ORAL ARGUMENT REQUESTED
NO. 12-15-00061-CV

________________________________________ ____________________________ IN THE THE TWELFTH COURT OF APPEALS TYLER, TEXAS

________________________________ A

LINEA F AMILY H OSPICE C ARE LLC D / B / A A LINEA F AMILY H OSPICE C ARE , D ONNA J UNKERSFELD , R.N., AND K ARLA G AMBLE , LVN

A

PPELLANTS , V . P EGGY G OLDSMITH , I NDIVIDUALLY AND ON B EHALF OF THE E STATE OF R UTH N. M ASSEY , A PPELLEE .

________________________ ______________________ ____________________ From the 294 th Judicial District Court for Van Zandt County, Texas, Cause No. 13-00276
B RIEF OF A PPELLANTS A

LINEA F AMILY H OSPICE C ARE LLC D / B / A A LINEA F AMILY H OSPICE C ARE , D ONNA J UNKERSFELD , R.N. AND K ARLA G AMBLE , LVN

________________________ ______________________ ____________________ JASON D. MAZINGO State Bar No. 24055925 Jason@MazingoFirm.com T HE M AZINGO F IRM , P.C. 305 South Broadway Avenue, Suite 404 Tyler, Texas 75702 Telephone: 903-630-7123 Facsimile:
ATTORNEY FOR APPELLANTS ALINEA FAMILY HOSPICE CARE, LLC D/B/A ALINEA FAMILY HOSPICE CARE, DONNA JUNKERSFELD, RN AND KARLA GAMBLE, LVN. ACCEPTED 12-15-00061-CV TWELFTH COURT OF APPEALS

TYLER, TEXAS 4/13/2015 3:21:35 PM CATHY LUSK CLERK-iIDENTITY OF PARTIES AND COUNSEL In compliance with Rule 38.1(a), Appell ant certifies that the following is a complete list of parties to the trial court’s judgment and the names and addresses of all trial and appellate counsel: Defendant/Appellant: A LINEA F AMILY H OSPICE C ARE LLC D / B / A A

LINEA F AMILY H OSPICE C ARE , D ONNA J UNKERSFELD , R.N., AND K ARLA G AMBLE , LVN Defendant/Appellant’s Counsel: Jason D. Mazingo State Bar No. 24055925 Jason@MazingoFirm.com T HE M AZINGO F IRM , P.C. 305 South Broadway Avenue, Suite 810 Tyler, Texas 75702 Telephone: 903-630-7123 Facsimile: 800- 771-3589 (Lead Counsel for Appellants) Plaintiff/Appellee P EGGY G OLDSMITH , I NDIVIDUALLY AND ON B EHALF OF THE E STATE OF R UTH N. M ASSEY Plaintiff/Appellees’ Counse l: Mr. Patrick Powers patrick@powerstaylor.com Ms Anjulie Ponce anjulie@powerstaylor.com Powers Taylor LLP 8150 North Central Expressway, Suite 1575 Dallas, Texas 75206

Jason D. Mazingo- ii - TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ..................................................... i TABLE OF AUTHORITIES ............................................................................. 1 STATEMENT OF THE CASE .......................................................................... 3 STATEMENT REGARING ORAL ARGUMENT ........................................... 4 STATEMENT OF JURISDICTION ................................................................. 4 STATEMENT OF FACTS ................................................................................. 4 STANDARD OF REVIEW ................................................................................ 8 ARGUMENT AND AUTHORITIES ................................................................ 8 I. THE HONORABLE TRIAL COURT ABUSED ITS DISCRETION IN DENYING ALINEA’S MOTION TO DISMISS BECAUSE GOLDSMITH’S AMENDED EXPERT REPORTS WERE SERVED AFTER THE STATUTORY THIRTY-DAY EXTENSION EXPIRED ......... 8 A. CHAPTER 74 PROVIDES FOR A SINGLE THIRTY-DAY EXTENSION. ................................................................................................... 9 B. THE TRIAL COURT’S MAY 27, 2014 ORDER CONTROLLED THE DEADLINE FOR GOLDSMITH TO SERVE HER AMENDED CHAPTER 74 REPORT. .............................................................................. 13 1) The trial court’s docket sheet entry on J une 23, 2014 did not enlarge the relief granted by its May 27, 2014 order. .................................................................. 14 2) Chapter 74 does not include a good cause standard to allow the extension of its deadlines beyond the statutory mandates . ............................................................ 16 CONCLUSION AND PRAYER ....................................................................... 18 APPENDIX 1 (Trial Court’ s Order) ................................................................. 20 APPENDIX 2 (Texas Civil Practice & Remedies Code § 74.351) .................... 22-1- TABLE OF AUTHORITIES Cases Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001) .................... 8 Awoniyi v. McWilliams , 261 S.W.3d 162 (Tex. App. —Houston [14th Dist.] 2008, no pet.) ...................................................................................................................... ............ 12 Azopardi v. Hollebeke , 428 S.W.2d 167 (Tex.Civ. A pp.-Waco 1968, no writ) .................. 14 Constancio v. Bray, 266 S.W.3d 149 (Tex. App. —Austin 2008, no pet.) ............................. 9 Energo Int’l Corp. v. Modern Indus. Heating, Inc. , 722 S.W.2d 149 (Tex. App.— Dallas 1986, no writ) ......................................................................................................... .. 14 ETMC First Physicians v. Van Ness , 2014 Tex. App. LEXIS 3495 (Tex. App.— Tyler 2014, pet. requested) ................................................................................................... 8 Ex parte Rains , 257 S.W. 217 (1923) ...................................................................................... 14 Faulkner v. Culver , 851 S.W.2d 187 (Tex.1993) .................................................................... 14 Hamilton v. Empire Gas & Fuel Co. , 110 S.W.2d 561 (1937) ........................................ 14, 15 Harrington v. Harrington , 742 S.W.2d 722 (Tex. App.—Houston [1st Dist] 1987, no pet.) ...................................................................................................................... ............ 15 Heart Hosp. v. Matthews , 212 S.W.3d 331, 333 n. 4 (T ex. App. Austin 2006) .................. 17 In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311 (Tex. App.—H ouston [1st Dist.]) ... 7, 14 In re Covenant Health Sys ., No. 07-05-0462-CV, 2006 Tex. App. LEXIS 1696, at *8 (Tex. App.--Amarillo Mar. 1, 2006, orig. proceeding ............................................... 16 In re Estate of Townes , 934 S.W.2d 806 (Tex. App.—Houston [1st Dist.] 1996, orig. proceeding) ............................................................................................................. ..... 15 In re Sw. Bell Tel. Co. , 226 S.W.3d 400, 40 3 (Tex. 2003) ....................................................... 8 Lewis v. Funderburk , 2008 Tex. App. LEXIS 9761 (Tex. App.—Waco 2008, pet. denied) ....................................................................................................................... .............. 8 Lewis v. Funderburk, 253 S.W.3d 204 (Tex.2008) ............................................................... 4, 9 Lopez v. Brown , 356 S.W.3d 599 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ......... 15 Mokkala v. Mead , 178 S.W.3d 66 (Tex. App.-Hou ston [14th Dist.] 2005, pet. denied) ....................................................................................................................... ............ 13 Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App.—Houston [14th Dist .] 2011, no pet) ........................................................................................... 10, 12-2- Packard v. Guerra , 252 S.W.3d 511 (Tex. App.—Houston [14th] 2008, pet. denied) ....................................................................................................................... .............. 8 Restelle v. Williford , 364 S.W.2d 444 (Tex. Civ. Ap p.—Beaumont 1963, writ ref’d n.r.e.) ....................................................................................................................... ............... 14 Rivenes v. Holden, 257 S.W.3d 332 (Tex. App.-H ouston [14th Dist.] 2008, pet. denied) ....................................................................................................................... ............ 10 Smith v. McCorkle , 895 S.W.2d 692 (Tex. 1995) ................................................................... 14 SSC Robstown Operating Co. LP v. Perez , 2013 Tex. App. LEXIS 1983 (Tex. App.—Corpus Christ 2013, pet. denied) .................................................................... 9, 10 Thoyakulathu v. Brennan , 192 S.W.3d 849 (Tex. App.—T exarkana 2006, no pet.) .......... 13 Utils. Pipeline Co. v. Am. Petrofina Mktg. , 760 S.W.2d 719 (Tex. App.—Dallas 1988, no writ) ................................................................................................................ ....... 14 Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003) ................................................................ 8

Statutes T EX
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. & R EM C ODE . § 74.351(c) ................................................................. passim T EX
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. & R EM
. C ODE § 51.014(a)(9) ............................................................... 4, 17 T EX
. G OV ' T C ODE § 22.201(m) ............................................................................................... 4 T EX
. G OV ' T C ODE § 24.471. .................................................................................................... 4-3- TO THE HONORABLE TWELFTH COURT OF APPEALS:
STATEMENT OF THE CASE 1 This is a medical negligence case. Peggy Goldsmith, filed her Original Petition on November 1, 2013 alleging that Alinea Family Hospice Care LLC d/b/a Alinea Family Hospice Care, Donna Junkersfeld, R.N., and Karla Gamble, LVN (hereinafter collectively referred to as “Alinea”), were negligent in their treatment of her mother, Ruth Massey. 2 Alinea timely answered and objected to the expert reports served by Goldsmith to comply with Texas Civi l Practice & Remedies Code § 74.351(a). 3 On May 27, 2014, the trial court sustained A linea’s objections and Goldsmith was given 30 days to cure her deficient reports. 4 Goldsmith served an amended report on July 22, 2014. 5 Thereafter, Alinea sought dismissa l of Goldsmith’s suit citing the untimeliness of her Amended Chapter 74 Report. 6 On February 5, 2015, the trial
court denied Alinea’s Motion to Dismiss. 7 On February 20, 2015, Alinea timely filed its Notice of Appeal. 8

1 References to the Clerk’s Record will be made as follows: (C.R. at page number (Arabic)). Appellants have not requested a Reporter’s Record.

2 C.R. at 6.

3 C.R. at 29-34.

4 C.R. at 35-36.

5 C.R. at 46; C.R. at 59; C.R. at 146.

6 C.R. 45-48.

7 C.R. at 146.

8 C.R. 149-150.-4- STATEMENT REGARING ORAL ARGUMENT Alinea believes that oral argument wo uld aid the Court in reaching a resolution
of this case. Even if the fa cts are simple and the legal issues straightforward, oral argument will allow the parties to explain th e application of law to fact. Additionally, it would also allow the parties to answer any questions that the Court may have. STATEMENT OF JURISDICTION This Court has jurisdiction to hear an interlocutory appeal denying a motion to dismiss in a health care liability claim. Lewis v. Funderburk , 234 S.W.3d 204, 208 (Tex. 2008); T EX
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. & R EM
. C ODE § 51.014(a)(9). “The 294th Judicial District is composed of Van Zandt County.” T EX
. G OV ’ T C ODE § 24.471. This Court’s appellate district contains Van Zandt County, among other counties. T EX
. G OV ’ T C ODE § 22.201(m). Thus, this Court has jurisdiction to determine this interlocutory appeal regarding the trial court’s abuse of discre tion in denying Alinea’s Motion to Dismiss

. ISSUES PRESENTED ON APPEAL Chapter 74 provided Peggy Goldsmith, at the trial court’s discretion, with 30 days to amend her deficient Chapter 74 Reports. Apparently relying on an entry on the District Court’s Docket Sheet, Goldsmith served her Amended Chapter 74 Report four days after the expiration of the statut ory deadline. Should this Court reverse the trial court’s denial of the Alinea’s Motion to Dismiss when Goldsmith’s Amended Chapter 74 Report was four days late? STATEMENT OF FACTS This is a medical negligence case filed by Peggy Goldsmith, Individually and on Behalf of the Estate of Ruth N. Massey against Alinea Family Hospice Care LLC-5- d/b/a Alinea Family Hospice Care, Donna Junkersfeld, R.N., and Karla Gamble, LVN (collectively referred to as “Alinea”). 9 “Ruth Massey was diagnosed with pancreatic cancer and underwent months of chemotherapy” before she died. 10 Ms. Massey’s “physicians suggested that sh e discontinue chemotherapy and obtain supportive treatment and pain management care.” 11 Ms. Massey’s search for such
care led her to Alinea. 12 Plaintiff alleges that Ruth Mass ey died “...as a direct result of improper medical care, horrible neglect, an d medication errors committed by Alinea and its key medical staff, Dr. Ingr am and Nurses Junkersfeld and Gamble.” 13 On February 5, 2014, Goldsmith served the expert reports of Steven C. Fox, M.D. and Cherrie Pullium, MSN RN ACNS (“Chapter 74 Reports”) to comply with the mandates of Chapter 74 of the Texas Ci vil Practice & Remedies Code. Alinea objected to Goldsmith’sChapter 74 Reports alleging, inter alia , that they failed to adequately allege causation. On May 14 , 2014, the trial court held a hearing on Alinea’s objections and on May 27, 2014, th e trial court sustained those objections. 14 The trial court’s order gave Goldsmith 30 days to cure her deficient reports. 15

9 C.R. at 6. Richard L. Ingram, M.D. is also a defendant in the District Court action, but is not a party to this appeal.

10 C.R. at 6.

11 C.R. at 6.

12 C.R. at 6.

13 C.R. at 6-7.

14 C.R. at 35.

15 C.R. at 35.-6- On June 18, 2014, the trial court he ard argument on Richard L. Ingram’s M.D.’s Objections to the Chapter 74 Reports and on June 25, 2014 the trial court sustained those objections. 16 At the hearing on Dr. Ingr am’s Objections, Goldsmith’s
counsel informed Defense counsel and the Co urt that Goldsmith had not been served with the trial court’s May 27, 2014 order sustaining Alinea’s objections. 17 At the hearing, Defense counsel provided Goldsmit h’s counsel with a copy of the order.
Goldsmith’s counsel sent a letter to the tr ial court confirming that she had “actual notice” of its May 27, 2014 or der as of June 18, 2014. 18 In that letter, Goldsmith, citing Section 74.351, requested that her deadline to serve her Amended Chapter 74 Reports run from June 18, 2014, the date sh e received actual notice of the trial court’s
order. On June 23, 2014, sua sponte , the trial made an entry on its docket sheet that
said:
Court reviewed π ’s letter dated 6/18/2014 and finds the fax did not confirm sending to π —just as π transposed cause # on her letter. The Court finds good cause to extend the time for filing amended expert report as to д Alinea Family Hospice Care, et al to the same time for filing the expert report as to д Dr. Ingram. 19

16 C.R. at 37, 43.

17 C.R. at 37.

18 C.R. at 37. 19 C.R. at 42.-7- On July 22, 2014, Plaintiff served the Am ended Report of Dr. Steven Fox (“Amended Chapter 74 Report”) on Alinea. Thereafter, A linea filed its Motion to Dismiss citing the untimeliness of Goldsmith’s Amended Chapter 74 Report. 20 The trial court denied Alinea’s Motion to Dismiss by wri tten order dated February 5, 2015. 21
SUMMARY OF THE ARGUMENT
The trial court abused its discretion when it denied Alinea’s Motion to Dismiss for two reasons. First, Chapter 74 allows for a single thirty-day extension of time to serve an amended expert report when a Court deems an initial report deficient. See
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. & R EM C ODE . § 74.351(c). Goldsmith’s Amended Chapter 74 Report was served on July 22, 2014—34 days after she received notice of the Court’s May 27, 2014 order sustaining the Alinea’s objections to her Chapter 74 Reports. Second, the trial court’s order, consistent with Secti on 74.351(c), dictated that Goldsmith had 30 days to cure her deficient reports. The trial court’s subsequent attempt to sua sponte extend the deadline with an entry on its docket sheet was ineffective because a “docket-sheet entry...forms no part of the reco rd that may be considered; rather, it is
a memorandum made for the trial court and clerk’s convenience.” In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.]). Similarly, the trial court’s attempt to extend the deadlin e beyond the statutorily mandated thirty-

20 C.R. at 45-48.

21 C.R. at 146.-8- days was also an abuse of discretion becaus e it incorrectly applies the law of Section 74.351(c) to the facts of this case.
STANDARD OF REVIEW This Court reviews a trial court’s decisi on regarding dismissal of a health-care liability claim for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); accord ETMC First Physicians v. Van Ness , 2014 Tex. App. LEXIS 3495 at *5 (Tex. App.—Tyler 2014, pet. requested) . “A trial court
abuses its discretion if it acts in an unreasonable and arbitrary manner or without reference to any guiding rules or principles.” Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); accord ETMC First Physicians , 2014 Tex. App. LEXIS 3495 at *5. A trial court’s failure to analyze or apply the la w correctly is an abuse of discretion. In re Sw.
Bell Tel. Co. , 226 S.W.3d 400, 403 (Tex. 2003) accord ETMC First Physicians v. Van Ness , 2014 Tex. App. LEXIS 3495 at *5. “To the ex tent resolution of the issues presented requires interpretation of the statute, [this Court] review[s] the order under a de novo
standard.” Packard v. Guerra , 252 S.W.3d 511, 515 (Tex. App.—Houston [14th] 2008, pet. denied); Lewis v. Funderburk , 2008 Tex. App. LEXIS 9761 (Tex. App.—Waco 2008, pet. denied).
ARGUMENT AND AUTHORITIES
I. THE HONORABLE TRIAL COURT AB USED ITS DISCRETION IN DENYING ALINEA’S MOTION TO DISMISS BECAUSE GOLDSMITH’S AMENDED EXPERT REPORTS WERE SERVED AFTER THE STATUTORY THIRTY-DAY EXTENSION EXPIRED-9- The trial court abused its discretion when it denied Alinea’s Motion to Dismiss for at least two reasons. First, at most, Ch apter 74 provided Goldsmith with a single thirty-day extension of time to cure he r deficient Chapter 74 Reports. Additionally, the trial court’s attempt to sua sponte enlarge the time for Goldsmith to serve her Amended Chapter 74 Report via an entry on its docket sheet citing a “good cause” standard was ineffective to supersede the trial court’s prior written order governing
the same deadline.
A. CHAPTER 74 PROVIDES FOR A SINGLE THIRTY-DAY EXTENSION. Chapter 74 allows a trial court to gran t a single thirty-day extension to cure deficient Chapter 74 reports. Specifically, Se ction 74.351 (c) provides, “If an expert report has not been served within the peri od specified...because the elements of the report are found deficient, the court may gr ant one 30-day extension to the claimant in order to cure the deficiency.” T EX
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. & R EM C ODE . § 74.351(c); accord Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008). The trial court is not empowered to enlarge the statutory deadlin e for any reason. “A trial court has no discretion to alter the length of an extension granted under section 74.351(c).” SSC Robstown Operating Co. LP v. Perez , 2013 Tex. App. LEXIS 1983 at *6 (Tex. App.— Corpus Christ 2013, pet. denied) citing Constancio v. Bray, 266 S.W.3d 149, 162 (Tex. App.—Austin 2008, no pet.) (holding trial co urt abused its discretion by effectively granting a seven-day extension of the 120 –day deadline to serve an expert report;-10- “[e]ither the claimant gets one ‘30–day exte nsion’ of the deadline or no extension at all.”). “If a 30–day extension is granted an d the plaintiff fails to timely cure the deficient report, dismissal of the plaintiff ’s health care liability claim is mandatory.” Id. citing T EX
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. & R EM C ODE § 74.351(c); Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716, 718–19 (Tex. App.—Hou ston [14th Dist .] 2011, no pet).
In Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet) the Houston Court of Appeals dealt with a scenario similar to the one presented here. In Nexion , the plaintiff’s initial expert report was found deficient the plaintiff was given 30 days to cure the deficiency. Id. at 318. On the 30 th day at 6:14 P.M., Plaintiff served her amended report by facsimile. Id. In dismissing her claims, the court noted that “service by fax that occurs after 5:00 p.m. is considered served on the next day.” Id. “Therefore, [the plaint iff] served her amended expert report one day late.” Id. “Because [the plaintiff] did not comply with the service requirements of section 74.351, the trial co urt had no discretion to take any action
other than dismi ssing the claim.” Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011, no pet) citing Rivenes v. Holden, 257 S.W.3d 332, 336 (Tex. App.-Houston [14t h Dist.] 2008, pet. denied). The trial court signed its order sustaining the Alinea’s objections to Goldsmith’s Chapter 74 Reports on May 27, 2014. Unde r ordinary circumstances, Goldsmith’s deadline to amend her Chapter 74 repor ts would have been June 26, 2014. See T EX
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. & R EM C ODE . § 74.351(c). In this instan ce, Goldsmith did not receive-11- notice of the trial court’s order until Ju ne 18, 2014 when the trial court heard argument on Dr. Ingram’s objections to Goldsmith’s Chapter 74 Reports. Section 74.351(c) provides relief for plaintiffs, like Goldsmith, who do not receive notice of a trial court’s order granting an extension of time to cure deficiencies until after the running of the statutory 120-day deadline for the service of such reports. In such a situation, Chapter 74 prov ides that the “30-day extension shall run from the date the plaintiff first received the notice.” T EX
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. & R EM C ODE . § 74.351(c). Alinea does not dispute Goldsmith ’s assertion that she was not served with a copy of the trial court’s order of May 27, 2014 and did not learn of that order until June 18, 2014. But given that Goldsmith re ceived notice of the trial court’s order sustaining the Alinea’s objections on June 18, 2014, her deadline to amend her report was July 18, 2014. Indeed, in her letter to the trial court requestin g additional time to serve her Amended Chapter 74 Report based on the trial court’s failure to properly notify her of its decision, Goldsmith spec ifically notes that she received “actual notice” of the trial court’s order that day and requests that her thirty-day extension run from June 18, 2014 rather than May 27 , 2014. It is undisp uted that Goldsmith served her amended reports after July 18, 2014. 22 Golfsmith will likely argue that she neve r been served with a copy of the trial court’s May 27, 2014 order. Goldsmith miss es the point of Section 74.351(c) which

22 C.R. at 46, 59, 146.-12- eschews the language of service and says th at the thirty-day deadline runs “from the date the plaintiff first received the notice.” Here, that date is no later than June 18, 2014. There is ample proof in the record that Goldsmith received notice that day. Specifically, in her letter to the trial co urt, Goldsmith’s counsel said, “Plaintiff respectfully requests that the Court grant Plai ntiff thirty (30) days from today’s date,
when Plaintiff received actual notice of th e Court’s ruling, to amend Dr. Fox’s report with respect to Alinea Family Hospice Ca re LL (sic) d/b/a Alinea Family Hospice Care, Donna Junkersfeld, R.N. and Karla Gamble, L.V.N., pursuant to Civil Practice and Remedies Code § 74.351(c).” 23 Goldsmith cites this very section of Chapter 74, says she has “actual notice” of the Court’s ruling, and asks for 30 days to run from June 18, 2014. Goldsmith’s letter accurately articulates the law which does not require service, it requires notice. To date, Go ldsmith has cited no case to support her proposition that notice in Chapter 74 is akin to formal service. Even though the result may appear dr aconian, because Goldsmith failed to timely cure her deficient reports, her clai ms against Alinea must be dismissed. See Nexion Health at Beechnut, Inc. , 335 S.W.3d at 719 (dismissing claims when the claimant’s amended reports were served by fa csimile at 6:14 p.m. on the thirtieth day); Awoniyi v. McWilliams , 261 S.W.3d 162, 164 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (dismissing claims when report was faxed two days late); Thoyakulathu v.

23 C.R. at 37 (emphasis added)-13- Brennan , 192 S.W.3d 849, 855 (Tex. App.—T exarkana 2006, no pet.) (dismissing claims when report was not served timely because of a fax machine malfunction);
Mokkala v. Mead , 178 S.W.3d 66, 76 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (dismissing claims when report was served one day late). The trial court’s
refusal to dismiss Goldsmith’s clai ms was an abuse of discretion.
B. THE TRIAL COURT’S MAY 27, 2014 ORDER CONTROLLED THE DEADLINE FOR GOLDSMITH TO SERVE HER AMENDED CHAPTER 74 REPORT. In her June 18, 2014 letter to the tria l court, Goldsmith requested that the deadline to serve her Amended Chapter 74 Report run from that day—the day she
first received notice of the trial court’s Ma y 27, 2014 order—rather than from May 27,
2014. Sua sponte , on June 23, 2014 the trial court made an entry on its docket sheet
that said:
Court reviewed π ’s letter dated 6/18/2014 and finds the fax did not confirm sending to π —just as π transposed cause # on her letter. The Court finds good cause to extend the time for filing amended expert report as to д Alinea Family Hospice Care, et al to the same time for filing the expert report as to д Dr. Ingram. 24 The trial court’s order sustaining Alinea’s obj ections and giving Plaintiff 30 days to cure the deficiencies in her report was si gned on May 27, 2014—well in advance of the June 23, 2014 docket entry. The dock et entry did not impact the deadline for Goldsmith serve her Amended Chapter 74 reports because a docket entry cannot

24 C.R. at 42.-14- amend a prior written order. Similarly, the trial court’s attempt to extend the deadline beyond the statutory thirty days for “good cause” was a clear abuse of discretion. 1) The trial court’s docket sheet entry on J une 23, 2014 did not enlarge the relief granted by its May 27, 2014 order.

“ Since 1923, Texas courts have consiste ntly enforced the following general
rule: all orders must be entered of record to be effective.” In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.]) citing Ex parte Rains , 257 S.W. 217, 220 (1923). “Entries made in a judge’s docket are not accepted as a
substitute for that record.” Id. citing Hamilton v. Em pire Gas & Fuel Co. , 110 S.W.2d 561, 566 (1937). “The order must be reduced to writing, signed by the trial court, and
entered in the record.” Id. Utils. Pipeline Co. v. Am. Petrofina Mktg. , 760 S.W.2d 719, 723 (Tex. App.—Dallas 1988, no writ).”A docket-s heet entry ordinarily forms no part of the record that may be considered; rather , it is a memorandum made for the trial
court and clerk’s convenience.” Id. at 315 citing Energo Int’l Corp. v. Modern Indus. Heating, Inc. , 722 S.W.2d 149, 151 (Tex. App.—Dallas 1986, no writ); Azopardi v.
Hollebeke , 428 S.W.2d 167, 168 (Tex.C iv. App.-Waco 1968, no writ); Restelle v. Williford , 364 S.W.2d 444, 445 (Tex. Civ. App. —Beaumont 1963, writ ref’d n.r.e.). “A docket-sheet entry cannot contradict or take the place of a written order or judgment.” Id.; See, e.g., Smith v. McCorkle , 895 S.W.2d 692, 692 (Tex. 1995); Faulkner v.
Culver , 851 S.W.2d 187, 188 (Tex. 1993) (holding that docket entry granting new trial was not substitute for signed order); In re Estate of Townes , 934 S.W.2d 806, 807-08-15- (Tex. App.—Houston [1st Dist.] 1996, orig. pr oceeding) (holding that trial court’s oral granting of relator’s motion for new trial, initialed docket sheet entry stating “MNT granted,” and signed order setting case for trial, did not constitute “written order” granting new trial). “Judgments and orders of courts of reco rd to be effectual must be entered of
record.” Hamilton v. Empire Gas & Fuel Co. , 110 S.W.2d 561, 566 (Tex. 1937). “[D]ocket entries...can neither change nor en large judgments or orders as entered in
the minutes of the Court.” Lopez v. Brown , 356 S.W.3d 599, 603 n. 4 (Tex. App.— Houston [1st Dist.] 2011, no pet.) quoting Hamilton , 110 S.W.2d at 566. “ Recitals in a judgment or signed order of the court contro l over conflicting recitals in either the reporter’s or clerk’s record.” Id. q uoting Hamilton , 110 S.W.2d at 566. More specifically, “Recitals in a judgment or signed order of the court control over a conflicting docket entry.” Harrington v. Harrington , 742 S.W.2d 722, 724 (Tex. App.—Houston [1st Dist] 1987, no pet.). As the case law makes clear, the trial court’s written order of May 27, 2014 controlled the deadline for Goldsmith to serve her Amended Chapter 74 Reports. See
Hamilton , 110 S.W.2d at 566. The trial court’s subsequent June 23, 2014 docket entry that purported to extend that deadline was ineffective because written orders control over conflicting docket entries. See Harrington , 742 S.W.2d at 724. (“Recitals in a judgment or signed order of the court c ontrol over a conflicting docket entry.”).
Because the trial court’s written order of May 27, 2014 controls, Goldsmith’s-16- Amended Chpater 74 Report were due to be served on July 18, 2014. The parties and the trial court agree that service of that report took place after July 18, 2014. As a result, the trial court’s decision denying A linea’s Motion to Dismiss was a clear abuse of discretion that should be remedied by this Court. 2) Chapter 74 does not include a good cau se standard to allow the extension of its deadlines beyond the statutory mandates. In its docket sheet entry, the trial co urt noted that it found “good cause to extend the time for filing amended expert report as to д Alinea Family Hospice Care, et al to the same time for filing the expert report as to д Dr. Ingram.” 25 But Chapter 74 contains no “good cause” exception that allows an extension of time to cure reports beyond the statutorily prescribed thirty-days. The predecessor to Chapter 74, 4590i, contained a “good cause” exception, but even that prior provision would not be applicable here. As another intermedia te appellate court has explained: Article 4590i, the predecessor to section 74.351, provided for a discretionary thirty-day extension of time upon a showing of “good cause” and a mandatory thirty-day “grace peri od” upon a showing that the failure to file a conforming report was due to accident or mistake and was not intentional or due to conscious indifference. See Act of May 4, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (amending Tex. Rev. Civ. Stat. art. 4590i, § 13.01, repealed in 2003).Section 74.351 does not require a showing of good cause, ac cident, or mistake; it simply leaves the granting of an extension to the trial court’s discretion. T EX
. C IV
. P RAC

. & R EM
. C ODE A NN . § 74.351(c); see In re Covenant Health Sys ., No. 07-05- 0462-CV, 2006 Tex. App. LEXIS 1696, at *8 (Tex. App.--Amarillo Mar. 1, 2006, orig. proceeding) (“Unlike th e former statute, the Legislature omitted from subsection (c) [of section7 4.351] terms such as ‘good cause,’

25 C.R. at 20.-17- ‘accident,’ or ‘mistake’ in vesting the tr ial court with discretion to grant an extension.”). Heart Hosp. v. Matthews , 212 S.W.3d 331, 333 n. 4 (Tex. App. Austin 2006). In short, the prior “good cause” standard dealt with whethe r a plaintiff should be granted thirty-days to cure its deficient reports. Chapter 74 requ ires no such “good cause” requirement and imbues the trial court with discretion regard ing extensions of time to cure deficient reports. T EX
. C IV
. P RAC

. & R EM
. C ODE § 74.351(c). Similarly, the trial court’s decision regarding a thirty-day extension of time is unappealable. T EX
. C IV
. P RAC

. & R EM
. C ODE § 51.014(a)(9). But the case law is similarly cl ear that the trial court is without discretion to change the statutory time limits in Chapter 74. This dynamic makes complete sense in light of the overall statutory schema. The legislature has made provision for plaintiffs, like Goldsmith, that are negatively impacted by late or nonexisten t notice of a trial court’s decision on their requested extension of time to cure deficien t reports. As is more fully briefed above, the legislature provided that in such a situ ation, the thirty-day period runs from the “date the plaintiff first received the notice.” T EX
. C IV
. P RAC

. & R EM
. C ODE § 74.351(c). Thus, not only is there no statutory support fo r the trial court’s extra extension, it is unnecessary given the legislature’s explicit provision for plaintiffs in Goldsmith’s situation. Because there is no justification fo r the trial court’s increasing the thirty-day time period for serving her Amended Chapter 74 Report, Goldsmith’s suit must be
dismissed.-18- CONCLUSION AND PRAYER
The trial court abused its discretion when it denied Alinea’s Motion to Dismiss.
Goldsmith’s suit should be dismissed b ecause her Amended Chapter 74 Reports were not served within the thirty-days allowed by Section 74.351(c). Similarly, the trial
court’s sua sponte attempt to give Goldsmith more than thirty-days was a clear abuse of discretion because the trial court improperly applied the law of Section 74.351(c) to
the facts of this case and because the tr ial court cannot amend or supersede a prior written order with a docket entry. For th ese reasons, this Court should reverse the trial court’s decision, dismiss Goldsmith’s su it, and remand this case back to the trial court for the sole purpose of determining the reasonable attorneys’ fees that should be awarded to Alinea pursuant to Section 74.351(b)(1).-19- CERTIFICATE OF SERVICE I certify that a copy of the Brief of A ppellants Alinea Family Hospice Care LLC d/b/a Alinea Family Hospice Care, Donna Junkersfeld, R.N., and Karla Gamble, LVN has been served, this 13 th day of April, 2015 by electronic mail to the following counsel
of record:

Patrick Powers patrick@powerstaylor.com Anjulie Ponce anjulie@powerstaylor.com Powers Taylor LLP 8150 North Central Expressway, Suite 1575 Dallas, Texas 75206

Jason D. Mazingo

CERTIFICATE OF WORD COUNT COMPLIANCE Pursuant to Texas Rule of Appellate Pro cedure 9.4(i)(2)(B), I hereby certify that this Appellants’ Brief contains 3,667 wo rds and thus is less than the maximum allowed of 15,000.

Jason D. Mazingo-20- 

# APPENDIX 1-22- 

# APPENDIX 2-23- T EX . C IV . P RAC . & R EM . C ODE § 74.351 . Expert Report (a) In a health care liability claim, a clai mant shall, not later than the 120th day after the date each defendant's original answer is filed, serve on that party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physi cian or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of th e affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the suff iciency of the report not later than the later of the 21st day after the date the report is served or the 21st day after the date the defendant's answer is filed, failing which all objections are waived. (b) If, as to a defendant physician or heal th care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or heal th care provider, shall, subject to Subsection (c), enter an order that: (1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incu rred by the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the re filing of the claim. (c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plai ntiff first received the notice. (d) to (h) [Reserved]. (i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving an expert report by serving reports of separate experts regarding different physicians or health care providers or regarding different issues arising from th e conduct of a physician or health care provider, such as issues of liability and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physi cians or health care providers or with respect to both liability and causation is sues for a physician or health care provider. (j) Nothing in this section shall be cons trued to require the serving of an expert report regarding any issue other than an is sue relating to liability or causation. (k) Subject to Subsection (t), an expe rt report served under this section: (1) is not admissible in evidence by any party;-24- (2) shall not be used in a depositi on, trial, or other proceeding; and (3) shall not be referred to by any party during the course of the action for any purpose. ( l

) A court shall grant a motion challengin g the adequacy of an expert report only if it appears to the court, after hearin g, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6). (m) to (q) [Reserved]. (r) In this section: (1) "Affected parties" means the clai mant and the physician or health care provider who are directly affected by an act or agreement required or permitted by this section and does not include other parties to an action who are not directly affected by th at particular act or agreement. (2) "Claim" means a health care liability claim. (3) [Reserved]. (4) "Defendant" means a physician or health care provider against whom a health care liability claim is assert ed. The term includes a third-party defendant, cross-defendant, or counterdefendant. (5) "Expert" means: (A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the requirements of Section 74.401; (B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402; (C) with respect to a person giving opinion testimony about the causal relationship between the injury, ha rm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal re lationship under the Texas Rules of Evidence; (D) with respect to a person giving opinion testimony about the causal relationship between the injury, ha rm, or damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician who is otherwise qualified to render opinions on such causal relation ship under the Texas Rules of Evidence; or (E) with respect to a person giving opinion testimony about the causal relationship between the injury, ha rm, or damages claimed and the-25- alleged departure from the applicable standard of care for a podiatrist, a podiatrist or physici an who is otherwise qualified to render opinions on such causal re lationship under the Texas Rules of Evidence. (6) "Expert report" means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the ma nner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. (s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a heal th care liability claim is stayed except for the acquisition by the claimant of in formation, including medical or hospital records or other documents or tangible things, related to the patient's health care through: (1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure; (2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and (3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure. (t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the servi ce requirement of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are waived. (u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not mo re than two depositions before the expert report is served as required by Subsection (a).