By their sole issue, Dr. Martinez and Dr. Peña assert that the trial court abused its

discretion by denying their motions to dismiss because Gonzales failed to timely serve

expert reports.

A.     Standard of Review

       We review a trial court’s ruling on a motion to dismiss for failure to comply with the

expert report requirement under chapter 74 of the civil practice and remedies code for an

abuse of discretion.   See Garza v. Carlson, 398 S.W.3d 848, 849 (Tex. App.—Corpus

Christi 2012, pet. denied) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 878 (Tex. 2001)).      A trial court abuses its discretion if it acts in an arbitrary

or unreasonable manner or without reference to any guiding rules or principles. Salinas

v. Dimas, 310 S.W.3d 106, 108 (Tex. App.—2010, pet. denied) (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). However, a trial

court has no discretion in determining what the law is or in applying the law to the facts.

Id. (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). Therefore, when the

issues are purely questions of law, as here, we effectively conduct a de novo review. Id.

(citing Pallares v. Magic Valley Elec. Coop., 267 S.W.3d 67, 69–70 (Tex. App.—Corpus

Christi 2008, pet. denied); Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.

1989) (holding that “matters of statutory construction are questions of law for the court to

decide rather than issues of fact”)).



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B.    Discussion

      Dr. Martinez and Dr. Peña assert that because Gonzales filed her original petition

on September 11, 2012, the timing of the pre-September 1, 2013 version (“the pre-2013

version”) of the statute determines when Gonzales should have served them with an

expert report, and as a result, Gonzales’s expert report was untimely.            Gonzales

disagrees, however, and argues that because she sued Dr. Martinez and Dr. Peña after

September 1, 2013, the 2013 amendments apply to the timetable of serving her expert

report and such service was timely.    Thus, the disposition of this appeal hinges upon a

seemingly simple question:     which version of section 74.351(a) applies in this case?

We will examine each version below.

      The pre-2013 version of the relevant statute that was in effect from September 1,

2005 to August 31, 2013 stated the following:

      In a health care liability claim, a claimant shall, not later than the 120th day
      after the date the original petition was filed, serve on each party or the
      party's attorney one or more expert reports, with a curriculum vitae of each
      expert listed in the report for each physician or health care provider against
      whom a liability claim is asserted. The date for serving the report may be
      extended by written agreement of the affected parties. Each defendant
      physician or health care provider whose conduct is implicated in a report
      must file and serve any objection to the sufficiency of the report not later
      than the 21st day after the date it was served, failing which all objections
      are waived.

Act of June 17, 2005, 79th Leg. R.S., ch. 635, § 1, 2005 TEX. SESS. LAW SERV. Ch. 635

(current version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)) (emphasis added).

      The current version of the statute states the following:




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      In a health care liability claim, a claimant shall, not later than the 120th day
      after the date each defendant's original answer is filed, serve on that party
      or the party's attorney one or more expert reports, with a curriculum vitae of
      each expert listed in the report for each physician or health care provider
      against whom a liability claim is asserted. The date for serving the report
      may be extended by written agreement of the affected parties. Each
      defendant physician or health care provider whose conduct is implicated in
      a report must file and serve any objection to the sufficiency of the report not
      later than the later of the 21st day after the date the report is served or the
      21st day after the date the defendant's answer is filed, failing which all
      objections are waived.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (emphasis added).

      The enabling statute for the current version of section 74.351(a) states that the

2013 amendment “applies only to an action commenced on or after [September 1, 2013].

An action commenced before [September 1, 2013] is governed by the law in effect

immediately before that date, and that law is continued in effect for that purpose.” 2013

TEX. SESS. LAW SERV. Ch. 870 (H.B. 658) § 3(b) (Vernon’s).

      Dr. Martinez and Dr. Peña argue that Gonzales’s action commenced prior to

September 1, 2013, when Gonzales filed her original petition on September 11, 2012.

In support of this argument, Dr. Martinez and Dr. Peña rely heavily on S&P Consulting

Engrs., PLLC v. Baker, 334 S.W.3d 390, 393 (Tex. App.—Austin 2011, no pet.) (en banc).

      In Baker, the Austin Court was called upon to interpret section 150.002(a) of the

civil practice and remedies code requiring that a plaintiff filing claims against licensed

engineers file a certificate of merit by a third-party licensed engineer setting forth the

allegation and the factual basis for the claim.    Id. at 394.    The Austin Court had to

determine whether the 2009 amendments to section 150.002(a) applied to the pending

claims against S&P.    In analyzing the issue, the court referred to the amendment’s

enabling statute which stated that the amendment applied

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        only to an action or arbitration filed or commenced on or after the effective
        date [Sept. 1, 2009] of this Act. An action or arbitration filed or commenced
        before the effective date of this Act is governed by the law in effect
        immediately before the effective date of this Act, and that law is continued
        in effect for that purpose.

Id. at 395.

        The Baker Court recognized that nothing in the statute itself or the enabling statute

specified “whether an action commences for all persons with the filing of the original

petition or whether an action commences for each defendant the first time it is named as

a defendant.”     Id. at 396.      As a result, the court turned to rules of civil procedure 22, 37,

and 38 to conclude that for purposes of section 150.002, “an action commences when

the original petition is filed.”    Id. at 398; see TEX. R. CIV. P. 22, 37, and 38; but see Nangia

v. Taylor, 338 S.W.3d 768, 770–71 (Tex. App.—Beaumont 2011, no pet.) (holding that

the 2009 amendments to section 150.002 applied to claims asserted for the first time

against a licensed professional engineer defendant).

        Like the Baker Court, we must construe the enabling statute for the 2013

amendments to section 74.351(a) to determine which version applies in this case.             When

construing a statute, we begin with its language. State v. Shumake, 199 S.W.3d 279,

284 (Tex. 2006). Our primary objective is to determine the Legislature's intent which,

when possible, we discern from the plain meaning of the words chosen. Id. If the

statute is clear and unambiguous, we must apply its words according to their common

meaning without resorting to rules of construction or extrinsic aids.                Id.   We may

consider other matters in ascertaining legislative intent, including the objective of the law,

its history, and the consequences of a particular construction. Id. (citing TEX. GOV’T CODE

ANN. § 311.023(1), (3), (5) (West, Westlaw through Ch. 46, 2015 R.S.); Union Bankers

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Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994)).          Statutory construction is a

question of law, and our review is accordingly de novo. Id.

       Here, the enabling statute, and statute itself, are likewise silent as to what “action

commenced” means. Rule 22 states that a civil suit commences “by a petition filed in

the office of the clerk.” TEX. R. CIV. P. 22. We disagree, however, with the Baker Court’s

interpretation that Rule 37’s statement that “[b]efore a case is called for trial, additional

parties necessary or proper parties to the suit, may be brought in” indicates that “new

parties are being added to an action that has already commenced.”           See Baker, 334

S.W.3d at 396.       While such an interpretation may be supported if a plaintiff files a

supplemental petition adding parties, it ignores that the filing of an amended petition

adding defendants, as in this case, constitutes the filing of a new lawsuit.   See Marez v.

Moeck, 608 S.W.2d 740, 742 (Tex. Civ. App.—Corpus Christi 1980, no writ); see also

Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 564 (Tex. 2014) (plurality op.) (holding

that the term “action” is generally synonymous with “suit,” which is a demand of one’s

rights in court).   Thus, we find Dr. Martinez’s and Pena’s reliance on Baker unpersuasive

as it relates to the commencement of an action under section 74.351(a). We note that

the Austin Court grappled with its holding in Baker and reconciled it with its prior holding

in Hayes v. Carroll.     314 S.W.3d 494, 501 (Tex. App.—Austin 2010, no pet.).           See

Baker, 334 S.W.3d at 398 n.10.      As a result, the Baker Court limited its interpretation of

when an action commenced solely for purposes of determining the effective date of the

2009 amendments to section 150.002.        Id.




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       Accordingly, we do not adopt Baker’s interpretation of when an action commences

for purposes of determining when the 2013 amendment to section 74.351(a) applies.

Instead, we hold that for purposes of section 74.351(a), an action commences when the

particular defendant is named, thus triggering the applicable deadline for serving an

expert report.   Cf. Padre Behavioral Health System, LLC v. Chaney, 310 S.W.3d 78, 85

(Tex. App.—Corpus Christi 2010, no pet.) (holding that the 120-day period to serve an

expert report under pre-2013 section 74.351(a) “began to run when [defendants] were

first named as defendants”).

       Furthermore, our interpretation today fulfills the legislative intent of the purpose of

the expert report requirement. The Texas Supreme Court has stated that the expert

report requirement’s purposes are to (1) inform the defendant of the specific conduct the

plaintiff has called into question, and (2) provide a basis for the trial court to conclude that

the claims have merit.    Palacios, 46 S.W.3d at 879.       Dr. Martinez and Dr. Peña fail to

persuade this Court how the application of the 2013 amendment of section 74.351(a) to

Gonzales’s expert report frustrates those purposes.

       Because Dr. Martinez and Dr. Peña were named as defendants in Gonzales’s first

amended petition on September 13, 2013, the current version of section 74.351(a) applies

in this case.    As a result, Gonzales served her expert report to Dr. Martinez and Dr.

Peña, within the statutory 120-day deadline of Dr. Martinez and Dr. Peña filing their

respective answers, and the trial court did not abuse its discretion in denying their

respective motions to dismiss.      See TEX. CIV. PRAC. & REM. CODE § 74.351(a).            Dr.

Martinez’s and Dr. Peña’s sole issue on appeal is overruled.



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                                  III.   CONCLUSION

      We affirm the trial court’s order denying Dr. Martinez’s and Dr. Peña’s respective

motions to dismiss.


                                                      GINA M. BENAVIDES,
                                                      Justice



Delivered and filed the
17th day of September, 2015.




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