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: September 18, 2013

REVERSED AND RENDERED; REMANDED

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. We 

reverse and render a dismissal in favor of appellant. We remand for consideration of costs and 

attorney’s fees.
04-13-00124-CV

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, 

appellees’ expert reports were not timely served. After a hearing, the trial court denied appellant’s 

motion to dismiss, and this appeal ensued. 

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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 

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 

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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. 

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 

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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 

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 

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04-13-00124-CV

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 

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 

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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 

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, 

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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.

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 

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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, 

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

first place.”).

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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 

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 

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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 

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 

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(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 

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 

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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 (1) reverse the trial court’s order and render judgment 

dismissing appellees’ health care liability claims against appellant with prejudice and (2) remand 

the cause to the trial court for a determination of court costs and attorney’s fees to be awarded to 

appellant pursuant to section 74.351(b)(1).

Sandee Bryan Marion, Justice

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