Opinion by Justice GARZA.
Appellant, Araceli Garza, challenges the dismissal of her health care liability claim against appellee, Richard Carlson, M.D., for her failure to timely file an expert report. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (West 2011). By a single issue, Garza contends that the time for filing an expert report was tolled until the default judgment against Dr. Carlson was set aside, and that the trial court therefore erred in granting Dr. Carlson's motion to dismiss. We reverse and remand.
In 2008, Dr. Carlson performed surgery on Garza to repair a torn rotator cuff.
Garza filed her medical malpractice suit against Dr. Carlson on May 14, 2010, and Dr. Carlson was served with citation on June 16, 2010. Dr. Carlson was therefore required to file an answer on or before July 12, 2010. See TEX.R. CIV. P. 99(b) (requiring citation to state that defendant must file an answer "on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service" of citation). He did not file an answer by that date. Default judgment as to liability was later rendered against Dr. Carlson on March 30, 2011. See TEX.R. CIV. P. 239.
Subsequently, on April 18, 2011, Dr. Carlson filed an answer and motion for new trial seeking to set aside the default judgment. The trial court granted the motion on April 27, 2011.
On June 27, 2011, Garza filed a medical expert report, along with the expert's curriculum vitae, pursuant to chapter 74 of the civil practice and remedies code. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). Dr. Carlson then moved to dismiss Garza's suit, contending that the expert report was untimely. See id. (requiring service of the expert report "not later than the 120th day after the date the original petition was filed"). The trial court granted the motion and dismissed the suit. This appeal followed.
We review a trial court's order granting a motion to dismiss for failure to comply with chapter 74's expert report requirement under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001); see Salinas v. Dimas, 310 S.W.3d 106, 108 (Tex.App.-Corpus Christi 2010, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Salinas, 310 S.W.3d at 108 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Id. (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)). Therefore, when the issues are purely questions of law, as here, we effectively conduct a de novo review. Id. (citing Pallares v. Magic Valley Elec. Coop., 267 S.W.3d 67, 69-70 (Tex.App.-Corpus Christi 2008, pet. ref'd); Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989)(holding that "matters of statutory construction are questions of law for the court to decide rather than issues of fact")).
Garza contends that her expert report was in fact timely, and therefore, the trial court erred in granting Dr. Carlson's motion to dismiss. In particular, she claims that the time period prescribed by chapter 74 for the filing of an expert report was tolled between July 12, 2010, the deadline for Dr. Carlson to file an answer, and April
In 2008, the Texas Supreme Court considered a similar case in Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008) (per curiam). There, a medical defendant, SADI, failed to timely answer the health care liability suit filed by plaintiffs, the Gardners. Id. Prior to the expiration of the 120-day expert report deadline, a default judgment was rendered against SADI. Id. Upon learning of the default judgment, SADI filed an answer, along with a motion for new trial and motion to set aside the default judgment. Id. at 670. The trial court granted the motion to set aside the default judgment. Id. The Gardners then served a chapter 74 expert report on SADI, but SADI moved to dismiss the suit on the basis that the expert report was untimely. Id. The trial court agreed and granted the motion. Id. The Supreme Court reversed, however, reasoning as follows:
Id. at 671. The Gardner Court made clear that the tolling of the expert report timeline
Dr. Carlson contends that the tolling ended immediately upon the untimely filing of his answer to Garza's suit. In support of this position, Dr. Carlson cites Morris v. Umberson, 312 S.W.3d 763 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). That case also involved a health care liability defendant failing to timely file an answer to a plaintiff's suit. Id. at 764. The plaintiff, Umberson, moved for default judgment against Dr. Morris, the defendant. Id. However, before the trial court could rule on Umberson's motion, Dr. Morris filed an answer to Umberson's suit. Id. Three days later, Umberson served his chapter 74 expert report on Dr. Morris. Id. Dr. Morris moved to dismiss on the basis that the report was untimely, having been filed more than 120 days after Umberson's petition.
Id. at 767 (citations omitted). Dr. Carlson argues that this holding in Umberson compels a conclusion that it was the filing of his answer, not the setting aside of the default judgment, that stopped the tolling of the expert report timeline.
We disagree. The Umberson court was correct in observing that the tolling ended in Gardner as soon as SADI filed its answer. However, the Gardner Court did not conclude that the filing of the answer alone was sufficient to stop the tolling. To the contrary, the Gardner Court stated explicitly that tolling ended only "[o]nce the default judgment was set aside and SADI filed an answer...." Gardner, 274 S.W.3d at 671 (emphasis added). That is, in cases where a default judgment has been rendered, the tolling of the statutory expert report period continues until both (1) the default judgment has been set aside and (2) the defendant has filed an answer. See id. In Gardner, because SADI filed its answer after the default judgment was set aside, it was the filing of the answer that triggered the end of the tolling period, as Umberson recognized.
Here, Dr. Carlson filed his answer before the default judgment was set aside. At the time he filed his answer, therefore, the default judgment was still in effect and still operated as a deemed admission by Dr. Carlson of all factual allegations regarding liability. See id. ("[O]nce a default judgment is taken, all factual allegations contained in the petition, except the amount of damages, are deemed admitted."). And, as the Gardner Court noted, "it makes little sense to require service of an expert report on a party who by default has admitted the plaintiff's allegations." Id. Once the default judgment was set aside, however, the factual allegations were no longer deemed admitted. Accordingly, the statutory time period for Garza to file her expert report was tolled from the date Dr. Carlson's answer was due-July 12, 2010 — to the date that the default judgment was set aside — April 27, 2011. Garza's expert report was therefore timely and the trial court erred in dismissing her suit. We sustain Garza's sole issue.
The trial court's judgment is reversed and we remand for further proceedings consistent with this opinion.