Appellant Santos M. Soberon, M.D. brings this accelerated interlocutory appeal to challenge the trial court's denial of his motion to dismiss appellee Lee Anna Robinson's health care liability claim for failure to timely serve an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2005). Soberon contends the trial court's refusal to dismiss the case with prejudice was an abuse of discretion. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2005). Robinson asserts this court is without jurisdiction to consider Soberon's appeal. We hold jurisdiction in this case is proper and agree with Soberon that the trial court abused its discretion and, therefore, reverse and render an order of dismissal with prejudice to the refiling of Robinson's health care liability claim.

Robinson filed the underlying health care liability claim on August 29, 2005. On December 27, 2005, Robinson filed a motion for leave to extend time to file an expert report asserting she made diligent efforts to obtain the medical expert's report. ⁽¹⁾ Robinson filed the expert report in the trial court on December 28, 2005, 121 days after she filed the health care liability claim. Soberon filed a motion to dismiss Robinson's lawsuit with prejudice pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). Soberon asserted Robinson was not entitled to an extension of time under section 74.351 because no report was timely served.

At the oral hearing on Soberon's motion to dismiss, Robinson argued to the trial court she had good cause for not timely serving the expert report. Robinson further argued the trial court had discretion to extend the deadline to serve the expert report if she could show the report was not timely filed due to accident and she made a good faith effort to serve the report. Soberon countered that Robinson erroneously relied on former Article 4590i, repealed prior to the filing of this health care liability claim, and section 74.351 of the Texas Civil Practice and Remedies Code does not allow the trial court to extend the deadline to serve expert reports based on mistake or accident. The trial court entered two orders in this case - one order dated February 8, 2006, granting Robinson's motion for leave to extend time to serve expert report and denying Soberon's motion to dismiss, and a second order dated February 9, 2006, denying Soberon's motion to dismiss.

As a threshold matter, Robinson argues Soberon is precluded from prosecuting this appeal because an appeal may not be taken from an order granting an extension under section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9). The resolution of this complaint comes from the simple fact that Soberon's appeal is from the trial court's order dated February 9, 2006, which only ruled on Soberon's motion to dismiss. The record does not indicate any attempt to appeal the trial court's February 8, 2006, order which, inter alia, granted Robinson's request for an extension to file her expert report. As such, Soberon has properly invoked our jurisdiction. See id. Nevertheless, because the question of dismissal of Robinson's suit with prejudice pursuant to section 74.351(b) is subject to the applicability of the provisions of section 74.351(c), our resolution of this appeal requires a determination of whether the trial court was authorized to grant Robinson's requested relief under section 74.351(c). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b), (c) (Vernon Supp. 2005). As the original petition was filed in this cause on August 29, 2005, Robinson was required to serve her expert report no later than December 27, 2005, the 120th day after she filed the health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2005). ⁽²⁾

Section 74.351 allows an extension of time to timely furnish an expert report in only two instances: (1) by written agreement of the affected parties or (2) if the claimant files a deficient report no later than 120 days of filing the health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (c); see also Thoyakulathu v. Brennan, No. 06-05-00070-CV, 2006 WL 1096191, at *1-2 (Tex. App.--Texarkana Apr. 27, 2006, no pet. h.). The record indicates, and Robinson acknowledges, she did not serve an expert report on December 27 and the parties did not extend the December 27 deadline by written agreement. Thus, if the trial court were to properly grant Robinson an extension of time in which to serve an expert report, the extension would have to be mandated according to section 74.351(c). ⁽³⁾ See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). "[T]he subsection (c) extension is available only when a timely-served report does not meet the statutory definition of an 'expert report' because it has one or more deficiencies in its contents; subsection (c) does not apply to a report not served by the deadline." Thoyakulathu, 2006 WL 1096191 at * 2 (citing Manor Care Health Servs. v. Ragan, 187 S.W.3d 556, 560 n.5 (Tex. App.--Houston [14th Dist.] 2006, pet. filed)). Subsection (c) does not apply in this case because Robinson did not serve the expert report by the deadline. Under the facts presented, section 74.351 does not grant the trial court the authority to order an extension of time to serve an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (c); see also Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex. App.--San Antonio 2005, no pet.) ("[W]hen no expert report is served within 120 days of filing the claim, a trial court has no authority to grant an extension."). Robinson argued to the trial court that it had discretion to order an extension in which to furnish an expert report as long as she could show accident or that she made diligent efforts to timely serve the expert report. However, contrary to Robinson's assertions, section 74.351 does not provide Robinson with the accident or mistake exception provided by former Article 4590i of the Texas Revised Civil Statutes. See Kendrick v. Garcia, 171 S.W.3d 698, 705 (Tex. App.--Eastland 2005, pet. filed) (concluding section 74.351 precludes the existence of the Article 4590i good faith exception to the requirement of timely serving expert reports). Any attempt to grant Robinson an extension of time in which to serve her expert report could not properly have been granted pursuant to section 74.351. Thus, because the trial court did not have the authority to grant an extension of time to serve an expert report in this case, the trial court was bound by section 74.351(b)'s mandatory dismissal provision. ⁽⁴⁾ See Thoyakulathu, 2006 WL 1096191 at * 3; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).

A trial court's ruling on a motion to dismiss a health care liability claim is reviewed for an abuse of discretion. Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)); see also Kendrick, 171 S.W.3d at 702 (utilizing the abuse of discretion standard of Palacios to review denial of a motion to dismiss under section 74.351). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). "A trial court has no 'discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. . . ." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

Section 74.351 mandates that when a claimant fails to serve the defendant physician an expert report within 120 days after the date the claim was filed, the trial court "shall," on motion of the physician, enter an order dismissing the suit with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2). Here, Robinson did not serve Soberon an expert report by December 27 and Soberon filed a motion to dismiss based upon Robinson's failure to timely serve an expert report. ⁽⁵⁾ By denying the motion to dismiss, the trial court abused its discretion. Soberon's first issue is sustained.

We reverse the trial court's order denying Soberon's motion to dismiss and render Robinson's health care liability claim be dismissed with prejudice to the refiling of the claim. REVERSED AND RENDERED.

__________________________________

CHARLES KREGER

Justice

Submitted May 25, 2006

Opinion Delivered June 29, 2006

Before McKeithen, C.J., Kreger and Horton, JJ.

1. While the motion was dated and apparently mailed on December 27, 2005, it was file stamped on December 29, 2005.

2. Section 74.351(a) provides in pertinent part:

In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).

3. Section 74.351(c) states, "If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

4. Subsection (b) provides that if the defendant physician has not been served with the expert report within the period specified by subsection (a), the court, on the motion of the defendant physician "shall, subject to Subsection (c), enter an order that . . . dismisses the claim with respect to the physician . . . with prejudice to the refiling of the claim." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).

5. Soberon did not seek attorney's fees or costs of court.See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1).