X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Sellers filed the underlying medical malpractice suit against appellee Daniel L. Foster, D.O. A little over eight months later, on September 8, 2004, Foster filed a motion to dismiss the case and a motion for sanctions based on Sellers’s failure to file a timely expert report in accordance with �13.01(d) of the Medical Liability and Insurance Improvement Act. In a document dated Sept. 16, 2004, the trial court set a tentative dismissal date of October 28, but informed Sellers of three options to maintain the suit. Sellers did not appear on October 28, nor did he file a mediation or trial scheduling order before that date. Thus, the trial court signed an order dismissing the case that same day. On Nov. 24, 2004, Sellers’ counsel filed a verified motion for reinstatement. On Dec. 9, 2004, Foster filed a response to the motion to reinstate, contending that Sellers could not show good cause to retain the case on the trial court’s docket because his case is not meritorious in that he failed to timely file an expert report in accordance with Texas Civil Practice & Remedies Code Article 4590i, �13.01(d). Additionally, Foster filed an objection to and motion to strike the expert report attached to Sellers’ motion on the same grounds. Sellers filed a response requesting an extension of time to file the expert report under ��13.01(f) and (g). After a hearing on Dec. 10, 2004, the trial court denied Sellers’ motion to reinstate. Sellers’ counsel indicated at the reinstatement hearing that her legal assistant had deleted items from her files and her computer. Sellers’ counsel averred in the sworn petition for reinstatement that she had no knowledge of the letter, that there was no copy in the case file, that it had not been logged in on the mail log, and that the October 28 hearing date was not on her calendar. Additionally, at the reinstatement hearing, she unequivocally stated that she had not received the letter in her office. HOLDING:Affirmed. The court concludes that there is legally insufficient evidence to support the trial court’s implied finding that Sellers or his counsel received the September 16, 2004, letter from the trial court notifying Sellers that his case would be dismissed if he did not file a mediation or trial scheduling order or appear on October 28. If a party whose case has been dismissed under Rule 165a for failure to appear proves that he or she did not appear due to a lack of notice, there is no need for the party to also show that the claim is meritorious in order to be entitled to reinstatement. Because another motion to dismiss on separate grounds was pending when the case was dismissed for want of prosecution and at the time of the reinstatement hearing, the court addresses whether dismissal of Sellers’ case would have been proper for Sellers’ failure to timely file an expert report. It is undisputed that Sellers did not timely file an expert report under the statute. Because Sellers moved for a �13.01(g) grace period extension before the hearing on Foster’s motion to dismiss, the trial court had discretion to consider it. Sellers’ counsel was aware in January that the expert report deadline was approaching, and she participated in discovery in March and May of 2004, yet she failed to confirm whether her legal assistant had ever sent the report. The trial court did not abuse its discretion in implicitly determining that Sellers’ failure to timely file the report was the result of conscious indifference rather than accident or mistake. Sellers was not entitled to a �13.01(g) grace period extension, and the court holds that the trial court’s abuse of discretion in dismissing the case for want of prosecution and failing to reinstate it is harmless. OPINION:Livingston, J.; Cayce, C.J.; Livingston and Holman, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.