14th COA; Beechnut Manor v. Paul

Beechnut Manor, a long-term care institution, appealed the trial court's denial of its motion to dismiss. Paul served an expert report which was challenged. The court granted a thirty-day extension of time to amend the report. A new report was faxed to Beechnut. Beechnut again moved to dismiss, claiming that the new report was untimely and did not cure the prior deficiencies. The trial court denied that motion.

On appeal, the COA noted that the amended report was due thirty-days after the Court's order granting the extension. This would have been April 23, 2010. Paul faxed her report to Beechnut on April 23, 2010 at 6:14 p.m. Under Rule 21a, service by fax that occurs after 5:00 p.m. is considered served the following day. The report was therefore untimely. The trial court had no discretion but to dismiss the claim.

Paul claimed that she did not receive notice of the trial court's order until April 2, 2010, which would have extended the deadline for the new report to May 2. The COA noted that there was no evidence in the record to support this claim. The COA admitted that this was a harsh result, but that it was up to the legislature to determine these deadlines and any grace periods that should be applicable.

See the opinion at Beechnut Manor v. Paul.