Christus Santa Rosa Health Care Corporation v. Jennifer Marie Botello and Edmond M. Ybarra Individually and as Next Friends of Yzabella Marie Ybarra, a Minor Child

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-13-00124-CV

CHRISTUS SANTA ROSA HEALTH CARE CORPORATION,
Appellant

v.
Jennifer Marie and Edmond M.
Jennifer Marie BOTELLO and Edmond M. Ybarra Individually
and as Next Friends of Yzabella Marie Ybarra, a Minor Child,
Appellees

From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-CI-18783
Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice

Delivered and Filed: November 13, 2013

REVERSED AND RENDERED

In the underlying health care liability lawsuit, appellees sued appellant for injuries

allegedly sustained by Yzabella Marie Ybarra while she was hospitalized in November 2010 at

Christus Santa Rosa Hospital. Appellant filed a motion to dismiss asserting appellees failed to

timely serve their expert report. The trial court denied the motion, and this appeal ensued. In an

opinion and judgment issued September 18, 2013, this court reversed the trial court’s order,

rendered a dismissal in favor of appellant, and remanded for consideration of attorney’s fees and

costs. On October 11, 2013, this court denied appellees’ motion for rehearing. On November 1,
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2013, appellant filed a notice with this court stating it did not intend to seek fees or costs from

appellees, and asking that this court’s judgment and mandate reflect this intention. We withdraw

our opinion and judgment of September 18, 2013 and issue this opinion and judgment in their

place to reflect only a reversal and rendition in favor of appellant.

PROCEDURAL BACKGROUND

Appellees filed their original petition in this health care liability case against appellant and

two physicians on July 5, 2012. Therefore, appellees’ 120-day deadline to serve any expert

report(s) was November 2, 2012. Appellees served appellant with their first original petition and

their expert’s report and curriculum vitae on July 20, 2012. On August 12, 2013, appellant

objected to the expert report as insufficient. Pursuant to a Rule 11 agreement, appellees withdrew

the report on September 14, 2012 and appellant agreed to pass the hearing on its motion to dismiss.

The agreement also provided that appellees could re-file their expert report “no later than October

25, 2012” and appellees’ discovery requests propounded on appellant were “stayed until an Expert

Report is filed as to” appellant.

On October 24, 2012, appellees filed a Notice of Nonsuit Without Prejudice on all their

claims against all three defendants. Five days later and with all defendants non-suited, appellees’

attorney faxed appellant’s attorney a copy of the pre-suit notice letter appellees’ counsel was

mailing to one of the co-defendant doctors, along with two expert reports. On November 19, 2012,

appellees filed a new original petition against appellant and only one of the two doctors originally

sued. Appellees served appellant with this petition and the same two expert reports on December

4, 2012. Appellees served a third expert report on January 10, 2013.

On January 25, 2013, appellant again moved for a dismissal on the grounds that appellees’

nonsuit did not toll the 120 days in which to file an expert report and serving an expert report on a

nonsuited defendant does not constitute service on a “party or the party’s attorney”; therefore,
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appellees’ expert reports were not timely served. After a hearing, the trial court denied appellant’s

motion to dismiss, and this appeal ensued.

DISCUSSION

Appellant’s assertion that appellees’ expert reports were untimely is premised on its

argument that appellees’ 120-day period in which to serve the reports was triggered on the date

the first original petition was filed on July 5, 2012, and this deadline was not tolled by a nonsuit

or satisfied by serving the reports when no lawsuit was pending following the nonsuit. Ordinarily,

we review the trial court’s ruling on a motion to dismiss a healthcare liability claim for an abuse

of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.

2001); Texas Laurel Ridge Hosp., L.P. v. Almazan, 374 S.W.3d 601, 604 (Tex. App.—San Antonio

2012, no pet.). However, the issue we address here requires us to construe provisions of the Texas

Medical Liability Act (“Act”), which is a question of law we review de novo. Stroud v. Grubb,

328 S.W.3d 561, 563 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

The Act requires a claimant in a health care liability case to serve, “not later than the 120th

day after the date the original petition was filed, . . . on each party or the party’s attorney one or

more expert reports, with a curriculum vitae of each expert listed in the report for each physician

or health care provider against whom a liability claim is asserted.” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(a) (West 2011). If an expert report has not been served within the 120–day

deadline, the trial court must dismiss “the claim with respect to the physician or healthcare

provider, with prejudice to the refiling of the claim,” provided that the “affected physician or health

care provider” files a motion to dismiss. Id. § 74.351(b). Under the Act, the parties may mutually

agree to a different deadline if they choose, and the trial court has the authority to grant a single

thirty-day extension when a report is timely filed but is deficient in some other respect. Id.

§ 74.351(a), (c). However, there are no other statutory exceptions to the 120–day deadline. See
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Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009). By enacting this strict deadline, the

Legislature created “a statute of limitations type deadline within which expert reports must be

served.” Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007). In other words, if the report is

not filed by the deadline, a trial court may not grant extensions to file and has no discretion to deny

a motion to dismiss filed by a health care provider. Id. at 319-20.

Courts have interpreted the language that a claimant must serve the expert report(s) “not

later than the 120th day after the date the original petition was filed” to mean 120 days from the

first-filed petition naming a physician or health care provider as a party to the lawsuit for the first

time. Stroud, 328 S.W.3d at 565-66 (“120 days runs from the first petition to assert a claim against

the particular defendant for whom an expert report is required”); Osonma v. Smith, No. 04-08-

00841-CV, 2009 WL 1900404, at *2 (Tex. App.—San Antonio July 1, 2009, pet. denied) (mem.

op.) (same). Here, the second original petition filed by appellees was not the first petition to name

appellant as a party. If the second original petition had named appellant as a defendant to the suit

for the first time, there is no question that the 120 days as to appellant would have begun to run

from the date of the filing of the second petition, November 19, 2012. However, the second

original petition asserted the same health care liability claims against appellant as were asserted

against appellant in the first original petition. In fact, both petitions referenced May 11, 2011 as

the date appellees served appellant with written notice of their health care liability claim. Thus,

this appeal presents two narrow questions: (1) whether, following a nonsuit, the 120-day period is

tolled until the filing of a second original petition asserting the same claims against the same

defendant named in the first original petition and (2) whether an expert report is timely-served if

served on a nonsuited defendant because, despite the nonsuit, the defendant remains a “party”

while the trial court retains plenary jurisdiction over the original suit.

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After this appeal was submitted, the Texas Supreme Court issued its opinion in CHCA

Woman’s Hospital, L.P. v. Lidji¸ No. 12-0357, 2013 WL 3119577 (Tex. June 21, 2013), answering

the first question. In that case, Lidji asserted his nonsuit tolled the running of the 120 days until

he re-filed suit against CHCA, which, instead of triggering a new 120-day window for serving an

expert report, triggered the time remaining from his original 120-day time period: four days. Lidji

argued that, considering the language in other sections of Chapter 74, it was clear the Legislature

intended for the 120-day time period to run only when a lawsuit was actively pending. He

contended that because he filed the second suit and simultaneously served the expert report on

CHCA, he served the report on the day the expert-report time period resumed running following

the nonsuit, and, therefore, he timely served CHCA with the report. The Supreme Court held “that,

when a claimant nonsuits a claim governed by [the Act] before the expiration of the statutory

deadline to serve an expert report and subsequently refiles the claim against the same defendant,

the expert-report period is tolled between the date nonsuit was taken and the date the new lawsuit

is filed.” Id. at *5.

Here, appellees nonsuited their claims against all defendants nine days before the

expiration of the 120 days that began to run from the filing of the first original petition. Thus,

appellees’ nonsuit tolled the period so as to allow an additional nine days in which to serve the

expert report. See id. However, appellees did not serve appellant or appellant’s counsel with the

expert reports until fifteen days after filing the second original petition. Therefore, appellees failed

to serve the expert reports within the remaining nine days.

Nevertheless, appellees contend they timely served the expert reports within the remaining

nine days because the reports were attached to the second original petition that was filed on

November 19, 2012. Section 74.351 expressly requires that a claimant “serve on each party or

the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the
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report for each physician or health care provider against whom a liability claim is asserted.” TEX.

CIV. PRAC. & REM. CODE § 74.351(a). Several courts have considered this same issue, noting that

section 74.351(a) does not define the word “serve,” but concluding the Texas Rules of Civil

Procedure govern “all actions of a civil nature,” unless a specific exception applies, TEX. R. CIV.

P. 2, and that the Legislature intended the term “serve” to have the same meaning that it carries in

Rule of Civil Procedure 21a. See Poland v. Ott, 278 S.W.3d 39, 46-48 (Tex. App.—Houston [1st

Dist.] 2008, pet. denied) (citing therein other cases holding same); see also Zanchi v. Lane No. 11-

0826, 2013 WL 4609113, at *5 (Tex. Aug. 30, 2013) (“We need not decide whether service in a

manner other than that authorized by Rule 21a satisfies the [Act’s] requirement to ‘serve’ an expert

report . . . .”). Rule 21a prescribes four methods by which a party may serve another: (1) delivery

in person, by agent, or by courier-receipted delivery; (2) certified or registered mail; (3) telephonic

document transfer; or (4) such other manner as the court in its discretion may direct. TEX. R. CIV.

P. 21a. Because nothing in section 74.351 allows for an exception to the requirement of service

upon the party or the party’s attorney, we hold that attaching an expert report to the petition filed

with the district clerk does not satisfy section 74.351(a)’s requirement that the report be served.

As to the second question we address in this appeal, appellees argue that because the trial

court retained plenary power over the originally-filed lawsuit for a period of at least thirty days

following the nonsuit—until November 23, 2012—appellant remained a “party” for that same

period of time. Therefore, appellees conclude, the reports faxed to appellant’s counsel on October

29, 2012 were timely-served. Appellant counters that because no lawsuit against it was pending

on October 29, 2012, serving its attorney with a copy of the expert reports in the interim between

the two suits did not comply with the Act.

Appellees rely on the Texas Supreme Court’s opinion in Crites v. Collins, 284 S.W.3d 839

(Tex. 2009) (per curiam), which considered whether a physician could move for sanctions even
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though the plaintiff had previously nonsuited the physician. According to appellees here, the

Crites Court “made it absolutely clear in a medical negligence case that the Plaintiff and Defendant

remain parties for the 30 days after a nonsuit.” We disagree with appellees’ interpretation of

Crites.

In that health care liability lawsuit, the plaintiffs voluntarily nonsuited their claims against

the defendant health care provider after failing to serve an expert report within the 120-day

deadline. Before the trial court entered an order of nonsuit, the defendant filed a motion for

dismissal with prejudice and for attorney’s fees and costs as sanctions for noncompliance with the

expert report deadline. A month after the trial court signed the order of nonsuit, it issued an order

denying the defendant’s motion. The court of appeals affirmed, concluding that the filing of a

notice of nonsuit precludes consideration of a subsequent motion for statutory sanctions. On

appeal to the Supreme Court, the defendant argued Chapter 74 sanctions are mandatory because

the plaintiffs failed to file an expert report within 120 days of filing suit and defendant’s entitlement

to these sanctions arose the moment the plaintiffs failed to timely-file the report. The Court agreed

and held “sanctions authorized under the [Act] remain available following a voluntary nonsuit

filed after the expert deadline” provided the motion for sanctions is filed within the trial court’s

plenary jurisdiction. Id. at 840, 843. The Court did not consider or address, even in dicta, whether

the defendant remained a “party.”

Appellees also rely on Texas Rules of Civil Procedure 329b and 162. Rule 329b provides

that a “trial court, regardless of whether an appeal has been perfected, has plenary power to grant

a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the

judgment is signed.” TEX. R. CIV. P. 329b(d). A motion for new trial may be filed by any party.

TEX. R. CIV. P. 329b(e). Also, a plaintiff’s right to nonsuit “shall not prejudice the right of an

adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all
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costs taxed by the clerk,” and a dismissal “shall have no effect on any motion for sanctions,

attorney’s fees or other costs, pending at the time of dismissal.” TEX. R. CIV. P. 162. Thus,

appellees contend that under these rules appellant remained a “party” to the originally-filed lawsuit

despite being nonsuited because appellant retained the ability to file a motion for new trial, re-urge

its previously-filed motion for attorney’s fees, or file a new motion for sanctions. Appellees also

contend appellant remained a “party” because appellant filed an amended answer to an

interrogatory.

The word “party” is not defined in section 74.351 or Chapter 74 of the Texas Civil Practice

and Remedies Code. “Any legal term or word of art used in this chapter, not otherwise defined in

this chapter, shall have such meaning as is consistent with the common law.” TEX. CIV. PRAC. &

REM. CODE § 74.001(b). Recently, in Zanchi, the Texas Supreme Court construed “the term ‘party’

in section 74.351(a) to mean one named in a lawsuit.” Zanchi, 2013 WL 4609113, at *1. In that

case, Zanchi was named as a defendant in a healthcare liability suit filed on April 21, 2010. He

was not served with process until September 16, 2010, arguably because he was actively evading

service. However, in the interim, the plaintiff mailed the expert report and curriculum vitae to

Zanchi at five different locations within the statutory deadline; four of the mailings were returned

unclaimed and one was signed for by someone at the hospital. Zanchi moved to dismiss arguing

he was not a “party” to a healthcare liability claim until he is served with process, waived service,

or otherwise appeared in a lawsuit and, therefore, any transmittal of the expert report before service

did not satisfy section 74.351(a). Id. The Supreme Court disagreed and held “in the context of

the [Act], the term ‘party’ means one named in a lawsuit and that service of the expert report on

Zanchi before he was served with process satisfied the [Act’s] expert-report requirement.” Id. at

*2. The Court also noted “Zanchi’s twenty-one day period for objecting to the report did not begin

to run until he was served with process . . . .” Id. at *5.
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Here, there is no dispute appellant was a named “party” in both the first original petition

and the second original petition, and that appellant was served with citation after the filing of both

petitions. During the period of the nonsuit, appellees faxed appellant’s attorney a copy of their

pre-suit notice against another defendant and two expert reports on October 29, 2012. The question

is whether appellant was a “party” to a pending lawsuit during the interim between the October

24, 2012 nonsuit and the filing and service of the November 19, 2012 second original petition.

A nonsuit extinguishes a case or controversy from “the moment the motion is filed” or an

oral motion is made in open court; the only requirement is “the mere filing of the motion with the

clerk of the court.” Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990) (per

curiam). If a defendant has a pending claim for affirmative relief, however, the plaintiff’s nonsuit

is effective for its own claims, but not for the defendant’s claims. Thus, barring an affirmative

claim against the plaintiff, the effect of a nonsuit is to extinguish the case or controversy regarding

the plaintiff’s claims without an adjudication of their merits—i.e., the nonsuit’s effect is to render

the merits of the plaintiff’s case moot. See Univ. of Tex. Med. Branch at Galveston v. Estate of

Blackmon, 195 S.W.3d 98, 100 (Tex. 2006); see also Epps v. Fowler, 351 S.W.3d 862, 868 (Tex.

2011) (holding nonsuit terminates case from the moment it is filed). Nonsuits have also been

described as putting the parties back in the position they were in before the suit was filed. See,

e.g., Crofts v. Court of Civil Appeals for the Eighth Supreme Judicial Dist., 362 S.W.2d 101, 104

(Tex. 1962) (noting nonsuit “places the parties in the position that they were in before the court’s

jurisdiction was invoked just as if the suit had never been brought”); Hagberg v. City of Pasadena,

224 S.W.3d 477, 484 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“When a party nonsuits a

legal action, the parties are put back in the same positions as before the filing of the suit.”); Salinas

v. Aguilar, No. 04-11-00260-CV, 2012 WL 848147, *1 (Tex. App.—San Antonio Mar. 14, 2012,

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no pet.) (mem. op.) (“As a result of the nonsuit, it was as if [plaintiff] had never brought suit in the

first place.”).

Because a nonsuit extinguishes a case or controversy from the moment it is filed, after the

nonsuit here there were no claims pending against appellant and the merits of appellees’ case

became moot. Therefore, we conclude appellant’s status as a “party” under the first lawsuit ended

upon nonsuit and appellant did not again become a “party” to any “case or controversy” until

claims were asserted against it in the second original petition. See Daughters of Charity Health

Servs. of Austin v. Carroll, No. 03-08-00187-CV, 2008 WL 4951247, *1 n.3 (Tex. App.—Austin

Nov. 21, 2008, no pet.) (“We note that [appellant] was a party to this cause only by virtue of the

claims filed by Carroll. Those claims have been nonsuited. Therefore, [appellant] is no longer a

party.”); see also CHCA Woman’s Hosp., 2013 WL 3119577, *4 (“Construing the [Act] to require

service of an expert report in the absence of a pending lawsuit would thus give rise to a host of

procedural complications that the statute does not envision and cannot adequately address . . .

Further, when a claim is nonsuited, the defendant against whom the claim was asserted does not

incur additional litigation expenses unless and until the claim is refiled. Any extra expense

incurred by the defendant as a result of the nonsuit and refiling will likely be minimal, as a

claimant's lawsuit on a health care liability claim may only be maintained for a finite period of

time without service of the expert report.”).

Appellees also contend appellant remained a “party” based on its amended response to an

interrogatory faxed to appellees during the period of the nonsuit on November 5, 2012. The record

contains email correspondence between the parties’ attorneys about various issues, including

appellees’ attempts to correctly identify the physicians and their employers. In an October 16,

2012, email from appellees’ attorney, Scott Sanes, to appellant’s attorney, Lori Hanson, Sanes

stated: “I would like to drop the names of the UT employed physicians and just name those who
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were either independent contractors or employed by [appellant].” Later that same day, Sanes again

emailed Hanson, stating: “[I] know you are telling me that none of the doctors were Christus

employees. . . . If you would just answer the interrogatory . . . I can refrain from naming any of

the UT doctors in the amended petition or alleging Christus was responsible for them.” Hanson

responded, reminding Sanes that discovery was “stayed pending a new expert report as to the

hospital.” On October 21, Sanes emailed Hanson that he “would like to nonsuit the hospital.

However, it requires a full and accurate answer to the interrogatory you just answered which

includes the name and employer of the resident that signed the discharge order . . . .” Shortly after

this email, Hanson responded, “I told you I am trying to do that. Your expert has nothing on the

hospital so nonsuit us.” On October 23, 2012, Hanson emailed Sanes that she would send him the

amended interrogatory response. On November 5, 2012, Sanes informed Hanson that she had

incorrectly identified the doctor who discharged Yzabella as Dr. Aaron Reeves, a Corpus Christi

physician. Sanes had discovered the doctor’s name was actually Dr. Stephanie Reeves, and he

stated in his email: “I do not want to bring suit against the wrong physician based on your erroneous

response to discovery. If the correct ‘Dr. Reeves’ on the discharge note was Stephanie Reeves, I

need to know her employer on the date of discharge since, if she was working for UT, we should

not name her in the suit either.” That same day, Hanson faxed to Sanes an amended interrogatory

answer identifying Dr. Stephanie Reeves as one of the physicians involved in Yzabella’s care. We

have found no authority that supports appellees’ argument that correcting a discovery response—

at the plaintiff’s request—results in a nonsuited defendant remaining a “party.”

Because appellant was not a party to any “case or controversy” on October 29, 2009, then

faxing a copy of the expert reports to appellant on that date does not satisfy the requirement of

“serv[ing] on each party or the party’s attorney one or more expert reports, with a curriculum

vitae of each expert listed in the report for each physician or health care provider against whom a
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liability claim is asserted.” TEX. CIV. PRAC. & REM. CODE § 74.351(a). Also, pre-suit service on

a healthcare provider does not transform the provider into a “party.” Poland, 278 S.W.3d 48-51

(explaining why pre-suit service does not comply with statute); Univ. of Tex. Health Sci. Ctr. at

Houston v. Gutierrez, 237 S.W.3d 869, 873-74 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)

(stating party’s receipt of expert report before claim filed against it did not establish compliance

with service requirements of section 74.351(a)).

Finally, appellees raise an equitable argument based on their contention that the nonsuit

was based on appellant’s response to the interrogatory mentioned above, which contained a

“misrepresentation.” According to appellees, on October 24, 2012, sworn interrogatories from

appellant indicated that Dr. Aaron Reeves signed the discharge papers when, in fact, Dr. Stephanie

Reeves signed the papers. Appellees contend they nonsuited the claims against appellant “to

consider a venue change since Dr. Aaron Reeves resides in Corpus Christi.”

Section 74.351’s requirement that a plaintiff serve an expert report on each party within

120 days is not subject to any good-faith exception. See Offenbach v. Stockton, 285 S.W.3d 517,

521 (Tex. App.—Dallas 2009) (“Unlike former article 4590i, which gave a claimant two

opportunities to seek an extension of time in which to furnish an expert report, former section

74.351(a) does not contain a ‘due diligence’ or ‘good cause’ exception.” (citations omitted)), aff’d,

336 S.W.3d 610 (Tex. 2011); Estate of Regis v. Harris Cnty. Hosp. Dist., 208 S.W.3d 64, 68 (Tex.

App.—Houston [14th Dist.] 2006, no pet.) (“In repealing article 4590i and enacting Civil Practice

and Remedies Code chapter 74, the legislature specifically removed the trial court’s ability to grant

an extension based on a plaintiff’s diligence.”); Kendrick v. Garcia, 171 S.W.3d 698, 705 (Tex.

App.—Eastland 2005, pet. denied) (“As a result of the omission of the ‘accident or mistake’

exception in Section 74.351, we conclude that the new statute precludes the existence of a good

faith exception to the requirement of timely serving expert reports.”). Rather, section 74.351
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creates only two exceptions to the 120–day deadline: (1) the parties agree to an extension; or (2)

the trial court is permitted to grant one thirty-day extension to the plaintiff to cure a deficient but

otherwise timely report. See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (c); Badiga, 274 S.W.3d

at 685. Neither exception applies in this case. The parties did not agree to extend the deadline

past the original November 2, 2012 deadline, and, although appellant claimed the expert report

served with the first original petition was deficient, appellees nonsuited rather than invoke the

thirty-day extension.

CONCLUSION

Based on the foregoing, we reverse the trial court’s order and render judgment dismissing

appellees’ health care liability claims against appellant with prejudice. Because appellant has

affirmatively stated it does not intend to seek attorney’s fees and costs against appellees pursuant

to Civil Practice and Remedies Code section 74.351(b)(1) no remand is necessary.

Sandee Bryan Marion, Justice

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