Opinion
No. 05-06-00453-CV
Opinion Filed August 24, 2009.
On Appeal from the 298th District Court Dallas County, Texas, Trial Court Cause No. 05-08158-M.
Before Justices WRIGHT, BRIDGES, and FILLMORE.
MEMORANDUM OPINION ON REMAND
Frances B. Crites, M.D. appeals the trial court's denial of her motion to dismiss with prejudice and for reasonable attorney's fees and costs under section 74.351(b) of the Texas Civil Practice and Remedies Code, which she filed after Linda Collins and Willie Collins nonsuited their medical malpractice causes of action. In a single issue, Dr. Crites asserts the trial court abused its discretion in denying her motion. We conclude the trial court abused its discretion in denying Dr. Crites's motion for both dismissal with prejudice and reasonable attorney's fees and costs. Accordingly, we reverse the trial court's judgment, render judgment dismissing the Collinses' claims with prejudice, and remand the cause to the trial court for determination of Dr. Crites's reasonable attorney's fees and costs of court.
BACKGROUND
On August 18, 2005, the Collinses sued Dr. Crites for negligence and gross negligence alleging she improperly performed abdominal surgery on Linda Collins. The Collinses did not serve Dr. Crites with an expert report, and they filed notice of nonsuit on December 30, 2005. On January 3, 2006, Dr. Crites filed a motion to dismiss the Collinses' claims with prejudice and for reasonable attorney's fees and costs because the Collinses had not served Dr. Crites with an expert report by the 120th day after the date the original petition was filed. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(a), (b) (Vernon Supp. 2008). On January 19, 2006, the trial court entered an order dismissing the Collinses' causes of action. After a hearing on February 24, 2006, the trial court denied Dr. Crites's motion, and Dr. Crites filed this appeal.
On initial submission of this cause, this Court held that Dr. Crites's delay in filing the motion for dismissal with prejudice and for attorney's fees and costs until after the Collinses nonsuited their claims waived Dr. Crites's right to dismissal with prejudice and recovery of attorney's fees and costs. See Crites v. Collins, 215 S.W.3d 924 (Tex. App.-Dallas 2007), rev'd, 284 S.W.3d 839 (Tex. 2009) (per curiam). The Texas Supreme Court later reversed our decision and held that the Collinses' notice of nonsuit did not prevent Dr. Crites from seeking sanctions under chapter 74 of the civil practice and remedies code. Crites v. Collins, 284 S.W.3d 839, 843 (Tex. 2009) (per curiam). Because we had not considered the merits of Dr. Crites's motion for sanctions, the supreme court remanded the case to this Court for further proceedings. Id. at 843-44.
CIVIL PRACTICE REMEDIES CODE § 74.351Dr. Crites asserts the trial court abused its discretion by denying her motion to dismiss the the Collinses' claims with prejudice and to award her attorney's fees and costs. 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); Park v. Lynch, 194 S.W.3d 95, 97 (Tex. App.-Dallas 2006, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Garner v. Garner, 200 S.W.3d 303, 306 (Tex. App.-Dallas 2006, no pet.). A trial court has no discretion in determining what the law is or in applying the law to the facts. Pollard v. Merkel, 114 S.W.3d 695, 698 (Tex. App.-Dallas 2003, pet. denied).
Under section 74.351 of the civil practice and remedies code, a plaintiff presenting a health care liability claim must serve the defendant with an expert report by the 120th day after the date the original petition was filed. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a). If the plaintiff fails to serve the expert report within that time period, the trial court,
on the motion of the affected physician or health care provider, shall . . . enter an order that
(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
Id. § 74.351(b).
When the Collinses did not serve Dr. Crites with an expert report by the 120th day after the date the original petition was filed, Dr. Crites filed a "Motion to Dismiss Pursuant to Texas Civil Practice Remedies Code Section 74.351 for Plaintiffs' Failure to Provide an Expert Report Within the One Hundred Twenty (120) Day Deadline." The motion set forth the facts that the suit was filed on August 18, 2005, the 120-day deadline expired on December 16, 2005, and that as of the date of the filing of the motion on January 3, 2006, no expert report had been served. The motion stated that dismissal with prejudice and the award of reasonable attorney's fees and costs of court was required by section 74.351(b) due to the Collinses' failure to serve an expert report by the 120th day after the date the original petition was filed. The motion then requested that the trial court dismiss the Collinses' claims with prejudice to their refiling and award Dr. Crites the reasonable attorney's fees and costs of court she incurred.
A motion under section 74.351(b) for dismissal with prejudice and for reasonable attorney's fees and court costs filed within the trial court's plenary jurisdiction survives a nonsuit, regardless of whether the motion is filed before or after the nonsuit. Crites, 284 S.W.3d at 843 (citing Villafani v. Trejo, 251 S.W.3d 466, 468 (Tex. 2008)). In this case, Dr. Crites's motion under section 74.351(b), filed four days after the Collinses' notice of nonsuit and sixteen days before the trial court's order dismissing the Collinses' claims, was filed within the trial court's plenary jurisdiction. See Tex. R. Civ. P. 329b(d). Therefore, section 74.351(b) required the dismissal of the Collinses' claims with prejudice to their refiling and the award to Dr. Crites of the reasonable attorney's fees and costs of court she incurred. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(b); Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007) ("If a plaintiff does not serve a timely report, a trial court `shall' grant the defendant's motion to dismiss the case with prejudice."); Vanderwerff v. Beathard, 239 S.W.3d 406, 409 (Tex. App.-Dallas 2007, no pet.). Accordingly, we conclude the trial court abused its discretion in denying Dr. Crites's motion seeking dismissal of the cause with prejudice to its refiling and an award of reasonable attorney's fees and costs of court. We sustain Dr. Crites's sole issue on appeal.
We reverse the trial court's judgment, render judgment dismissing the Collinses' claims with prejudice to their refiling, and remand the cause to the trial court for determination of the reasonable attorney's fees and costs of court incurred by Dr. Crites.