Patricia Salvato, M.D. v. Michelle Winsmann F/K/A Michelle Naquin ( 2012 )

Abatement Order filed March 29, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-12-00166-CV
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PATRICIA SALVATO, M.D., Appellant
V.
MICHELLE WINSMANN f/k/a MICHELLE NAQUIN, Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Cause No. 2011-37079
ABATEMENT ORDER
This is an appeal from an order denying an award of attorney’s fees and costs of
court in connection with appellant’s motion to dismiss a medical liability action for failure
to provide an expert report, which was signed November 18, 2011. On November 17,
2011, the plaintiff/appellee filed a notice of non-suit pursuant to Texas Rule of Civil
Procedure 162. The clerk’s record filed with this court does not contain an order on the
non-suit, and the record does not indicate that an order was signed.
A notice of non-suit is effective when filed. See Tex. R. Civ. P. 162; Shadowbrook
Apts. v. Abu–Ahmad, 783 S.W.2d 210, 211 (Tex. 1990). Appellate timetables do not run
from the date a nonsuit is filed, however; the date the trial court signs an order of dismissal
controls for purposes of appeal. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496
(Tex. 1995); see also Travelers Ins. Co. v Joachim, 315 S.W.3d 860, 865 n.4 (Tex. 2010)
(noting that although a nonsuit is effective upon its filing, expiration of plenary power is
determined from the date on which a trial court signs an order dismissing the suit). A
subsequent order granting the nonsuit is a ministerial act. UTMB at Galveston v. Estate of
Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam).
Therefore, an order of non-suit is required so that appellant may appeal from a final
order. Texas Rule of Appellate Procedure 27.2 provides as follows:
The appellate court may allow an appealed order that is not final to be
modified so as to be made final and may allow the modified order and all
proceedings relating to it to be included in a supplemental record.
Tex. R. App. P. 27.2.
Accordingly, we order the case abated and remanded to the trial court for a period of
thirty days so that the trial court may sign an order of non-suit, if the court has not already
done so. A supplemental clerk=s record containing the trial court’s order of non-suit shall
be filed with the clerk of this court on or before April 30, 2012.
In addition, appellant’s notice of appeal states that this is an accelerated appeal from
an interlocutory order. Appellant is ORDERED to file an amended notice of appeal to
reflect that the order being appealed is a final order and the appeal is not accelerated. The
amended notice of appeal shall be filed with the clerk of this court on or before April 30,
2012. See Tex. R. App. P. 25.1(g).
The appeal is abated, treated as a closed case, and removed from this court’s active
docket. The appeal will be reinstated on this court=s active docket when the supplemental
clerk’s record is filed in this court. The court will also consider an appropriate motion to
reinstate the appeal filed by either party, or the court may reinstate the appeal on its own
motion.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
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