Prestwood v. Settle, No. 03-07-00111-CV (Tex. App. 2/28/2008)
| Decision Date | 28 February 2008 |
| Docket Number | No. 03-07-00111-CV.,03-07-00111-CV. |
| Parties | RUTH PRESTWOOD, KATE WILSON, BOTH INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF CLYDE L. PRESTWOOD, Appellants, v. STEPHEN SETTLE, M.D., Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Travis County, 201st Judicial District, No. D-1-GN-06-002800, Honorable Stephen Yelenosky, Judge Presiding.
Affirmed.
Before Justices PATTERSON, PURYEAR and HENSON.
Appellants Ruth Prestwood and Kate Wilson, individually and on behalf of the estate of Clyde L. Prestwood (collectively, "Prestwoods"), appeal the trial court's order dismissing their health care liability suit against Dr. Stephen Settle, M.D., and awarding Dr. Settle attorney's fees. The trial court found that the Prestwoods failed to serve an expert report and curriculum vitae within the prescribed 120-day period under chapter 74 of the civil practice and remedies code, mandating dismissal of their suit and the award of reasonable attorney's fees to the affected health care provider. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b) (West Supp. 2007). Because we conclude that dismissal was required and that the attorney's fee award was reasonable, we affirm the judgment of the trial court.
The relevant facts of this case are not in dispute. The Prestwoods filed a medical-malpractice suit against Dr. Settle on August 3, 2006, alleging that he negligently performed an aortic-aneurysm repair on Clyde Prestwood, resulting in complications that proximately caused Mr. Prestwood's death.1 Their suit was a health care liability suit governed by chapter 74 of the civil practice and remedies code. See id. §§ 74.001-.507 (West 2005 & Supp. 2007). Under chapter 74, the Prestwoods were required to serve Dr. Settle with copies of an expert report and their expert's curriculum vitae within 120 days of filing suit. See id. § 74.351(a) (West Supp. 2007).2 The statute further provides that if the claimant fails to serve an expert report and curriculum vitae within the 120-day period, then the trial court, on the motion of the affected physician or health care provider, shall award to the affected physician or health care provider reasonable attorney's fees and dismiss the claim with prejudice. Id. at § 74.351(b).
The parties agree that the 120-day deadline was December 1, 2006, and that this date, a Friday, was neither a weekend nor a legal holiday.3 The Prestwoods first served Dr. Settle with their expert reports and curricula vitae on December 4, 2006, which was 123 days after they filed their original petition.
On January 3, 2007, Dr. Settle filed a motion to dismiss the Prestwoods' suit with prejudice and sought reimbursement for his attorney's fees and costs. In response, the Prestwoods asserted that rules 4, 8, and 21a of the Texas Rules of Civil Procedure required the addition of three days to the 120-day service period, making the service of their expert reports and curricula vitae on the defendant timely.4 See Tex. R. Civ. P. 4, 8, 21a. Alternatively, the Prestwoods argued that section 74.351 is unconstitutional for its "overbreadth" and vagueness, that the mandatory-dismissal provision violated their due process rights under the federal and Texas constitutions, and that enforcing the 120-day period, rather than the 123-day period purportedly allowed by the rules of civil procedure, would result in a denial "of open access to this Court's processes."
A hearing on Dr. Settle's motion took place January 29, 2007. After the trial court orally granted the motion to dismiss for failure to timely serve the expert reports, counsel for Dr. Settle offered sworn testimony on the issue of reasonable attorney's fees; he testified regarding his qualifications, the rates charged by attorneys who specialize in defending physicians and health care providers, and the amount of time he had spent on matters related to the motion. He stated that the typical hourly rate charged by attorneys who specialize in health-liability defense claims is between $180 and $250 per hour and that $1,000 was a reasonable fee in this case, based on the four hours he had spent in preparing for the hearing and "returning," apparently referring to the time he had spent commuting from San Antonio for the hearing. On cross-examination, he testified that the hourly rate he was actually billing his client in this case was only $175 per hour and clarified that he was in fact charging for the travel time between his office in San Antonio and the Travis County courthouse.
After the hearing, the trial court entered an order granting Dr. Settle's motion to dismiss with prejudice and awarding him $800 in attorney's fees. Among its findings of fact and conclusions of law, the trial court determined that (1) appropriate application of the law required the court to dismiss the Prestwoods' claims with prejudice and to award reasonable attorney's fees to the defendant; (2) Rule 21a of the Texas Rules of Civil Procedure is not applicable to the specific facts of this case; (3) counsel for Dr. Settle had presented competent evidence of his attorney's fees; and (4) the amount of $800 in attorney's fees was reasonable and justified.
In their first issue on appeal, the Prestwoods argue that the trial court abused its discretion in awarding attorney's fees to Dr. Settle because the evidence was factually and legally insufficient to support the award. In their second issue, they assert that the trial court abused its discretion in dismissing their suit because it failed to properly calculate the period in which they were required to serve Dr. Settle with their expert reports in light of and in accordance with the Texas Rules of Civil Procedure. Within their second issue, they offer several challenges to the constitutionality of section 74.351, asserting violations of due process, the Open Courts provision of the Texas Constitution, and the doctrine of separation of powers.
A logical discussion of the issues raised in this appeal requires us to first address the Prestwoods' second point of error regarding the trial court's dismissal of their suit. Chapter 74 of the civil practice and remedies code provides that, in order to pursue a health care liability claim, a party must serve an expert report and the curriculum vitae of each expert listed in the report "not later than the 120th day after the date the original petition was filed." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2007). Furthermore, if an expert report is not filed within the 120-day period, the 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). "If a claimant fails to serve the report with the curriculum vitae on or before the statutory deadline, and the affected physician or health care provider files a motion to dismiss the claim under section 74.351(b), the court has no alternative but to dismiss the claim with prejudice." Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 457 (Tex. App.-Austin 2006, no pet.).
The Prestwoods argue that the trial court erred in finding that section 74.351(b) of the civil practice and remedies code required dismissal of their suit for failure to serve an expert report and curriculum vitae within 120 days of the filing the original petition.
We review a trial court's ruling on a motion to dismiss under section 74.351(b) for an abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001); Apodaca v. Russo, 228 S.W.3d 252, 254 (Tex. App.-Austin 2007, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Id.
It is undisputed that the Prestwoods' expert reports and curricula vitae were not filed within 120 days after their original petition was filed. The Prestwoods argue, however, that the rules of civil procedure require the addition of three days "to any period of time requiring a person to do some act, i.e., Appellants serving Appellee Defendant's counsel with the Expert Reports," thereby making their service of the reports on Dr. Settle timely. Whether the rules of civil procedure operate to extend the 120-day service period prescribed by the civil practice and remedies code is a matter of statutory construction, which we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).
The Prestwoods assert that rule 21a, read in conjunction with rules 4, 8, and 21, requires the addition of three days to the computation of time under the 120-day service period of section 74.351. They argue that, once they were served by certified mail with Dr. Settle's answer, special exceptions, and responses to their requests for disclosure, "Defendant's counsel of record essentially gave notice to Plaintiffs . . . that any required service of any pleading or other instrument would necessitate service on Defendant's lead attorney of record."5 This notice, the Prestwoods argue, "triggered the operation of Texas Rules of Civil Procedure 4, 8, 21 and particularly 21a, clearly mandating the addition of the additional three (3) day period of time within which Plaintiffs could do the act of serving the Expert Reports and corresponding curricula vitae on the Defendant."
Rule 21a of the rules of civil procedure governs methods of service. Tex. R. Civ. P. 21a. It states, in...
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