                   NUMBER 13-12-00318-CV

                    COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG

SSC ROBSTOWN OPERATING
COMPANY LP D/B/A RETAMA
MANOR NURSING CENTER/ROBSTOWN
AND TRISUN HEALTHCARE, LLC
D/B/A TRISUN CARE CENTER,                         Appellants,

                               v.

SANDRA PEREZ, INDIVIDUALLY
AND AS REPRESENTATIVE FOR
THE LEGAL HEIRS OF THE ESTATE
OF ESPIRIDION AVILA, DECEASED,                    Appellee.


          On appeal from the County Court at Law No. 4
                   of Nueces County, Texas.


                 MEMORANDUM OPINION
        Before Justices Rodriguez, Benavides, and Perkes
            Memorandum Opinion by Justice Perkes
        In this interlocutory appeal,1 appellants SSC Robstown Operating Company LP

d/b/a Retama Manor Nursing Center/Robstown (“Retama Manor”) and Trisun Healthcare,

LLC d/b/a Trisun Care Center (“Trisun”), appeal the trial court’s order denying their

respective motions to dismiss the health care liability claims of appellee Sandra Perez,

Individually and as Representative for the Legal Heirs of the Estate of Espiridion Avila,

Deceased (“Perez”). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (a–c) (West

2011). By two issues, Retama Manor and Trisun argue that the trial court should have

granted their respective motions to dismiss Perez’s lawsuit because (1) she served her

amended expert report one day late; and (2) the amended expert report was deficient.

See id. We reverse and remand.

                      I. FACTUAL AND PROCEDURAL BACKGROUND

        Perez sued Retama Manor and Trisun alleging that their failure to provide proper

nursing-home care caused Espiridion Avila to suffer serious personal injury and death.

On June 9, 2011, Perez filed her original petition. On October 7, 2011, Perez filed the

mandatory expert report on the last day of the 120-day deadline. See § 74.351(a).

Retama Manor and Trisun objected that the expert report was insufficient under section

74.351(a) and moved to dismiss Perez’s suit. See id.

        On January 10, 2012, the trial court held a hearing on Retama Manor and Trisun’s

respective objections and motions to dismiss. At the hearing, the trial court found that

Perez’s expert report was deficient, but granted Perez a 30-day extension to cure the

deficiency. See id. § 74.351(c). During the hearing, the trial court stated on the record

        1
          This appeal is brought pursuant to Texas Civil Practice and Remedies Code section 51.014(a)(9).
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2008).

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that it was granting the 30-day extension. The trial court stated that it found Perez’s

expert qualified and asked Perez’s counsel whether he could have the deficiencies in the

report corrected “in 30 days.” Perez’s counsel answered, “Yes, sir, I’ll be glad to do it.”

The record shows that the trial court signed the order granting the extension in open court

after giving Perez’s counsel an opportunity to review it.       The trial court stated the

following:

             What do you call this order I’m signing here? I’ll put this—today is the
             10th, 2-10-12 [sic.]. Plaintiff to amend expert report in 30 days from
             tomorrow. How about that?

       In response, Retama Manor’s counsel pointed out that the order presented to the

trial court for signature included Trisun, but did not include Retama Manor. Retama

Manor’s counsel asked whether he should submit a separate order. The trial court

responded by telling counsel, “[h]ere take it and interlineate it yourselves. Fix it.” The

reporter’s record ends at that point. The clerk’s record shows that the trial court signed

the 30-day extension order on January 10, 2012, and that it was interlineated to add

Retama Manor as a defendant. The record does not show that the court modified the

order in any way after that date.

       On February 10, 2012, Perez filed the amended expert report. Retama Manor

and Trisun both objected to the amended expert report and moved to dismiss Perez’s

suit, arguing that the amended expert report was untimely because it was filed on the

thirty-first day after the January 10, 2012 order granting the extension. They both further

objected to the amended expert report, arguing that it was still insufficient.




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       The trial court denied Retama Manor’s and Trisun’s motions to dismiss. This

accelerated appeal followed.

                                 II. STANDARD OF REVIEW

       Chapter 74 of the Texas Civil Practice and Remedies Code requires a health care

liability claimant to serve providers with expert reports within 120 days of filing suit. Id.

§ 74.351(a). If the claimant fails to timely serve a report, the trial court must grant the

provider's motion to dismiss the claim; the failure to do so is subject to interlocutory

appeal. Id. §§ 51.014(a)(9), 74.351(b) (West 2008 & 2011). If a report is timely served,

but is deficient as to one or more elements, the court may grant one 30–day extension to

cure the deficiency. Id. § 74.351(c) (West 2011). Subject to the 30-day extension

provision, the trial court must grant a motion challenging the adequacy of an expert report

if it appears to the court, after hearing, that the report does not represent an objective

good-faith effort to comply with the requirements of an expert report as set forth in section

74.351(r)(6). Id. § 74.351(l).

       We review a trial court’s order on a motion to dismiss filed under section 74.351 for

an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 877–78 (Tex. 2001); 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 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)). A trial court has no discretion in determining what the law is

or in applying the law to the facts. See id. (citing Walker v. Packer, 827 S.W.2d 833, 840


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(Tex. 1992)). Therefore, when, as here, the issue presented is purely a question of law,

we conduct a de novo review. Id. (citing Pallares v. Magic Valley Elec. Coop., Inc., 267

S.W.3d 67, 69–70 (Tex. App.—Corpus Christi 2008, pet. ref’d)); see also Davis v. Webb,

246 S.W.3d 768, 771–72 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Univ. of Tex.

Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied).

                                         III. ANALYSIS

       By their first issue on appeal, Retama Manor and Trisun both argue that the trial

court erred as a matter of law by not dismissing Perez’s suit because she served the

amended expert report one day late. We agree.

       Section 74.351(c) of the Texas Civil Practice and Remedies Code states that a

plaintiff may be given one 30-day extension to file an amended expert report if its original

report is found deficient, and thus considered no report at all. Id. § 74.351(c); see also

Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008). Section 74.351(c) provides

that when, as here, the original 120-day period for filing an expert report has expired, the

30-day extension shall run from the date the plaintiff first receives notice of the 30-day

extension. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). If a 30-day extension is

granted and the plaintiff fails to timely cure the deficient report, dismissal of the plaintiff’s

health care liability claim is mandatory. See id.; Nexion Health at Beechnut, Inc. v. Paul,

335 S.W.3d 716, 718–19 (Tex. App.—Houston [14th Dist.] 2011, no pet). A trial court

has no discretion to alter the length of an extension granted under section 74.351(c).

See Constancio v. Bray, 266 S.W.3d 149, 162 (Tex. App.—Austin 2008, no pet.) (holding


                                               5
trial court abused its discretion by effectively granting a seven-day extension of the

120-day deadline to serve an expert report; “[e]ither the claimant gets one ‘30-day

extension’ of the deadline or no extension at all.”).

       In Paul, the Fourteenth Court of Appeals addressed whether dismissal of a health

care liability claim was mandatory because the claimant failed to timely serve her

amended expert report after being granted a 30-day extension. Paul, 335 S.W.3d at

718. The Paul Court granted the extension at a hearing and signed the order granting

the extension that the same day. See id. Paul’s amended expert report was served

one day late. Id. In the trial court, Paul argued, in response to the second motion to

dismiss her claim, that the extension was granted at the hearing on the first motion to

dismiss. Id. at 719. No transcript of the hearing on the first motion to dismiss was

available on appeal. Id. On appeal, however, Paul argued that she did not receive

notice of the trial court’s order granting the 30-day extension until several days after the

hearing on the first motion to dismiss. Id. at 718. In support of her argument, Paul

attached to her appellate brief a post card giving notice of the trial court’s signed order

that granted the extension. Id. at 719. There was no evidence in the record to support

Paul’s assertion that she did not receive notice of the trial court’s ruling when it was made

in open court. Id. at 719. Because there was no basis in the record to show Paul was

correct and a later deadline applied in the case, the appeals court held that the trial court

had no discretion to take any action other than dismissing Paul’s claim. Id. at 718.

       In this case, as in Paul, Perez’s position in the trial court is inconsistent with her

position on appeal. In the trial court, Perez acknowledged that she received notice of the


                                              6
30-day extension at the January 10, 2012 hearing on Retama Manor and Trisun’s first

motion to dismiss, the day the extension order was signed. Relying on the transcript of

the first dismissal hearing, Perez argued in the trial court that the 30-day extension started

to run on January 11, 2012, and that her amended expert report was thus timely when she

served it on February 10, 2012.2

       On appeal, however, Perez argues that the earliest date she could have received

notice of the 30-day extension was January 12, 2012, because that is the date the

Nueces County Clerk stamped the order “filed.” Like the post card in Paul, the file mark

stamp on the extension order is no evidence of the date when Perez first received notice

of the trial court’s ruling. The trial court’s record is devoid of any evidence whatsoever

that Perez first received notice, or any other notice for that matter, on a date after the

January 10, 2012 hearing. Perez did not include any comment or argument regarding

the date of receipt in her response to the motion(s) to dismiss, did not provide any affidavit

or testimony regarding the date that she received notice, and did not make any comment

or argument during the hearing regarding the date that she received notice. In short, the

trial court’s record is completely silent in that regard.

       Appellant can find no support in the Willens case. See Willens v. Johnson, No.

09-11-00524-CV, 2012 WL 586685, at *2 (Tex. App.—Beaumont 2012, pet. denied)

(mem. op.)     In Willens, the claimant presented evidence showing when he first received

actual notice of the trial court’s order granting a 30-day extension under section

74.351(c). Id. The appeals court correctly concluded that the trial court did not abuse

       2
          The trial court properly stated the period would run from “30 days from tomorrow” Beginning
the day count on January 11, 2012, the day after the date the order was signed, the deadline for the
amended report would have been February 9, 2010, and not February 10, 2012.
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its discretion in denying the motion to dismiss because evidence was presented which

allowed the trial court to reasonably conclude the claimant timely served the amended

expert report within thirty days of receiving notice of the extension.

       The Texas Legislature created clear deadlines under section 74.351. While we

recognize this may sometimes result in seemingly harsh consequences, this Court lacks

the authority to extend the statutory deadlines. See Paul, 335 S.W.3d at 719. We

sustain Retama Manor and Trisun’s first issue on appeal. In light of our disposition of

issue one, we need not reach issue two. See TEX. R. APP. P. 47.1

                                     IV. CONCLUSION

       We reverse the trial court’s order denying Retama Manor and Trisun’s respective

motions to dismiss and remand this case for proceedings consistent with this opinion.




                                                  GREGORY T. PERKES
                                                  Justice

Delivered and filed the
28th day of February, 2013.




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