CALENA MORRIS, R.N.; MICHEAUX THOMAS, R.N.; AND WENDY CALVERT, R.N., Appellants
BRENDA PONCE AND RICCO GONZALEZ, AS NATURAL PARENTS, NEXT FRIENDS, AND LEGAL GUARDIANS OF E.G., A MINOR, Appellees
Appeal from the 11th District Court Harris County, Texas,
Trial Court Cause No. 2012-74315
consists of Chief Justice Frost and Justices Spain and
Charles A. Spain Justice.
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,
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.
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.
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.
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.
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).
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.
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)).
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." 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.
Nurses contend the 2005 version applies to the suit against
them because the original petition was filed in 2012, prior
to the 2013 amendment.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 ...