Lowe, Sherri R. v. Jefferson Dental Clinics, and Yvonne Chiu, DDS

 
AFFIRM and Opinion Filed May 14, 2012
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-11-00902-CV
............................
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
110902F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHERRI R. LOWE, Appellant
No. 05-11-00902-CVV.
JEFFERSON DENTAL CLINICS AND YVONNE CHIU, D.D.S., AppelleesAppeal 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/
MARY MURPHY
JUSTICE
 
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