In Gates v. Altaras, No. 10-09-00236-CV, 2010 WL 965960 (Tex. App.--Waco Mar. 10, 2010) (mem. op.), rehearing denied, 315 S.W.3d 134 (Tex. App.--Waco 2010, no pet.), the trial court denied the defendants' motion to dismiss, and they appealed.
While the case was on appeal, the parties struck an oral agreement on the record that the plaintiff would have 45 days to tender a supplemental expert report, in exchange for which the defendants dismissed their appeal.
The defendants later moved to dismiss based on alleged deficiencies in the supplemental expert report, the trial court denied the motion, and the Waco Court of Appeals reversed and remanded so that the trial court could consider granting a 30-day extension.
The defendants argued that the claimant had already received one extension and that no further extensions could be granted under the statute.
The court of appeals rejected this contention because the first extension was granted without any judicial determination that the claimant's expert report was deficient. Id.
Because Tex. Civ. Prac. & Rem. Code section 74.351(c) authorizes a 30-day extension after such a determination, the court reasoned, the extension based on the agreement of the parties did not extinguish the claimant's right to seek an extension under section 74.351(c). Id.