Affirmed in Part, Reversed and Remanded in Part, =
and=20
Opinion filed June 10, 2008.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00071-CV
____________
OLUWAKEMI=20
AWONIYI and QUADRI IGE, =
Appellants
V.
ROBERT=20
BARTON McWILLIAMS, M.D., and THE WOMAN=3DS HOSPITAL OF=20
TEXAS,=20
Appellees
On Appeal from the =
152nd District Court
Harris County, =
Texas
Trial Court Cause =
No. 2006-35088
O P I N I=20
O N
This=20
appeal stems from the trial court=3Ds=20
dismissal of appellants=3D =
medical=20
liability claims against appellees, and its award of =
attorney=3Ds fees to=20
one appellee, under Texas Civil Practice and Remedies Code section =
74.351(b). We affirm the judgment of the trial court =
dismissing=20
appellants=3D =
claims=20
against appellees, but reverse the judgment awarding =
attorney=3Ds fees to=20
The Woman=3Ds Hospital=20
of Texas and remand for further proceedings.
Appellants=20
Oluwakemi Awoniyi and her husband Quadri Ige (hereinafter =
collectively=20
AAwoniyi@) filed=20
the underlying lawsuit on June 5, 2006 against appellees Dr. =
Robert=20
McWilliams and The Woman=3Ds Hospital=20
of Texas. It is undisputed that the underlying action is a=20
Ahealth=20
care liability claim@ =
subject=20
to Chapter 74 of the Texas Civil Practice and Remedies Code. =
See Tex. Civ. Prac. & Rem. Code '74.001=20
et seq. (Vernon 2005 & Supp. 2007). =
=20
Under=20
Chapter 74, a health care liability claimant is required to serve =
on the=20
defendant health care provider(s) one or more expert reports =
setting forth=20
Athe=20
applicable standards of care, the manner in which the care =
rendered by the=20
physician or health care provider failed to meet the standards, =
and the=20
causal relationship between that failure and the injury, harm, or =
damages=20
claimed.@ =20
Id. '74.351(a)=20
and (r)(6). The claimant must serve any such expert report =
on each=20
health care provider Anot later=20
than the 120th day after the date the claim was filed.@ =20
Id. '74.351(a). =20
If the claimant does not file an expert report within the 120-day =
period,=20
the trial court on motion of the affected health care provider =
shall enter=20
an order awarding reasonable attorney=3Ds fees and=20
costs of court incurred by the health care provider and dismissing =
the=20
claim, with prejudice, as to that health care provider. =
Id.=20
'74.351(b).
Alleging=20
that Awoniyi wholly failed to serve an expert report as required =
under=20
Section 74.351, the hospital and McWilliams each filed a motion to =
dismiss=20
Awoniyi=3Ds claims=20
and for recovery of reasonable attorney=3Ds=20
fees. The hospital and McWilliams later amended their =
respective=20
motions to allege that dismissal was required because Awoniyi =
failed to=20
make such service within the prescribed time period. After =
receiving=20
briefing and hearing the arguments of counsel, the trial court =
dismissed=20
Awoniyi=3Ds claims=20
against McWilliams and the hospital and awarded $12,037.26=20
attorney=3Ds fees to=20
the hospital. Awoniyi=3Ds motion=20
for new trial was overruled by operation of law and she perfected =
this=20
appeal.
Awoniyi=20
asserts that the trial court erred by (a) dismissing her action, =
(b)=20
failing to grant her motion for new trial, and (c) awarding=20
attorney=3Ds fees to=20
the hospital. She also contends the evidence does not support the =
amount=20
of the fee award. We address each assertion in =
turn.
Dismissal=20
of Awoniyi=3Ds=20
claims
With=20
respect to Awoniyi=3Ds first=20
point of error, the parties agree that for purposes of Section =
74.351(a),=20
October 3, 2006, is the 120th day after Awoniyi filed this =
lawsuit. =20
Awoniyi contends, however, that Texas Rule of Civil Procedure 21a =
extended=20
the deadline for service of her expert report until October =
6. =20
Because Awoniyi faxed her expert=3Ds report=20
to counsel for the hospital and McWilliams on October 5, she =
argues her=20
service of the report was timely. While Rule 21a does apply =
to the=20
service of an expert report in a medical liability claim action, =
we=20
conclude the trial court rightly rejected Awoniyi=3Ds argument=20
that such rule extended the October 3, 2006, deadline for serving =
her=20
expert report.
Chapter 74=20
does not define what it means to Aserve@ =
an expert=20
report on a health care provider pursuant to Section 74.351(a), =
but it=20
provides that undefined terms shall be accorded Asuch=20
meaning as is consistent with the common law.@ =20
Tex. Civ. Prac. & Rem. Code '74.001(b). =20
At least two courts have held that a claimant seeking to =
Aserve@ =
an expert=20
report on a medical care provider under Section 74.351(a) must =
comply with=20
Texas Rule of Civil Procedure 21a. Herrera v. Seton =
Northwest=20
Hosp., 212 S.W.3d 452, 459 (Tex. App.CAustin=20
2006, no pet.); Kendrick v. Garcia, 171 S.W.3d 698, 704 =
(Tex.=20
App.CEastland=20
2005, pet. denied); see also Tex. R. Civ. P. 2 =
(A[t]hese=20
rules shall govern the procedure in the justice, county, and =
district=20
courts of the State of Texas in all actions of a civil nature, =
with such=20
exceptions as may be hereinafter stated@).=20
Rule 21a=20
provides four methods by which a notice or pleading may be =
Aserved@: by=20
delivering a copy to the party or his agent or attorney (1) in =
person, by=20
agent, or by courier-receipted delivery; (2) by certified or =
registered=20
mail to the party=3Ds=20
last-known address; (3) by telephonic document transfer (fax); or =
(4) by=20
such other manner as the court may direct. Tex. R. Civ. P.=20
21a. The hospital and McWilliams concede that Awoniyi =
delivered her=20
expert=3Ds report=20
and curriculum vitae by fax to each of their counsel of record on =
October=20
5, 2006. They also concede that fax is a permissible form of =
service=20
under Rule 21a. However, because Awoniyi sent the fax two =
days after=20
the expiration of the 120-day period that Section 74.351(a) =
imposes, the=20
hospital and McWilliams insist the trial court did not err in =
dismissing=20
Awoniyi=3Ds=20
action.
Awoniyi=20
argues that Rule 21a Aenlarges=20
the due date by three (3) days if one of [the] four ways of =
service is=20
met.@ We=20
assume Awoniyi relies on the following language of Rule =
21a:
Whenever a party =
has the=20
right or is required to do some act within a prescribed period =
after the=20
service of a notice or other paper upon him and the notice or =
paper is=20
served upon [him] by mail or by telephonic document transfer, =
three days=20
shall be added to the prescribed period.
Tex. R.=20
Civ. P. 21a. This provision grants, in unambiguous language, =
a=20
three-day extension to a due date when (1) the act subject to the =
due date=20
is triggered by service of a paper on the acting party and =
(2) the=20
triggering service was made by mail or by telephonic document =
transfer=20
(fax).
Section=20
74.351 prescribes the due date for a health care =
claimant=3Ds service=20
of its expert report(s) on the health care provider(s) against =
which the=20
claimant asserts a liability claim. Service of a notice or =
other=20
paper upon Awoniyi did not trigger the due date for service of her =
expert=20
report. Rule 21a thus provides no basis for the extension of =
the due=20
date for service of Awoniyi=3Ds expert=20
report.
Section=20
74.351(a) required Awoniyi to serve her expert report on the =
hospital and=20
McWilliams by October 3, 2006, 120 days after she filed her=20
petition. Because there is no basis for extension of this =
deadline=20
and she did not serve the report until October 5 when her counsel =
faxed it=20
to counsel for both defendants, she did not comply with Section=20
74.351(a). The trial court was required to dismiss, and thus =
did not=20
err in dismissing, Awoniyi=3Ds lawsuit=20
pursuant to Section 74.351(b)(2). Tex. Civ. Prac. & Rem. =
Code=20
'74.351(b)(2)=20
(Vernon Supp. 2007). We overrule Awoniyi=3Ds first=20
point of error.
Awoniyi=20
next asserts that the trial court erred by not granting her motion =
for new=20
trial, which was overruled by operation of law. We review a =
trial=20
court=3Ds ruling=20
on a motion for new trial for an abuse of discretion. =
Strackbein=20
v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). This abuse of =
discretion standard applies even where the motion for new trial =
has been=20
overruled by operation of law and not by express ruling. =20
Cont=3Dl Carbon=20
Co. v. Sea-Land Serv., Inc., 27=20
S.W.3d 184, 187 (Tex. App.CDallas=20
2000, pet. denied) (citing Director, State Employees=20
Workers=3D =
Comp.=20
Div. v. Evans, 889=20
S.W.2d 266, 268 (Tex. 1994); Bank One v. Moody, 830 S.W.2d =
81, 81,=20
85 (Tex. 1992)).
In her=20
motion for new trial, Awoniyi presented the same issues and =
arguments she=20
presented in opposition to the hospital=3Ds and=20
McWilliams=3Ds motions=20
to dismiss. Specifically, she contended she timely served =
her expert=20
report on the hospital and McWilliams under Rule 21a=3Ds=20
three-day extension and that the court thus erred in granting the =
motions=20
to dismiss. We have held above that the trial court did not =
err in=20
granting the motions to dismiss, because the three-day extension =
portion=20
of Rule 21a does not apply to the time limit Section 74.351(a) =
imposes on=20
a health liability claimant. Therefore, the trial court did =
not=20
abuse its discretion in failing to grant a new trial with respect =
to=20
dismissal of her claims. We overrule Awoniyi=3Ds second=20
point of error.
Attorney=3Ds-Fee=20
Award to the Hospital
In her=20
third point of error, Awoniyi contends the trial court erred in =
awarding=20
attorney=3Ds fees to=20
the hospital because she timely served her expert report on the=20
hospital. As discussed above, Awoniyi=3Ds expert=20
report was not served timely. Where an expert report is not =
served=20
timely, Section 74.351 imposes a duty on the trial court, upon a =
health=20
care provider=3Ds motion,=20
to dismiss the claims and to award reasonable attorney=3Ds fees to=20
the health care provider. See Bocquet v. Herring, 972 =
S.W.2d=20
19, 20B21 (Tex.=20
1998) (holding that attorney=3Ds fee=20
statute using Ashall@ =
language=20
is not discretionary). The trial court thus did not err in =
awarding=20
attorney=3Ds fees to=20
the hospital. We overrule Awoniyi=3Ds third=20
point of error.
In her=20
fourth point of error, Awoniyi contends the trial court erred in =
awarding=20
$12,037.26 in attorney=3Ds fees to=20
the hospital because the evidence is insufficient to prove the =
hospital=20
actually incurred this sum or that the sum is reasonable. =
See=20
Tex. Civ. Prac. & Rem. Code '74.351(b)(1)=20
(requiring court to Aaward[] to=20
the affected physician or health care provider reasonable=20
attorney=3Ds fees and=20
costs of court incurred@ =
where=20
claimant fails timely to serve expert report) (emphasis =
added). The=20
burden was on the hospital to prove its fees and their=20
reasonableness. Stewart Title Guar. Co. v. Sterling, =
822=20
S.W.2d 1, 10 (Tex. 1992) (A[a]s a=20
general rule, the party seeking to recover attorney=3Ds fees=20
carries the burden of proof@).=20
In support=20
of its claim for attorney=3Ds fees,=20
the hospital presented affidavit testimony from one of its =
attorneys of=20
record. In an affidavit filed with the hospital=3Ds amended=20
motion to dismiss, the attorney testified the hospital incurred =
$12,037.26=20
in fees. The hospital=3Ds=20
attorney=3Ds=20
affidavit testimony constitutes some evidence that the hospital =
actually=20
incurred $12,037.26 in attorney=3Ds=20
fees. Awoniyi presented no evidence to contradict such=20
testimony. We overrule Awoniyi=3Ds fourth=20
point of error insofar as it challenges sufficiency of the =
evidence that=20
the hospital actually incurred the awarded =
fee.
Responding=20
to the hospital=3Ds motion=20
to dismiss, Awoniyi presented an affidavit from one of her counsel =
of=20
record. Awoniyi=3Ds counsel=20
testified that the hospital=3Ds claimed=20
fees were not reasonable and that $1,000.00 would be a reasonable =
fee=20
Ain this=20
case.@ =20
Awoniyi=3Ds counsel=20
also stated, ANo=20
discovery is expected to have been done until [a] medical expert =
report is=20
received from Plaintiff.@ =
With her=20
motion for new trial, Awoniyi presented the trial court with proof =
that=20
the hospital had served discovery requests on Awoniyi on September =
11,=20
2006, before her expert report was due. These requests =
included=20
interrogatories, requests for admissions, and requests for =
production of=20
documents. On appeal, Awoniyi claims to be Asure that=20
the Woman=3Ds Hospital=20
of Texas=3D =
[sic]=20
attorney are [sic] making claims for hours spent to prepare these=20
discovery requests which the law does not allow at the time she =
filed the=20
requests.@
Awoniyi=20
impliedly argues that Section 74.351(b)=3Ds=20
mandatory award of reasonable attorney=3Ds fees may=20
not properly include fees incurred for discovery in the =
lawsuit. We=20
agree. Section 74.351(s) provides that until a health care =
liability=20
claimant has served the required expert report, all discovery is=20
stayed. Tex. Civ. Prac. & Rem. Code Ann. ' =
74.351(s)=20
(Vernon Supp. 2007). Where a claim is dismissed because the =
claimant=20
fails to serve the expert report Section 74.351(a) requires, or =
fails to=20
serve the report within the time frame prescribed, the reasonable=20
attorney=3Ds fee=20
recoverable by the health care provider under Section 74.351(b) =
should not=20
include fees attributable to discovery undertaken by the provider. =
Awoniyi=3Ds motion=20
for new trial and, to a lesser extent, her response to the=20
hospital=3Ds motion=20
to dismiss, should have alerted the trial court that she objected =
to the=20
hospital=3Ds failure=20
to segregate its claimed attorney=3Ds fees to=20
identify only those recoverable under Section 74.351(b). =
Stated=20
differently, Awoniyi effectively objected to the trial =
court=3Ds=20
inclusion of any fees incurred in discovery in its award of the=20
hospital=3Ds=20
attorney=3Ds=20
fees.
In her=20
affidavit, the hospital=3Ds attorney=20
attributes the hospital=3Ds fees,=20
totaling over $12,000.00, to Areview,=20
investigation and defense of this case[,] and preparation of the =
motion to=20
dismiss, first amended motion to dismiss, and affidavit for=20
attorney=3Ds=20
fees.@ =
She=20
states the total fee includes 40.4 attorney hours at rates ranging =
from=20
$160 to $200 per hour, 21.5 nurse legal assistant hours at the =
rate of $85=20
per hour, and 16.4 paralegal hours at the rate of $80 per =
hour. She=20
also testified that the claimed fee is reasonable in amount and=20
Anecessary=20
to [the hospital]=3Ds defense=20
of [Awoniyi=3Ds]=20
claims.@ =
The=20
hospital=3Ds attorney=20
does not in her testimony attribute particular hours worked or =
fees=20
incurred to specific activities undertaken on the =
hospital=3Ds=20
behalf. The hospital=3Ds attorney=20
does not state that the requested fee includes charges for work =
related to=20
preparation of the discovery requests that were served on Awoniyi =
on=20
September 11, 2006. Nor, however, does she state that the =
requested=20
fee does not include such charges. Work related to =
the=20
discovery requests could constitute Adefense of=20
th[e] case,@ =
which the=20
hospital=3Ds attorney=20
testified constitutes a basis for the incurred fee. Further, =
the=20
affidavit testimony is dated October 17, 2006, more than a month =
after=20
service of the discovery requests on Awoniyi. Under these=20
circumstances, we cannot exclude the possibility that preparation =
of the=20
discovery requests forms the basis for some portion of the awarded =
fee.=20
Evidence=20
of unsegregated fees constitutes more than a scintilla of evidence =
of=20
segregated attorney=3Ds=20
fees. Stewart Title, 822 S.W.2d at12 (holding that =
where=20
plaintiff sought recovery of fees against multiple defendants, =
evidence of=20
unsegregated fees was more than a scintilla of evidence to support =
fee=20
award; Awhat a=20
reasonable attorney=3Ds fee=20
would be for the entire case indicates what the segregated =
amount[] should=20
be@). =20
Where a fee award is erroneously based on evidence of unsegregated =
fees,=20
therefore, a court of appeals must remand the award to the trial =
court=20
rather than render no award. Stewart Title, 822 =
S.W.2d at 11=20
(requiring remand for new trial on amount of fees incurred against =
each=20
defendant individually).
In this=20
case, the trial court=3Ds fee=20
award was based on evidence of unsegregated fees. Section =
74.351(b),=20
read in conjunction with Section 74.351(s), does not permit a =
health care=20
provider to recover fees for discovery when the claim against it =
is=20
dismissed for lack of timely service of an expert report. =
Awoniyi=20
objected to the hospital=3Ds failure=20
to segregate its proof of fees to exclude those attributable to =
discovery=20
served on Awoniyi before her expert report was due. In the =
face of=20
Awoniyi=3Ds=20
objection, the trial court abused its discretion in awarding fees =
based on=20
the unsegregated attorney=3Ds fees or=20
in failing to grant a new trial on that issue. We reverse =
the fee=20
award to the hospital and remand to the trial court for a new=20
determination of the amount of attorney=3Ds fees to=20
be awarded to the =
hospital. =20
/s/ =20
Jeff Brown
Justice
Judgment rendered =
and Opinion=20
filed June 10, 2008.
Panel consists of =
Justices=20
Yates, Guzman, and Brown.
We omit a description of the =
facts giving=20
rise to Awoniyi=3Ds medical liability claims because such =
facts are=20
immaterial to the issues on=20
appeal. |