Specifically, the provision requires that a claimant, "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." Id. § 74.351(a); see Mokkala v. Mead, 178 S.W.3d 66, 71 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (explaining that "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"). Moreover, the provision explains that if an expert report has not been "served" within the 120-day deadline, the trial court must dismiss "the claim with respect to the physician or healthcare provider, with prejudice to the refiling of the claim," provided that the "affected physician or health care provider" files a motion to dismiss.

We review a trial court's decision on a motion to dismiss under section 74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. filed). A trial court abuses its discretion if it acts in an unreasonable and arbitrary manner or without reference to any guiding principles.

We review a trial court's decision to grant or deny a motion to dismiss health liability claims under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. See Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) (applying an abuse of discretion standard to determine whether the trial court properly dismissed health liability claims for failure to timely serve an expert report under section 74.351); Kendrick v. Garcia, 171 S.W.3d 698, 702B03 (Tex.App.-Eastland 2005, pet. filed) (applying abuse of discretion standard to determine whether the trial court dismissed health liability claims because the expert report was inadequate under section 74.351); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877B78 (Tex. 2001) (determining courts should review the adequacy of an expert report for abuse of discretion standard under a former version of the statute). A trial court abuses its discretion when it acts arbitrarily or without regard to any guiding principles.

Courts of appeals "apply an abuse of discretion standard in reviewing a trial court's decision on a motion to dismiss in which a defendant claims the expert report was untimely served." Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. filed); see Quint v. Alexander, 2005 WL 2805576 (Tex.App.-Austin 2005, pet. denied); Pfeiffer v. Jacobs, 29 S.W.3d 193, 195-96 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules and principles.

We review a trial court's ruling on a motion to dismiss health care liability claims for alleged untimely service under an abuse-of-discretion standard. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). A trial court's determination regarding the adequacy of an expert report is also reviewed under an abuse-of-discretion standard.

Ninety-three days later, on January 4, 2007, appellant served Dr. Foley with the expert report of Dr. Allen I. Arieff. On August 13, 2007, Dr. Foley moved to dismiss appellant's health care liability claim on the basis that appellant had failed to file an expert report within 120 days of filing his initial claim, as required by Civil Practice and Remedies Code section 74.351, and citing Mokkala v. Mead, 178 S.W.3d 66 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). On October 12, 2007, after a hearing, the trial court granted the motion to dismiss with prejudice.

Ninety-three days later, on January 4, 2007, appellant served Dr. Foley with the expert report of Dr. Allen I. Arieff. On August 13, 2007, Dr. Foley moved to dismiss appellant's health care liability claim on the basis that appellant had failed to file an expert report within 120 days of filing his initial claim, as required by Civil Practice and Remedies Code section 74.351, and citing Mokkala v. Mead, 178 S.W.3d 66 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). On October 12, 2007, after a hearing, the trial court granted the motion to dismiss with prejudice.

Even if the statute at issue is unambiguous on its face, we may consider matters including (1) the object the legislature sought to obtain; (2) the circumstances under which the legislature enacted the statute; (3) the legislative history; (4) common law or former statutory provision, including law on the same or similar subjects; and (5) the consequences of a particular construction. See Mokkala v. Mead, 178 S.W.3d 66, 74 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) (citing TEX. GOV'T CODE ANN. § 311.023) (Vernon 2005)). We, therefore, conclude that the 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.

The current version omits subsections of the prior law which permitted extensions where no report had been filed by the deadline. See Mokkala v. Mead, 178 S.W.3d 66, 75-76 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.). For the same reasons, our recent opinion in Mokkala is distinguishable.

Several courts of appeals have addressed and rejected the argument, which the Lidjis do not assert here, that a claimant's nonsuit and subsequent refiling of a petition asserting a health care liability claim restarts the 120–day period to serve an expert report. See, e.g., Runcie v. Foley, 274 S.W.3d 232, 236 (Tex.App.–Houston [1st Dist.] 2008, no pet.); Mokkala v. Mead, 178 S.W.3d 66, 71,73 (Tex.App.–Houston [14th Dist.] 2005, pet. denied). As discussed above, the Lidjis argue not that the expert-report period restarted upon their filing of the Second Suit, but that the period was tolled during the time between the pre-deadline nonsuit of the First Suit and the filing of the original petition in the Second Suit.