Peggy Anderson v. Progressive County Mutual Insurance and Thomas Donahue

Opinion

Opinion issued July 26, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00250-CV ——————————— PEGGY ANDERSON, Appellant V. PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY AND THOMAS DONAHUE, Appellees

On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2010-14716

MEMORANDUM OPINION

In this personal injury suit arising out of a car accident, Peggy Anderson

sued Thomas Donahue and his insurer, Progressive County Mutual Insurance Company (“Progressive”), after Progressive denied Anderson’s claim for

reimbursement for medical expenses and property damage. The trial court

rendered summary judgment in favor of Progressive, and, after Anderson failed to

comply with Donahue’s discovery requests, it struck her pleadings and granted

Donahue’s motion to dismiss her claims. On appeal, Anderson challenges the trial

court’s dismissal of her claims, arguing that she was not present at the dismissal

hearing and that she did not receive notice of the dismissal until several months

later.

We dismiss the appeal for want of jurisdiction.

Background

On May 15, 2009, Anderson and Donahue were involved in a car accident.

Anderson filed a claim with Progressive, seeking recovery of medical expenses

and vehicle-repair expenses. Progressive denied the claim and Anderson filed suit.

Anderson sought $3,400 for damages to her vehicle and $75,000 for past medical

expenses, pain and suffering, and mental anguish.

Donahue answered and sent Anderson requests for written discovery on

March 29, 2010. Progressive also answered, filed a verified denial arguing that it

was not liable in the capacity in which it was sued, and moved for summary

2 judgment. The trial court granted an interlocutory summary judgment in favor of

Progressive.1

After Anderson failed to respond to written discovery requests, Donahue

moved to compel her responses. Anderson did not attend the hearing on this

motion. The trial court found that Anderson had “wholly failed to respond to

[Donahue’s] Interrogatories, Requests for Production and Request for Disclosure”

and had not shown good cause for this failure. The court granted Donahue’s

motion to compel on May 21, 2010, and ordered Anderson to respond to

Donahue’s discovery requests by June 21, 2010. The order also stated: “This

order shall be served on Plaintiff by process server & mailed to Plaintiff by

certified mail, return receipt & first class mail.” The order sent by certified mail

was returned unclaimed. The record, however, contains a return from a process

server, indicating that he personally served Anderson with the order at her

residence on June 2, 2010.

Anderson failed to respond to Donahue’s written discovery requests by June

21, 2010. Donahue then moved to dismiss Anderson’s claim against him, arguing

that her discovery responses were “crucial” to his defense. Donahue argued:

1 The record does not include either Progressive’s summary judgment motion or any response by Anderson. Aside from stating that “[i]nsurance companies can be [s]ued in Texas,” Anderson does not challenge the summary judgment ruling in favor of Progressive on appeal. 3 The information that would have been discovered through Plaintiff’s discovery responses regards her claims of negligence against Defendant, and her claims of injuries and damages. Because Plaintiff did not respond to the discovery requests or comply with the court’s order . . . she should not be able to present evidence regarding her claim against Defendant. Because Plaintiff should not be able to present evidence regarding her claim against Defendant, Plaintiff cannot maintain her cause of action against Defendant. Because Plaintiff cannot maintain her cause of action against Defendant, her cause of action against Defendant should be dismissed for want of prosecution.

Donahue sent Anderson a notice of hearing, informing her that the trial court

would consider his motion to dismiss at an oral hearing on July 16, 2010.

Anderson still had not responded to Donahue’s discovery requests by the

July 16, 2010 hearing date, and, therefore, the trial court ordered:

Plaintiff has until August 30, 2010 to fully and completely answer the outstanding interrogatories, requests for production and request for disclosure, and if Plaintiff does not serve her full and complete answers to the outstanding interrogatories, requests for production and request for disclosure on Defendant’s attorney by August 30, 2010, then upon motion by Defendant, Plaintiff’s pleadings will be stricken and Plaintiff’s claim in this cause against Defendant may be dismissed.

This order also required Donahue’s counsel to mail a copy of the order to

Anderson by certified and first-class mail.

On September 8, 2010, Donahue moved to strike Anderson’s pleadings and

to dismiss the case. Donahue noted that Anderson had served a document entitled

“Interrogatories Requested” within the required time period, but he argued that this

document was not responsive to his interrogatories and did not constitute “full and 4 complete answers” to his outstanding discovery requests, which also included

requests for production and requests for disclosure to which Anderson had not

responded. Donahue attached a copy of Anderson’s unsworn “Interrogatories

Requested,” which stated, in its entirety:

To answer the Interrogatories by the Plaintiff Peggy Anderson; Thomas Donahue had Health problems, and at the time of the accident on May 15, 2009 Thomas Donahue was having health problem[s]. Which cause[d] me to suffer, which was witness[ed] by a witness. At the time of the accident he was staring at me like he was in another world after he hit my vehicle[.] I attempt[ed] to write down his information, he physically hit me with his vehicle[,] knocking me down[,] causing injury to me[,] and damaging my vehicle[.] I was in a daze[.] [W]hen my vision was clear[,] a witness was there to get his information off his vehicle and ask me to not to move[.] I was mentally afraid that he was going to run right over me, so I gradually got up [and] move[d] to the side of my Truck.

The officer took a report and had me to follow him where Thomas Donahue went and wrap[ped] his truck around a pole, to identif[y] his truck that left the scene of the accident. Progressive Mutual Insurance refused to pay properly for my injury, pain and suffering, and damage to my truck. I expect to be compensated for the complete [suit] which is on file.

The record contains a notice of hearing informing Anderson that the trial court

would consider Donahue’s motion on September 17, 2010.

The day before the hearing, on September 16, 2010, Anderson filed a

“Request for Hearing,” informing the trial court that there had been no attempt at

alternative dispute resolution, that she had answered all of Donahue’s

interrogatories, that she was requesting Donahue’s medical records, and that she

5 was requesting settlement in the amount of $78,300 for past and future medical

expenses, pain and suffering, and damages to her vehicle.2 She stated, “[It’s] time

for settlement or request for Jury Trial.”

On September 20, 2010, the trial court signed an order striking Anderson’s

pleadings and dismissing her claim against Donahue without prejudice. Anderson

did not move for a new trial, move to reinstate the case, request findings of fact

and conclusions of law, or timely file any other post-judgment motion. The record

includes a printout from the Harris County District Clerk’s Office, addressed to

Anderson, informing her that on September 20, 2010, the trial court signed an

order striking her pleadings and dismissing the case on Donahue’s motion. This

printout was not dated and did not indicate when it was mailed.

On January 21, 2011, Anderson filed the following “Motion of Pleading for

Trial by Jury” with the trial court:

As of January 18, 2011 there’s been no Settlement or agreement to case no. 2010[-]14716[.] Plaintiff Peggy Anderson is filing for trial by Jury for Punitive Damages, to be awarded for compensation by the Defendants Progressive County Mutual Insurance, and Thomas Donahue on case no. 2010[-]14716, for [reckless] and willful act[s] which cause[d] injury and pain and suffering[] to my back, knee, mouth, and ankle[, and] unmeasurable damages to my vehicle[.] [T]he settlement for case no. 2010[-]14716 is long overdue[.] Also to discuss the Dismissal Pleading by Defendants from Sept 20, 2010. Attached to this letter is included.

2 In her original petition, Anderson sought the recovery of $3,400 for damages to her vehicle; in her “Request for Hearing,” she sought the recovery of $3,300 for damages to her vehicle. 6 (Emphasis added.)

Anderson filed a “Motion for Appeal” in the trial court on March 29, 2011,

more than six months after the trial court signed the dismissal order. She stated,

“Plaintiff was not informed of oral hearings with Defendants Progressive County

Mutual Insurance and Thomas Donahue or able to present our case[.] No

correspondence at the beginning about a fee for having a trial by jury.” She also

stated that she did not receive a copy of the dismissal order until March 4, 2011,

when she tried to file a “motion for trial by jury.” She requested “that the court

grant this motion [for] appeal on reopening this case to be settle[d] and for all just

relief and justice be made.”

Appellate Jurisdiction

Progressive and Donahue contend that we should dismiss Anderson’s appeal

for want of jurisdiction because she failed to file a timely notice of appeal.

An appellant perfects an appeal when she files a written notice of appeal in

the trial court. TEX. R. APP. P. 25.1(a), (b). Generally, the appellant must file her

notice of appeal within thirty days after the date the trial court signs the judgment

or appealable order. TEX. R. APP. P. 26.1. This time period may be extended to

ninety days from the date the judgment is signed if any party timely files a motion

for new trial, motion to modify the judgment, motion to reinstate pursuant to Texas

Rule of Civil Procedure 165a, or request for findings of fact and conclusions of 7 law, if such findings and conclusions are required. Id. The appellate court may

further extend the time to file the notice of appeal if, within fifteen days after the

deadline passes, the appellant files (1) the notice of appeal in the trial court and

(2) a motion for extension of time complying with Rule of Appellate Procedure

10.5(b) in the appellate court. TEX. R. APP. P. 26.3; see also TEX. R. APP. P.

10.5(b) (stating required contents for motions to extend time, including “the facts

relied on to reasonably explain the need for an extension”); Verburgt v. Dorner,

959 S.W.2d 615, 617 (Tex. 1997) (holding that motion to extend time is

“necessarily implied” if appellant files notice of appeal within fifteen-day

extension period). The appellant must offer a reasonable explanation for her

failure to file a timely notice of appeal. See TEX. R. APP. P. 10.5(b); TEX. R. APP.

P. 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).

Texas Rule of Appellate Procedure 4.2 provides for an additional extension

of time to file a notice of appeal if, within twenty days after the judgment was

signed, the party has not received notice or does not have actual knowledge of the

signing. TEX. R. APP. P. 4.2(a)(1). In this case, the time to perfect an appeal will

begin on the earlier of the date the party receives notice or acquires actual

knowledge of the signing, “[b]ut in no event may the periods begin more than 90

days after the judgment or order was signed.” Id. To take advantage of this rule,

the appellant must comply with Texas Rule of Civil Procedure 306a(5), which

8 requires the appellant “to prove in the trial court, on sworn motion and notice, the

date on which the party or his attorney first either received a notice of the judgment

or acquired actual knowledge of the signing and that this date was more than

twenty days after the judgment was signed.” TEX. R. APP. P. 4.2(b); TEX. R. CIV.

P. 306a(5).

Here, the trial court signed the order dismissing Anderson’s claims against

Donahue on September 20, 2010. Because the trial court had already rendered

summary judgment in favor of Progressive, this order became a final and

appealable judgment. Anderson did not timely file a post-judgment motion. Thus,

Anderson was required to file her notice of appeal within thirty days of the date the

trial court signed the order, that is, by October 20, 2010. She did not file her

“motion for appeal” until March 29, 2011, six months and nine days after the trial

court signed the dismissal order. Because Anderson did not file a notice of appeal

in the trial court within thirty days after the court signed the dismissal order or

within the fifteen-day grace period during which she could have moved for an

extension of time, we conclude that she did not timely perfect her appeal.3

3 Anderson is not entitled to an extension pursuant to Texas Rule of Appellate Procedure 4.2 because she did not file a sworn motion in the trial court setting out the date that she received notice or acquired actual knowledge of the dismissal order. See TEX. R. APP. P. 4.2(b) (providing that, to take advantage of extension, party must comply with procedure set out in Rule of Civil Procedure 306a(5)); see also TEX. R. CIV. P. 306a(5). Furthermore, Rule 4.2 explicitly states that the extended time period “in no event” may “begin more than 90 days after the 9 Conclusion

We dismiss the appeal for want of jurisdiction. All pending motions are

denied as moot.

Evelyn V. Keyes Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

judgment or order is signed.” TEX. R. APP. P. 4.2(a)(1). More than ninety days had elapsed from the date the trial court signed the dismissal order before Anderson attempted to appeal. 10