Floriberto Rubio, Sr., Individually and Representative of the Estate of Elvira Rubio, Deceased; Rafael Rubio, Francisco Rubio, Carlos Rubio, Guadalupe Rubio, Miguel Rubio, Maria Rubio, Maribel Rubio,

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 4th District Court of Appeals » 2006 » Floriberto Rubio, Sr., Individually and Representative of the Estate of Elvira Rubio, Deceased; Rafael Rubio, Francisco Rubio, Carlos Rubio, Guadalupe Rubio, Miguel Rubio, Maria Rubio, Maribel Rubio,

State: Texas

Court: Criminal Court of Appeals

Docket No: 04-06-00249-CV

Case Date: 12/06/2006

Plaintiff: Al Moore

Defendant: The State of Texas--Appeal from Criminal District Court No. 3 of Tarrant County

Preview:Floriberto Rubio, Sr., Individually and Representative
of the Estate of Elvira Rubio, Deceased; Rafael Rubio,
Francisco Rubio, Carlos Rubio, Guadalupe Rubio,
Miguel Rubio, Maria Rubio, Maribel Rubio, Jaime
Rubio and Floriberto Rubio, Jr. v. J.H. Higuchi, M.D.--
Appeal from 73rd Judicial District Court of Bexar
County
MEMORANDUM OPINION
No. 04-06-00249-CV
Floriberto RUBIO, Sr., et al.,
Appellants
v.
Junji H. HIGUCHI, M.D.,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-04593
Honorable Andy Mireles , Judge Presiding
Opinion by: Alma L. L pez, Chief Justice
Sitting: Alma L. L pez, Chief Justice
Catherine Stone, Justice
Karen Angelini, Justice
Delivered and Filed: December 6, 2006
AFFIRMED
Floriberto Rubio, Sr. and several of his family members (collectively "Rubio") filed a medical malpractice suit against
Dr. Junji H. Higuchi. Higuchi filed a motion to dismiss based on Rubio's failure to provide an expert report. The trial
court granted the motion. On appeal, Rubio contends that the trial court erred in dismissing the case because Rubio's
expert report was timely served. We affirm the trial court's order dismissing the case.
file:///C|/Users/Peter/Desktop/opinions/PDFs1/19760.html[8/20/2013 8:01:30 PM]

Background
On October 20, 2005, Rubio filed his Original Petition with the clerk of the trial court. The petition was unsigned.
After Rubio became aware of the missing signature, he filed a signed petition, his "First Amended Petition," on
October 25, 2005. On February 21, 2006, Rubio served Higuchi with an expert report. On March 15, 2006, Higuchi
filed a motion to dismiss on the ground that Rubio failed to provide an expert report within 120 days of filing his
original petition. The trial court granted Higuchi's motion to dismiss.
Discussion
Rubio contends that his expert report was timely filed under section 74.351 of the Texas Civil Practice and Remedies
Code and that the trial court therefore erred in dismissing the case. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(a)
(Vernon Supp. 2006). Section 74.351(a) states that a party filing a health care liability claim must serve one or more
expert reports on each party or the party's attorney not later than the 120th day after the date the original petition is
filed. Id. Rubio argues that his expert report was timely served because it was served within 120 days of filing
hisamended petition. He argues that only his properly signed amended petition could start the running of the 120-day
time period because Rule 45(d) of the Texas Rules of Civil Procedure, which requires that pleadings be signed, renders
his unsigned original petition a nullity. See Tex. R. Civ. P. 45(d). However, Texas courts have long held that the lack
of a signature on a pleading is not fatal to the pleading and that a properly signed and filed amended pleading dates
back to the filing of the unsigned original pleading. See W.C. Turnbow Petroleum Corp. v. Fulton, 194 S.W.2d 256,
257 (Tex. 1946) (stating that trial court not justified in treating pleading as nullity merely because counsel failed to
sign it); In re Estate of Herring, 970 S.W.2d 583, 588 (Tex. App.-Corpus Christi 1998, no pet.) (same); Vitkovitch v.
Kleinecke, 33 Tex. Civ. App. 20, 22, 75 S.W. 544, 545 (1903) (holding that when plaintiff filed properly signed
amended petition after filing unsigned original petition, amended petition dated back to date of unsigned original
petition). Accordingly, Rubio was required to file his expert report within 120 days of filing his original petition.
Because he failed to timely file the expert report, the trial court properly dismissed the underlying case.
Conclusion
The order of the trial court is affirmed.
Alma L. L pez, Chief Justice
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