Emeritus Corp. v. Highsmith

• Court: Texas Court of Appeals
• Writing for the Court: Sarah B. Duncan
• Citation: Emeritus Corp. v. Highsmith, 211 S.W.3d 321 (Tex. App. 2006)
• Decision Date: 31 May 2006
• Docket Number: No. 04-05-00551-CV.,04-05-00551-CV.
• Parties: EMERITUS CORPORATION & HBESC V LP d/b/a Kingsley Place at Oakwell Farms, Appellants, v. Penny HIGHSMITH, as Next Friend of Retha Griffin, Appellee.

211 S.W.3d 321

EMERITUS CORPORATION & HBESC V LP d/b/a Kingsley Place at Oakwell Farms, Appellants, v. Penny HIGHSMITH, as Next Friend of Retha Griffin, Appellee.

No. 04-05-00551-CV.

Court of Appeals of Texas, San Antonio.

May 31, 2006.

Rehearing Overruled September 21, 2006.

Laurie A. Weiss, Rosemarie Kanusky, W. Wendell Hall, William T. Sullivan, Fulbright & Jaworski L.L.P., San Antonio, for appellants.

Janice Maloney, Law Office of Pat Maloney, P.C., Thomas G. Kemmy, Law Office of Thomas G. Kemmy, San Antonio, for appellee.

Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, PHYLIS SPEEDLIN, Justice.

OPINION

Opinion by SARAH B. DUNCAN, Justice.

Emeritus Corporation and HB-ESC V LP d/b/a Kingsley Place at Oakwell Farms appeal the trial court's order denying their motion to dismiss the claims filed by Penny Highsmith because she failed to timely file an expert report. We hold an order denying a motion to dismiss in this context is subject to interlocutory appeal even though the order also grants an extension of time to serve an expert report unless the extension is granted to cure a deficiency in an existing report; all of Highsmith's claims are health care liability claims; and an agreement to abate a health care liability claim to permit the plaintiff to comply with the sixty-day notice requirement does not automatically extend the statutory deadline to serve the required expert report. We therefore reverse the trial court's order and render a take-nothing judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Retha Griffin suffered from dementia and progressive Alzheimer's disease and had a combative history. In 1998 she became a resident at the assisted living facility at Kingsley Place at Oakwell Farms. Numerous resident-on-resident altercations involving Griffin followed. Ultimately, in July 2004, Griffin's lease was cancelled. The following March Griffin's daughter Penny Highsmith filed this lawsuit as her mother's next friend against Kingsley Place and its owner Emeritus Corporation, which we will refer to collectively as "Emeritus." Highsmith asserts claims for negligence, gross negligence and malice, premises liability, breach of contract, fraud, and breach of the Patient's Bill of Rights.

Shortly after filing suit, on March 31, 2005, Highsmith sent Emeritus the statutorily-required notice of filing a health care liability claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a) (Vernon 2005) (requiring "[a]ny person ... asserting a health care liability claim [to] give written notice of such claim ... to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit. . . ."). Emeritus answered and, because it had not received the sixty-day pre-suit notice mandated by statute, moved to abate. See Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.1983) (applying former version of statute and holding that remedy for plaintiff's failure to give the required pre-suit notice is for trial court, on defendant's motion, to abate cause of action for sixty days). The trial court subsequently signed an order abating the "case ... until 60 days from the date [Emeritus] receive[s] notice of a health care claim under Section 74.051 of the Civil Practice and Remedies Code and the authorization required in Section 74.052 of the Civil Practice and Remedies Code." After Highsmith sent a second notice along with the required authorization on April 25, 2005, the parties agreed the abatement period would end June 27, 2005.

The 120th day after Highsmith filed her petition against Emeritus was July 5, 2005.¹ See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (Vernon Supp.2005) (requiring plaintiff to serve expert report "not later than 120th day after the date the original petition was filed").² On July 15, 2005 Emeritus moved to dismiss Highsmith's lawsuit with prejudice pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code because, it argued, Highsmith's claims, however denominated, are actually health care liability claims; more than 120 days had elapsed since the claims were filed; and Highsmith had not served it with an expert report. See id. § 74.351(b). In her response, Highsmith argued the motion should be denied because her suit alleged common law negligence and premises liability claims, not health care liability claims; to the extent her suit asserted health care liability claims, "the expert witness deadline ... has not expired because the case was abated for 60 days"; and Emeritus, by agreeing to abate the case, agreed to extend the deadline for serving the expert report. In the alternative, Highsmith sought an extension of time in which to file her expert report "pursuant to 74.351." After a hearing, the trial court denied Emeritus's motion to dismiss, stating as follows:

On July 21st, 2005, the Court considered [Emeritus's] Motion to Dismiss. After considering the evidence and arguments of counsel the Court finds that with regard to any of [Highsmith's] claims that fall within Chapter 74 Tex. Civ. Prac. & Rem. Code, the Court DENIES [Emeritus's] motion and GRANTS [Highsmith] an extension pursuant to 74.351 Tex. Civ. Prac. & Rem. Code. An agreement was reached to enter an order abating all proceedings for sixty days. The court grants the extension of expert deadlines to August 31, 2005.

After reviewing the underlying nature of [Highsmith's] claims the Court further finds that [Emeritus] owe[s] [Highsmith] the duty to use reasonable care, including the common law duty recognized for landowners in premise liability cases involving activity on their property.

Signed this 27th day of July 2005.

On August 5, 2005, Emeritus filed a notice of appeal stating it "desire[s] to appeal from the [July 27th] interlocutory order ... relative to [Emeritus's] motion to dismiss and for relief under Section 74.351(b) of the Texas Civil Practice and Remedies Code."³ On August 29, 2005, Highsmith served Emeritus with an expert report.

JURISDICTION

In her motion to dismiss Emeritus's appeal and for sanctions, Highsmith argues this Court lacks jurisdiction over Emeritus's appeal because section 51.014(a)(9) of the Texas Civil Practice and Remedies Code expressly prohibits an appeal from an interlocutory "order granting an extension under section 74.351." We of course agree that section 51.014(a)(9) prohibits an interlocutory appeal of a section 74.351 extension order. See TEX.CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (Vernon Supp.2005). But is the trial court's extension order what it purports to be — "an order granting an extension under section 74.351"? We hold that it is not. To understand why this is so requires a careful review of the statutory framework.

Under section 51.014(a)(9), "[a] person may appeal ... an interlocutory order ... that ... denies all or part of the relief sought by a motion [to dismiss] under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351." Id. § 51.014(a)(9). Section 74.351 authorizes two types of extensions: (1) an extension "by written agreement of the affected parties," id. § 74.351(a); and (2) an extension by order of the trial court "to cure the deficiency" in a report. Id. § 74.351(c). Accordingly, "when no expert report is served within 120 days of filing the claim, a trial court has no authority to grant an extension." Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, order) (emphasis in original) (vacating order that dissolved a previous order that denied the defendant's motion to dismiss and granted an extension "to cure a nonexistent report" because it interfered with or impaired appellant's "right in this interlocutory appeal to seek a dismissal with prejudice"), disp. on merits, 198 S.W.3d 250, (Tex.App.-San Antonio, 2006, no pet. h.).

Here, the parties dispute whether Highsmith timely served an expert report. Highsmith argues the agreed abatement extended the deadline for filing an expert report, while Emeritus argues the contrary. But we need not resolve this issue to determine our jurisdiction. It is undisputed that Highsmith had not served an expert report before the trial court signed its July 27th order denying Emeritus's motion to dismiss and purporting to grant Highsmith an extension of time to serve an expert report "pursuant to [section] 74.351 . . . ." Accordingly, since no report had been served by July 27th, the trial court's July 27th extension order could not possibly have been to enable Highsmith to cure a deficient report — the only purpose for which a trial court is authorized to grant an extension. Because the trial court's extension order could not possibly have been "an order granting an extension under Section 74.351," we hold the second clause of section 51.014(a)(9) does not deprive this Court of jurisdiction over Emeritus's appeal of the trial court's order denying its motion to dismiss. To hold otherwise would permit a trial court to thwart the legislative purpose in providing for an interlocutory appeal of an order denying a motion to dismiss merely by including a clause granting an extension of time to serve an expert report, however unauthorized.

We recognize our holding directly conflicts with the Thirteenth Court of Appeals' holding in Badiga v. Lopez, No. 13-04-00452-CV, 2005 WL 1572273 (Tex. App.-Corpus Christi, July 7, 2005, pet. filed) (mem.op.), upon which Highsmith relies. However, Badiga fails to consider a pivotal aspect of the statutory framework: section 74.351 simply does not authorize a court-ordered extension for any reason other than to cure a deficient report. For this reason, we believe Badiga is wrongly decided and decline to follow it. We likewise reject Highsmith's argument that the trial court's extension order was authorized by section 74.351(a) because it effectuated an "agreement of the affected parties," i.e., the parties' agreement to...