Mariano Salinas, M. D. v. Francisco Dimas and Norma Benitez Dimas, as Next Friends of Nemesio Dimas, a Minor

NUMBER 13-09-00558-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARIANO SALINAS, M.D., Appellant,

v.

FRANCISCO DIMAS AND NORMA
BENITEZ DIMAS AS NEXT FRIENDS
OF NEMESIO DIMAS, A MINOR, Appellees.

On appeal from the 139th District Court
of Hidalgo County, Texas.

OPINION
Before Justices Rodriguez, Garza, and Benavides
Opinion by Justice Garza
Appellant, Mariano Salinas, M.D., challenges the trial court’s denial of his motion to

dismiss the health care liability claims of appellees, Francisco Dimas and Norma Benitez

Dimas, as next friends of Nemesio Dimas, a minor child. By a single issue, Dr. Salinas

argues that the trial court should have granted his motion to dismiss because an expert

report under chapter 74 of the Texas Civil Practice and Remedies Code cannot be served

on a defendant prior to that defendant having answered the lawsuit. See TEX . CIV. PRAC .

& REM . CODE ANN . § 74.351 (Vernon Supp. 2009). We affirm.
 I. BACKGROUND

The Dimases filed suit against Dr. Salinas on February 6, 2009, alleging that Dr.

Salinas “committed acts and/or omissions of negligence and gross negligence in

connection with” the obstetrical care and treatment of Norma. The Dimases’ original

petition contended that, as “proximate results” of Dr. Salinas’s negligence and gross

negligence, “Nemesio Dimas sustained physical pain, past and probable future physical

impairment, past and probable future disfigurement, past and probable future mental

anguish, and probable future loss of earning capacity . . . .”

Dr. Salinas was served with citation and the Dimases’ original petition on February

16, 2009. Also delivered to Dr. Salinas on that date was an expert medical report authored

by William A. Frumovitz, M.D., accompanied by Dr. Frumovitz’s curriculum vitae. See id.

Dr. Salinas filed his original answer, generally denying all allegations, on March 5, 2009.

On September 10, 2009, Dr. Salinas moved to dismiss the suit brought by the

Dimases, arguing that the Dimases had not complied with the expert report requirement

prescribed in section 74.351 of the civil practice and remedies code. See id. § 74.351(a)

(“In a health care liability claim, a claimant shall, not later than the 120th day after the date

the original petition was filed, serve 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.”). In his motion, Dr.

Salinas asserted that (1) 120 days had passed since the filing of the Dimases’ original

petition, and (2) Dr. Frumovitz’s expert report “was not served in accordance with rule 21a

of the Texas Rules of Civil Procedure, and was therefore ineffective.” See id.; TEX . R. CIV.

P. 21a.

After a hearing on September 29, 2009, the trial court denied Dr. Salinas’s motion

to dismiss. This interlocutory appeal followed. See TEX . CIV. PRAC . & REM . CODE ANN . §

51.014(a)(9) (Vernon 2008) (permitting appeal of interlocutory order denying all or part of

a motion to dismiss for failure to serve an expert report in a health care liability claim).

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 II. STANDARD OF REVIEW

We review a trial court’s order denying a motion to dismiss for failure to comply with

the expert report requirement under an abuse of discretion standard. NCED Mental

Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex. App.–El Paso 2006, no pet.) (applying abuse

of discretion standard to trial court’s denial of motion to dismiss); Kendrick v. Garcia, 171

S.W.3d 698, 702 (Tex. App.–Eastland 2005, pet. denied) (same); see Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (applying abuse of

discretion standard to trial court’s granting of motion to dismiss). A trial court abuses its

discretion if it acts in an arbitrary or unreasonable manner or without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985). However, 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);

Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex. App.–Dallas 2007, pet.

denied). Therefore, when the issues are purely questions of law, as here, we effectively

conduct a de novo review. See Pallares v. Magic Valley Elec. Coop., Inc., 267 S.W.3d 67,

69-70 (Tex. App.–Corpus Christi 2008, pet. ref’d); see also 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”).

III. ANALYSIS

By his sole issue, Dr. Salinas contends that the trial court erred in denying his

motion to dismiss because the Dimases failed to validly serve an expert medical report.1

See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a). Dr. Salinas argues specifically that

“service [of an expert report] upon a defendant healthcare provider requires rule 21a

1
Dr. Salinas does not dispute that Dr. Frum ovitz’s report is sufficient to qualify as an “expert report”
under chapter 74. See T EX . C IV . P R AC . & R E M . C O D E A N N . § 74.351(r)(6) (Vernon Supp. 2009) (defining
“expert report” as “a written report by an expert that provides a fair sum m ary of the expert’s opinions as of the
date of the report regarding applicable standards of care, the m anner in which the care rendered by the
physician or health care provider failed to m eet the standards, and the causal relationship between that failure
and the injury, harm , or dam ages claim ed”). Rather, he claim s only that the report was not “served” upon him
pursuant to the applicable rules.

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service and such service cannot be accomplished until a defendant has answered.” See

TEX . R. CIV. P. 21a. According to Dr. Salinas, because the Dimases’ expert report was

delivered to him prior to his having answered the lawsuit, the report was not properly

“served” upon him. We disagree.

We note at the outset of our analysis that neither party disputes the applicability of

rule 21a of the Texas Rules of Civil Procedure to the service of an expert report under

section 74.351. See Fulp v. Miller, 286 S.W.3d 501, 510 (Tex. App.–Corpus Christi 2009,

no pet.) (op. on reh’g) (concluding that “the Legislature intended for claimants to comply

with rule 21a . . . to fulfill the requirements of section 74.351(a)”); Univ. of Tex. Health Sci.

Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 872 (Tex. App.–Houston [1st Dist.] 2007,

pet. denied) (same); Kendrick, 171 S.W.3d at 704 (same). Rule 21a specifically permits

service of a document “by delivering a copy to the party to be served, or the party’s duly

authorized agent or attorney of record, as the case may be, either in person or by agent

. . . .” TEX . R. CIV. P. 21a. Moreover, the parties both acknowledge that Dr. Salinas was,

in fact, personally served with Dr. Frumovitz’s expert report at the time he was served with

citation and the Dimases’ original petition. The sole question for this Court, therefore, is

whether service of an expert medical report on a defendant may be effectuated prior to the

defendant answering the lawsuit.

In arguing that it may not, Dr. Salinas notes that, if a claimant is permitted to serve

an expert report upon a defendant before that defendant answers the lawsuit, it is possible

that the deadline for challenging the expert report would expire before the deadline for filing

an answer. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a) (“Each defendant physician

or health care provider whose conduct is implicated in a report must file and serve any

objection to the sufficiency of the report not later than the 21st day after the date it was

served, failing which all objections are waived.”); TEX . R. CIV. P. 99(b) (“The citation shall

direct the defendant to file a written answer to the plaintiff’s petition on or before 10:00 a.m.

on the Monday next after the expiration of twenty days after the date of service thereof.”).

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Dr. Salinas urges that “it is unfathomable that the Legislature would allow a situation to

exist where the time period to object would expire prior to the defendant’s deadline to file

an answer and enter an appearance.”

In support of his argument, Dr. Salinas cites Gardner v. U.S. Imaging, Inc., 274

S.W.3d 669, 671 (Tex. 2008) and Morris v. Umberson, No. 01-09-00644-CV, 2009 Tex.

App. LEXIS 8577 (Tex. App.–Houston [1st Dist.] Nov. 5, 2009, pet. filed). In both cases,

the defendant health care provider filed an untimely answer to the plaintiff’s lawsuit.

Gardner, 274 S.W.3d at 670; Morris, 2009 Tex. App. LEXIS 8577, at *2. The plaintiff then

served an expert medical report on the defendant after the defendant filed its untimely

answer. Gardner, 274 S.W.3d at 670; Morris, 2009 Tex. App. LEXIS 8577, at *2. The

defendant argued that the expert report was untimely because it was served more than 120

days after the plaintiff’s original petition was filed. Gardner, 274 S.W.3d at 670; Morris,

2009 Tex. App. LEXIS 8577, at *3. Both courts found that the 120-day deadline was tolled

from the time the defendant’s answer was due to the time the defendant eventually made

an appearance; therefore, the expert reports were timely filed. Gardner, 274 S.W.3d at

671; Morris, 2009 Tex. App. LEXIS 8577, at *10-11. Dr. Salinas concedes that these

cases are not directly on point with the issue we consider here, but notes that “in both

cases, courts of appeals considered the date of the defendant’s answer in tolling the 120-

day expert report deadline.”

We do not find Gardner or Morris to be persuasive. Neither of those cases involved

a plaintiff serving an expert medical report prior to the date that the defendant’s answer

was due. To the extent that these cases considered the date of the defendant’s answer,

they did so only in the context of determining how long the 120-day expert report deadline

would be tolled. In fact, both courts found that the 120-day period began with the filing of

the claimant’s original petition and that the tolling of that period commenced only upon the

expiration of the defendant’s time to file an answer under rule 99(b). Gardner, 274 S.W.3d

at 671; Morris, 2009 Tex. App. LEXIS 8577, at *10-11.

Requiring a defendant to file any objections to an expert report prior to the deadline

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for filing an answer to the lawsuit may seem counterintuitive, but we disagree with Dr.

Salinas that the Legislature could not have intended this result. When interpreting a

statute, we presume that the Legislature enacted it with complete knowledge of the existing

law and with reference to that law. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,

443 (Tex. 2009) (citing Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990)).

Nothing in the rules of civil procedure states or implies, as Dr. Salinas suggests, that rule

21a service “cannot be accomplished until a defendant has answered.”2 Moreover, there

is nothing in chapter 74 that could be interpreted as creating any exception to the rule that

a defendant must file any objection to an expert report within twenty-one days of the

service of the report. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a). In enacting

chapter 74, the Legislature chose not to include a provision, such as those found in many

rules of civil procedure,3 enlarging the time for a defendant to file objections to an expert

report when that defendant is served with the report prior to answering the lawsuit. Under

these circumstances, where the laws at issue do not actually conflict, we must adhere to

the plain meaning of both rule 21a and section 74.351. See Fitzgerald v. Advanced Spine

Fixation Sys., 996 S.W.2d 864, 865 (Tex. 1999) (“[I]t is cardinal law in Texas that a court

construes a statute “first, by looking to the plain and common meaning of the statute’s

words.”) (quoting Liberty Mut. Ins. Co. v. Garrison Contractors, 966 S.W.2d 482, 484 (Tex.

2
W e recently held that service of an expert m edical report upon an entity will be ineffective if it is done
before that entity becom es a “party” to the lawsuit. Carreras v. Zamora, 294 S.W .3d 348, 350 (Tex.
App.–Corpus Christi 2009, no pet.). In Carreras, the plaintiff served the defendant, Dr. Carreras, with an
expert report prior to adding the doctor as a party to the lawsuit. Id. at 349. W e concluded that, because Dr.
Carreras was not a “party” at the tim e he was served with the report, the service was invalid. Id. at 349-50
(noting that section 74.351 requires service of an expert report “on each party or the party’s attorney”
(em phasis added)).

Dr. Salinas argues that he was sim ilarly not a “party” to the Dim ases’ lawsuit at the tim e he was
provided with the expert report because he had not, as of that tim e, m ade an appearance in the lawsuit.
However, as we noted in Carreras, “[t]o be a ‘party’ to a lawsuit, one m ust generally be served, accept or
waive service, or m ake an appearance.” Id. at 350 (em phasis added) (quoting Yilmaz v. McGregor, 265
S.W .3d 631, 637 (Tex. App.–Houston [1st Dist.] 2008, pet. denied)). Here, it is undisputed that Dr. Salinas
was served with the expert report at the sam e tim e that he was served with citation. Therefore, unlike Dr.
Carreras, Dr. Salinas was a “party” to the lawsuit at the tim e the expert report was served; the fact that Dr.
Salinas had not “m ade an appearance” as of that tim e is im m aterial. See Yilmaz, 265 S.W .3d at 637.
3
See T EX . R. C IV . P. 194.3(a) (allowing a defendant twenty additional days to answer a request for
disclosure when the defendant is served with the request prior to answering the lawsuit); T EX . R. C IV . P.
196.2(a) (sam e for responses to requests for production and inspection); T EX . R. C IV . P. 197.2 (sam e for
responses to interrogatories); T EX . R. C IV . P. 198.2(a) (sam e for requests for adm issions).

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1998)). Accepting Dr. Salinas’s argument here would require us to create an exception

to the statute, which we are not at liberty to do. See Tex. Workers’ Comp. Comm’n v.

Garcia, 893 S.W.2d 504, 520 (Tex. 1995) (quoting Smith v. Davis, 426 S.W.2d 827, 831

(Tex. 1968) (“The wisdom or expediency of the law is the Legislature’s prerogative, not

ours.”).

We therefore conclude that there is nothing in the applicable rules or statutes

prohibiting a health care liability claimant from serving an expert medical report on a

defendant prior to that defendant having answered the lawsuit. Accordingly, the Dimases’

expert report was timely served, and the trial court did not err by denying Dr. Salinas’s

motion to dismiss. Dr. Salinas’s sole issue is overruled.

IV. MOTION FOR DISMISSAL AND SANCTIONS

In his notice of appeal and appellate brief, Dr. Salinas named the Dimases’ counsel,

Harold K. Tummel, as an appellee. On December 1, 2009, Tummel filed a “Motion for

Dismissal and Award of Just Damages” with this Court, asking us to dismiss the appeal as

it relates to him and to award him reasonable attorney’s fees as a sanction against Dr.

Salinas’s attorneys, Ronald G. Hole and I. Cecilia Garza. See TEX . R. APP. P. 25.1(b), 45

(providing that we may “award each prevailing party just damages” if we determine that an

appeal is frivolous).

Hole and Garza filed a response to Tummel’s motion in which they argue that

Tummel is “a necessary and proper party to this appeal as [Dr. Salinas] sought attorney’s

fees from both the claimant and his attorney, as authorized by statute.” The statute

provides that, if a health care liability claimant does not timely serve an expert medical

report, the trial court must “enter an order that . . . awards to the affected physician or

health care provider reasonable attorney’s fees and costs of court . . . .” TEX . CIV. PRAC .

& REM . CODE ANN . § 74.351(b). The current version of the statute does not specify whether

the claimant, the claimant’s attorney, or both are potentially liable for attorney’s fees;

however, the previous version of the statute stated that the order for attorney’s fees must

be entered “against the claimant or the claimant’s attorney.” See Act of May 5, 1995, 74th

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Leg., R.S., ch. 140, § 13.01(e), 1995 TEX . GEN . LAW S 985, 986 (former TEX . REV. CIV. STAT .

art. 4590i, § 13.01(e)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09,

2003 TEX . GEN . LAW S 847, 884. Both parties cite the Legislature’s action in 2003 as

support for their positions: Hole and Garza argue that, if the Legislature intended to

entirely prohibit the recovery of fees from the claimant’s attorney, it would have left

language in the statute stating that the order should be entered “against the claimant”;

Tummel argues that, without the prior language, there is no authority supporting the

imposition of sanctions against a claimant’s attorney.

In at least three other appeals before this Court, Hole and Garza have named an

opposing party’s counsel as an appellee. See Guerrero v. Ruiz, No. 13-09-00150-CV,

2009 Tex. App. LEXIS 8685, at *10-11 n.2 (Tex. App.–Corpus Christi Nov. 12, 2009, no

pet.) (mem. op.); Haddad v. Marroquin, No. 13-08-00139-CV, 2009 Tex. App. LEXIS 5674,

at *10-12 n.1 (Tex. App.–Corpus Christi July 23, 2009, pet. denied) (mem. op.); Fulp, 286

S.W.3d at 512-13. In each case, we found that attorney’s fees were unavailable because

the trial court had not yet dismissed the claimant’s suit; therefore, we declined to address

the issue of whether section 74.351(b) permits the recovery of attorney’s fees from a

claimant’s attorney. Guerrero, 2009 Tex. App. LEXIS 8685, at *10 n.2; Haddad, 2009 Tex.

App. LEXIS 5674, at *11-12 n.1; Fulp, 286 S.W.3d at 513. The same result must obtain

here. Because the trial court did not err in denying Dr. Salinas’s motion to dismiss, Dr.

Salinas is not entitled to attorney’s fees under section 74.351(b). See TEX . CIV. PRAC . &

REM . CODE ANN . § 74.351(b). We need not address whether attorney’s fees would have

been recoverable from Tummel had the Dimases not timely served an expert report. See

TEX . R. APP. P. 47.1. Moreover, because we have consistently declined to address this

issue, we cannot say that Hole and Garza’s naming of Tummel as a party to the appeal

amounts to sanctionable conduct. See Gard v. Bandera County Appraisal Dist., 293

S.W.3d 613, 619-20 (Tex. App.–San Antonio 2009, no pet.) (denying appellees’ motion for

sanctions and finding that the appeal was not “objectively frivolous” because it raised an

issue of first impression); Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164

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S.W.3d 438, 448 (Tex. App.–Houston [14th Dist.] 2005, no pet.) (“We impose sanctions

only under those circumstances we find truly egregious.”).

We note, however, that the appellate rules provide that “[t]he filing of a notice of

appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial

court’s judgment or order appealed from.” TEX . R. APP. P. 25.1(b). Because Tummel was

not a party to the trial court’s order denying Dr. Salinas’s motion to dismiss, we do not have

jurisdiction over Dr. Salinas’s appeal as to Tummel. See Haddad, 2009 Tex. App. LEXIS

5674, at *12 n.1 (concluding that the Court had no jurisdiction over appellee’s attorney);

Fulp, 286 S.W.3d at 513 (same). We therefore grant Tummel’s motion to dismiss the

appeal as it relates to him.

V. CONCLUSION

Having overruled Dr. Salinas’s issue, we affirm the judgment of the trial court. We

further grant in part and deny in part Tummel’s “Motion for Dismissal and Award of Just

Damages.” Specifically, we (1) dismiss the appeal as it relates to Tummel for want of

jurisdiction, and (2) deny Tummel’s request for sanctions.

DORI CONTRERAS GARZA
Justice

Delivered and filed the
18th day of March, 2010.

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