DISSENTING OPINION TO DENIAL OF EN BANC REVIEW
No. 04-05-00274-CV
REGENT CARE CENTER OF SAN ANTONIO II, LTD. PARTNERSHIP
d/b/a Regent Care Center of Oakwell Farms and RCCSA II, Inc.,
Appellants
v.
Barbara HARGRAVE, Individually
and as Executrix of the Estate of Dorothy Montgomery,
and Vernon Lloyd Pierce, Individually ,
Appellees
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-16541
Honorable Lori Massey, (1) Judge Presiding
Panel Opinion by: Rebecca Simmons, Justice
Dissenting opinion by: Sarah B. Duncan, Justice (joined by Phylis J. Speedlin, Justice)
Sitting: Alma L. López , Chief Justice
Catherine Stone, Justice
Sarah B. Duncan, Justice
Karen Angelini, Justice
Sandee Bryan Marion , Justice
Phylis J. Speedlin, Justice
Rebecca Simmons , Justice
Delivered and Filed: June 28, 2006
The threshold issue in this appeal is jurisdiction, specifically whether an order granting a plaintiff's motion for a nonsuit with prejudice moots the defendant's appeal of the trial court's earlier order denying the defendants' motion for statutory sanctions (dismissal with prejudice, attorney's fees, and costs) for the plaintiffs' failure to either serve an expert report or take a nonsuit within 180 days after they filed a health care liability claim. The panel dismisses the appeal for lack of jurisdiction, holding a nonsuit taken after the motion to dismiss was denied moots the appeal. However, even if an appeal is "otherwise moot," "a dispute concerning attorney's fees preserve[s] a live controversy" and precludes mootness. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (citing Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005)). Regent Care's claim for statutorily-mandated sanctions (attorney's fees and costs) thus "preserve[s] a live controversy." Id.; see Moseley v. Behringer, 184 S.W.3d 829 (Tex. App.-Fort Worth 2006, no pet.).
In Moseley, the Fort Worth Court of Appeals considered the merits of the defendants' appeal of an order that granted the defendants' motion for statutory sanctions in part (attorney's fees and costs) but denied the defendants' motion to dismiss with prejudice and instead granted the plaintiffs' subsequent oral motion for a nonsuit without prejudice. See id. at 831. Recognizing that "a trial court has no authority to grant a nonsuit without prejudice or voluntary dismissal of a medical liability claim when the 180-day time period has expired and a provider has filed a motion to dismiss with prejudice as a statutorily authorized sanction," id. at 834, the Fort Worth Court of Appeals held "the trial court erred in granting [the plaintiffs' oral motion for a] nonsuit and abused its discretion in denying [the defendants'] motion for dismissal with prejudice." Id. at 835. As the court recognized, "[t]he language of the statute compels this conclusion; otherwise the directive to claimants to either timely file their reports or to timely voluntarily nonsuit their claims would be superfluous." Id. at 834. In so doing, the court implicitly recognizes that, although the appeal presented only one point of dispute between the parties - whether the nonsuit should have been with or without prejudice - that one point of dispute "preserved a live controversy" and vested the court with jurisdiction to decide the appeal. So it is here.
In my view, the panel's opinion in this appeal incorrectly decides an important issue of appellate jurisdiction and invites future abuse of the statutory scheme for the handling of health care liability claims by permitting a plaintiff who fails to comply with the 180-day deadline to control whether a defendant may appeal an order denying any part of the statutorily-mandated sanctions. I therefore requested en banc consideration of this appeal. A majority of the court has voted to deny en banc consideration. I dissent.
Sarah B. Duncan, Justice
1. The Honorable Lori Massey, judge of the 288th Judicial District Court, Bexar County, Texas, signed the order granting nonsuit and the severance order; however, the Honorable Martha Tanner, judge of the 166th Judicial District Court, Bexar County, Texas, signed the orders denying appellants' motions for statutory sanctions.