Affirmed and Opinion filed September 24, 2019.
In the
Fourteenth Court of Appeals
NO. 14-17-00997-CV
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
OPINION
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.
1
To protect this minor’s identity, we use a pseudonym rather than the actual name of the
child.
2
§ 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)).
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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
2
The predecessor to chapter 74, Revised Statutes article 4590i, was amended and re-
codified in 2003. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039
(Medical Liability and Insurance Improvement Act of Texas, since amended), repealed by Act of
June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
3
In support of their argument that Ponce and Gonzalez failed to timely serve an expert
report on the Nurses under the prior version of chapter 74, the Nurses assert: (1) Ponce’s and
Gonzalez’s health-care liability claims against the Nurses reiterate their prior claims against the
hospital; (2) Ponce and Gonzalez added the Nurses as named defendants “to seek a second bite at
the Chapter 74 apple”; (3) the addition of the Nurses as named defendants is contrary to the
legislative purpose and plain language of chapter 74; (4) Texas agency law supports dismissal;
and (5) the Nurses are not seeking a “free pass” out of liability. Because we conclude the current
version of chapter 74 applies, and the current version explicitly provides for service of an expert
report within 120 days of each defendant’s answer, we do not address these arguments. See Tex.
R. App. P. 47.1.
4
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 petition or for each defendant when it
is named as a defendant. This is an issue of first impression for this court.
The parties do not brief the issue at length. The Nurses cite the enabling
statute to support application of the 2013 version of section 74.351 without
providing any analysis. Ponce and Gonzalez cite the only case that appears to have
directly addressed the issue, Martinez v. Gonzales, No. 13-14-00241-CV, 2015 WL
5626242 (Tex. App.—Corpus Christi-Edinburg Sept. 17, 2015, pet. denied) (mem.
op.).
The enabling statute for the 2013 version of section 74.351 states that the
2013 amendment “applies only to an action commenced on or after [September 1,
2013]. An action commenced before [September 1, 2013] is governed by the law in
effect immediately before that date, and that law is continued in effect for that
purpose.” Act of May 24, 2013, 83d Leg., R.S., ch. 870, §§ 3(b), 4, 2013 Tex. Gen.
Laws 2217, 2217. Nothing in the 2013 statute addresses whether an action
commences for all persons with the filing of the original petition or whether an
action commences for each defendant when that defendant is named as a party to
the lawsuit.
Whether statutory language is ambiguous is a matter of law for courts to
decide. Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 405 (Tex. 2016). Statutory
language is ambiguous only if the words yield more than one reasonable
interpretation. Id. When a statute contains a term that is undefined, as “action” is in
this case, we look to the plain language and construe the text in light of the statute
as a whole. Silguero v. CSL Plasma, Inc., 2019 WL 2668888, *5 (Tex. June 28,
2019). If the statute’s language is unambiguous, we interpret its plain meaning,
5
presuming that the legislature intended for each of the statute’s words to have a
purpose and that the legislature purposefully omitted words it did not include. Id.
“[T]he meaning must be in harmony and consistent with other statutory terms and
if a different, more limited, or precise definition is apparent from the term’s use in
the context of the statute, we apply that meaning.” Sw. Royalties, Inc., 500 S.W.3d
at 405 (quotation omitted). We only resort to extrinsic aids when a statute’s words
are ambiguous. Greater Houston P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015).
If an undefined term has multiple common meanings, it is not necessarily
ambiguous; rather, we will apply the definition most consistent with the context of
the statutory scheme. Id. Once appellate courts construe a statute and the
legislature re-enacts or codifies that statute without substantial change, we presume
the legislature has adopted the judicial interpretation. Traxler v. Entergy Gulf
States, Inc., 376 S.W.3d 742, 748 (Tex. 2012). We further presume that the
legislature intended a just and reasonable result. Code Construction Act, Tex.
Gov’t Code Ann. § 311.021(3). The parties have not cited, and we have not found,
any authority discussing a difference in the application of the rules of statutory
construction to the introductory formalities ((1) heading, (2) title, and (3) enacting
clause) and procedural or other technical provisions ((1) savings clause or other
transitional provisions, (2) severability or nonseverability clause, and (3) effective
date section) of acts, as opposed to the general and permanent substantive
provisions ((1) short title, (2) statement of policy and purpose, (3) definitions, (4)
principal operative provisions, (5) enforcement provisions: criminal, civil, or
administrative, (6) amendment of existing law, and (7) repealers). See Texas
Legislative Council, Texas Legislative Council Drafting Manual §§ 3.01–14, at 5
(2018) (discussing parts and functions of bills (citing Tex. Const. art. III, § 30
(“[n]o law shall be passed, except by bill.”))).
6
The Supreme Court of Texas has construed the term “action” in another
section of a prior version of chapter 74. In University of Texas Health Science
Center at San Antonio v. Bailey, the supreme court indicated that an amended
petition adding a new party is not typically considered as part of the original
“action,” when construing “the action” language included in the two-year statute of
limitations for health care liability claims. 332 S.W.3d 395, 400–01 (Tex. 2011)
(construing Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) and stating that “[t]he
relation-back doctrine . . . defines what is to be included in ‘the action’ to which
limitations applies. . . . The relation-back doctrine does not save their suit against
[defendant added in amended petition] from its limitations defense”); see also
Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 564 (Tex. 2014) (plurality op.)
(holding term “action” is generally synonymous with “suit,” which is a demand of
one’s rights in court).
After the supreme court construed “the action” in this manner, the legislature
did not change the term when it amended the statute in 2013. We therefore
presume the legislature has adopted this judicial interpretation. See Traxler, 376
S.W.3d at 748.
Moreover, we are persuaded that the Martinez court reached the correct
conclusion. In Martinez, the Thirteenth Court of Appeals held that “for purposes of
section 74.351(a), an action commences [against each defendant] when the
particular defendant is named.” 2015 WL 5626242, at *4. The Martinez court
determined that the 2013 version of section 74.351 applied to doctors that were
added as named defendants in an amended petition filed after September 1, 2013,
although the original petition in the case was filed prior to September 1, 2013. Id.
Before arriving at its holding, the Martinez court distinguished S&P
Consulting Engineers, PLLC v. Baker, 334 S.W.3d 390 (Tex. App.—Austin 2011,
7
no pet.) (en banc). Martinez, 2015 WL 5626242, at *3–4. In S&P Consulting
Engineers, the Third Court of Appeals determined that “for purposes of the
effective date of the 2009 version of [Civil Practice and Remedies Code] section
150.002, an action commences when the original petition is filed. . . [and] does not
recommence with the filing of an amended petition even if that petition names a
new defendant for the first time.” 334 S.W.3d at 397. The S&P court relied on
Texas Rules of Civil Procedure 22,4 37,5 and 386 for guidance in interpreting the
words “action” and “commence.” Id. at 396. The court noted that while Rule 22
states a civil suit is commenced by filing a petition, Rule 37 states additional
parties “may be brought in;” the S&P court concluded this “indicat[ed] that these
new parties are being added to an action that had already commenced.” Id. The
S&P court also pointed out that Rule 38 (regarding third-party practice) does not
indicate that third-party petitions commence new actions or suits against the new
parties, and concluded “the subsequent petitions by defendants against new parties
become part of an action that has already commenced.” Id. The court
acknowledged, however, “these rules are not conclusive regarding the legislature’s
4
Rule 22 states, “A civil suit in the district or county court shall be commenced by a
petition filed in the office of the clerk.” Tex. R. Civ. P. 22.
5
Rule 37 states, “Before a case is called for trial, additional parties necessary or proper
parties to the suit, may be brought in, either by the plaintiff or the defendant, upon such terms as
the court may prescribe; but not at a time nor in a manner to unreasonably delay the trial of the
case.” Tex. R. Civ. P. 37.
6
Rule 38(a) states,
At any time after commencement of the action a defending party, as a third-party
plaintiff, may cause a citation and petition to be served upon a person not a party
to the action who is or may be liable to him or to the plaintiff for all or part of the
plaintiff’s claim against him . . . . A third-party defendant may proceed under this
rule against any person not a party to the action who is or who may be liable to
him or to the third-party plaintiff for all or part of the claim made in the action
against the third-party defendant.
Tex. R. Civ. P. 38(a).
8
intent in drafting the enabling language of the 2009 version of section 150.002.”
Id.
The Martinez court reasoned that although the S&P court’s interpretation
may apply to a supplemental petition adding parties, “it ignores that the filing of an
amended petition adding defendants, as in this case, constitutes the filing of a new
lawsuit.” Martinez, 2015 WL 5626242, at *3 (citing Marez v. Moeck, 608 S.W.2d
740, 742 (Tex. App.—Corpus Christi 1980, no writ)).7 In Marez, the Thirteenth
7
The dissent in S&P also noted that the legislature previously had used more specific
enabling language:
In the enabling language of the 2003 tort reform legislation, the legislature
specifically stated that unless otherwise provided, an action filed before the
effective date of the legislation, “including an action filed before that date in
which a party is joined or designated after that date,” was to be governed by the
law as it existed prior to the effective date.
S&P, 334 S.W.3d at 406 (Henson, J., dissenting) (citation omitted). The S&P dissent reasoned
that because the legislature did not include similar language in the enabling statute under review,
she would hold that the added defendants should be governed by the amended version of section
150.002. Id. at 406–07.
We could make a similar argument to support our conclusion. The legislature could have
included more specific enabling language. In amending and re-codifying Revised Statutes article
4590i into chapter 74, the legislature specifically addressed to which actions chapter 74 would
apply:
Except as otherwise provided in this section or by a specific provision in an
article, this Act applies only to an action filed on or after [September 1, 2003,] the
effective date of this Act. An action filed before the effective date of this Act,
including an action filed before that date in which a party is joined or designated
after that date, is governed by the law in effect for that purpose.
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 899. We
nevertheless decline to construe an amendment’s effective date section in the context of past
effective date sections, particularly when we can construe the effective date section from the
context of the act. This is different from construing the principal operative provisions of an act
that amend an existing statutory scheme such as a code. Such provisions are easily identified as
the House and Senate Rules generally require that in any bill proposing to amend an existing
statute, language sought to be deleted must be bracketed and stricken through, and language
sought to be added must be underlined. See, e.g., Tex. H.R. Rule 12, § 1(b), H. Res. 4, 86th Leg.,
R.S., 2019 H.J. of Tex. 50, 138, reprinted in Rules of the House, Texas Legislative Manual 201
(2019); Tex. S. Rule 7.10, S. Res. 5, 86th Leg., R.S., 2019 S.J. of Tex. 19, reprinted in Rules of
the Senate, Texas Legislative Manual 57 (2019).
9
Court of Appeals held that “if the plaintiff is mistaken as to which of two persons
is liable and obtains service upon the wrong party and then subsequently amends
his petition to join the proper party, such amended petition is a new lawsuit and the
statute of limitations is not tolled until the plaintiff files his amended petition.”
Marez, 608 S.W.2d at 742. Indeed, it is well-established that “[o]rdinarily, an
amended pleading adding a new party does not relate back to the original
pleading.” Bailey, 332 S.W.3d at 400 (quoting Alexander v. Turtur & Assoc., Inc.,
146 S.W.3d 113, 121 (Tex. 2004)).
Consistent with Martinez and the Bailey court’s interpretation of the term
“the action,” we hold that, for purposes of section 74.351(a), an action commences
as to each defendant when it is first named as a defendant. See Martinez, 2015 WL
5626242, at *3–4.
Because the Nurses were named as defendants after the 2013 amendment to
chapter 74, we hold that the amended (current) version of section 74.351(a) applies
in this case. As a result, Ponce and Gonzalez served their expert report on the
Nurses within the statutory deadline of the 120th day after the date on which each
of the Nurses filed their respective answers. The trial court did not abuse its
discretion in denying their motion to dismiss. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351. The Nurses’ sole issue is overruled.
III. CONCLUSION
We overrule the Nurses’ sole issue on appeal and affirm the trial court’s
order denying dismissal.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Frost and Justices Spain and Poissant.
10