Opinion
04-21-00120-CV
05-18-2022
NEUROLOGICAL ASSOCIATES OF SAN ANTONIO, P.A. and Jordan J. Jude, Appellants v. Araceli G. TORRES, Appellee
From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2020-CI-17971 Honorable Angelica Jimenez, Judge Presiding
Sitting: Irene Rios, Justice, Beth Watkins, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
IRENE RIOS, JUSTICE
In this appeal, Neurological Associates of San Antonio, P.A., and Jordan J. Jude (collectively, "Neurological Associates") seek reversal of the trial court's judgment dismissing Araceli G. Torres's healthcare liability suit without prejudice and without awarding reasonable attorney's fees and court costs. We reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.
Background
On September 17, 2020, Torres initiated a health care liability suit against Neurological Associates. Under subsection 74.351(a) of the Texas Civil Practice and Remedies Code, Torres had 120 days from the time Neurological Associates answered to file an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
Neurological Associates filed answers on October 19, 2020. Therefore, Torres's deadline to file her expert report was February 16, 2021. Torres never filed an expert report. Instead, she nonsuited the day after her deadline expired.
Neurological Associates responded by moving to dismiss Torres's lawsuit with prejudice and requested reasonable attorney's fees and court costs. The trial court denied Neurological Associates' motion to dismiss and request for reasonable attorney's fees and court costs. Instead, the trial court dismissed the suit without prejudice and without awarding reasonable attorney's fees and court costs. Neurological Associates appealed.
Standard of Review
We review a trial court's order on a motion to dismiss a case for failure to file an expert report for an abuse of discretion. Runcie v. Foley, 274 S.W.3d 232, 233 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (citing Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001)). "A trial court has no discretion in determining what the law is or applying the law to the facts." Schwartz v. Fipps, 553 S.W.3d 549, 552 (Tex. App.-San Antonio 2018, no pet.) (internal quotation marks omitted). "Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Id.
Motion to Dismiss With Prejudice
In their sole issue, Neurological Associates argues the trial court abused its discretion when it dismissed the health care liability suit without prejudice and did not award reasonable attorney's fees and court costs.
A plaintiff who brings a health care liability suit must comply with the requirements of the Texas Medical Liability Act ("the Act"). Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-.507. Under the Act, a plaintiff must "not later than the 120th day after the date each defendant's original answer is filed . . . serve on that party or the party's attorney one or more expert reports . . . for each physician or health care provider against whom a liability claim is asserted." Id. § 74.351(a). If the plaintiff does not timely serve the defendant with an expert report, 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); see also Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018) ("[I]f the claimant fails to timely serve an expert report, then on the affected health care provider's motion the trial court must dismiss the pertinent health care liability claim with prejudice and award attorney's fees."); Garcia v. Gomez, 319 S.W.3d 638, 640 (Tex. 2010) ("If no report is timely served, the trial court must, on motion, dismiss the claim and award reasonable attorney's fees and costs to the affected physician or provider.").
Here, Torres's time to file her expert report expired on February 16, 2021-120 days after the defendants filed their answers on October 19, 2020. Torres did not serve an expert report on or before February 16, 2021. Instead, she nonsuited her suit on February 17, 2021. The following day, Neurological Associates moved to dismiss Torres's suit.
Effect of the Nonsuit
In response to Neurological Associates' motion to dismiss, Torres argued her nonsuit extinguished the controversy, mooted the merits of the claim, and divested the trial court of jurisdiction.
However, Neurological Associates' motion to dismiss constituted a motion for statutory sanctions. Fox v. Hinderliter, 222 S.W.3d 154, 157 (Tex. App.-San Antonio 2006, pet. struck) (holding movant's chapter 74 motion to dismiss with prejudice and for reasonable attorney's fees and costs constituted a request for statutory sanctions). Although rule 162 of the Texas Rules of Civil Procedure allows a plaintiff to nonsuit her case, a health care provider's motion for sanctions under chapter 74 of the Texas Civil Practice and Remedies Code survives a nonsuit, "regardless of whether the movant brings the motion before or after the nonsuit, provided the motion is filed within the trial court's plenary jurisdiction." Crites v. Collins, 284 S.W.3d 839, 843 (Tex. 2009); see also Tex. R. Civ. P. 162; Mokkala v. Mead, 178 S.W.3d 66, 72-73 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) ("A plaintiff's right to take a nonsuit is unqualified and absolute so long as the defendant has not made a claim for affirmative relief or a motion for sanctions." (citing BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990))).
Here, Neurological Associates moved to dismiss and sought attorney fees and court costs on February 18, 2021, well within the trial court's plenary power. Tex.R.Civ.P. 329b(d) ("The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed."); Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996) ("[A] trial court's plenary power to act in a case does not expire until thirty days after the court has signed the judgment."). Therefore, Neurological Associates' motion survived Torres's nonsuit.
Reliance on Texas Supreme Court's Thirty-Third Emergency Order
As an alternative theory, Torres maintained the Texas Supreme Court's thirty-third emergency order-coupled with a disastrous winter storm in February 2021-provided authority to excuse her failure to serve an expert report.
On March 13, 2020, the Texas Supreme Court issued its first emergency order responding to the governor's declaration of a state of disaster in response to the COVID-19 pandemic. First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265 (Tex. 2020). As the pandemic persisted, the supreme court issued additional emergency orders, including the thirty-third emergency order. The thirty-third emergency order granted "all courts in Texas" discretion, with exceptions not applicable here, to "modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than April 1, 2021 . . . ." Thirty-Third Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 179, 180 (Tex. 2021).
This order was issued on January 14, 2021.
Here, Torres did not file a motion to extend the time to file the expert report based on the supreme court's emergency order. See Touchstone Cmtys., Inc. v. Huttinger, No. 04-20-00432-CV, 2021 WL 2006646, at *2 n.2 (Tex. App.-San Antonio May 20, 2021, no pet.) (mem. op.) (declining to address whether emergency orders modified, suspended, or amended the deadline for serving an expert report when the plaintiff did not request an extension from the trial court). Further, nothing in the emergency order suggested an automatic modification or suspension of deadlines and procedures. See Carrigan v. Edwards, No. 13-20-00093-CV, 2020 WL 6504418, at *2 (Tex. App.-Corpus Christi-Edinburg Nov. 5, 2020, pet. denied) (mem. op.) ("[T]he Texas Supreme Court's Emergency Orders are not self-executing; they permit courts to extend deadlines, and they require extensions in certain instances, but they do not extend deadlines themselves.").
Notably, chapter 74 provides for an extension of the time to file an expert report "by written agreement of the affected parties[, ]" and for one 30-day extension by the court "[i]f an expert report has not been served within [the required time] because elements of the report are found deficient[.]" Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (c). Neither of these circumstances apply here because Torres never sought an agreement and she never served an expert report, deficient or otherwise.
Because Torres did not serve an expert report within 120 days of Neurological Associates' answers-and Neurological Associates moved to dismiss the suit on that basis-the trial court abused its discretion when it dismissed the suit without prejudice and denied Neurological Associates' motion for reasonable attorney's fees and court costs. See Schwartz, 553 S.W.3d at 552 ("[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.").
Accordingly, Neurological Associates' sole issue is sustained.
Conclusion
We reverse the trial court's judgment dismissing Torres's healthcare liability suit without prejudice. We remand the case to the trial court with instructions to award Neurological Associates the reasonable attorney's fees and court costs it incurred and to dismiss Torres's suit with prejudice. See PM Mgmt.-Windcrest NC, LLC v. Sanchez, 265 S.W.3d 396, 397-98 (Tex. App.- San Antonio 2008, no pet.).