                             NUMBER 13-12-00025-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

ARACELI GARZA,                                                                Appellant,

                                            v.

RICHARD CARLSON, M.D.,                                                         Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                                    OPINION
                Before Justices Rodriguez, Garza and Perkes
                         Opinion by Justice Garza

       Appellant, Araceli Garza, challenges the dismissal of her health care liability

claim against appellee, Richard Carlson, M.D., for her failure to timely file an expert

report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). By a single

issue, Garza contends that the time for filing an expert report was tolled until the default

judgment against Dr. Carlson was set aside, and that the trial court therefore erred in
granting Dr. Carlson’s motion to dismiss. We reverse and remand.

                                    I. BACKGROUND

       In 2008, Dr. Carlson performed surgery on Garza to repair a torn rotator cuff.

Garza then underwent physical therapy but reported increasing pain and decreased

range of motion in her shoulder.     Dr. Carlson did not recommend any additional

treatment.   A second doctor diagnosed adhesive capsulitis—otherwise known as a

“frozen shoulder”—and ordered magnetic resonance imaging (“MRI”) to determine the

cause. Dr. Carlson reviewed the MRI but made no additional recommendations. Garza

then went to a third doctor, Anil Dutta, M.D., who diagnosed her as having suffered a

dehiscence, or detachment, of the deltoid muscle following her surgery. According to

Garza, Dr. Dutta attempted to correct the injury through additional surgery, but the

additional surgery was unsuccessful due to the significant amount of time that had

passed since the initial surgery.

       Garza filed her medical malpractice suit against Dr. Carlson on May 14, 2010,

and Dr. Carlson was served with citation on June 16, 2010. Dr. Carlson was therefore

required to file an answer on or before July 12, 2010.      See TEX. R. CIV. P. 99(b)

(requiring citation to state that defendant must file an answer “on or before 10:00 a.m.

on the Monday next after the expiration of twenty days after the date of service” of

citation). He did not file an answer by that date. Default judgment as to liability was

later rendered against Dr. Carlson on March 30, 2011. See TEX. R. CIV. P. 239.

       Subsequently, on April 18, 2011, Dr. Carlson filed an answer and motion for new

trial seeking to set aside the default judgment. The trial court granted the motion on

April 27, 2011.

       On June 27, 2011, Garza filed a medical expert report, along with the expert’s
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curriculum vitae, pursuant to chapter 74 of the civil practice and remedies code. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Dr. Carlson then moved to dismiss

Garza’s suit, contending that the expert report was untimely. See id. (requiring service

of the expert report “not later than the 120th day after the date the original petition was

filed”). The trial court granted the motion and dismissed the suit. This appeal followed.

                                       II. DISCUSSION

       We review a trial court’s order granting a motion to dismiss for failure to comply

with chapter 74’s expert report requirement under an abuse of discretion standard. Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); see

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 any 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)).

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. ref’d); 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”)).

       Garza contends that her expert report was in fact timely, and therefore, the trial

court erred in granting Dr. Carlson’s motion to dismiss. In particular, she claims that the

time period prescribed by chapter 74 for the filing of an expert report was tolled between

July 12, 2010, the deadline for Dr. Carlson to file an answer, and April 27, 2011, when
                                              3
the trial court set aside the default judgment.1 On the other hand, Dr. Carlson contends

that the trial court did not err in dismissing the suit because the tolling of the expert-

report deadline triggered by his failure to timely file an answer ceased as of April 18,

2011, the date he filed his answer.2

        In 2008, the Texas Supreme Court considered a similar case in Gardner v. U.S.

Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008) (per curiam).                            There, a medical

defendant, SADI, failed to timely answer the health care liability suit filed by plaintiffs,

the Gardners. Id. Prior to the expiration of the 120-day expert report deadline, a default

judgment was rendered against SADI. Id. Upon learning of the default judgment, SADI

filed an answer, along with a motion for new trial and motion to set aside the default

judgment.      Id. at 670.      The trial court granted the motion to set aside the default

judgment. Id. The Gardners then served a chapter 74 expert report on SADI, but SADI

moved to dismiss the suit on the basis that the expert report was untimely. Id. The trial

court agreed and granted the motion. Id. The Supreme Court reversed, however,

reasoning as follows:

        The statute does not specify the effect of a default judgment on the 120-
        day period. But the effect of default on a plaintiff’s claim for unliquidated
        damages is clear: once a default judgment is taken, all factual allegations
        contained in the petition, except the amount of damages, are deemed
        admitted. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83
        (Tex. 1992). In light of the expert-report requirement’s dual purpose to
        inform the served party of the conduct called into question and to provide
        a basis for the trial court to conclude that the plaintiff’s claims have merit, it

        1
          409 days elapsed between the filing of Garza’s petition on May 14, 2010 and the service of her
expert report on June 27, 2011; 289 days elapsed between the deadline for Dr. Carlson to file an answer
and the date the trial court set aside the default judgment. Accordingly, if the time period for filing a
chapter 74 expert report is deemed to have been tolled between the date Dr. Carlson was required to file
an answer and the date the default judgment was set aside, the expert report will be deemed timely. See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2006).
        2
           280 days elapsed between the deadline for Dr. Carlson to file an answer and the date he
actually did file an answer, April 18, 2011. Accordingly, if the time period for filing a medical expert report
is deemed to have been tolled for only this period, Garza’s expert report will be deemed untimely.
                                                      4
       makes little sense to require service of an expert report on a party who by
       default has admitted the plaintiff’s allegations.           Moreover, our
       jurisprudence requires that, for a default judgment to be set aside, the
       plaintiff must be placed “in no worse position than he would have been
       had an answer been filed . . . .” Craddock v. Sunshine Bus Lines, Inc.,
       134 Tex. 388, 133 S.W.2d 124, 125 (Tex. 1939). Accordingly, when SADI
       failed to timely answer the Gardners’ suit by the Monday following the
       expiration of twenty days after it was served, see TEX. R. CIV. P. 99(b), the
       statutory period for serving it with an expert report was tolled until such
       time as SADI made an appearance. Once the default judgment was set
       aside and SADI filed an answer, tolling ended and the Gardners had 100
       days remaining in which to serve SADI with an expert report. SADI filed
       an answer in the original suit on February 12, and the Gardners served it
       with an expert report on March 20, well within the remaining statutory
       period.

Id. at 671. The Gardner Court made clear that the tolling of the expert report timeline

commences at the time the defendant’s answer was due to be filed. See id. The

question presented by this appeal is: in a case where a default judgment has been

rendered, when does the tolling end?

       Dr. Carlson contends that the tolling ended immediately upon the untimely filing

of his answer to Garza’s suit. In support of this position, Dr. Carlson cites Morris v.

Umberson, 312 S.W.3d 763 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). That

case also involved a health care liability defendant failing to timely file an answer to a

plaintiff’s suit. Id. at 764. The plaintiff, Umberson, moved for default judgment against

Dr. Morris, the defendant. Id. However, before the trial court could rule on Umberson’s

motion, Dr. Morris filed an answer to Umberson’s suit. Id. Three days later, Umberson

served his chapter 74 expert report on Dr. Morris. Id. Dr. Morris moved to dismiss on

the basis that the report was untimely, having been filed more than 120 days after

Umberson’s petition.3 Id. The trial court denied the motion and the appeals court

       3
          Dr. Morris also moved to dismiss on the basis that Umberson’s expert report was inadequate.
Morris v. Umberson, 312 S.W.3d 763, 764 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The trial
court agreed that the report was inadequate but denied the motion to dismiss and instead granted
                                                 5
affirmed. Id. On appeal, Dr. Morris contended that the expert report time period was

not tolled at all because, unlike in Gardner, there was never any default judgment

rendered against him. Id. The First District Court of Appeals disagreed, and noted that:

        [T]he triggering event in Gardner for the tolling of the statutory period was
        not the granting of the default judgment, but rather the defendant's failure
        to timely answer. The tolling ended in Gardner when the facility
        answered, not when the default judgment was set aside. That the trial
        court had granted a default judgment was not dispositive to the supreme
        court's holding.

Id. at 767 (citations omitted). Dr. Carlson argues that this holding in Umberson compels

a conclusion that it was the filing of his answer, not the setting aside of the default

judgment, that stopped the tolling of the expert report timeline.

        We disagree.       The Umberson court was correct in observing that the tolling

ended in Gardner as soon as SADI filed its answer. However, the Gardner Court did

not conclude that the filing of the answer alone was sufficient to stop the tolling. To the

contrary, the Gardner Court stated explicitly that tolling ended only “[o]nce the default

judgment was set aside and SADI filed an answer . . . .” Gardner, 274 S.W.3d at 671

(emphasis added). That is, in cases where a default judgment has been rendered, the

tolling of the statutory expert report period continues until both (1) the default judgment

has been set aside and (2) the defendant has filed an answer. See id. In Gardner,

because SADI filed its answer after the default judgment was set aside, it was the filing

of the answer that triggered the end of the tolling period, as Umberson recognized.4


Umberson a thirty-day extension to file a compliant report. Id.; see TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(c) (West 2011). The appeals court concluded that the trial court did not err in granting the
extension. Umberson, 312 S.W.3d at 770–71.
        4
          The Umberson court stated that the granting of a default judgment was “not dispositive” to the
Gardner ruling. Id. at 767. We agree with this statement, but we note that the default judgment was “not
dispositive”—and the filing of SADI’s answer was dispositive—only because SADI filed its answer after
the default judgment was set aside. In other words, if SADI had filed its answer prior to the setting aside
of the default judgment, then the tolling would not have stopped until the default judgment was set aside.
                                                    6
See Umberson, 312 S.W.3d at 767. But the Gardner Court made clear that both the

setting aside of the default judgment and the filing of defendant’s answer were

necessary conditions for the tolling to stop. See Gardner, 274 S.W.3d at 671.

        Here, Dr. Carlson filed his answer before the default judgment was set aside. At

the time he filed his answer, therefore, the default judgment was still in effect and still

operated as a deemed admission by Dr. Carlson of all factual allegations regarding

liability. See id. (“[O]nce a default judgment is taken, all factual allegations contained in

the petition, except the amount of damages, are deemed admitted.”).                      And, as the

Gardner Court noted, “it makes little sense to require service of an expert report on a

party who by default has admitted the plaintiff’s allegations.” Id. Once the default

judgment was set aside, however, the factual allegations were no longer deemed

admitted. Accordingly, the statutory time period for Garza to file her expert report was

tolled from the date Dr. Carlson’s answer was due—July 12, 2010—to the date that the

default judgment was set aside—April 27, 2011. Garza’s expert report was therefore

timely and the trial court erred in dismissing her suit. We sustain Garza’s sole issue.

                                          III. CONCLUSION

        The trial court’s judgment is reversed and we remand for further proceedings

consistent with this opinion.

                                                        ________________________
                                                        DORI CONTRERAS GARZA,
                                                        Justice

Delivered and filed the
6th day of December, 2012.




In such a case, the setting aside of the default judgment would have been dispositive—but those were not
the facts confronting the Umberson court.
                                                   7
