Mokkala v. Mead
| Decision Date | 02 June 2005 |
| Docket Number | No. 14-04-00708-CV.,No. 14-04-00845-CV.,14-04-00708-CV.,14-04-00845-CV. |
| Citation | 178 S.W.3d 66 |
| Parties | Sandhya-Rani MOKKALA, M.D., Jeffrey D. Carter, D.O., and Arlington Orthopedic Associates, P.A., Appellants, v. James F. MEAD, Jr., and Diane P. Mead, Individually and As Next Friends of James Franklin Mead, III, Robert Mead, and Thomas Mead, Minors, Appellees. Sandhya-Rani Mokkala, M.D., Appellant, v. James F. Mead, Jr., and Diane P. Mead, Individually and As Next Friends of James Franklin Mead, III, Robert Mead, and Thomas Mead, Minors, Appellees. |
| Court | Texas Supreme Court |
Mary Olga Lovett, Christopher Cord Miller, Wendi R. Ervin, Houston, for appellants.
Lori D. Proctor, Tommy Ray Hastings, Houston, for appellees.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
MAJORITY OPINION
In these consolidated interlocutory appeals, we are called upon to construe section 74.351(a) and (b) of the Texas Civil Practice and Remedies Code, which pertains to the filing of expert reports for health care liability claims.1 Appellants, healthcare providers, challenge the trial court's orders denying their motions to dismiss with prejudice their health care liability claims under section 74.351, which provides in relevant part:
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties....
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, 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(a)(b) (Vernon 2005).
Here, it is undisputed that appellees ("the Meads") served their expert report and expert's curriculum vitae 121 and 122 days, respectively, after filing their original petition against appellants, Sandhya-Rani Mokkala, M.D., Jeffrey D. Carter, D.O., and Arlington Orthopedic Associates, P.A. (the "health care providers") and others, in trial court cause number 03-64427 (the "2003 case").2 After twice nonsuiting their claims against the health care providers in the 2003 case, the Meads then filed the same claims against the health care providers in cause number 04-23671 (the "2004 case"). We conclude the 120-day period set forth in section 74.351(a) runs from the date the Meads filed the first petition asserting their health care liability claim, a period which, in this case, had expired before the Meads nonsuited their claims against the health care providers.3 Therefore, we hold the trial court erred in denying the health care providers' motions to dismiss. Accordingly, in the 2004 case, we reverse and remand with directions to the trial court to award the health care providers their reasonable attorney's fees and costs of court and to render judgment dismissing the Meads' claims with prejudice. See id. Presuming for the sake of argument that we would otherwise have appellate jurisdiction over Dr. Mokkala's appeal regarding the 2003 case, we dismiss this appeal as moot because the Meads nonsuited their claims in the 2003 case before the trial court denied Dr. Mokkala's motion to dismiss.4
I. PROCEDURAL BACKGROUND
In summary form, the following procedural events transpired in the two underlying trial court cases:
II. DISCUSSION
In a single issue, the health care providers argue the trial court abused its discretion or otherwise erred in denying their motions to dismiss the Meads' claims with prejudice because the Meads failed to timely serve their expert report and the expert's curriculum vitae. They argue that the 120-day time period under Section 74.351(a) began when the Meads filed their "claim" in the 2003 case, and it was not affected by their nonsuit in that case or their refiling of the same claims in the 2004 case.
The Meads contend they have an absolute right to nonsuit under Texas Civil Procedure Rule 162 and, under the current statutes and case law, the health care providers were required to move for dismissal before the Meads filed their nonsuit. The Meads assert that by nonsuiting their claims, they were then placed in the same position they would have been had they not brought the 2003 case, i.e., the deadline for serving their expert report was 120 days from the date they filed the 2004 lawsuit.
We apply an abuse-of-discretion standard in reviewing a trial court's decision on a motion to dismiss in which a defendant claims the expert opinion was untimely served. See Pfeiffer v. Jacobs, 29 S.W.3d 193, 195-96 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) ().7 An abuse of discretion occurs when a trial court acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Rittmer v. Garza, 65 S.W.3d 718, 721-22 (Tex.App.-Houston [14th Dist.] 2001, no pet.). We defer to the trial court's factual determinations, but review questions of law de novo. Id. at 722. To the extent resolution of the issue before the trial court requires interpretation of the statute itself, we apply a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.).
In this case, the Meads (1) filed a lawsuit alleging a health care liability claim against health care providers and permitted the 120-day period for serving an expert report to expire without serving the health care providers with the report; (2) thereafter nonsuited the claim before, and again after, the health care providers filed a motion to dismiss under subsection 74.351(b); and (3) then filed a new lawsuit alleging the same health care liability claim. Thus, the following question is before us: Under these circumstances, does the 120-day statutory period for filing the expert report run from the date the second lawsuit is filed? This question requires us to construe the statute.
1. Legal standards. In construing a statute, our objective is to determine and give effect to the legislature's intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003); Nabors Corp. Servs., Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 96 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We look first to the "plain and common meaning of the statute's words," presuming the legislature intended the plain meaning of those words. Nabors Corp. Servs., 132 S.W.3d at 96. We also determine legislative intent from the entire act, not just isolated portions, and read ...
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