NUMBER 13-12-00318-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

SSC ROBSTOWN OPERATING 

COMPANY LP D/B/A RETAMA

MANOR NURSING CENTER/ROBSTOWN

AND TRISUN HEALTHCARE, LLC

D/B/A TRISUN CARE CENTER, Appellants,

v.

SANDRA PEREZ, INDIVIDUALLY

AND AS REPRESENTATIVE FOR

THE LEGAL HEIRS OF THE ESTATE

OF ESPIRIDION AVILA, DECEASED, Appellee.

 

On appeal from the County Court at Law No. 4

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Perkes
2

In this interlocutory appeal,1appellants SSC Robstown Operating Company LP 

d/b/a Retama Manor Nursing Center/Robstown (“Retama Manor”) and Trisun Healthcare, 

LLC d/b/a Trisun Care Center (“Trisun”), appeal the trial court’s order denying their 

respective motions to dismiss the health care liability claims of appellee Sandra Perez, 

Individually and as Representative for the Legal Heirs of the Estate of Espiridion Avila, 

Deceased (“Perez”). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (a–c) (West 

2011). By two issues, Retama Manor and Trisun argue that the trial court should have 

granted their respective motions to dismiss Perez’s lawsuit because (1) she served her 

amended expert report one day late; and (2) the amended expert report was deficient. 

See id. We reverse and remand. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Perez sued Retama Manor and Trisun alleging that their failure to provide proper 

nursing-home care caused Espiridion Avila to suffer serious personal injury and death. 

On June 9, 2011, Perez filed her original petition. On October 7, 2011, Perez filed the

mandatory expert report on the last day of the 120-day deadline. See § 74.351(a). 

Retama Manor and Trisun objected that the expert report was insufficient under section 

74.351(a) and moved to dismiss Perez’s suit. See id. 

On January 10, 2012, the trial court held a hearing on Retama Manor and Trisun’s 

respective objections and motions to dismiss. At the hearing, the trial court found that 

Perez’s expert report was deficient, but granted Perez a 30-day extension to cure the

deficiency. See id. § 74.351(c). During the hearing, the trial court stated on the record 

 

1

This appeal is brought pursuant to Texas Civil Practice and Remedies Code section 51.014(a)(9). 

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2008).
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that it was granting the 30-day extension. The trial court stated that it found Perez’s 

expert qualified and asked Perez’s counsel whether he could have the deficiencies in the 

report corrected “in 30 days.” Perez’s counsel answered, “Yes, sir, I’ll be glad to do it.” 

The record shows that the trial court signed the order granting the extension in open court

after giving Perez’s counsel an opportunity to review it. The trial court stated the 

following:

What do you call this order I’m signing here? I’ll put this—today is the 

10th, 2-10-12 [sic.]. Plaintiff to amend expert report in 30 days from 

tomorrow. How about that?

In response, Retama Manor’s counsel pointed out that the order presented to the 

trial court for signature included Trisun, but did not include Retama Manor. Retama 

Manor’s counsel asked whether he should submit a separate order. The trial court 

responded by telling counsel, “[h]ere take it and interlineate it yourselves. Fix it.” The 

reporter’s record ends at that point. The clerk’s record shows that the trial court signed 

the 30-day extension order on January 10, 2012, and that it was interlineated to add 

Retama Manor as a defendant. The record does not show that the court modified the 

order in any way after that date. 

On February 10, 2012, Perez filed the amended expert report. Retama Manor 

and Trisun both objected to the amended expert report and moved to dismiss Perez’s 

suit, arguing that the amended expert report was untimely because it was filed on the 

thirty-first day after the January 10, 2012 order granting the extension. They both further 

objected to the amended expert report, arguing that it was still insufficient. 
4

The trial court denied Retama Manor’s and Trisun’s motions to dismiss. This 

accelerated appeal followed. 

II. STANDARD OF REVIEW

Chapter 74 of the Texas Civil Practice and Remedies Code requires a health care 

liability claimant to serve providers with expert reports within 120 days of filing suit. Id.

§ 74.351(a). If the claimant fails to timely serve a report, the trial court must grant the 

provider's motion to dismiss the claim; the failure to do so is subject to interlocutory 

appeal. Id. §§ 51.014(a)(9), 74.351(b) (West 2008 & 2011). If a report is timely served, 

but is deficient as to one or more elements, the court may grant one 30–day extension to 

cure the deficiency. Id. § 74.351(c) (West 2011). Subject to the 30-day extension 

provision, the trial court must grant a motion challenging the adequacy of an expert report 

if it appears to the court, after hearing, that the report does not represent an objective 

good-faith effort to comply with the requirements of an expert report as set forth in section 

74.351(r)(6). Id. § 74.351(l).

We review a trial court’s order on a motion to dismiss filed under section 74.351 for 

an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 

S.W.3d 873, 877–78 (Tex. 2001); Salinas v. Dimas, 310 S.W.3d 106, 108 (Tex. 

App.—Corpus Christi 2010, pet. denied). A trial court abuses its discretion if it acts in an 

arbitrary or unreasonable manner or without reference to guiding rules or principles. 

Salinas, 310 S.W.3d at 108 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 

238, 241–42 (Tex. 1985)). A trial court has no discretion in determining what the law is 

or in applying the law to the facts. See id. (citing Walker v. Packer, 827 S.W.2d 833, 840 
5

(Tex. 1992)). Therefore, when, as here, the issue presented is purely a question of law, 

we conduct a de novo review. Id. (citing Pallares v. Magic Valley Elec. Coop., Inc., 267 

S.W.3d 67, 69–70 (Tex. App.—Corpus Christi 2008, pet. ref’d)); see also Davis v. Webb, 

246 S.W.3d 768, 771–72 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Univ. of Tex. 

Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st 

Dist.] 2007, pet. denied).

III. ANALYSIS

By their first issue on appeal, Retama Manor and Trisun both argue that the trial 

court erred as a matter of law by not dismissing Perez’s suit because she served the 

amended expert report one day late. We agree.

Section 74.351(c) of the Texas Civil Practice and Remedies Code states that a 

plaintiff may be given one 30-day extension to file an amended expert report if its original 

report is found deficient, and thus considered no report at all. Id. § 74.351(c); see also 

Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008). Section 74.351(c) provides 

that when, as here, the original 120-day period for filing an expert report has expired, the 

30-day extension shall run from the date the plaintiff first receives notice of the 30-day 

extension. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). If a 30-day extension is 

granted and the plaintiff fails to timely cure the deficient report, dismissal of the plaintiff’s 

health care liability claim is mandatory. See id.; Nexion Health at Beechnut, Inc. v. Paul, 

335 S.W.3d 716, 718–19 (Tex. App.—Houston [14th Dist.] 2011, no pet). A trial court 

has no discretion to alter the length of an extension granted under section 74.351(c). 

See Constancio v. Bray, 266 S.W.3d 149, 162 (Tex. App.—Austin 2008, no pet.) (holding 
6

trial court abused its discretion by effectively granting a seven-day extension of the 

120-day deadline to serve an expert report; “[e]ither the claimant gets one ‘30-day 

extension’ of the deadline or no extension at all.”).

In Paul, the Fourteenth Court of Appeals addressed whether dismissal of a health 

care liability claim was mandatory because the claimant failed to timely serve her 

amended expert report after being granted a 30-day extension. Paul, 335 S.W.3d at 

718. The Paul Court granted the extension at a hearing and signed the order granting 

the extension that the same day. See id. Paul’s amended expert report was served 

one day late. Id. In the trial court, Paul argued, in response to the second motion to 

dismiss her claim, that the extension was granted at the hearing on the first motion to 

dismiss. Id. at 719. No transcript of the hearing on the first motion to dismiss was 

available on appeal. Id. On appeal, however, Paul argued that she did not receive 

notice of the trial court’s order granting the 30-day extension until several days after the 

hearing on the first motion to dismiss. Id. at 718. In support of her argument, Paul 

attached to her appellate brief a post card giving notice of the trial court’s signed order 

that granted the extension. Id. at 719. There was no evidence in the record to support 

Paul’s assertion that she did not receive notice of the trial court’s ruling when it was made 

in open court. Id. at 719. Because there was no basis in the record to show Paul was 

correct and a later deadline applied in the case, the appeals court held that the trial court 

had no discretion to take any action other than dismissing Paul’s claim. Id. at 718. 

In this case, as in Paul, Perez’s position in the trial court is inconsistent with her 

position on appeal. In the trial court, Perez acknowledged that she received notice of the 
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30-day extension at the January 10, 2012 hearing on Retama Manor and Trisun’s first 

motion to dismiss, the day the extension order was signed. Relying on the transcript of 

the first dismissal hearing, Perez argued in the trial court that the 30-day extension started 

to run on January 11, 2012, and that her amended expert report was thus timely when she 

served it on February 10, 2012.2 

On appeal, however, Perez argues that the earliest date she could have received 

notice of the 30-day extension was January 12, 2012, because that is the date the 

Nueces County Clerk stamped the order “filed.” Like the post card in Paul, the file mark 

stamp on the extension order is no evidence of the date when Perez first received notice 

of the trial court’s ruling. The trial court’s record is devoid of any evidence whatsoever 

that Perez first received notice, or any other notice for that matter, on a date after the

January 10, 2012 hearing. Perez did not include any comment or argument regarding 

the date of receipt in her response to the motion(s) to dismiss, did not provide any affidavit 

or testimony regarding the date that she received notice, and did not make any comment 

or argument during the hearing regarding the date that she received notice. In short, the 

trial court’s record is completely silent in that regard. 

Appellant can find no support in the Willens case. See Willens v. Johnson, No. 

09-11-00524-CV, 2012 WL 586685, at *2 (Tex. App.—Beaumont 2012, pet. denied)

(mem. op.) In Willens, the claimant presented evidence showing when he first received 

actual notice of the trial court’s order granting a 30-day extension under section 

74.351(c). Id. The appeals court correctly concluded that the trial court did not abuse 

 

2

 The trial court properly stated the period would run from “30 days from tomorrow” Beginning 

the day count on January 11, 2012, the day after the date the order was signed, the deadline for the 

amended report would have been February 9, 2010, and not February 10, 2012. 
8

its discretion in denying the motion to dismiss because evidence was presented which 

allowed the trial court to reasonably conclude the claimant timely served the amended 

expert report within thirty days of receiving notice of the extension.

The Texas Legislature created clear deadlines under section 74.351. While we 

recognize this may sometimes result in seemingly harsh consequences, this Court lacks 

the authority to extend the statutory deadlines. See Paul, 335 S.W.3d at 719. We 

sustain Retama Manor and Trisun’s first issue on appeal. In light of our disposition of 

issue one, we need not reach issue two. See TEX. R. APP. P. 47.1

IV. CONCLUSION

We reverse the trial court’s order denying Retama Manor and Trisun’s respective 

motions to dismiss and remand this case for proceedings consistent with this opinion.

GREGORY T. PERKES

Justice

Delivered and filed the 

28th day of February, 2013.