Opinion
No. 05-11-00902-CV
05-14-2012
SHERRI R. LOWE, Appellant v. JEFFERSON DENTAL CLINICS AND YVONNE CHIU, D.D.S., Appellees
On Appeal from the 193rd Judicial District Court
Dallas County, Texas Trial Court Cause No. 10-16800
MEMORANDUM OPINION
Before Justices Moseley, Lang-Miers, and Murphy Opinion By Justice Murphy
The trial court dismissed Sherri R. Lowe's health care liability lawsuit against Jefferson Dental Clinics and Yvonne Chiu, D.D.S. and awarded Jefferson Dental and Chiu their attorney's fees. Lowe presents six issues on appeal in which she challenges the constitutionality of chapter 74 of the civil practice and remedies code and contends she is entitled to an extension of the 120-day deadline for serving an expert report. We affirm the trial court's order of dismissal and issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4.
Background
Lowe, appearing pro se in the trial court and on appeal, describes her action as a medical malpractice lawsuit for injuries sustained due to the negligence of Chiu in performing a root canal on Lowe's infected tooth. She filed her original petition against Jefferson Dental and Chiu on December 3, 2009 in Bexar County, Texas, and the case was transferred to Dallas County a year later pursuant to Jefferson Dental's and Chiu's motions to transfer venue. On February 24, 2011, Jefferson Dental and Chiu filed a motion to dismiss based on Lowe's failure to serve either party with an expert report within 120 days of Lowe filing her original petition. The trial court granted the motion by order dated April 11, 2011 and awarded Jefferson Dental and Chiu their attorney's fees and costs in the amount of $8,415.40. Lowe appeals that order. Although her notice of appeal was untimely, this Court allowed Lowe the remedy of filing a motion for extension.
Lowe raises constitutional challenges to chapter 74 in her first four issues. In issue five, she argues she was prevented from providing an expert report because her physician withheld the expert report due to his friendship with the owner of Jefferson Dental. She asserts in issue six that her third amended petition with "attached expert report" supersedes the original petition, thus presumably restarting the time for meeting the expert-report requirement.
Jefferson Dental and Chiu respond that Lowe's expert report was due April 6, 2010 and it is undisputed the parties did not extend that deadline by written agreement. Additionally, they emphasize that Lowe's constitutional challenges to the statute were never raised in the trial court and therefore she has not preserved these challenges for appellate review. They argue alternatively that those challenges have no merit in light of (1) numerous cases upholding the constitutionality of the chapter 74 provisions in question and (2) Lowe's failure to meet her burden of raising either facial or as-applied challenges. As to Lowe's fifth issue, Jefferson Dental and Chiu construe the issue as Lowe's attempt to assert a "good faith" exemption from the 120-day deadline due to her frustrations in attempting to obtain an expert report after the 120-day deadline had passed, which is not one of the two statutory bases allowed for extending the deadline. They also rely on cases expressly rejecting arguments similar to those raised by Lowe in her sixth issue as to the effect of her third amended petition on the expert-report deadline.
Based on our review of the record and applicable authorities, we conclude Lowe has not shown the trial court abused its discretion in granting the motion to dismiss.
Discussion
Standard of Review
We review a trial court's ruling on a motion to dismiss under chapter 74 for an abuse of discretion. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); Key v. Muse, 352 S.W.3d 857, 859 (Tex. App.-Dallas 2011, no pet.). While a trial court does not abuse its discretion merely because it decides a discretionary matter differently from an appellate court, a trial court has no discretion in determining the law or its application. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Constitutional Challenges Lowe raises her constitutional issues for the first time on appeal. To preserve a complaint for appellate review, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefor, and obtain a ruling. See Tex. R. App. P. 33.1(a). This rule applies to constitutional issues. See In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (concluding father failed to preserve constitutional challenge to termination of parental rights); Jefferson v. Univ. of Tex. Med. Branch Hosp. at Galveston, No. 01-09-00062-CV, 2010 WL 987727, at *3 (Tex. App.-Houston [1st Dist.] Mar. 18, 2010, pet. denied) (mem. op., not designated for publication) (overruling constitutional challenge to dismissal of health care liability claim based on failure to preserve complaint). Accordingly, we overrule Lowe's issues one through four because she has failed to preserve any constitutional complaints for review on appeal.
Extension of 120-Day Expert Report Deadline
In issues five and six, Lowe contends she is excused from meeting the strict requirements of section 74.351 because she was unable to obtain an expert report and her third amended petition restarted, or extended, the deadline for serving the report. The requirements for serving expert reports under chapter 74 are defined clearly. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011). A plaintiff asserting a health care liability claim must serve one or more expert reports meeting the requirements of the statute within 120 days of the date the original petition is filed as to each defendant. See id. The trial court may grant an extension in only two circumstances: (1) by written agreement by the affected parties or (2) to allow a claimant to cure a deficient report. Id. § 74.351(a), (c); Badiga v. Lopez, 274 S.W.3d 681, 684-85 (Tex. 2009). To implicate the thirty-day extension to cure a deficient report, the first report must have been timely. See Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011). The trial court has no discretion to deny a motion to dismiss or to grant an extension if the statutory deadline is not met. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2) (stating trial court "shall" dismiss claim when expert report not served within 120 days); Rosemond v. Al-Lahiq, 331 S.W.3d 764, 767 (Tex. 2011) (per curiam); Badiga, 274 S.W.3d at 683.
Lowe does not dispute her failure to serve an expert report within 120 days of filing suit against Jefferson Dental and Chiu. She argues instead that the deadline is inapplicable. Yet Lowe does not meet either of the two statutory exceptions for extending that deadline. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (c). Her complaint, for example, that she was unable to obtain an expert report is not an exception. Accordingly, the trial court had no discretion to extend the time for Lowe to serve a report on that basis. See White v. Willenborg, No. 02-10-00272-CV, 2011 WL 678711, at *1 (Tex. App.-Fort Worth Feb. 24, 2011, no pet.) (mem. op., not designated for publication) (noting lack of discretion specifically as to claim of inability to obtain report). Similarly, the trial court had no discretion to extend the time for serving the report based on Lowe's amendment of her original petition. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (claimant must file and serve expert report no later than 120 days after date "original petition" filed); see also Lone Star HMA, L.P. v. Wheeler, 292 S.W.3d 812, 817 (Tex. App.-Dallas 2009, no pet.) (rejecting contention that 120-day deadline not triggered until second amended petition because of difficulties in serving hospital); Maxwell v. Seifert, 237 S.W.3d 423, 426 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) (claimant did not gain another 120 days to serve expert report by filing amended petition). Accordingly, we overrule issues five and six.
Conclusion
Having overruled all of Lowe's issues, we affirm the trial court's order.
MARY MURPHY
JUSTICE
Court of Appeals Fifth District of Texas at Dallas
JUDGMENT
SHERRI R. LOWE, Appellant
v.
JEFFERSON DENTAL CLINICS AND YVONNE CHIU, D.D.S., Appellees
No. 05-11-00902-CV
Appeal from the 193rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 10- 16800).
Opinion delivered by Justice Murphy, Justices Moseley and Lang-Miers participating.
In accordance with this Court's opinion of this date, the trial court's order granting the motion to dismiss of appellees Jefferson Dental Clinics and Yvonne Chiu, D.D.S. and awarding them $8,415.40 in attorney's fees and costs is AFFIRMED. It is ORDERED that appellees Jefferson Dental Clinics and Yvonne Chiu, D.D.S. recover their costs of this appeal from appellant Sherri R. Lowe.
Judgment entered May 14, 2012.
MARY MURPHY
JUSTICE