Opinion issued July 26, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00250-CV
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PEGGY ANDERSON, Appellant
V.
PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY AND
THOMAS DONAHUE, Appellees
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2010-14716
MEMORANDUM OPINION
In this personal injury suit arising out of a car accident, Peggy Anderson
sued Thomas Donahue and his insurer, Progressive County Mutual Insurance
Company (“Progressive”), after Progressive denied Anderson’s claim for
reimbursement for medical expenses and property damage. The trial court
rendered summary judgment in favor of Progressive, and, after Anderson failed to
comply with Donahue’s discovery requests, it struck her pleadings and granted
Donahue’s motion to dismiss her claims. On appeal, Anderson challenges the trial
court’s dismissal of her claims, arguing that she was not present at the dismissal
hearing and that she did not receive notice of the dismissal until several months
later.
We dismiss the appeal for want of jurisdiction.
Background
On May 15, 2009, Anderson and Donahue were involved in a car accident.
Anderson filed a claim with Progressive, seeking recovery of medical expenses
and vehicle-repair expenses. Progressive denied the claim and Anderson filed suit.
Anderson sought $3,400 for damages to her vehicle and $75,000 for past medical
expenses, pain and suffering, and mental anguish.
Donahue answered and sent Anderson requests for written discovery on
March 29, 2010. Progressive also answered, filed a verified denial arguing that it
was not liable in the capacity in which it was sued, and moved for summary
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judgment. The trial court granted an interlocutory summary judgment in favor of
Progressive.1
After Anderson failed to respond to written discovery requests, Donahue
moved to compel her responses. Anderson did not attend the hearing on this
motion. The trial court found that Anderson had “wholly failed to respond to
[Donahue’s] Interrogatories, Requests for Production and Request for Disclosure”
and had not shown good cause for this failure. The court granted Donahue’s
motion to compel on May 21, 2010, and ordered Anderson to respond to
Donahue’s discovery requests by June 21, 2010. The order also stated: “This
order shall be served on Plaintiff by process server & mailed to Plaintiff by
certified mail, return receipt & first class mail.” The order sent by certified mail
was returned unclaimed. The record, however, contains a return from a process
server, indicating that he personally served Anderson with the order at her
residence on June 2, 2010.
Anderson failed to respond to Donahue’s written discovery requests by June
21, 2010. Donahue then moved to dismiss Anderson’s claim against him, arguing
that her discovery responses were “crucial” to his defense. Donahue argued:
1
The record does not include either Progressive’s summary judgment motion or any
response by Anderson. Aside from stating that “[i]nsurance companies can be
[s]ued in Texas,” Anderson does not challenge the summary judgment ruling in
favor of Progressive on appeal.
3
The information that would have been discovered through Plaintiff’s
discovery responses regards her claims of negligence against
Defendant, and her claims of injuries and damages. Because Plaintiff
did not respond to the discovery requests or comply with the court’s
order . . . she should not be able to present evidence regarding her
claim against Defendant. Because Plaintiff should not be able to
present evidence regarding her claim against Defendant, Plaintiff
cannot maintain her cause of action against Defendant. Because
Plaintiff cannot maintain her cause of action against Defendant, her
cause of action against Defendant should be dismissed for want of
prosecution.
Donahue sent Anderson a notice of hearing, informing her that the trial court
would consider his motion to dismiss at an oral hearing on July 16, 2010.
Anderson still had not responded to Donahue’s discovery requests by the
July 16, 2010 hearing date, and, therefore, the trial court ordered:
Plaintiff has until August 30, 2010 to fully and completely answer the
outstanding interrogatories, requests for production and request for
disclosure, and if Plaintiff does not serve her full and complete
answers to the outstanding interrogatories, requests for production and
request for disclosure on Defendant’s attorney by August 30, 2010,
then upon motion by Defendant, Plaintiff’s pleadings will be stricken
and Plaintiff’s claim in this cause against Defendant may be
dismissed.
This order also required Donahue’s counsel to mail a copy of the order to
Anderson by certified and first-class mail.
On September 8, 2010, Donahue moved to strike Anderson’s pleadings and
to dismiss the case. Donahue noted that Anderson had served a document entitled
“Interrogatories Requested” within the required time period, but he argued that this
document was not responsive to his interrogatories and did not constitute “full and
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complete answers” to his outstanding discovery requests, which also included
requests for production and requests for disclosure to which Anderson had not
responded. Donahue attached a copy of Anderson’s unsworn “Interrogatories
Requested,” which stated, in its entirety:
To answer the Interrogatories by the Plaintiff Peggy Anderson;
Thomas Donahue had Health problems, and at the time of the accident
on May 15, 2009 Thomas Donahue was having health problem[s].
Which cause[d] me to suffer, which was witness[ed] by a witness. At
the time of the accident he was staring at me like he was in another
world after he hit my vehicle[.] I attempt[ed] to write down his
information, he physically hit me with his vehicle[,] knocking me
down[,] causing injury to me[,] and damaging my vehicle[.] I was in
a daze[.] [W]hen my vision was clear[,] a witness was there to get his
information off his vehicle and ask me to not to move[.] I was
mentally afraid that he was going to run right over me, so I gradually
got up [and] move[d] to the side of my Truck.
The officer took a report and had me to follow him where Thomas
Donahue went and wrap[ped] his truck around a pole, to identif[y] his
truck that left the scene of the accident. Progressive Mutual Insurance
refused to pay properly for my injury, pain and suffering, and damage
to my truck. I expect to be compensated for the complete [suit] which
is on file.
The record contains a notice of hearing informing Anderson that the trial court
would consider Donahue’s motion on September 17, 2010.
The day before the hearing, on September 16, 2010, Anderson filed a
“Request for Hearing,” informing the trial court that there had been no attempt at
alternative dispute resolution, that she had answered all of Donahue’s
interrogatories, that she was requesting Donahue’s medical records, and that she
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was requesting settlement in the amount of $78,300 for past and future medical
expenses, pain and suffering, and damages to her vehicle.2 She stated, “[It’s] time
for settlement or request for Jury Trial.”
On September 20, 2010, the trial court signed an order striking Anderson’s
pleadings and dismissing her claim against Donahue without prejudice. Anderson
did not move for a new trial, move to reinstate the case, request findings of fact
and conclusions of law, or timely file any other post-judgment motion. The record
includes a printout from the Harris County District Clerk’s Office, addressed to
Anderson, informing her that on September 20, 2010, the trial court signed an
order striking her pleadings and dismissing the case on Donahue’s motion. This
printout was not dated and did not indicate when it was mailed.
On January 21, 2011, Anderson filed the following “Motion of Pleading for
Trial by Jury” with the trial court:
As of January 18, 2011 there’s been no Settlement or agreement to
case no. 2010[-]14716[.] Plaintiff Peggy Anderson is filing for trial
by Jury for Punitive Damages, to be awarded for compensation by the
Defendants Progressive County Mutual Insurance, and Thomas
Donahue on case no. 2010[-]14716, for [reckless] and willful act[s]
which cause[d] injury and pain and suffering[] to my back, knee,
mouth, and ankle[, and] unmeasurable damages to my vehicle[.]
[T]he settlement for case no. 2010[-]14716 is long overdue[.] Also to
discuss the Dismissal Pleading by Defendants from Sept 20, 2010.
Attached to this letter is included.
2
In her original petition, Anderson sought the recovery of $3,400 for damages to
her vehicle; in her “Request for Hearing,” she sought the recovery of $3,300 for
damages to her vehicle.
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(Emphasis added.)
Anderson filed a “Motion for Appeal” in the trial court on March 29, 2011,
more than six months after the trial court signed the dismissal order. She stated,
“Plaintiff was not informed of oral hearings with Defendants Progressive County
Mutual Insurance and Thomas Donahue or able to present our case[.] No
correspondence at the beginning about a fee for having a trial by jury.” She also
stated that she did not receive a copy of the dismissal order until March 4, 2011,
when she tried to file a “motion for trial by jury.” She requested “that the court
grant this motion [for] appeal on reopening this case to be settle[d] and for all just
relief and justice be made.”
Appellate Jurisdiction
Progressive and Donahue contend that we should dismiss Anderson’s appeal
for want of jurisdiction because she failed to file a timely notice of appeal.
An appellant perfects an appeal when she files a written notice of appeal in
the trial court. TEX. R. APP. P. 25.1(a), (b). Generally, the appellant must file her
notice of appeal within thirty days after the date the trial court signs the judgment
or appealable order. TEX. R. APP. P. 26.1. This time period may be extended to
ninety days from the date the judgment is signed if any party timely files a motion
for new trial, motion to modify the judgment, motion to reinstate pursuant to Texas
Rule of Civil Procedure 165a, or request for findings of fact and conclusions of
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law, if such findings and conclusions are required. Id. The appellate court may
further extend the time to file the notice of appeal if, within fifteen days after the
deadline passes, the appellant files (1) the notice of appeal in the trial court and
(2) a motion for extension of time complying with Rule of Appellate Procedure
10.5(b) in the appellate court. TEX. R. APP. P. 26.3; see also TEX. R. APP. P.
10.5(b) (stating required contents for motions to extend time, including “the facts
relied on to reasonably explain the need for an extension”); Verburgt v. Dorner,
959 S.W.2d 615, 617 (Tex. 1997) (holding that motion to extend time is
“necessarily implied” if appellant files notice of appeal within fifteen-day
extension period). The appellant must offer a reasonable explanation for her
failure to file a timely notice of appeal. See TEX. R. APP. P. 10.5(b); TEX. R. APP.
P. 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).
Texas Rule of Appellate Procedure 4.2 provides for an additional extension
of time to file a notice of appeal if, within twenty days after the judgment was
signed, the party has not received notice or does not have actual knowledge of the
signing. TEX. R. APP. P. 4.2(a)(1). In this case, the time to perfect an appeal will
begin on the earlier of the date the party receives notice or acquires actual
knowledge of the signing, “[b]ut in no event may the periods begin more than 90
days after the judgment or order was signed.” Id. To take advantage of this rule,
the appellant must comply with Texas Rule of Civil Procedure 306a(5), which
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requires the appellant “to prove in the trial court, on sworn motion and notice, the
date on which the party or his attorney first either received a notice of the judgment
or acquired actual knowledge of the signing and that this date was more than
twenty days after the judgment was signed.” TEX. R. APP. P. 4.2(b); TEX. R. CIV.
P. 306a(5).
Here, the trial court signed the order dismissing Anderson’s claims against
Donahue on September 20, 2010. Because the trial court had already rendered
summary judgment in favor of Progressive, this order became a final and
appealable judgment. Anderson did not timely file a post-judgment motion. Thus,
Anderson was required to file her notice of appeal within thirty days of the date the
trial court signed the order, that is, by October 20, 2010. She did not file her
“motion for appeal” until March 29, 2011, six months and nine days after the trial
court signed the dismissal order. Because Anderson did not file a notice of appeal
in the trial court within thirty days after the court signed the dismissal order or
within the fifteen-day grace period during which she could have moved for an
extension of time, we conclude that she did not timely perfect her appeal.3
3
Anderson is not entitled to an extension pursuant to Texas Rule of Appellate
Procedure 4.2 because she did not file a sworn motion in the trial court setting out
the date that she received notice or acquired actual knowledge of the dismissal
order. See TEX. R. APP. P. 4.2(b) (providing that, to take advantage of extension,
party must comply with procedure set out in Rule of Civil Procedure 306a(5)); see
also TEX. R. CIV. P. 306a(5). Furthermore, Rule 4.2 explicitly states that the
extended time period “in no event” may “begin more than 90 days after the
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Conclusion
We dismiss the appeal for want of jurisdiction. All pending motions are
denied as moot.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
judgment or order is signed.” TEX. R. APP. P. 4.2(a)(1). More than ninety days
had elapsed from the date the trial court signed the dismissal order before
Anderson attempted to appeal.
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