Daris White v. Baptist St. Anthony's Hospital, a Non-Profit Corp., and Ken Bauersfeld ( 2006 )

NO. 07-04-0521-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 20, 2006
______________________________
DARIS WHITE,
Appellant
v.
BAPTIST ST. ANTHONY’S HOSPITAL, A NON-PROFIT CORP.,
Appellee
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 90,444-A; HON. HAL MINER, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1
Daris White (White) appeals from the trial court’s dismissal of her medical
malpractice claim against Baptist St. Anthony’s Hospital (BSA) and denial of her request
for a 30-day extension of time to submit an adequate expert’s report. Through three
issues, she contends that the trial court abused its discretion in 1) reconsidering its prior
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John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T E X . G O V ’T
C O D E A N N . §75.002(a)(1) (Vernon 2005).
decision to initially deny BSA’s motion to dismiss, 2) relying on previously non-existent
case law and standards to hold the expert’s report deficient, and 3) refusing to afford her
30 days to correct the deficiency or otherwise hold a hearing on her motion requesting
such relief. We affirm the judgment of the trial court.
Reconsideration of Prior Order
Regarding the first issue, White believes that the trial court was duped into
reconsidering its prior decision to deny BSA’s motion to dismiss. It was purportedly duped
by BSA’s representation that the court had not memorialized its ruling upon the motion
when it actually had. And, because the trial court had actually ruled upon the motion,
BSA’s sole avenue for relief, according to White, was either to perfect an interlocutory
appeal or petition for a writ of mandamus.
Both contentions, however, are founded upon the notion that the trial court lacked
the authority to reconsider its previous interlocutory decision. Yet, White cites us to no
authority so holding. Nor does she inform us of any authority suggesting that 1) a litigant
cannot move a trial court to reconsider a previous interlocutory decision or 2) a party
disagreeing with an interlocutory decision of a trial court may test same only through an
interlocutory appeal or a petition for mandamus relief. This may be so because a trial court
has plenary jurisdiction to reconsider its interlocutory rulings, like that at bar, and retains
that ability until a final judgment or order is entered in the cause and the decree becomes
final. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); Orion Enterpr., Inc. v.
Pope, 927 S.W.2d 654, 658 (Tex. App.–San Antonio 1996, orig. proceeding). Given this,
the trial court had the authority to reconsider whether to grant BSA’s motion to dismiss, and
we overrule the first issue.
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Reliance on Changed Law
Regarding the allegation that the trial court tested the validity of her expert’s report
against “case law and standards that had not existed at the time the report was approved,”
we again note the absence of citation to authority supporting White’s position. So too does
she fail to inform us of the new standards of which she complains or how they or the new
case law actually changed anything. So, her contention is insufficiently briefed and,
therefore, waived. See TEX . R. APP. P. 38.1(h) (stating that the brief must contain clear and
concise argument supported by appropriate citation to authority); Franklin v. Enserch, Inc.,
961 S.W.2d 704, 711 (Tex. App.–Amarillo 1998, no pet.) (holding that by presenting
attenuated, unsupported argument, the complaint is waived).
Error in Denying Grace Period
As to the matter of affording White leave to submit a sufficient expert’s report, we
address the question of a hearing first. Again, White posits that the trial court was
obligated to afford her a hearing upon her request for a 30-day grace period. We overrule
this contention for the following reasons.
The record shows that White had filed a written response to BSA’s motion for
reconsideration and therein sought the grace period in question. Subsequently, the trial
court convened a hearing on October 8, 2004, to consider BSA’s motion. During this
October 8th hearing and after the trial court decided that the hospital’s contentions were
accurate, White, via her counsel, twice mentioned her pending request for the “30 day
grace period” to correct the deficiencies. After briefly discussing the request with her
counsel, the trial court denied it and informed those present of its decision to dismiss the
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cause. So, as can be seen, White’s application for the grace period was indeed
considered at a hearing. And, to the extent that she may take issue with the time allotted
for consideration of it, she uttered no objection encompassing that ground before the
hearing ended. Nor, at the hearing, did she either 1) solicit opportunity to present
argument and evidence on the topic before the trial court ruled or 2) object to the decision
to rule before she had opportunity to present same. So contrary to White’s argument, her
request was entertained at a hearing, and to the extent she complains about the tenor of
the proceeding, she failed to contemporaneously object to it and thereby preserve that
complaint. See TEX . R. APP. P. 33.1(a) (requiring a timely complaint to preserve error).2
As to the contention that the trial court abused its discretion in denying the 30-day
grace period, we note that the burden lies with the party soliciting same to illustrate that
the deficiencies within the initial report were neither intentional nor the result of conscious
indifference. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1995 Tex. Gen. Laws 985-
87 (formerly art. 4590i, §13(g) of the Texas Revised Civil Statutes) (stating that if after
hearing, the court finds that the failure of the claimant was not intentional or the result of
conscious indifference but was the result of an accident or mistake, the court shall grant
a grace period of 30 days to permit the claimant to comply). No such evidence was
presented at the October 8th hearing, however. Nor, as previously mentioned, was
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W e note that W hite did complain about the tenor of the hearing in her own motion for reconsideration
filed after the trial court signed its order dismissing the suit. Yet, nowhere in the motion did she explain why
she did not request opportunity to pre sent evidence or a rgum ent at th e hearing. N or did she suggest that such
evidence or argument was unavailable at the time. And, most importantly, to the extent that the motion was
overruled by operation of law, T EX . R. C IV . P. 329b(c) (stating that a post-judgment m otion seeking to mo dify
the jud gm ent is overruled by operation of la w if it is not resolved by written order signed within 75 days after
the judgm ent w as s igned), W hite do es n ot com plain abou t that de cision on appe al.
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opportunity to present such evidence at that hearing sought by her. So, it cannot be said
that she carried her burden.3
Finally, the sum and substance of appellant’s reasons for believing herself entitled
to the grace period involve the trial court’s subsequent realization that White’s expert report
did not satisfy the requirements of law. That the trial court was initially mistaken about the
sufficiency of the report has little bearing on whether White established her entitlement to
the grace period, however. This is so because the pertinent circumstances are those
which existed at the time the report was filed.
It is clear that statute required a plaintiff to tender a sufficient expert’s report within
180 days of filing suit. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1995 Tex. Gen.
Laws 985-87 (formerly article 4590i, §13.01(d) of the Texas Revised Civil Statutes)
(affording the plaintiff 180 days of the date suit was filed to provide each defendant
physician and health care provider with an expert report and the expert’s resume). And,
it was the failure to comply with that edict which triggered the possible application of
§13.01(g). In other words, the “failure” alluded to in §13.01(g) pertained to the failure to
file a sufficient report within 180 days of suit. Thus, logically, the focus must lie not upon
what may have occurred after the report was filed but upon the reasons and mindset of the
plaintiff at the time it was filed. And, the only reason we know of for White tendering the
report at issue presumably was her belief that it satisfied the applicable statutory
requirements. Yet, such a mistaken belief is not enough to satisfy the requirements of
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To the exten t that op portu nity to comply was solicited via her motion for reconsideration, we again
note that W hite did not appeal the denial of that motion. Nor, in that motion or on appeal, did she proffer
explanation 1) justifying her failure to request opportunity to present the requisite evidence or argument at the
Octob er 8 th hea ring or 2) illustrating tha t the ev idence o r argum ent w as s om eho w un available at the time.
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§13.01(g). Walker v. Gutierrez, 111 S.W.3d 56, 64-65 (Tex. 2003); Kirksey v. Marupudi,
07-03-0076-CV, 2003 Tex. App. LEXIS 10852 at *10 (Tex. App.–Amarillo December 30,
2003, no pet.). Consequently, we overrule this issue as well.
Having overruled each issue of White, we affirm the order of dismissal.
Brian Quinn
Chief Justice
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