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Click here for the full text of this decision FACTS:The appellees in these consolidated health care liability cases served their expert report and expert’s curriculum vitae 121 and 122 days, respectively, after filing their original petition against appellants. HOLDING:In cause number 14-04-00708-CV, the court reverses the order of the trial court and remands with directions to the trial court to award the health care providers their reasonable attorney’s fees and costs of court and to render judgment dismissing with prejudice the claims against the health care providers. The appeal in cause number 14-04-00845-CV is dismissed as moot. Under the plain language of 74.351(a), the 120-day period is triggered on the date the claimant files a petition alleging a particular health care liability claim, not the date she files another lawsuit asserting that same claim. The Meads contend they had an absolute right to non-suit their claims under Rule 162, and that the health care providers were required to move for dismissal before the Meads filed their non-suit. Having nonsuited their claims, the Meads assert they effectively occupied the same position had they not brought the 2003 case; that is, their deadline for serving their expert report was 120 days from the date they filed the 2004 case. The plaintiff controls when she files a petition alleging a health care liability claim, thereby triggering the commencement of the 120-period within which she must serve the expert report. Subject only to the statute of limitations, a plaintiff can therefore wait to file a petition until she has obtained, and can serve, the expert report. Thus, the court’s holding that refiling a previously nonsuited health care liability claim fails to restart the 120-day period, does not conflict with the purpose of Rule 162, i.e., allowing a means to discontinue the suit in the event of unexpected contingencies. To interpret 74.351 as permitting the 120-day period to recommence on the refiling of a previously nonsuited claim would not only be inconsistent with the plain language of the statute, but also with the circumstances under which the legislature enacted the statute, the object the legislature sought to obtain, and the legislative history of Chapter 74 of the Civil Practices & Remedies Code. OPINION:Guzman, J.; Edelman, Seymore and Guzman, JJ. DISSENT:Seymore, J. “Appellant’s motion to dismiss was, in reality, a request for the trial court to impose the proverbial death penalty on appellees. This court should exercise great caution before concluding that the trial court acted unreasonably, arbitrarily, or without reference to any guiding principles. See Rittmer v. Garza, 65 S.W.3d 718, 721-22 (Tex. App. � Houston [14th Dist.] 2001, no pet.). The trial court applied section 74.351(a) strictly as written by the Texas Legislature. TEX. CIV. PRAC. & REM. CODE ANN. 74.351(a)(Vernon Pamph. 2004-05). The statute merely expresses that the claimant shall, “not later than the 120th day after the date the claim was filed, serve . . . one or more expert reports . . .” Id. In contrast, the majority has added a word that the legislature did not include. The statute does not express that the 120-day period for serving expert reports begins on the date the claim was first filed.”

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