                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 CINDY BREITEN,                                 '
                                                                No. 08-11-00055-CV
                             Appellant,         '
                                                                   Appeal from the
 v.                                             '
                                                                 143rd District Court
 MORTEZA SHATERY, M.D.,                         '
                                                              of Reeves County, Texas
                                                '
                             Appellee.
                                                 '            (TC#10-07-19683 CVR)



                                          OPINION

       Appellant, Cindy Breiten (Breiten), appeals the trial court’s dismissal of her medical

malpractice claim against Morteza Shatery, M.D. (Dr. Shatery). At issue is the timeliness of the

service of Breiten’s expert report upon Dr. Shatery under Section 74.351 of the Texas Civil

Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West

2011). We affirm.

                                         BACKGROUND

       It is undisputed that Breiten filed a medical malpractice suit against Dr. Shatery, M.D., on

July 7, 2010. Under Section 74.351, Breiten was required to serve Dr. Shatery with a copy of her

expert report and curriculum vitae before the 120-day deadline expired on November 4, 2010.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Although Breiten filed her expert’s report
with the Reeves County court clerk on November 3, 2010, the day before the 120th-day statutory

deadline, Breiten did not serve Dr. Shatery until after that deadline.

        On November 12, 2010, Dr. Shatery moved for dismissal on the ground that Breiten had

failed to timely serve him with the expert report.1 Breiten provided Dr. Shatery with a copy of her

expert’s report on November 15, 2010. On December 9, 2010, the trial court granted Dr.

Shatery’s motion and dismissed the case with prejudice. This appeal followed.

                                                DISCUSSION

                                            Standard of Review

        A trial court’s decision to grant or deny a motion to dismiss under Section 74.351 is

reviewed for an abuse of discretion. See American Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Tenet Hospitals, Ltd. v. Boada, 304 S.W.3d 528, 533

(Tex. App. – El Paso 2009, pet. denied). We will only find an abuse of discretion if the trial court

acted in an unreasonable or arbitrary manner, without reference to any guiding rules or principles.

Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Boada, 304 S.W.3d at 533. A trial court acts

arbitrarily and unreasonably if it could have reached only one decision, but instead reached a

different one. Kendrick v. Garcia, 171 S.W.3d 698, 703 (Tex. App. – Eastland 2005, pet. denied),

citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied,

476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). To that end, a trial court abuses its

discretion when it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d



1
  On December 3, 2010, Dr. Shatery filed a second motion to dismiss which incorporated the November 12 Motion to
Dismiss and added an allegation of inadequacy of Breiten’s expert report. On appeal, the parties only address the
timeliness of service and because the trial court’s order does not specify which motion was granted, we assume the
only issue before us is the one briefed by the parties.

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400, 403 (Tex. 2007), citing In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003); Boada, 304 S.W.3d at

533.

                                         Applicable Law

       In a health care liability claim, a claimant 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 of each expert listed in the report for each physician or health care provider

against whom a liability claim is asserted. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).

If the claimant fails to serve the required expert reports within the 120-day deadline, on proper

motion by the defendant, the trial court must dismiss the claim with prejudice and award

reasonable attorney’s fees and court costs incurred by the defendant. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a)-(b) (West 2011). The attorneys’ fees and court costs must be both

“reasonable” and actually incurred. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1).

Trial courts have no discretion to deny motions to dismiss or to grant extension if the statutory

deadline is not met. See Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009).

       When construing a statute our foremost goal is to determine the Legislature’s intent in

enacting the provision. Fitzgerald v. Advanced Spine Fixation Sys. Inc., 996 S.W.2d 864, 865–66

(Tex. 1999). To determine legislative intent, we look primarily to the statute’s plain language.

Lone Star HMA, L.P. v. Wheeler, 292 S.W.3d 812, 816 (Tex. App. -- Dallas 2009, no pet.).

Where the statutory text is clear and unambiguous, it is determinative of legislative intent.

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). We presume that the

statutory language used or omitted is done so purposefully. Univ. of Tex. Health Sci. Ctr. at

Houston v. Gutierrez, 237 S.W.3d 869, 873 (Tex. App. – Houston [1st Dist.] 2007, pet. denied).


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We presume that the statute, in its entirety is effective and a just and reasonable result intended.

Gutierrez, 237 S.W.3d at 873.

                                                Application

       In her sole issue on appeal, Breiten contends that the trial court abused its discretion by

dismissing her case based on the untimely service of her expert’s report on Dr. Shatery. First,

Breiten argues that under Rule 21a, the act of filing her expert report with the Reeves County

District Clerk on November 3, 2010 constituted service on Dr. Shatery. Second, Breiten contends

that the November 15, 2010 service on Dr. Shatery was timely because the 120-day statutory

deadline was tolled until Dr. Shatery made an appearance in the case on November 12. She

further contends that service on Dr. Shatery’s attorney was impossible because Dr. Shatery’s

responsive-pleading deadline surpassed the 120-day deadline. The threshold issue is whether

Breiten satisfied the requirements of Section 74.351 by serving her expert’s report within the

statute’s 120-day deadline.

       The statutory language clearly states that a health care liability claimant shall serve an

expert report not later than the 120th day after the original petition was filed on each party against

whom a liability claim is asserted. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).

While the statute does not define the term “serve,” Rule 21a of the Texas Rules of Civil Procedure

applies to the service of expert reports in health care liability claims. Amaya v. Enriquez, 296

S.W.3d 781, 783 (Tex. App. – El Paso 2009, pet. denied); Kendrick, 171 S.W.3d at 704. Rule 21a

provides that “[e]very notice required by these rules, and every pleading, plea, motion, or other

form of request required to be served under Rule 21, other than the citation . . . may be served” by

one of four methods of service: (1) by delivery; (2) by certified or registered mail; (3) by


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telephonic document transfer; or (4) by such other manner as the court in its discretion may direct.

TEX. R. CIV. P. 21a. To comply with the express terms of Rule 21a, a notification or document

may be served by delivering a copy to the party to be served, or the party’s duly authorized agent or

attorney of record. TEX. R. CIV. P. 21a. A certificate of service of an affidavit showing service

is prima facie evidence of the fact of service. TEX. R. CIV. P. 21a.

       Breiten did not use either of the first three methods of service permitted by Rule 21a to

serve a copy of the expert report on Dr. Shatery before the 120-day deadline. Breiten urges

however, that the filing of her expert’s report on November 3, 2010 satisfies the fourth method of

service under Rule 21a. Under the fourth method, a trial court may in its discretion allow service

to occur by any other manner it directs. TEX. R. CIV. P. 21a. Further, Rule 106(b)(2) states that

upon motion, supported by affidavit, a court may approve service “in any other manner that the

affidavit or other evidence . . . shows will be reasonably effective to give the defendant notice of

the suit.” TEX. R. CIV. P. 106(b)(2). Under Rule 106(b), substitute service may only be

authorized once the plaintiff shows the necessity for the substitute method of service. Wilson v.

Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Eros v. Boyington Capital Group, LLC, No.

05-08-01703-CV, 2010 WL 4485907, at *1 (Tex. App. – Dallas Nov. 10, 2010, no pet.).

       Because Section 74.351(a) expressly requires service of an expert report on the opposing

party or his or her counsel, we reject Breiten’s claim that she satisfied the requirements of Rule 21a

by filing the expert’s report with the court clerk. TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(a); TEX. R. CIV. P. 21a. There is nothing in the record to establish that the trial court

directed service by filing with the court clerk; nor, do we see any reason why the trial court would

have directed another manner of service in this case. TEX. R. CIV. P. 21a. It is clear from the


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record that Breiten could have served Dr. Shatery on or before the expiration of the 120-day

deadline, as she had previously served the citation on Dr. Shatery.

       Service is not accomplished on a party when the method used is not one of the methods

authorized by Rule 21a. Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 459 (Tex. App. – Austin

2006, no pet.); see also Quint v. Alexander, No. 03-04-00819-CV, 2005 WL 2805576, at *1 (Tex.

App. – Austin Oct. 28, 2005, pet. denied) (holding that service does not occur when an expert

report is filed with the court clerk when the report could have been served personally on the

defendant). Because Breiten failed to use any method of service authorized by Rule 21a to

provide a copy of the expert report to Dr. Shatery within the statutory deadline, we conclude that

Bretein’s filing of the report with the district clerk on November 3, 2010, did not satisfy Section

74.351(a)’s service requirement.

       Alternatively, Breiten argues that she was unable to serve the expert’s report on Dr.

Shatery or his lawyer because the responsive pleading deadline surpassed the 120-day deadline.

Breiten contends that the November 15, 2010, service on Dr. Shatery complies with the service

requirement of Section 74.351(a) because the 120-day deadline was tolled until Dr. Shatery

entered an appearance in the case. In support of her argument, Breiten relies on Gardner v. U.S.

Imaging, Inc., 274 S.W.3d 669 (Tex. 2008). In Gardner, the plaintiff served the defendant health

care provider with the expert report after defendant filed an untimely answer to the plaintiff’s

lawsuit. Id. at 670. The defendant argued that the service of the report was untimely because it

was served more than 120 days after the original petition was filed. Id. The court found that

service was timely because the 120-day deadline was tolled until the defendant made an

appearance in the case once the defendant defaulted and judgment was taken against it. Id. at 671.


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       We do not find Gardner to be persuasive. The facts of Gardner can be distinguished from

those here because Dr. Shatery’s answer was timely filed and there was no default judgment.

Gardner, 274 S.W.3d at 669. Here, it is undisputed that Dr. Shatery was served with citation on

October 22, 2010, and as such, he could have been served within the 120-day statutory deadline.

Quint, 2005 WL 2805576, at *1. The fact that the responsive pleading deadline surpassed the

120-day deadline is of no importance. See Salinas v. Dimas, 310 S.W.3d 106, 111 (Tex. App. –

Corpus Christi 2010, pet. denied) (concluding that neither the rules nor statute prohibit a health

care liability claimant from serving an expert report before the defendant files his answer).

Accordingly, Breiten’s sole issue is overruled because her expert’s report was not timely served

under Section 74.351. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).

                                         CONCLUSION

       The trial court’s judgment is affirmed.



                                              GUADALUPE RIVERA, Justice
April 11, 2012

Before McClure, C.J., Rivera, J., and Antcliff, J.




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