












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
 2-07-101-CV
 
 
JERRY GURKOFF, D.O.                                                         APPELLANT
 
                                                   V.
 
ROSEMARY JERSAK                                                               APPELLEE
 
                                              ------------
 
           FROM
THE 348TH DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                MEMORANDUM
OPINION[1]
 
                                              ------------




The question in this case is
whether the trial court erred by refusing to award attorney=s fees to a doctor when it dismissed his former patient=s medical malpractice claim after she failed to file an expert report
under former article 4590i.  The question
is complicated by several facts:  The
patient died before the trial court dismissed her claims; her estate was not
probated; her heirs did not prosecute her claims and did not oppose dismissal
with prejudice; and the doctor ultimately abandoned his claim for attorney=s fees against the patient=s estate and sought an award of fees from her attorneys only.  We affirm.
                                        Procedural History
Jerry Gurkoff, D.O. performed
surgery on a finger of Rosemary Jersak=s right hand in February 2002. 
Rosemary later signed a contract for legal services with Grey Pierson of
the Pierson Behr law firm and sued Gurkoff in August 2003, alleging that he had
operated on the wrong finger.  Gurkoff
filed a timely answer. 




In March 2004, Gurkoff filed
a motion to dismiss Rosemary=s claims with prejudice because she had not filed an expert report
under the Medical Liability and Insurance Improvement Act (AMLIIA@ or Aarticle 4590i@).[2]  Rosemary filed a response, arguing that
Gurkoff=s own expert reports satisfied the statutory requirement and that the
doctrine of res ipsa loquitur obviated the need for an expert report. 
The trial court heard the
motion to dismiss on May 6, 2004.  On May
7, the trial court notified counsel by letter that it was granting the motion
to dismiss.  The trial court also noted
that time had not permitted testimony regarding attorney=s fees at the hearing and requested that the parties confer and
attempt to reach an agreement regarding fees. 
On June 11, 2004, Rosemary
filed a motion for reconsideration, again asserting that the doctrine of res
ipsa loquitur obviated the need for an expert report.  The trial court heard the motion on September
2, 2004, and  stated on the record, AI=m granting
the motion for reconsideration, and I want to look at all the cases that
[Rosemary=s counsel]
handed me and the brief, and I=ll issue a letter ruling [on Gurkoff=s motion to dismiss]. . . . I=m granting the motion for reconsideration.  I=m reconsidering my ruling.@  Then, on September 7, 2004,
the trial court referred the case to mediation. 




Rosemary died from causes
unrelated to the surgery on October 16, 2004, and her attorneys filed a
suggestion of death on October 22.  On
February 10, 2005, Gurkoff filed an application for the issuance of scire
facias.  Rosemary=s husband, George Jersak, filed an AOriginal Answer to Scire Facias@ on May 16, 2005, stating that the primary assets of Rosemary=s estate were her community share of the marital home and her claim
against Gurkoff; that George had no desire to pursue the instant litigation;
and that he did not intend to initiate probate proceedings. 
Meanwhile, Gurkoff filed an
objection to the trial court=s mediation referral and a supplemental motion to dismiss and for
attorney=s fees.  On June 10, 2005,
George filed a motion to extend the deadline to file an expert report under
4590i section 13.01(g).  See Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01(d) (1995 version). 
He also filed a response to Gurkoff=s objection to mediation and supplemental motion to dismiss, asserting
that the trial court did not have jurisdiction over the matter because Gurkoff
had not fully complied with rule of civil procedure 151 and presented evidence
that no administration of Rosemary=s estate was pending or necessary. 
The trial court held a hearing on June 15, 2005, but declined to hear
the merits of any motions that day and indicated that the parties should
proceed to mediation under the court=s prior order. 




Following an unsuccessful
mediation, Gurkoff filed a second supplemental motion to dismiss and request
for attorney=s fees, this
time asking the trial court to award attorney=s fees against Rosemary=s attorneys only.  The trial
court heard the motion on January 6, 2006. 
At the hearing, George argued that the trial court did not have
jurisdiction to rule on Gurkoff=s motion.  Gurkoff presented
evidence of his attorney=s fees and
costs.  On February 22, 2006, the trial
court sent the parties a letter stating that Gurkoff had not fulfilled rule of
civil procedure 151=s
requirements and that it could not rule on Gurkoff=s motion until those requirements were satisfied. 
Gurkoff filed an application
for issuance of scire facias against Rosemary=s only children, Brian Jersak and Brenda Cook.  Scire facias issued and was served on Brian
and Brenda, but neither filed an answer or otherwise appeared in the case.
The trial court held another
and final hearing on Gurkoff=s motion to dismiss on January 11, 2007.  Before the hearing, George Jersak made the
following stipulations to avoid having to appear and testify:
1.                 
George was married to Rosemary at the time of her
death;
 
2.                 
Rosemary had two surviving children, Brian and Brenda;
 
3.                 
No administration for Rosemary=s
estate had been filed or was pending;
 
4.                 
No personal representative had been appointed for
Rosemary=s estate;
 
5.                 
To George=s
knowledge, no court had appointed an administrator for Rosemary=s estate;
 
6.                 
A document attached to the stipulations was a copy of
Rosemary=s will;
and
 




7.                 
Rosemary=s
signature appeared on the contract for legal services between her and the
Pierson Behr law firm. 
 
At the hearing, the parties presented additional arguments on
jurisdiction, and Dr. Gurkoff presented more evidence of his attorney=s fees.   
On January 23, 2007, the trial judge issued a
letter explaining that it did not have jurisdiction over Rosemary=s estate and, therefore, could not
assess attorney=s fees
against the estate.  But with regard to
dismissal, the trial court asked whether there was any objection to the
dismissal of Rosemary=s
claims with prejudice. 
Grey Pierson submitted a letter to the court
stating that neither he, his firm, nor George objected to the dismissal of
Rosemary=s claims
with prejudice. Gurkoff=s
attorney submitted a letter brief objecting to the dismissal of the case
without an award of attorney=s
fees, asserting that the trial court did have jurisdiction to assess fees;
arguing that Gurkoff was entitled to select the party against whom the court
assessed fees; and identifying Grey Pierson, his associate Jeffrey Poster, and
the Pierson Behr firm as the parties against whom the trial court should assess
fees.
On February 22, 2007, the trial court signed an
order granting Gurkoff=s
motion to dismiss, dismissing Rosemary=s
claims with prejudice, and denying Gurkoff=s
request for attorney=s
fees.  Gurkoff filed this appeal.




No appellate brief was filed on behalf of the
named appellee, Rosemary Jersak. 
Instead, Grey Pierson filed a brief in his personal capacity, Anot as a named appellee and not on
behalf of [Rosemary],@
because Gurkoff seeks attorney=s
fees not from Rosemary, her estate, or her heirs, but only from her former
attorneys. 
                                                                     Discussion
In a single issue, Gurkoff argues that the trial court
abused its discretion by refusing to award him attorney=s
fees against attorneys Pierson and Poster and the Pierson Behr law firm because
the award of fees is mandatory under the relevant provisions of article 4590i.  In reply, Pierson argues that the trial court
lacked jurisdiction to assess fees because Gurkoff did not comply with the
requirements of rule 151; article 4590i does not mandate the award of fees  solely against a claimant=s attorneys; and article 4590i does not
give a defendant the right to choose the party against whom the trial court
should award fees.




Ordinarily, dismissal of the plaintiff=s claims and an award of attorney=s fees to the defendant doctor are
mandatory sanctions when a medical malpractice claimant fails to file a timely
expert report.  Article 4590i provides
that a claimant in a healthcare liability claim must, with regard to each
physician or healthcare provider against whom a claim is asserted, either file
an expert report or voluntarily nonsuit the action against the physician or
healthcare provider.  Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01(d) (1995 version).  The trial court may extend the 180-day
deadline once by up to thirty days, and the parties may agree to extend the
deadline.  Id. ' 13.01(f), (h).  If a claimant fails to file a timely report,
the
court shall, on the motion of the affected physician or health care
provider, enter an order awarding as sanctions against the claimant or the
claimant=s
attorney:
 
(1)
the reasonable attorney=s
fees and costs of court incurred by that defendant; [and]
 
. . . . 
 
(3)
the dismissal of the action of the claimant against that defendant with
prejudice to the claim=s
refiling.
 
Id. ' 13.01(e)
(emphasis added).




Statutes providing that a party Ashall@
be awarded attorney=s fees
are not discretionary.  Bocquet v.
Herring, 972 S.W.2d 19, 20 (Tex. 1998); Doades v. Syed, 94 S.W.3d
664, 674 (Tex. App.CSan
Antonio 2002, no pet.). If the requirements of article 4590i, section 13.01(d)
are not met, the court must Aenter
an order . . . as sanctions@
dismissing the case and granting the defendant its costs and attorney=s fees.  Tex. Rev. Civ. Stat. Ann.
art. 4590i, ' 13.01(e)
(1995 version); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 877 (Tex. 2001); Moseley v. Behringer, 184 S.W.3d 829,
833 (Tex. App.CFort
Worth 2006, no pet.) (holding that when a plaintiff fails to timely file an
expert report, the trial court has no discretion but to order dismissal).  A trial court abuses its
discretion when it dismisses a claim under section 13.01(e) without awarding
attorney=s fees to the defendant.   Abilene Diagnostic Clinic v. Downing, 233
S.W.3d 532, 535 (Tex. App.CEastland 2007, pet. denied); see Estrello v. Elboar,  965 S.W.2d 754, 759 (Tex. App.CFort Worth 1998, no pet.) (ASection 13.01(e)(1) mandates that, upon a plaintiff=s failure to comply with 13.01(d), the trial court shall award the
successful defendant reasonable attorneys= fees and costs of court.@).  The amount of fees awarded
is within the trial court=s
discretion, but it cannot completely refuse to award fees.  Trevino v. Carrizales, No. 13‑05‑00556‑CV,
2006 WL 2371350, at *1 (Tex. App.CCorpus Christi Aug. 17, 2006, no pet.) (mem. op.).
While the award of attorney=s fees is mandatory in the appropriate circumstances, section 13.01(e)
gives the trial court the choice of whether to award fees Aagainst the claimant or the claimant=s attorney.@  Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01(e)
(1995 version) (emphasis added).  This
choice necessarily involves the exercise of discretion; thus, whether to assess
fees against the claimant or against the claimant=s attorney is within the trial court=s discretion.  See id. 




Here, Rosemary failed to file
the expert report required by section 13.01(d). 
Gurkoff filed a motion to dismiss and a request for attorney=s fees, and he offered evidence of his attorney=s fees.  Under ordinary
circumstances, the trial court would have had the statutory duty to dismiss the
case and award Gurkoff some amount of attorney=s fees Aagainst the
claimant or the claimant=s attorney.@  Id. (emphasis
added).
But as the procedural history
of the case shows, the circumstances presented here are not ordinary.  When Rosemary=s former attorneys[3]
challenged the trial court=s jurisdiction to award attorney=s fees against Rosemary=s estate, Gurkoff avoided the jurisdictional issue by amending his
request for attorney=s fees to
seek an award of fees from Rosemary=s former attorneys only.[4]




Gurkoff argues that the Aor@ in Aagainst the claimant or the claimant=s attorney@ Apermits the moving party to dictate the party against whom it seeks
the mandated sanctions.@  We reject this argument.  Gurkoff concedes that no case law supports
his contention, and nothing in the statute itself suggests that the defendant,
as opposed to the trial court, is entitled to decide whether the claimant or
the claimant=s attorney
must pay the attorney=s fee
sanction.  Putting the choice in the
hands of the defendant would run contrary to well-established law relegating
sanctions to the trial court=s discretion.  See Am.
Transitional Care Ctrs., 46 S.W.3d at 877B78 (identifying abuse of discretion as the proper standard of review
for section 13.01(e) sanctions as it is for sanctions under other statutes and
rules).




What, then, was the effect of
Gurkoff=s amended request seeking attorney=s fees from Rosemary=s former attorneys only? 
Section 13.01(e) places the power to decide against whom to order
attorney=s feesCagainst the
claimant or the claimant=s attorneyCin the hands of the trial court. 
Gurkoff=s amended
request did not remove that power from the trial court; instead, his amended
request effectively waived any attorney=s fees the trial court might award against Rosemary=s estate.  The net result of
this waiver opened the door for the trial court to exercise its discretion by
denying the request for attorney=s fees altogether.  In other
words, the trial court always had the discretion to decline to award attorney=s fees against Rosemary=s attorneys. Gurkoff=s waiver of fees against the claimant did not deprive the trial court
of that discretion.  Instead, it changed
the effect of the trial court=s decision not to award fees against the claimant=s attorneys from a mandatory award of fees against the claimant to no
award at all.
Because the trial court
always had the discretion to not award fees against Rosemary=s former attorneys, the last question we must address is whether the
trial court abused that discretion by so deciding.  To determine whether a trial court abused its
discretion, we must decide whether the trial court acted without reference to
any guiding rules or principles; in other words, we must decide whether the act
was arbitrary or unreasonable.  Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert.
denied, 476 U.S. 1159 (1986).  Merely
because a trial court may decide a matter within its discretion in a different
manner than an appellate court would in a similar circumstance does not
demonstrate that an abuse of discretion has occurred.  Id. 
The reviewing court must not substitute its judgment for the trial court=s judgment unless the trial court=s action was so arbitrary that it exceeded the bounds of reasonable
discretion.  Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 211 (Tex. 2002).




In the trial court, Rosemary=s attorneys argued that the doctrine of res ipsa loquitur obviated the
need to file an expert report under article 4590i.  The trial court took this argument seriously
enough to grant Rosemary=s motion for
reconsideration.  Rosemary died before
the trial court issued another ruling, and much of the delay and procedural
wrangling that followed was related more to her death than her attorneys= failure to file an expert report. 
And it was not until July 2005Cten months after the trial court granted Rosemary=s motion for reconsideration and nine months after her deathCthat the supreme court held that healthcare liability claimants must
comply with 4590i=s
expert-report requirement even in cases where expert testimony is not required
to establish liability at trial, as in cases where res ipsa loquitur
applies.  Murphy v. Russell, 167
S.W.3d 835, 838 (Tex. 2005).
Under the circumstances, we
hold that the trial court did not abuse its discretion by denying Gurkoff=s request for attorney=s fees against Rosemary=s former attorneys.  We overrule
Gurkoff=s sole issue and affirm the trial court=s judgment.
 
 
ANNE GARDNER
JUSTICE
 
PANEL A:   CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
 
DELIVERED:  April 10, 2008  




[1]See Tex. R. App. P. 47.4.


[2]See Act
of May 5, 1995, 74th Leg., R.S., ch. 140, ' 1, 1995 Tex. Gen. Laws
985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09,
2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.351
(Vernon Supp. 2007)).  All section
references in this opinion are to the 1995 version of Texas Revised Civil
Statutes article 4590i, which was in effect at the time this suit was filed and
will be referred to as the A1995 version@ or Aformer
version.@  Rosemary filed her original petition three
days before the current version took effect. 


[3]The
attorneys who represented Rosemary before she died are her Aformer@
attorneys because the attorney-client relationship terminates upon the client=s
death.  See Murphy v. Murphy,
21 S.W.3d 797, 798 (Tex. App.C Houston [1st Dist.] 2000, no
pet.).


[4]Because
Gurkoff limited his request for attorney=s fees to an award against
Rosemary=s
former attorneys only, we need not address Pierson=s
argument that the trial court lacked jurisdiction to award attorney=s
fees against Rosemary=s
estate.  See Tex. R. App. P. 47.1.


