Marci Green v. Cypress Fairbanks Medical Center Hospital and D. White, R.N. ( 2003 )

MEMORANDUM OPINION No. 04-01-00434-CV Marci GREEN, Appellant v. CYPRESS FAIRBANKS MEDICAL CENTER HOSPITAL and D. White, R.N., Appellees From the 164th Judicial District Court, Harris County, Texas Trial Court No. 99-62908 Honorable Martha Hill Jamison, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 26, 2003

AFFIRMED

Marci Green appeals the trial court's judgment against her in her health care liability claim against Cypress Fairbanks Medical Center Hospital and D. White, R.N. We affirm.

Factual and Procedural Background

Green was admitted to the Hospital for emergency treatment of a kidney stone. After being discharged, Green filed this healthcare liability claim against White and the Hospital (collectively, "the Hospital").When the case had been on file for one year, the Hospital moved for a no-evidence summary judgment contending Green had no evidence of duty, breach, or causation. The only evidence Green submitted in her response was the expert report of Dr. Anjali Jain. In reply, the Hospital objected to Green's summary judgment evidence as inadmissible, in part because Green had previously filed Dr. Jain's report in an effort to comply with section 13.01(a)(3) of the Texas Medical Liability and Insurance Improvement Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(a)(3), (r)(6) (Vernon Supp. 2001). The trial court sustained the Hospital's objections, struck Green's summary judgment evidence, and rendered judgment in favor of the Hospital.

Discussion

1. Green first argues the trial court erred in striking her summary judgment evidence because the Hospital did not pray for this relief. We disagree. In the prayer contained in its reply, the Hospital asked the trial court to grant its motion for summary judgment and for "such other and further relief" to which it was justly entitled. This prayer encompasses the order striking Green's summary judgment evidence. See Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 563 (Tex. App.-San Antonio 1998, pet. denied). This is particularly true since, in the body of its reply, the Hospital argued it was entitled to judgment as a matter of law because Green's "summary judgment evidence is not admissible" in part because her section 13.01(r)(6) affidavit is rendered inadmissible in a summary judgment proceeding by section 13.01(k); and, therefore, "[i]t is proper for a trial court to strike a 4590i report submitted in response to a motion for summary judgment. Garcia v. Willman, 4 S.W.3d 307, 310 (Tex. App. - Corpus Christi 1999, no pet.)." Moreover, attached to the Hospital's reply was a form order on the Hospital's objections to Green's summary judgment evidence; the decretal paragraph of the order states "ORDRED [sic] that the Objections are hereby SUSTAINED and the Plaintiff's summary judgment evidence is hereby STRICKEN." Given these circumstances, we hold the Hospital's prayer for general relief encompasses an order striking Green's summary judgment evidence.

2. Green next argues the trial court erred in sustaining the Hospital's objections to her summary judgment evidence without setting the objections for submission or hearing. However, Green does not cite, and we are not aware of, any requirement in the Texas Rules of Civil Procedure or case law requiring a hearing on objections to summary judgment evidence separate and apart from the summary judgment hearing.

3. Green next argues that the trial court erred in failing to afford her an opportunity to amend her defective summary judgment evidence. We disagree. Green had more than three weeks in which to file additional evidence - from January 16, 2001, the date on which the Hospital's objections were filed, until February 19, 2001, the date on which the summary judgment was signed. At no point during this period did Green seek leave to file additional summary judgment evidence.

4. Green next argues the trial court erred in denying her second motion for new trial. We again disagree. The trial court signed the summary judgment on February 19, 2001; accordingly, the deadline for filing a motion for new trial was March 21. Green filed a motion for new trial on March 21; this motion was denied on May 7. Green attempted to file a second motion for new trial on May 21. This motion was not timely. See Tex. R. Civ. P. 329b(b).

The judgment is affirmed.

Sarah B. Duncan, Justice

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