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Robinson v. Texas Medical Liability Insurance Underwriting Association

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

March 9, 2017

SAVANNAH ROBINSON, Appellant,
v.
TEXAS MEDICAL LIABILITY INSURANCE UNDERWRITING ASSOCIATION, Appellee.

         On appeal from the 92nd District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Longoria

          MEMORANDUM OPINION

          DORI CONTRERAS Justice

         In this declaratory judgment action, appellant Savannah Robinson challenges the trial court's summary judgment granting declaratory relief in favor of appellee, Texas Medical Liability Insurance Underwriting Association (TMLIUA). By several sub-issues, which we treat as one issue, appellant contends the trial court erred in granting summary judgment. We vacate the trial court's judgment and dismiss the appeal for want of jurisdiction.

         I. Background

         TMLIUA filed a declaratory judgment action seeking a declaration that: (1) three judgments against appellant in three underlying lawsuits are valid and enforceable; and (2) it is entitled to recover because it is "the judgment creditor, holder and/or assignee of all three judgments." In each of the underlying lawsuits, appellant served as counsel to a plaintiff in a health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West, Westlaw through 2015 R.S.) (defining "health care liability claim"). Each of the judgments assessed attorneys' fees against appellant in favor of the health care provider defendant.[1]

         Appellant filed an answer, motion to transfer venue, counterclaim and third-party claim, in which she asserted that the suit was frivolous and that she was not served in any of the cases and the judgments were therefore void. Appellant also filed a motion for summary judgment concerning standing, in which she asserted that TMLIUA lacked standing because it was not a party to the judgments. TMLIUA filed a response, in which it argued it had standing because it was "the assignee and payor of the legal fees at issue."[2]

         TMLIUA filed a traditional motion for summary judgment in the declaratory judgment action. See Tex. R. Civ. P. 166a(c). In its motion, TMLIUA argued that: (1) the underlying judgments against appellant were "valid subsisting judgments" and (2) it "owned" the judgments and "is subrogated to, and/or assigned, the judgments because it is the insurance company that paid the legal fees in question." Included in TMLIUA's summary judgment evidence were the following: (1) copies of the three judgments at issue; (2) an affidavit of Sally Stewart, Claim Manager for TMLIUA, stating that TMLIUA is entitled to recovery of attorneys' fees because it paid the legal fees of each of the defendants in the underlying lawsuits[3]; and (3) the affidavit of Ronald Hole, counsel for TMLIUA in the declaratory judgment action, pertaining to attorneys' fees in the declaratory judgment action.

         Appellant filed a response to TMLIUA's motion and a "counter-motion for summary judgment." In her motion, appellant argued that, as counsel for various plaintiffs in the underlying suits, she is not responsible for attorneys' fees and costs. Appellant argued that: (1) she was not made a party to any of the underlying suits by issuance of citation or service; (2) the Texas Medical Liability Act (TMLA) does not provide for the assessment of attorneys' fees and costs against a non-party, see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1) (West, Westlaw through 2015 R.S.); and (3) there is no evidence that the attorneys' fees and costs were awarded as sanctions. In support of her motion, appellant attached her own affidavit, in which she stated that: (1) she was not a party to any of the three underlying cases; and (2) the declaratory judgment action is frivolous because the Thirteenth Court of Appeals has determined that attorneys are not liable for costs in health care liability claims.

         The trial court granted summary judgment in TMLIUA's favor, rendered judgment declaring that the judgments in the three underlying suits are valid and enforceable and awarding attorneys' fees in the amount of $7, 900 to TMLIUA in the declaratory judgment action, with an additional $10, 000 in attorneys' fees if TMLIUA prevails on appeal. This appeal followed.

         II. TMLIUA's Motion to Dismiss

         During the pendency of the appeal, TMLIUA filed a motion to dismiss the appeal, arguing that the appeal was untimely filed. If the notice of appeal was not timely filed, we lack jurisdiction over the appeal. See Gilani v. Kaempfe, 331 S.W.3d 879, 879 (Tex. App.-Dallas 2011, no pet.) (dismissing appeal for want of jurisdiction after concluding that appellant's motion for new trial filed 31 days after signing of judgment was untimely and failed to extend appellate timetable). Because this issue challenges our jurisdiction over the appeal, we address it first. See Village of Tiki Island v. Ronquille, 463 S.W.3d 562, 570 (Tex. App.-Houston [1st Dist.] 2015, no pet.) ("As a threshold matter, we address our own jurisdiction . . . .").

         The order granting TMLIUA's motion for summary judgment was rendered by the trial court on October 14, 2015. Appellant filed a Rule 306a motion, in which she asserted that she did not have actual notice of the entry of the order until November 30, 2015. See Tex. R. Civ. P. 306a.[4] Appellant's motion was accompanied by her sworn affidavit, in which she stated that she did not have notice of the October 14, 2015 hearing and did not receive notice of the judgment until November 30, 2015. The trial court granted appellant's Rule 306a motion and "amended nunc pro tunc" the order granting TMLIUA's motion for summary judgment with a new entry date of November 30, 2015. Appellant's notice of appeal was filed December 3, 2015.

         TMLIUA argues that the trial court erred in granting appellant's Rule 306a motion because: (1) there was no hearing on appellant's motion and she did not prove that she did not receive notice of the order until November 30, 2015; and (2) the trial court had no authority to change the date a final order was signed. Appellant filed a response to TMLIUA's motion to dismiss the appeal, in which she argued that a hearing is not required to be held on a Rule 306a motion. Appellant argued that, under Rule 306a(4), the time for perfecting her appeal did not begin to run until November 30, ...


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