Opinion issued November 1,=20
2007
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
=
01=E2=80=9307=E2=80=9300398=E2=80=93CV
MARY =
C. ACOSTA,=20
Appellant
V.
HEMLATA CHHEDA,=20
D.D.S., Appellee
On =
Appeal from the=20
129th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2006-32072
MEMORANDUM=20
OPINIONAppellant, Mary C. Acosta, =
appeals an=20
order dismissing with prejudice her health care liability suit =
against=20
appellee, Hemlata Chheda, D.D.S. In her sole issue, Acosta =
contends that=20
the trial court erred by dismissing her suit for failure to timely =
file an=20
expert report pursuant to Texas Civil Practice and Remedies Code =
section=20
74.351. ![3DFootnote](3D"")
<=
/SPAN>We=20
affirm.
Background
<=
/SPAN>On=20
May 28, 2004, Dr. Chheda performed dental services on Acosta. =
Acosta=20
alleges that, in attempting to remove a wisdom tooth, Dr. Chheda =
damaged=20
Acosta=E2=80=99s lingual nerve, which resulted in pain, loss of =
sense of taste,=20
and a severe, permanent speech impediment that affects =
Acosta=E2=80=99s ability to=20
earn her living as a criminal trial lawyer.
<=
/SPAN>On=20
May 11, 2005, Acosta sued Dr. Chheda for negligence. On September =
1, 2005,=20
Acosta filed a notice of non-suit as to all claims against Dr. =
Chheda. On=20
May 22, 2006, Acosta re-filed her suit against Dr. Chheda and =
filed in the=20
trial court the expert report of Dr. J. Crystal Baxter.
<=
/SPAN>On=20
April 4, 2007, Dr. Chheda moved to dismiss Acosta=E2=80=99s suit =
for failure to=20
timely serve the statutorily-required expert report and curriculum =
vitae=20
on Dr. Chheda. In her motion, Dr. Chheda argued that Texas =
Civil=20
Practice and Remedies Code section 74.351(a) requires a plaintiff =
in a=20
health care liability suit to file an expert report and curriculum =
vitae=20
on the defendant within 120 days of filing the claim and that, =
because=20
Acosta filed her claim on May 11, 2005, and failed to serve an =
expert=20
report by September 8, 2005, the trial court was required to =
dismiss the=20
suit.
<=
/SPAN>In=20
her response to the motion to dismiss, Acosta argued that, because =
she=20
non-suited her claims on September 1, 2005, which was only 114 =
days after=20
she filed her suit, the running of the 120-day period was tolled, =
and she=20
still had six days to file an expert report when she re-filed her =
suit on=20
May 22, 2006. Acosta contended that she had until =E2=80=9CMay 27, =
2006,=E2=80=9D to serve=20
her expert report. Acosta argued that because she filed her expert =
report=20
in the trial court on May 22, 2006, the day she re-filed her suit, =
and she=20
served Dr. Chheda=E2=80=99s attorney with a copy of the expert =
report via=20
facsimile and regular mail on May 19, 2006, her expert report was =
timely=20
and dismissal was improper.
<=
/SPAN>On=20
April 16, 2007, after a hearing, the trial court granted Dr. =
Chheda=E2=80=99s=20
motion and dismissed Acosta=E2=80=99s suit with prejudice. This =
appeal=20
followed.
Timeliness of=20
Expert Report
<=
/SPAN>In=20
her sole issue, Acosta contends that the trial court erred by =
dismissing=20
her suit with prejudice for failure to file an expert report =
=E2=80=9Cbecause the=20
evidence established that at the time of the non-suit on September =
1, 2005=20
six (6) days remained to serve the expert report(s) and the expert =
reports=20
were served contemporaneously with the filing of the second =
lawsuit making=20
the service of the reports timely.=E2=80=9D
A.=20
Standard of=20
Review
<=
/SPAN>We=20
review a trial court=E2=80=99s decision on a motion to dismiss a =
case for failure=20
to comply with section 74.351 for an abuse of discretion. Am.=20
Transitional Care Ctrs. of Tex., Inc., v. Palacios, 46 S.W.3d =
873, 875=20
(Tex. 2001) (applying abuse of discretion standard in review of =
trial=20
court=E2=80=99s decision to dismiss under predecessor statute, =
section 13(e) of=20
article 4590i); Torres v. Mem=E2=80=99l Hermann Hosp. Sys., =
186 S.W.3d 43,=20
45 (Tex. App.=E2=80=94Houston [1st Dist.] 2005, no pet.). A trial =
court abuses its=20
discretion if it acts arbitrarily, unreasonably, or without =
reference to=20
guiding rules or principles when it dismisses a claim. =
Torres, 186=20
S.W.3d at 45.
B. Analysis<=
SPAN=20
style=3D"FONT-FAMILY: 'Times New Roman', serif"> =
=
The=20
version of Texas Civil Practice and Remedies Code section 74.351=20
applicable here provides as follows, in pertinent =
part:
(a) In a health =
care=20
liability claim, a claimant shall, not later than the 120th day =
after the=20
date the claim was filed, serve on each party or the =
party=E2=80=99s attorney one=20
or more expert reports, with a curriculum vitae of each expert =
listed in=20
the report for each physician or health care provider against whom =
a=20
liability claim is asserted. The date for serving the report may =
be=20
extended by written agreement of the affected=20
parties. . . .
(b) If, as to a =
defendant=20
physician or health care provider, an expert report has not been =
served=20
within the period specified by Subsection (a), the court, on the =
motion of=20
the affected physician or health care provider, shall, subject to=20
Subsection (c), enter an order that:
(1) awards to the =
affected=20
physician or health care provider reasonable attorney=E2=80=99s =
fees and costs of=20
court incurred by the physician or health care provider; and=20
(2) dismisses the =
claim with=20
respect to the physician or health care provider, with prejudice =
to the=20
refiling of the claim.
Hence, section =
74.351(a)=20
requires that a plaintiff =E2=80=9Cserve=E2=80=9D an expert report =
and the=20
expert=E2=80=99s curriculum vitae =E2=80=9Con each party or the =
party=E2=80=99s attorney=E2=80=9D=20
within 120 days=20
after =E2=80=9Cthe date the claim [is] filed.=E2=80=9D If a =
plaintiff fails to timely=20
comply with subsection (a), the trial court must, on the motion of =
the=20
affected physician or health care provider, dismiss the suit. =
<=
/SPAN>On=20
appeal, Acosta contends that her original suit was filed May 11, =
2005,=20
which would have made her expert report due, pursuant to section=20
74.351(a), 120 days later, on September 8, 2005. Acosta contends =
that,=20
because she non-suited her claims on September 1, 2005, which was =
only 114=20
days after she filed her suit, the running of the 120-day period =
was=20
tolled, and she still had six days to file an expert report when =
she=20
re-filed her suit on May 22, 2006.
Acosta contends that she had =
until =E2=80=9CMay 27,=20
2006=E2=80=9D to serve her expert report.
<=
/SPAN>Acosta=20
first contends that her expert report was timely because she filed =
it in=20
the trial court contemporaneously with the re-filing of her =
petition on=20
May 22, 2006. Applying section 74.351, the date that Acosta filed =
her=20
expert report with the trial court is of no moment. The statute =
expressly=20
requires that she =E2=80=9Cserve=E2=80=9D an expert report =
and the=20
expert=E2=80=99s curriculum vitae =E2=80=9Con each party or the =
party=E2=80=99s attorney=E2=80=9D=20
within the 120-day period.
Hence, filing an expert report =
with the=20
district clerk does not satisfy =E2=80=9Cservice=E2=80=9D on a =
party under section=20
74.351(a). See Quint v. Alexander, 03-04-00819-CV, 2005 WL =
2805576,=20
at *2=E2=80=933 (Tex. App.=E2=80=94Austin Oct. 28, 2005, pet. =
denied).
<=
/SPAN>It=20
is undisputed, and the record shows, that Acosta did not serve Dr. =
Chheda=20
directly with the expert report until June 22, 2006. Acosta =
contends that=20
her expert report was timely served on Dr. Chheda=E2=80=99s =
attorney on May 19,=20
2006=E2=80=94the day she mailed her petition and expert report to =
the trial court.=20
The record shows that Acosta sent by facsimile, what she =
characterized in=20
the record as, a =E2=80=9Ccourtesy copy=E2=80=9D of the expert =
report to Dr. Chheda=E2=80=99s=20
attorney on May 19, 2006. Texas Rule of =
Civil=20
Procedure 21a authorizes service upon a party by telephonic =
document=20
transfer. See Tex. =
R. Civ.=20
P. 21a.
However, as =
Dr.=20
Chheda contends, no curriculum vitae appears in the record as =
having been=20
included in the facsimile transmission on May 19, 2006. The record =
shows=20
that Baxter=E2=80=99s curriculum vitae was emailed to Dr. =
Chheda=E2=80=99s attorney on=20
June 28, 2006. However, emailing =
is not a=20
method of service authorized by Rule 21a. See Tex. R. Civ. P. 21a. =
<=
/SPAN>Section=20
74.351 specifically requires service of the expert=E2=80=99s =
curriculum vitae on=20
the party or the party=E2=80=99s attorney within the 120-day =
period.
In her expert report, Baxter =
states, =E2=80=9CA=20
true and correct copy of my curriculum vitae is attached and is=20
incorporated by reference.=E2=80=9D However, it is undisputed that =
none was=20
attached.
<=
/SPAN>Dr.=20
Chheda moved to dismiss Acosta=E2=80=99s claim for having failed =
to timely =E2=80=9Cserve=20
an expert report and CV=E2=80=9D as required by section 74.351. =
Acosta=E2=80=99s response=20
to the motion to dismiss does not mention a curriculum vitae or =
contend=20
that one had been provided in any form.
<=
/SPAN>As=20
Dr. Chheda contends, even if we conclude that the 120-day period =
in=20
section 74.351(a) was tolled on day 114 by Acosta=E2=80=99s =
September 1, 2005=20
non-suit and that Acosta retained 6 days to file her expert report =
when=20
she filed her new suit on May 22, 2006, we would still have to =
conclude=20
that Acosta failed to comply with section 74.351. Acosta urges =
that the=20
new deadline would have expired on May 27, 2006. The record shows =
that=20
Acosta did not serve a curriculum vitae on Dr. Chheda or her =
attorney by=20
that date. Hence, we do not reach the issue of whether the 120-day =
period=20
was actually tolled by Acosta=E2=80=99s non-suit because Acosta =
delayed beyond the=20
date that she urges should apply.
<=
/SPAN>Because=20
Acosta failed to timely serve a curriculum vitae on Dr. Chheda or =
her=20
attorney, Acosta failed to comply with section 74.351(a). Because Acosta =
failed to=20
timely meet section 74.351(a), the trial court was required, =
pursuant to=20
section 74.351(b), to dismiss her =
claim with=20
prejudice.
We =
hold that=20
the trial court did not abuse its discretion in dismissing =
Acosta=E2=80=99s claim.=20
=
Accordingly, we =
overrule=20
Acosta=E2=80=99s sole issue.
Conclusion
=
We=20
affirm the trial court=E2=80=99s judgment.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Laura=20
Carter Higley
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Justice
Panel consists of =
Justices=20
Taft, Hanks, and Higley.
|