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Morris v. Ponce

Court of Appeals of Texas, Fourteenth District

September 24, 2019

CALENA MORRIS, R.N.; MICHEAUX THOMAS, R.N.; AND WENDY CALVERT, R.N., Appellants
v.
BRENDA PONCE AND RICCO GONZALEZ, AS NATURAL PARENTS, NEXT FRIENDS, AND LEGAL GUARDIANS OF E.G., A MINOR, Appellees

          On Appeal from the 11th District Court Harris County, Texas, Trial Court Cause No. 2012-74315

          Panel consists of Chief Justice Frost and Justices Spain and Poissant.

          OPINION

          Charles A. Spain Justice.

         Appellants, Calena Morris, R.N.; Micheaux Thomas, R.N.; and Wendy Calvert, R.N. (collectively, the "Nurses"), bring this interlocutory appeal from the trial court's denial of their motion to dismiss the health-care liability claims of appellees, Brenda Ponce and Ricco Gonzalez, as natural parents, next friends, and legal guardians of Eric, [1] a minor. In a single issue, the Nurses claim that the trial court abused its discretion in denying their motion to dismiss for failure to timely serve an expert report in accordance with the medical liability chapter of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). We affirm the order of the trial court.

         I. Background

         This case previously has been before us. As detailed in Memorial Hermann Hospital System v. Ponce, Ponce and Gonzalez filed a health-care liability claim against the hospital where Eric was born, alleging the hospital's negligence caused Eric brain damage. No. 14-14-00136-CV, 2014 WL 5685726, at *1 (Tex.App.- Houston [14th Dist.] Nov. 4, 2014, pet. denied) (mem. op.). Ponce and Gonzalez did not serve the hospital with an expert report until more than 300 days after filing their original petition. The hospital filed a motion to dismiss pursuant to Civil Practice and Remedies Code section 74.351(b), arguing Ponce and Gonzalez failed to timely serve an expert report.

         On January 24, 2014, days before the hearing on the hospital's motion to dismiss, Ponce and Gonzalez amended their petition to add the Nurses as named parties. Ponce and Gonzalez attached another expert report to the amended petition served on the Nurses.

         The trial court denied the hospital's motion. In the previous interlocutory appeal, we concluded the expert report (served on the hospital over 300 days after Ponce and Gonzalez filed suit) was untimely. Id. at. *4–5. We reversed the trial court's order and instructed the trial court to dismiss Ponce's and Gonzalez's claims against the hospital with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). The trial court dismissed with prejudice and severed the claims against the hospital, making the dismissal a final judgment against the hospital.

         Subsequently, the Nurses filed a motion to dismiss pursuant to section 74.351(b), arguing that Ponce and Gonzalez failed to timely serve an expert report. The trial court denied the motion, and this interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9).

         II. Analysis

         We review a trial court's ruling on a motion to dismiss under section 74.351 for an abuse of discretion. See Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam); Univ. of Tex. Health Sci. Ctr. at Houston v. Cheatham, 357 S.W.3d 747, 748 (Tex.App.-Houston [14th Dist.] 2011, pet. denied). Under this standard, we defer to a trial court's factual determinations, but we review de novo questions of law involving statutory interpretation. Cheatham, 357 S.W.3d at 748. In this case, the facts are undisputed, and the parties' dispute concerns purely legal questions.

         In their sole issue on appeal, the Nurses contend that the trial court erred by denying their motion to dismiss because Ponce and Gonzalez served their expert report on the Nurses more than 120 days after they initially sued the hospital. Section 74.351(a) presents "a statute-of-limitations-type deadline within which expert reports must be served." Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007). "If the claimant does not serve an expert report by the statutory deadline and the parties have not agreed to extend the deadline, the statute requires . . . dismissal of the claim with prejudice 'on the motion of the affected physician or health care provider.'" Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)).

         The original 2003 statutory language defined the deadline for serving an expert report and curriculum vitae "on each party or the party's attorney" as "not later than the 120th day after the date the claim was filed."[2] Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590. A 2005 amendment changed the deadline to "not later than the 120th day after the date the original petition was filed." Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590, amended by Act of May 24, 2013, 83d Leg., R.S., ch. 870, § 2, 2013 Tex. Gen. Laws 2217, 2217. In 2013, the legislature further amended section 74.351 to define the deadline for serving the report and curriculum vitae "on that party or the party's attorney" as "not later than the 120th day after the date each defendant's original answer is filed." Act of May 24, 2013, 83d Leg., R.S., ch. 870, § 2, 2013 Tex. Gen. Laws 2217, 2217.

         The Nurses contend the 2005 version applies to the suit against them because the original petition was filed in 2012, prior to the 2013 amendment.[3]Ponce and Gonzalez contend that the 2013 version of the statute applies because the Nurses were not added to the lawsuit until 2014, after the amendment. Consequently, we must determine whether an action commences for all defendants with the filing of the original ...


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