Patricia Salvato, M.D. v. Michelle Winsmann F/K/A Michelle Naquin ( 2013 )

Affirmed and Memorandum Opinion filed January 24, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00166-CV
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
MEMORANDUM OPINION
This appeal involves a claim for attorney’s fees in connection with a health
care liability action. We affirm the trial court’s order.
Background
Michelle Winsmann f/k/a Michelle Naquin filed a health care liability claim
on June 21, 2011 against Patricia Salvato, M.D. and several other defendants who
are not parties to this appeal. In her pleading, Winsmann alleged that she
“received outpatient services at Quality Infusion Care for a routine CytoGam for
her chronic medical condition” on November 14, 2008 and suffered an adverse
reaction.
On October 24, 2011, Salvato filed a motion to dismiss Winsmann’s health
care liability claim for failure to provide an expert report pursuant to Texas Civil
Practice and Remedies Code Section 74.351(b). Salvato also requested that the
trial court award her attorney’s fees and court costs.
On November 17, 2011, Winsmann filed a notice of nonsuit without
prejudice to refile.
On November, 18, 2011, the trial court signed an order stating, “[T]his Court
is of the opinion that Defendants’ Motion to Dismiss should be Denied in part as to
attorney’s fees and Moot as to dismissal in light of Plaintiff’s nonsuit.”
On December 8, 2011, Salvato filed a Motion for Rehearing on Defendant’s
Motion for Attorney’s Fees. On February 9, 2012, Winsmann filed a Response
and Objection to Defendant’s Motions for Reconsideration of Order Denying
Claims for Attorney’s Fees.
On February 15, 2012, Salvato filed a Notice of Interlocutory Appeal
pursuant to Texas Civil Practice and Remedies section 51.014(a)(9) “from an order
denying award of attorney’s fees and costs of court in connection with Defendant’s
Motion to Dismiss for Failure to Provide Expert Report entered in this action on or
about the 18th day of November, 2011.”
On March 22, 2012, Salvato filed an appellate brief in which she argued that
the trial court abused its discretion in denying her request for attorney’s fees
because she is entitled to fees under section 74.351(b).
On March 29, 2012, this court issued an order (1) abating and remanding the
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case to the trial court for 30 days for the trial court to sign an order of nonsuit; and
(2) ordering Salvato to “file an amended notice of appeal to reflect that the order
being appealed is a final order and the appeal is not accelerated.”
On April 23, 2012, Salvato filed an amended notice of appeal stating that she
appeals from a “final order denying award of attorney’s fees and costs in
connection with Defendant’s Motion to Dismiss for Failure to Provide Expert
Report.” Salvato also stated that (1) the trial court “did not sign a final order
acknowledging the non-suit of Plaintiff’s cause of action against Defendant;” (2)
she filed a motion for rehearing within 30 days of the trial court’s final order
denying an award of attorney’s fees; (3) her “notice of appeal was incorrectly
designated as an interlocutory appeal . . . when in fact it was an appeal of a final
judgment” and was a timely filed within 90 days of the trial court’s “final order
denying attorney’s fees;” and (4) the trial court “will not sign a final order of non-
suit.”
On May 18, 2012, the trial court signed a Final Appealable Order in
response to this court’s abatement order. The Final Appealable Order states that
(1) the trial court has not ruled on Salvato’s motion for reconsideration and that
“the motion appears to remain pending before the Court;” (2) the trial court finds
sufficient evidence that Salvato incurred legal fees and that a reasonable attorney’s
fee for Salvato is $600; (3) Salvato’s Motion for Reconsideration of Defendant’s
Motion for Attorney’s Fees is granted; (4) although “no party ever tendered an
order of nonsuit to the Court for signature” or “ever set the matter of entering an
order of nonsuit for consideration by this Court for oral hearing or written
submission,” “the Court acknowledges the filing of Plaintiff’s notice of Nonsuit”
and therefore dismisses Winsmann’s claims without prejudice; (5) it disposes of all
remaining claims or requests for affirmative relief that remained pending against
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any party prior to entry of the order.
Analysis
In her initial appellate brief, Salvato contends that the trial court abused its
discretion by denying her request for attorney’s fees under section 74.351(b). See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon 2011). In her
supplemental brief, Salvato argues that the trial court lacked plenary power to sign
its May 18, 2012 Final Appealable Order and award her attorney’s fees1 because
“the trial court’s plenary power had already expired as it had not determined the
request [for attorney’s fees] within 75 days of its final judgment issued on
February 29, 2012 as required by Texas Rule of Civil Procedure 329b(c).”
According to Salvato, the trial court signed a final judgment when it granted a co-
defendant’s motion to reconsider denial of attorney’s fees and awarded the co-
defendant the requested attorney’s fees. Therefore, according to Salvato, the trial
court’s Final Appealable Order “was issued seventy-eight days later on May 18,
2012 which was three days after the expiration of the trial court’s plenary power.”
Generally, plaintiffs have the right under Texas Rule of Civil Procedure 162
to take a nonsuit at any time until they have introduced all evidence other than
rebuttal evidence. In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig.
proceeding); see Tex. R. Civ. P. 162. Any dismissal pursuant to Rule 162 shall not
prejudice the right of an adverse party to be heard on a pending claim for
affirmative relief. Tex. R. Civ. P. 162. A dismissal under Rule 162 shall have no
effect on any motion for sanctions, attorney’s fees or other costs, pending at the
time of dismissal, as determined by the court. Id.
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Salvato contends that, before the trial court signed its May 18, 2012 Final Appealable
Order, she and Winsmann’s counsel agreed to the payment of a greater attorney’s fee amount
than the amount ultimately awarded by the trial court.
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“[T]he signing of an order dismissing a case, not the filing of a notice of
nonsuit, is the starting point for determining when a trial court’s plenary power
expires.” In re Bennett, 960 S.W.2d at 38. “The trial court loses its plenary power
30 days after it signs the order granting the non-suit (if no motion for new trial is
filed), or 75 days after it signs the order (if a motion for new trial is filed).” In re
Jamea, 2010 WL 2968044, at *4 (Tex. App.—Houston [14th Dist.] July 29, 2010,
orig. proceeding) (quoting Harris Cnty. Appraisal Dist. v. Wittig, 881 S.W.2d 193,
194 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding)).
The trial court signed an order dismissing Winsmann’s claims “in
accordance with Rule 162” on May 18, 2012. That date is “the starting point for
determining when the trial court’s plenary power expires.” See In re Bennett, 960
S.W.2d at 38. Therefore, the trial court had plenary power to sign the Final
Appealable Order on May 18, 2012. Accordingly, we reject Salvato’s contention
in her supplemental appellate brief that the trial court acted after its plenary power
expired. We also reject Salvato’s complaint in her initial appellate brief that the
trial court abused its discretion by failing to award her attorney’s fees pursuant to
section 74.351(b) because the trial court awarded her $600 in attorney’s fees in its
May 18, 2012 Final Appealable Order.
We overrule the issues Salvato raised in her initial and supplemental
appellate briefs.
Conclusion
We affirm the trial court’s order.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
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