in the Interest of J.M., L.M., and K.M., Children ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00108-CV

In the Interest of J.M., L.M., and K.M., Children

From the 361st District Court

Brazos County, Texas

Trial Court No. 07-001211-CV-361

ORDER

            This is an appeal of the termination of the parental rights of both the mother and father of three children.  Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2007).  It is an accelerated appeal.  Id. § 263.405 (a).  The parents have been determined to be indigent and counsel appointed to represent them. After the termination order, the required statement of points on appeal was timely filed.  Id. § 263.405(b)(2).  The trial court timely held a hearing, as will be more fully described below, on whether the points on appeal were frivolous.  Id. § 263.405(d).  The trial court determined that the points on appeal were frivolous and denied the parents’ requests for a free record.  The legislature has provided specific details about the procedure we must utilize to review this determination.  Id. § 263.405(g).  The clerk’s record has been timely filed.  Id.  A portion of the reporter’s record of the 30-day hearing has been filed but a portion is now overdue.  Id.  By this order we will clarify why a reporter’s record of other days of the proceeding are included as part of the reporter’s record which is necessary in this proceeding and require the Court reporter to file the remaining portions of the reporter’s record within 10 days.

            The order of termination was signed on February 27, 2008.  It recites that it was rendered after hearing the case on the 6th, 13th, 18th, and 22nd days of February 2008.  The “Statement of the Points or Issues to be Presented on Appeal” for each parent was filed on March 10, 2008.  The “Notice of Appeal” for each parent was filed on March 13, 2008.  On the same date, a “Motion for a Free Reporter’s Record on Appeal” was filed with an affidavit of indigence attached by the mother of the children, Brandy Monroe.  Another affidavit of indigence by Brandy was filed on March 18, 2008.  On March 19, 2008 an Affidavit of Indigence of the father, Lonnie Monroe, was filed.

            On March 19, 2008 the trial court held a hearing at which both parents were determined to be indigent and at which the trial court denied the motion for a free record based on the determination that the issues in the statement of points by both parents were frivolous.  The order states as follows:  “On the 6th, 13th, 18th and 22nd days of February 2008, the Court held a hearing pursuant to Texas Family Code § 263.405(d). After considering the evidence presented both at trial and during this hearing as well as the argument of counsel, [t]he court finds each of the issues presented for review by Brandy Monroe are frivolous.”  An identical statement, except for the name which is Lonnie Monroe, is contained in an order as to the father.  We note that the dates listed in both orders are the same dates as the trial on the merits of the case.

            We have received and filed the reporter’s record from the March 19th hearing.  Because the trial court denied a free record, we are required to review that determination based on the record before the trial court at the frivolousness hearing.  And because the parties in argument on March 19, 2008 expressly asked the trial court to recall evidence from the earlier dates, and because the order expressly states that it relied on the hearing on those dates, we must have the reporter’s record from those dates to properly conduct our review.

The reporter’s record, other than the reporter’s record for the hearing held on March 19, 2008, has not been filed and was due on March 30, 2008, 10 days after the trial court’s decision on the indigence and frivolousness hearing.  See Tex. Fam. Code Ann. § 263.405(g) (Vernon Supp. 2007). Accordingly, the Court Reporter is ordered to file the reporter’s record from the referenced hearing held on February 6, 13, 18, and 22, 2008 without advance payment.  See id. § 263.405(d).   The reporters for the dates were as follows:  February 6, 2008—Diane Parker; February 13, 18, and 22—Kaetheryne Kyrielle.

These remaining portions of the reporter’s record must be filed with this Court no later than 5:00 p.m. on April 15, 2008.  This is not a grant of an extension but rather an order necessitated by the reporter’s failure to timely file the record.  Cf. id. § 263.405(h).  We realize that this is a special procedure for this type of proceeding that could easily have been overlooked by the reporter, but it is the one specified by the Legislature.  See id. § 263.405(g). This order is not intended to be, and should not be construed as, a negative reflection on the Court Reporter.

            If the remaining portions of the reporter’s record are not timely filed in response to this order, this proceeding will be abated for the trial court to hold a hearing to determine 1) why the reporter’s record has not been filed; and 2) a date certain by which it will be filed.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Order issued and filed April 3, 2008

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Dr. Lagomarsino and Medical Arts Clinic Association of Corsicana, a corporation, alleging medical malpractice. He sued Dr. Lagomarsino individually and in his representative capacity as agent of the corporation. Both defendants answered the suit and participated in discovery.

      Carter alleged in an amended pleading that Dr. Lagomarsino was guilty of these acts of negligence: (1) failing to consult with a qualified expert prior to performing the medical procedure on November 23, 1990; (2) failing to properly and competently treat him; (3) failing to provide proper medical care; and (4) failing to inform and advise him of the risks and hazards associated with the medical procedures performed in November and December of 1990. He alleged that Medical Arts Clinic, acting by and through Dr. Lagomarsino, was negligent in (1) failing to employ necessary quality control standards to ensure that patients in the Clinic's care would receive competent and qualified medical treatment from its staff; and (2) failing to obtain a second evaluation of his condition before the two medical procedures were performed.

      Dr. Lagomarsino moved for a summary judgment based on his affidavit and the affidavit of Dr. Schumann, and the court granted it. Carter argues that the court erred in doing so because Dr. Lagomarsino failed to negate the cause of action based on the failure to disclose the risks and hazards associated with the medical procedures performed on his left eye.

      To be final and appealable, a summary judgment must dispose of all parties and issues. Chase Manhattan Bank, N.A. V. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990). Furthermore, a summary judgment must dispose of all issues within a single cause of action or it is interlocutory. Id.

      The summary judgment in favor of Dr. Lagomarsino did not dispose of the cause of action against the Clinic, and the record does not reflect a severance of the claims against the Clinic from those against Dr. Lagomarsino. Furthermore, Dr. Lagomarsino never moved for a summary judgment on Carter's cause of action based on the negligent failure to disclose and, without a severance, this unadjudicated claim remains pending before the court. See id.

      The summary judgment is interlocutory. Accordingly, we dismiss the cause for want of jurisdiction.

                                                                   BOB L. THOMAS

                                                                   Chief Justice

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed April 13, 1994

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