Opinion issued June 9, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00172-CV
ELSA V. MOCEGA, Appellant
V.
BRADFORD URQUHART, M.D., Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 1999-36489
MEMORANDUM OPINION
Appellant, Elsa V. Mocega, sued appellee, Bradford Urquhart, M.D., alleging negligence arising out of the care and treatment of her hand injury. The case was twice dismissed by the trial court because of Mocega’s failure to file an expert report within 180 days of filing suit, as required by the Medical Liability and Insurance Improvement Act [MLIIA]. In this appeal, we consider (1) our jurisdiction to consider the appeal and (2) whether the trial court erred by dismissing the case a second time. We affirm.
Background
The Previous Appeal
Mocega filed suit against Urquhart on July 16, 1999. On March 22, 2000, 249 days after Mocega filed suit, Urquhart moved to dismiss her claims because of Mocega’s failure to comply with the statutory requirement that she file an expert report within 180 days of filing suit.
On April 3, 2000, the trial court granted Urquhart’s motion and dismissed Mocega’s claims with prejudice. Mocega then moved for reconsideration, alleging that her attorney had not received notice of the dismissal hearing. The trial court granted Mocega’s motion for reconsideration and reinstated her case. Mocega then filed a motion for a 30-day “grace period” in which to file her expert report. The trial court, however, rescinded its order of reinstatement and the case was dismissed.
Mocega appealed the dismissal of her claims to the Fourteenth Court of Appeals. On February 7, 2002, despite finding the record “replete with missed deadlines and promises by Mocega’s counsel, and devoid of any expert support,” the Fourteenth Court of Appeals “reluctantly revers[ed] and remand[ed].” Mocega v. Urquhart, 79 S.W.3d 61, 62 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). In doing so, it held that the trial court erred by refusing to grant Mocega a 30-day “grace period” in which to file her expert report because Mocega’s counsel had produced sufficient evidence to show that he did not have adequate notice of the dismissal hearing. Id. at 65. On April 18, 2003, the court of appeals issued its mandate, which “REVERSED and REMAND[ed] the cause for proceedings in accordance with the court’s opinion.”
The Present Appeal
On October 3, 2003, 265 days after Fourteenth Court of Appeals issued its mandate reversing the first dismissal, Urquhart filed a second motion to dismiss based on Mocega’s continuing failure to file an expert report. On October 15, 2003, Mocega filed a response to Urquhart’s motion to dismiss and a motion for leave to extend time to file her expert report.
On October 20, 2003, the trial court granted Mocega’s motion for a 30-day extension of time to file her expert report. On October 28, 2003, Urquhart filed a motion to reconsider the trial court’s October 20 ruling. Specifically, Urquhart pointed out that Mocega was not entitled to a 30-day “grace period” because her motion did not allege that her failure to file the expert report was not intentional or the result of conscious indifference, but was the result of accident or mistake.
On November 5, 2003, the trial court again dismissed Mocega’s claims for filing to file an expert report. This appeal followed.
Jurisdiction
Urquhart contends that Mocega’s motion for new trial, which was filed on the 35th day after judgment, was untimely. See Tex. R. Civ. P. 329b(a). Urquhart argues that, because the motion for new trial was untimely, then Mocega’s notice of appeal was also untimely. See Tex. R. App. P. 26.1(a)(1), 26.3.
The judgment in this case was signed on November 5, 2003. The judgment was a final judgment even though it disposed of only the claims against Urquhart, and not the claims against Dr. Linn, a defendant who was never served. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (holding that judgment which disposed of all named parties except one who had never been served was “final” for purposes of appeal). However, the record shows that, on November 26, 2003, while the trial court retained plenary power, it granted a nonsuit of Dr. Linn. See Tex. R. Civ. P. 329b(d) (“[R]egardless of whether an appeal has been perfected,” trial court retains “plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.”). This act by the trial court effectively modified the previous final judgment by explicitly nonsuiting the claims against Dr. Linn. See Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988) (“Any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power” will restart the appellate timetable from the date the modified judgment is signed.”). As such, Mocega’s appellate timetable began to run anew from November 26, 2003. See In re J.L., 48 Tex. Sup. Ct. J. 559, slip. op. at 4 (Nov. 30, 2004) (“[B]ecause the trial court actually modified and corrected its judgment while it retained plenary power jurisdiction to do so, the time for filing the notice of appeal must be calculated from the date of the new final judgment.”); see also Tex. R. Civ. P. 329b(h) (“If a judgment is modified, corrected, or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed . . . .”). Mocega’s motion for new trial, which was filed on December 10, and her notice of appeal, which was filed on February 24, 2004, were both timely. See Tex. R. App. P. 26.1(a)(1), 26.3.
We overrule Urquhart’s motion to dismiss for want of jurisdiction.
Dismissal for Failure to File Expert Report
In her sole point of error, Mocega argues that she was not required to show that her failure to file the expert report was not intentional or the result of conscious indifference because that fact had already been established by the Fourteenth Court of Appeals in its previous opinion.
The MLIIA provides that if a claimant fails to timely file her expert report within the time required, “the court shall, on the motion of the affected physician or health care provider, enter an order awarding sanctions against the claimant or the claimant’s attorney.” Act of May 5, 1995, 74th Leg., R.S., C.H.. 140, § 1, sec. 13.01(e), 1995 Tex. Gen. Laws 985-87 (repealed 2003). The sanctions available include the dismissal of the claimant’s action against the defendant with prejudice. Id.
If a plaintiff does not timely comply with the requirement of producing and filing an expert report, there are three possible ways to seek more time to do so under the statute. See Thomas v. Healthmark Partners, L.L.C., 93 S.W.3d 465, 467 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). First, the trial court may extend the 180-day period to file an expert report for an additional 30 days if a motion to extend is filed, and if, after a hearing, the trial court finds there is good cause to grant the extension. Id. Second, the parties may enter a written agreement for an extension of the 180-day deadline, if the agreement is signed and filed with the court. Id. The third method for seeking more time to file an expert report, and the method applicable to this case, is to seek a 30-day “grace period” under subsection (g) of the statute, which provides:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the clamant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under subsection (e) of this section.
Act of May 5, 1995, 74th Leg., R.S., C.H.. 140, § 1, sec. 13.01(g), 1995 Tex. Gen.
Laws 985-87 (repealed 2003).
Urquhart argues that the trial court properly refused to grant Mocega a 30-day grace period because (1) the grace period granted by the Fourteenth Court of Appeals had already expired and (2) Mocega did not allege that her failure to file the report was the result of accident or mistake.
Regarding Urquhart’s first argument, the Fourteenth Court of Appeals did not render a judgment granting Mocega a 30-day grace period. Instead, the court held that the trial court erred by dismissing Mocega’s claims without granting her a 30-day grace period. Mocega v. Urquhart, 79 S.W.3d at 65. The mandate issued by the Fourteenth Court of Appeals did nothing more than reverse the trial court’s previous dismissal order and remand the case for further proceedings. It did not begin the running of a 30-day grace period.
Regarding Urquhart’s second argument, we note that the Fourteenth Court of Appeals held that Urquhart’s previous motion to dismiss should not have been granted because Mocega should have been granted an additional 30-days to file an expert report in light of her counsel’s lack of notice of the first dismissal hearing. We cannot assume that the Fourteenth Court of Appeals intended that its holding, that Mocega did not receive notice of the first hearing, to provide a “permanent excuse” upon which a subsequent 30-day grace period to a second motion to dismiss could be granted. Just as Urquhart was required to file a new motion to dismiss after the appellate remand, Mocega was required to show that she was entitled to a new 30-day “grace period.” This she did not do. Mocega made no attempt to carry her burden of proving that her continued failure to file an expert report was caused by an accident or mistake. See Pfeiffer v. Jacobs, 29 S.W.3d 193, 198 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding that plaintiff, as movant on motion to extend time under subsection (g), bears burden of establishing that she did not act intentionally or with conscious indifference in failing to timely file expert report). As such, the trial court did not err in granting Urquhart’s second motion to dismiss Mocega’s claims.
We overrule Mocega’s sole point of error.
Appellate Sanctions
Urquhart has requested that we impose sanctions against Mocega for filing a frivolous appeal. See Tex. R. App. P. 45. Rule 45 allows an appellate court, after a determination that an appeal is frivolous, to award the prevailing party “just damages.” Tex. R. App. P. 45. Although Rule 45 does not proscribe a method for determining an amount of “just damages,” courts have typically awarded the amount of attorney’s fees incurred by the appellee as proven by testimony or affidavit. See Smith v. Marshall B. Brown, P.C., 51 S.W.3d 376, 382 (Tex. App.— Houston [1st Dist.] 2001, pet. denied) (awarding appellees $5,000 in attorney’s fees proven by affidavit); Mid-Continent Cas. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 397 (Tex. App.—San Antonio 1999, no pet.) (awarding $5,000 in attorney’s fees that appellee proved it would incur if an appeal were filed).
In this case, Urquhart, in his appellate brief, requests $1,000 “for preparing and arguing this motion, award Appellee damages in an amount to be determined by the Court for Appellee’s filing of this second frivolous appeal, and for all other relief for which Appellee is justly entitled.” However, Urquhart did not attach an affidavit to establish proof, in any manner, of his attorney’s fees. While we are sympathetic with Urquhart for the long delay caused by Mocega’s continuing refusal to file an expert report, and the two appeals resulting therefrom, we are not inclined to award attorney’s fees based on unsworn statements in a brief. Accordingly, we deny Urquhart’s request for sanctions under Rule 45.
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Hanks.