Opinion
14-20-00186-CV
06-29-2022
REGINA ANN VARKEY, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE OF ANIL C. VARKEY, DECEASED AND ANGELINA GINA VARKEY, Appellant v. DR. AYYASH Y. MELHEM, M.D., HYE JUNG LEE, RN, TENAKA M. BASILE, RN AND SAMUEL S. DIZON, RN, Appellees
On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2019-11347.
Panel consists of Jewell, Spain, and Wilson Justices.
ABATEMENT ORDER AND NOTICE OF POSSIBLE INVOLUNTARY DISMISSAL
PER CURIAM
Our review of the appellate record prompts us to question the finality of the trial court's judgment, and thus inquire into our appellate jurisdiction. In a case such as this one, where there has been no conventional trial on the merits, a judgment carries no presumption of finality. Lehmann v. Har-Con, Corp., 39 S.W.3d 191, 199 (Tex. 2001). In this circumstance, an order or judgment is final for purposes of appeal only if it (1) actually disposes of all claims and all parties before the court or (2) clearly and unequivocally states that it finally disposes of all claims and all parties. Lehmann, 39 S.W.3d at 205. A request for mandatory attorneys' fees, whether characterized as a "claim" or otherwise, is treated as a claim for purposes of finality. See Wasserberg v. RES-TX One, LLC, No. 14-13-00674-CV, 2014 WL 6922545, at *5 (Tex. App.-Houston [14th Dist.] Dec. 9, 2014, pet. denied)(mandatory statutory attorneys' fees as precondition for finality); see also Youngblood & Associates, P.L.L.C. v. Duhon, 57 S.W.3d 63, 65 (Tex. App.- Houston [14th Dist.] 2001, no pet.) (concluding that without a ruling on appellant's claim for recovery of attorney's fees the "order does not dispose of all claims.").
The appellate record reflects the following procedural history:
Regina Ann Varkey, appearing individually and as personal representative of her husband's estate and his daughter, Angelina Gina Varkey (collectively the "Varkeys") asserted wrongful death and survival health care liability claims against various health care providers. The Varkey's live petition names the following eight health care providers:
1. Memorial Hermann Health System d/b/a/ Memorial Hermann Southeast,
2. Jerry Lee Thurman, Jr., M.D.,
3. Hannah Ngoc Tran, M.D.,
4. Ayyash Y. Melhem, M.D.,
5. Hye Jung lee, R.N.,
6. Ricardo M. Samuels, R.N.,
7. Tenaka M. Basile, R.N.; and
8. Samuel S. Dizon, R.N.
Many of these defendants challenged the Varkey's claims by filing motions to dismiss under Chapter 74 and pursuant to that chapter requested statutory attorneys' fees.
The trial court issued discrete orders dismissing the Varkey's claims against one or more defendants, each either on a motion to dismiss or a notice of nonsuit as follows:
Following a motion to dismiss filed by Memorial Hermann Health System d/b/a/ Memorial Hermann Southeast, the trial court granted its motion simply stating: "The Court GRANTS Memorial Hermann Health System d/b/a Memorial Hermann Southeast Hospital's Motion to Dismiss." The court's order did not address the requested attorneys' fees.
Following a motion to dismiss filed by Jerry Lee Thurman, Jr., M.D., but before the motion was heard, appellants filed a notice of nonsuit as to their claims against Thurman. The court subsequently issued an order nonsuiting the claims against Thurman.
Appellants filed a notice of nonsuit as to their claims against Hannah Ngoc Tran, M.D. The court subsequently issued an order granting the motion for nonsuit.
Following a motion to dismiss filed by Ayyash Y. Melhem, M.D., wherein Melhem requested attorneys' fees, the trial court signed an order granting the motion which included language awarding attorneys' fees but left blank a line provided to indicate the amount awarded.
Following a motion to dismiss filed by Ricardo M. Samuels, R.N., wherein Samuels requested attorneys' fees, appellants filed a notice of nonsuit as to their claims against Samuels. The court subsequently granted the motion for nonsuit.
Hye Jung lee, R.N., Tenaka M. Basile, R.N.; and Samuel S. Dizon, R.N. moved to dismiss and also requested attorneys' fees. The trial court signed an order granting the motion which included language awarding attorneys' fees that had been crossed out.
These orders, taken together, collectively address and dispose of all of the Varkey's claims against all eight defendants. However, no order unequivocally states that all claims and all parties are finally disposed. And no order nor any collection of orders actually disposes of every pending claim and party. Specifically, Memorial Hermann Health System d/b/a/ Memorial Hermann Southeast, Ayyash Y. Melhem, M.D., Hye Jung lee, R.N., Tenaka M. Basile, R.N.; and Samuel S. Dizon, R.N. each filed motions under section 74.351, requested mandatory attorneys' fees, and though the court ruled in their favor-dismissing the claims against them respectively-the court left unadjudicated the attorneys' fees.
Section 74.351 of the Texas Civil Practice and Remedies Code provides that "on the motion of the affected physician or health care provider, shall, subject to Subsection (c), 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." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).
This court may abate the appeal to permit the trial court to take action to make an interlocutory judgment final, for example by signing an order awarding attorneys' fees or an order acknowledging the acceptance of a verified waiver of reasonable attorney's fees and costs of court incurred by the physician or health care provider. See Tex. R. App. P. 27.2, 27.3; Lehmann, 39 S.W.3d at 206.
Accordingly, we order the case abated and remanded to the trial court for a period of twenty-eight days to allow further proceedings. If actions are taken that result in a final and appealable judgment, then this court will lift the abatement and proceed to a determination of the merits of this appeal. If no action is taken that results in a final and appealable judgment, then this appeal is subject to involuntary dismissal without further notice. See Tex. R. App. P. 42.3. The trial-court clerk is directed to prepare, certify, and file a supplemental clerk's record containing any order signed by the trial court and any document filed with the trial court in this case during the abatement period, along with any other items designated by the parties. The trial-court court reporter is directed to prepare, certify, and file a reporter's record of any proceedings in the trial court during the abatement period. The supplemental clerk's record and any supplemental reporter's record shall be filed with the clerk of this court within thirty days of this order.
The appeal is abated, treated as a closed case, and removed from this court's active docket. The appeal will be reinstated on this court's active docket when the supplemental records are filed in this court. The court also will consider an appropriate motion to reinstate the appeal filed by any party, or the court may reinstate the appeal on its own motion.
It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing, if a hearing is required, in compliance with this court's order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.