Timmie Parks v. University of Texas Medical Branch ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00127-CV
______________________________
TIMMIE PARKS, Appellant
V.
UNIVERSITY OF TEXAS MEDICAL BRANCH, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 09C1642A-202
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Timmie Parks filed suit against the University of Texas Medical Branch (UTMB)
October 29, 2009. 1 He alleged that, while he was incarcerated in the Texas Department of
Criminal Justice Telford Unit in New Boston, Texas, he was injured while working on the prison
boiler system and the resulting diagnosis and treatment by the UTMB staff members at the prison
was conducted negligently.
Parks alleged that he lacked the financial ability to secure his own medical expert and on
November 4, 2009, moved the court to appoint him a medical expert so that he could comply with
the medical expert report requirements of Chapter 74 of the Texas Civil Practice and Remedies
Code. Parks filed a motion for default judgment on December 23, 2009, alleging that UTMB’s
answer to his petition was untimely filed. Two months later, on February 11, 2010, Parks filed a
motion petitioning the court to order that a physician examine him so that he could prove the
elements of his health care liability claims.
On February 12, 2010, UTMB moved to dismiss2 Parks’ lawsuit because he had failed to
serve an expert report3 within 120 days of filing suit, as required by Section 74.351 of the Civil
Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011).
1
Parks also named the Texas Department of Criminal Justice (TDCJ) as a defendant, and asserted negligence and
premises liability claims against it.
2
The motion also included a motion to sever Parks’ claims against UTMB from his claims against TDCJ, which was
granted.
3
It is undisputed that Parks failed to serve UTMB with a medical expert report.
2
After a hearing where both UTMB and Parks4 appeared, the trial court granted UTMB’s motion to
dismiss and denied all other relief not expressly granted in the judgment.
On appeal, Parks argues that: (1) the trial court erred by not ruling on his three motions
prior to dismissing his claims against UTMB; and (2) this failure deprived him of his right to an
interlocutory appeal of those rulings.5 We affirm the trial court’s judgment.
The trial court’s order granting UTMB’s motion to dismiss did not specifically reference
Parks’ motions, but the order states: “the Court denies all relief not expressly granted in this
judgment.” In his first point of error, Parks contends that the trial court erred by failing to rule on
his three motions before dismissing his claims against UTMB.6
When a trial court’s express ruling on one motion necessarily implies a contrary ruling on
an opposing motion, the trial court may be deemed to have implicitly ruled on the opposing
motion. See Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997); see also In re Z.L.T., 124
S.W.3d 163, 165 (Tex. 2003) (holding trial court’s act of proceeding to trial without issuing
requested bench warrant was implicit denial of its request). Dismissing Parks’ claims against
UTMB necessarily implies that Parks’ motions were denied. Because the trial court’s judgment
implicitly denied Parks’ motions, we overrule his first point of error. Our ruling on the first point
of error makes the second point a moot issue.
4
Parks appeared and participated via closed-circuit television.
5
Parks does not argue that his motions tolled the running of the 120-day time period.
6
Parks does not argue that the trial court erred by denying his motions.
3
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: June 23, 2011
Date Decided: June 24, 2011
4