

NO. 07-10-00438-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

NOVEMBER
3, 2010
 

 
LUIS ANGEL OLVERA, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 222ND DISTRICT COURT OF DEAF
SMITH COUNTY;
 
NO. CR-10D-041; HONORABLE ROLAND D. SAUL, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
 
 
ABATE AND REMAND
 
Appearing pro se, appellant Luis Olvera appeals his
conviction and sentence for felony driving while intoxicated.  In his notice of appeal, appellant states he
received appointed counsel in the trial court because of indigence.  The limited materials before us supply no
indication why appellant appears pro se
on appeal. We, therefore, abate the appeal and remand the case to the trial
court for further proceedings.
On remand, the trial court is
directed to immediately notice and conduct a hearing to determine: 
1. whether
appellant still wishes to pursue his appeal;
2. whether
appellant is indigent; and
3. if
appellant is indigent, whether he is entitled to appointment of counsel and a
free appellate record.
We further direct the trial court to
issue findings of fact and conclusions of law addressing the subjects
numerically itemized above.  
If the trial court finds appellant is
indigent and wishes to pursue his appeal, it shall appoint counsel to assist
appellant in the prosecution of the appeal. 
The name, address, telephone number, telefax
number, and state bar number of the counsel appointed
to represent appellant on appeal must also be included in the trial court’s
findings of fact and conclusions of law. 
If the trial court finds appellant is
indigent and wishes to pursue his appeal, it shall order the clerk and court
reporter to prepare and provide appellant a record of the trial court
proceedings without charge to appellant. 
Furthermore, the trial court shall
cause to be developed 1) a supplemental clerk’s record containing the findings
of fact and conclusions of law and all orders of the trial court issued as a
result of its hearing on this matter and 2) a reporter’s record transcribing
the evidence and argument presented at the hearing on this matter.  Additionally, the trial court shall cause the
supplemental record to be filed with the clerk of this court on or before December
3, 2010.  If additional time is required
to perform these tasks, the trial court may so request by December 3, 2010.
If the trial court finds appellant
wishes to pursue his appeal and is entitled to a free record on appeal, the
reporter’s record and clerk’s record shall be filed with the clerk of this court
within thirty days of the date the supplemental record directed by this order
is filed.  Should the trial court find
appellant wishes to pursue his appeal but is not entitled to a free record, the
reporter’s record and clerk’s record shall be filed with the clerk of this
court within thirty days of the date the supplemental record directed by this
order is filed, subject, however, to appellant’s compliance with the
requirements of Rule of Appellate Procedure 35.3.  Tex. R. App. P. 35.3.  Additional deadlines shall fall in accordance
with the appellate rules.  See Tex. R. App. P. 38.6.
It is so ordered.
 
Per Curiam
 
Do not
publish. 
 
            




 


change made in 2005 was the substitution of "original
petition" for "claim."  
            Because Cartrite's cause
of action accrued in September 2006, we will apply chapter 74 of the Texas
Civil Practice and Remedies Code as it currently exists, including the 2005
amendment.[10]  
Standard
of Review
            A trial
court's decision on a motion to dismiss under section 74.351 is reviewed for
abuse of discretion.  Jernigan v. Langley, 195 S.W.3d 91, 93
(Tex. 2006).  A trial court has no
discretion in determining what the law is or in applying the law to the
facts.  Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992).  Questions of law are
subject to a de novo review.  See generally 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").  However, once we determine
the proper construction of section 74.351(a), we must then review whether the
trial court abused its discretion in the manner in which it applied the statute
to the facts of the case.  Palladian Bldg. Co. v. Nortex Foundation Designs, Inc., 165 S.W.3d 430, 436 (Tex.App.--Fort Worth 2005, no pet.).  A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner or without reference to any guiding
rules or principles.  Walker v. Gutierrez, 111 S.W.3d 56, 62
(Tex. 2003).  
Statutory
Construction of Chapter 74
            Any legal term or word of art used
in chapter 74, not otherwise defined in the chapter, shall have such meaning as
is consistent with the common law.  §
74.001(b).  This provision essentially
restates the rule of statutory construction that terms in a statute are to be
given their ordinary meaning.  See Tex. Gov't Code Ann. § 312.002(a)
(Vernon 2005).  See also Kendrick v. Garcia, 171 S.W.3d
698, 704 (Tex.App.--Eastland 2005, pet. denied).  
The primary goal of statutory construction is to determine
and give effect to the Legislature's intent. 
Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008).  We look first to the statute's language to
determine that intent, as we consider it "a fair assumption that the
Legislature tries to say what it means, and therefore the words it chooses
should be the surest guide to legislative intent."  Fitzgerald
v. Advanced Spine Fixation Sys.,
Inc., 996 S.W.2d 864, 866 (Tex.
1999).  Furthermore, we presume the
Legislature intended a just and reasonable result by enacting the statute.  Tex. Gov't Code Ann. §
311.021(3) (Vernon 2005).  The
general rule for statutory interpretation applies unless enforcing the plain
language of the statute as written would produce absurd results.  See
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009).
The purpose behind the adoption of section 74.351(a)
was, among other things, to "remove unwarranted delay and expense, to
accelerate the disposition of non-meritorious cases, and to give
hard--and--fast deadlines for the serving of expert reports."  Intracare
Hosp. N. v. Campbell, 222 S.W.3d
790, 797 (Tex.App.--Houston [1st Dist.] 2007, no pet.).  The 2003 codification created a statute of
limitations type deadline before which expert reports must be served.  See Ogletree v. Matthews, 262 S.W.3d 316,
319 (Tex. 2007).  If no report was served
before the 120 day deadline, the Legislature denied trial courts the discretion
to deny motions to dismiss or grant extensions. 
Badiga v. Lopez, 274 S.W.3d
681, 683 (Tex. 2009).  This
seemingly harsh result comports with the Legislature's effort to "reduce
excessive frequency . . . of health care liability claims . . . ."  Ogletree, 262 S.W.3d at
320 (citing Act of June 2, 2003, 78th Leg., R.S., ch.
204, § 10.11(b)[(1)], 2003 Tex. Gen. Laws 847, 884)).
In 2005, section 74.351(a) was amended to require
expert reports to be filed not later than 120 days after the original petition is filed.  The purpose of the amendment was to
"clarify" the timing of when an expert report is due.  See Methodist Charlton
Medical Center v. Steele, 274 S.W.3d 47, 50 (Tex.App.--Dallas 2008, pet.
denied).  The Legislature
rationalized the change as follows:
[s]ince
the passage of House Bill 4 in the 78th Session, there has been some confusion
regarding the timing of when an expert report is due on a medical malpractice
case.  Some have argued that the report
is due 120 days from the date of the statutory notice letter, instead of 120
days from the date of the filing of the original petition.  It was the intent of HB 4 that the report be
triggered by the filing of the lawsuit.
 
See Padre Behavioral Health Sys., LLC v. Chaney, 310 S.W.3d 78, 84-85 (Tex.App.--Corpus Christi 2010,
no pet. h.) (citing Osonma v. Smith, No. 04-08-00841-CV, 2009 Tex.App. LEXIS
4959, at *4 (Tex.App.--San Antonio July 1, 2009, pet. denied)).  See also
Stroud v. Grubb, No. 01-09-00945-CV, 2010 Tex.App. LEXIS
3675, at *7 (Tex.App.--Houston [1st Dist.] May 13,
2010, pet. filed June 28, 2010) (citing House Comm. on Civil Practices,
Bill Analysis, Tex. H.B. 2645, 79th
Leg. R.S. (2005)).
Analysis
I. 
Pre-suit Production of an Expert Report 
            By issue one, Daybreak maintains the
trial court erred in denying its motion to dismiss because pre-suit production
of an expert report does not comply with the requirements of section
74.351(a).  Daybreak relies on Poland v. Ott,
278 S.W.3d 39 (Tex.App.--Houston [1st Dist.] 2008, pet. denied)(subsequent opinion at Poland
v. Ott, No. 01-07-00199-CV, 2009 Tex.App. LEXIS 3766 (Tex.App.--Houston [1st Dist.] Jan. 22, 2009,
pet. denied),[11]
St. Lukes
Episcopal Hosp. v. Poland, 288 S.W.3d 38 (Tex.App.--Houston [1st Dist.]
2009, pet. denied), and Offenbach v.
Stockton, 285 S.W.3d 517 (Tex.App.--Dallas 2009, pet. granted Feb. 12,
2010), in support of its position that providing a pre-suit expert report does
not satisfy the requirements of chapter 74 of the Code.  See
generally St. Lukes Episcopal Hosp, 288 S.W.3d at
44 (applying the pre-2005 version of section 74.351(a) and holding that the 120
day period in which to file an expert report was triggered by the filing of a
health care liability claim); Offenbach,
285 S.W.3d at 521-22 (applying the pre-2005 version of section 74.351(a) and
holding that pre-suit service of an expert report on a potential defendant's
insurance carrier did not satisfy the statute). 
Cartrite submits that section 74.351 is unambiguous, setting a deadline and not a window, by
allowing service any time not later than
the 120th day after the date the
claim was filed.  Cartrite relies heavily
on Justice Jennings's dissents in Ott, 278 S.W.3d at 43, and St. Lukes Episcopal Hosp., 288 S.W.3d at
54, in support of her arguments. 
            These cases, all involving pre-suit
service of expert reports, are, however, distinguishable from the case at bar. Each
of these cases involve application of section 74.351(a) as it existed after the
2003 codification of statutes involving health care liability claims, but
before the 2005 amendment.  The 2005
amendment, which provides that an expert report be served not later than 120
days after the original petition is
filed, was intended to clarify that the deadline for filing expert reports is
now triggered by the filing of an original petition.  Steele,
274 S.W.3d at 50.  Therefore, these cases
are legally and factually distinguishable from the case at hand because Cartrite's
claims fall under the current version of section 74.351(a).  
Considering that section 74.351(a) was amended in
2005, Cartrite's cause of action accrued after that amendment, and our ultimate
disposition of Daybreak's second issue, we deem it unnecessary to address the
parties' arguments relating to pre-suit service.  See Tex.
R. App. P. 47.1.   Accordingly, we
express no opinion as to whether or not section 74.351(a) creates a window
within which an expert report must be served, or whether it establishes a
deadline before which that report must be served.  Issue one is pretermitted.
II. The 120 Day Deadline
By issue two, Daybreak contends that Cartrite is
incorrect in arguing that the amended petition naming Daybreak Community
Services, Inc. as a defendant provided Cartrite with a new 120 day
deadline.  We disagree with Daybreak's
contention.
When considering the provisions of section 74.351(a)
requiring that an expert report be served not later than 120 days after the
filing date of the original petition,
an interpretation of that provision as applying exclusively to the first
pleading filed by a claimant, regardless of whom that pleading alleges a health
care liability claim against, "runs into a number of interpretational and
logical problems."  See Hayes v. Carroll, No.
03-08-00217-CV, 2010 Tex.App. LEXIS 3637, at *8-9
(Tex.App.--Austin May 14, 2010, no pet. h.).  Referencing the House and Senate Bill
analyses,[12]
the Austin Court of Appeals first noted that the primary purpose of the
amendment was to clarify that the 120 day deadline did not run from the date of
the statutory notice letter.  Id. at *10.  The court then noted that the intent of the
statute creating the 120 day deadline was to have that deadline triggered by the filing of the lawsuit."  (Emphasis added).  The filing of the lawsuit was the demarcation
event triggering the 120 day deadline.  Id.  "If a defendant has not been
added to a case, there has yet to be a lawsuit filed against that
defendant."  Id. at *10-11.  Regardless of how an amended pleading is
styled, it is the original or first petition bringing a lawsuit as to that
defendant that triggers the 120 day deadline for filing an expert report for
purposes of a health care liability claim. 
Id. at *11.  A construction of section 74.351(a) that
interprets the term "original petition" as being the first document
filed in a case that brings a claim against a particular defendant is
consistent with the available legislative history on the issue.  Id.
            Interpreting
the term "original petition" as referring only to the first petition
filed in a cause number regardless of who is named as a defendant presents a
quandary.  If the 120 day deadline begins
from the first petition filed, a plaintiff could never add another physician or
health care provider as a defendant beyond 120 days because the plaintiff would
never be able to timely serve an expert report as to that defendant.  Id. at
*11-12.  Such an interpretation would
produce an absurd result which runs afoul of statutory interpretation.  See Entergy Gulf States, Inc.,
282 S.W.3d at 437.  It would also
create the potential for unreasonable or unjust results.  Hayes,
2010 Tex.App. LEXIS 3637, at *12.  The court in Hayes added that it is not the title of the pleading that is
dispositive; rather, it is the substance of the petition with respect to the
health care providers who are named as defendants that is dispositive.  Id.
at *13-14.
The Corpus Christi Court of Appeals, Houston First
Court of Appeals, and San Antonio Court of Appeals have
all addressed this issue and have also concluded that the first-filed petition
naming a particular defendant physician or health care provider as a party to
the lawsuit triggers the 120 day deadline for filing an expert report as to
that party.  See Padre Behavioral Health Sys., LLC, 310 S.W.3d at 85; Stroud, 2010 Tex.App. LEXIS 3675, at *12; Osonma, 2009 Tex.App.
LEXIS 4959, at *4.  The Corpus Christi Court of Appeals in Padre Behavioral Health Sys., LLC, drew from the reasoning in Osonma.  310 S.W.3d at 84-85.  
In Osonma, certain defendants in a health care liability case
were not joined as parties until plaintiff filed her third amended petition,
well after 120 days from the filing of the original petition.  Defendants filed motions to dismiss based in
part on untimely service of expert reports. 
The trial court denied the motions to dismiss.  In affirming the trial court's decision, the San
Antonio Court of Appeals examined the legislative history and concluded that
the Legislature intended the substitution of "original petition" for
"claim" in 2005 to mean that the deadline for serving an expert
report be triggered by the filing of the lawsuit against the defendant entitled
to the statutory notice.  The court also
recognized that limiting "original petition" to the first-filed
petition in the cause would lead to an absurd result.  Osonma, 2009 Tex.App. LEXIS 4959, at *4-5.  In Stroud,
the Houston First Court of Appeals held that the 120 day deadline was triggered
when the claimant first asserts a health care liability claim against a
particular defendant in a petition.  2010 Tex.App. LEXIS 3675, at *13.
The Dallas Court of Appeals, in Steele, 274 S.W.3d at 50, and the Houston Fourteenth Court of
Appeals in Maxwell v. Seifert, 237
S.W.3d 423, 426 (Tex.App.--Houston [14th Dist.] 2008, pet. denied), have strictly
interpreted the phrase "not later than the 120th day after the date the
'original petition' was filed" as relating to the first petition filed.  However, Steele
and Maxwell are distinguishable
because they both involve the addition of new claims and service of expert
reports regarding those claims in amended petitions against pre-existing
defendants rather than the service of an expert report on a newly added party.  
In the case before us, the original petition was
filed against Daybreak Group, Ltd. Co. on April 15, 2008.  Daybreak argues that service of Cartrite's
expert report was therefore due no later than August 13, 2008, 120 days after
filing the original petition.  However, as
Daybreak and Daybreak Group have both argued, they are separate and
distinguishable entities, with Daybreak Group merely providing Daybreak with
"financial, accounting, payroll and administrative support
services."  As such, Daybreak Group is
not a health care provider.  When
Cartrite filed her first amended petition on July 6, 2009, alleging health care
liability claims for the first time against Daybreak Community Services, Inc.,
a health care provider, she was entitled to have 120 days from the filing of
that petition in which to serve Nurse Foster's expert report and curriculum
vitae.  Three days later, on July 9,
2009, Cartrite properly served Daybreak Community Services, Inc. with a copy of
Nurse Foster's expert report and curriculum vitae.[13]  Because Daybreak Community Services, Inc. was
served within 120 days of the first-filed petition naming it as a defendant, we
conclude the trial court did not abuse its discretion in denying Daybreak's
motion to dismiss based on an untimely expert report.  In reaching our conclusion, we follow the
rationale and logic of the decisions from our sister courts in Austin, Corpus
Christi, the First District of Houston, and San Antonio.  Issue two is overruled.         
We note that Daybreak further contends that
Cartrite's position that Daybreak Community Services, Inc. was not sued until
her first amended petition was filed on July 6, 2009, time bars her claim.  See
§ 74.251(a).  At this juncture, that argument
is premature and not before this Court. 
Daybreak has never sought summary judgment based upon a statute of
limitations defense and the merits of that claim are still subject to full
adjudication before the trial court.            
Conclusion
            Accordingly, the trial court's order
denying the Motion to Dismiss filed by Daybreak Community Services, Inc. is
affirmed. 
 
                                                                                    Patrick A. Pirtle
                                                                                          Justice
 
 



[1]The facility operated by Daybreak Community
Services, Inc. is a certified home and community-based services waiver program
for persons with mental retardation and, as such, Daybreak Community Services,
Inc. is a "health care provider" for purposes of chapter 74 of the
Texas Civil Practice and Remedies Code.  Tex. Civ. Prac. and Rem. Code Ann. §§ 74.001(a)(11)(I) and (a)(12)(A)(vii) (Vernon
2005).  
 


[2]Unless
otherwise designated, all references herein to "§" or
"section" are to the Texas Civil Practice and Remedies Code Annotated
(Vernon 2005 and Supp. 2009).


[3]The motion for summary judgment was withdrawn
a week later.
 


[4]The
registered agent and address for both Daybreak Group, Ltd. Co. and Daybreak
Community Services, Inc. are the same.  
 


[5]See Act of June 2, 2004,
78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen.
Laws 847, 884.
 


[6]See Act of May 5, 1995,
74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws
985, 986.
 


[7]See Act of June 2, 2003,
78th Leg., R.S., ch. 204, §§ 10.01-.09, 2003 Tex.
Gen. Laws 847, 864-84.
 


[8]See Act of June 2, 2003,
78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen.
Laws 847, 875.
 


[9]See Act of May 18, 2005, 79th Leg.,
R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590.
 


[10]Id. at § 2 (providing "[t]his Act
applies only to a cause of action that accrues on or after the effective date
of this Act.")


[11]The
1st Court of Appeals originally issued an opinion in Cause No. 01-07-00199-CV
on January 31, 2008.  That opinion was
withdrawn and a second opinion was issued in its stead on December 19,
2008.  That second opinion appears at 278
S.W.3d 39.  A third opinion was issued on
January 22, 2009, again purporting to withdraw the opinion of January 31, 2008
and issuing a new opinion in its stead. 
The January 22, 2009 opinion appears at Poland v. Ott, No. 01-07-00199-CV, 2009
Tex. App. LEXIS 3766 (Tex.App.--Houston
[1st Dist.] Jan. 22, 2009, pet. denied).


[12]House
Comm. on Civil Practices, Tex. H.B. 2645, 78th Leg., R.S. (2005) and Sen. Comm.
on State Affairs, Tex. H.B. 2645, 78th Leg., R.S. (2005).


[13]We
express no opinion as to the sufficiency of the expert report.


