NEXION HEALTH AT BEECHNUT, INC. v. Paul
2011 Tex. App. LEXIS 936
| Tex. App. | 2011Background
- This is an interlocutory appeal from a health care liability claim under Texas Civil Practice and Remedies Code chapter 74, where Paul sues Beechnut for alleged negligent care of her grandmother.
- Paul served an expert report under §74.351(a); Beechnut moved to dismiss, arguing deficiency in the report.
- The trial court granted part of the motion, gave Paul 30 days to cure the deficiencies, and Paul served an amended report by fax at 6:14 p.m. on the thirtieth day.
- Beechnut again moved to dismiss, contending the amended report was untimely and failed to cure the deficiencies; the trial court denied the motion.
- The appellate court addresses both the timeliness of service under §74.351 and whether the time-extension rules permit curing deficient reports, ultimately reversing and remanding.
- The court holds that the amended report was served one day late and that the trial court had no discretion to avoid dismissal for untimely service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the amended report timely served under §74.351? | Paul contends extension cured timely service. | Beechnut asserts the amendment was one day late due to fax timing. | Amended report was one day late; service deadline not met; dismissal required. |
| Did the trial court err in denying dismissal despite deficient service and late cure? | Deficiencies were cured timely under the extension and notice rules. | A deficient report not properly served cannot be saved by later cure. | Court reverses and remands for dismissal consistent with service rules. |
| Is Beechnut's brief timely filed on appeal? | Beechnut filed after the deadline. | Brief mailed timely; received within allowed period. | Brief timely filed; Paul's argument on timeliness overruled. |
Key Cases Cited
- Awoniyi v. McWilliams, 261 S.W.3d 162 (Tex.App.-Houston [14th Dist.] 2008) (service under 74.351 incorporates Rule 21a)
- Gutierrez v. Univ. of Tex. Health Sci. Ctr., 237 S.W.3d 869 (Tex.App.-Houston [1st Dist.] 2007) (definition of service in 74.351)
- Rivenes v. Holden, 257 S.W.3d 332 (Tex.App.-Houston [14th Dist.] 2008) (trial court has no discretion where service is improper)
- Badiga v. Lopez, 274 S.W.3d 681 (Tex.App.-Houston [14th Dist.] 2009) (clarifies timing and consequences of untimely service)
- Estate of Regis v. Harris Cnty. Hosp. Dist., 208 S.W.3d 64 (Tex.App.-Houston [14th Dist.] 2006) (grace periods not supplied by statute; legislative authority needed)