Norma Lopez, Individually, as Personal Representative of the Estate of Alfonso Lopez and on Behalf of All Wrongful Death Beneficiaries of Alfonso Lopez v. Brian Callahan, M.D. ( 2020 )

Affirmed and Memorandum Opinion filed October 1, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00913-CV
NORMA LOPEZ, INDIVIDUALLY, AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF ALFONSO LOPEZ, AND ON BEHALF OF ALL
WRONGFUL DEATH BENEFICIARIES OF ALFONSO LOPEZ, Appellant
V.
BRIAN CALLAHAN, M.D., Appellee
On Appeal from the 131st District Court
Bexar County, Texas
Trial Court Cause No. 2014CI15183
MEMORANDUM OPINION
Appellant/plaintiff Norma Lopez, Individually, as Personal Representative
of the Estate of Alfonso Lopez, and on behalf of all Wrongful Death Beneficiaries
of Alfonso Lopez (“Norma”),1 challenges an order granting the no-evidence
motion for summary judgment filed by appellee/defendant Brian Callahan, M.D.
1
We refer to appellant and her late husband by their first names because they share the
same surname.
Because Norma failed to respond to the motion or provide responsive evidence on
the challenged elements of the claims, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In early 2013, Norma’s husband, Alfonso Lopez, sought medical treatment
from Callahan after suffering blockage in the dialysis access in his arm. During
Callahan’s treatment of Alfonso, which included a chemical thrombolysis and
angioplasty, Alfonso complained of pain and began experiencing breathing
difficulties. He suffered cerebellar and midbrain strokes resulting in a coma.
Alfonso passed away two weeks later.
In September 2014, Norma brought a wrongful-death suit against Callahan,
alleging medical negligence in the course of his care and treatment of Alfonso.2 In
both her original and amended pleadings, Norma asserted that in treating Alfonso,
Callahan fell below the appropriate standard of care and proximately caused
Alfonso’s injuries, damages, and ultimate death. Norma alleged that Callahan:
1. improperly provided medical care and treatment;
2. failed to properly diagnose and treat Alfonso’s medical
conditions;
3. failed to properly evaluate Alfonso during the thrombectomy
performed on January 12, 2013;
4. failed to properly perform the medical treatment necessary to
Alfonso’s welfare according to the standards set by the health care
profession;
5. failed to timely recognize and/or acknowledge Alfonso’s
symptoms that developed during the thrombectomy performed on
January 12, 2013;
6. failed to perform an appropriate angiographic evaluation of the
2
Norma also named Star Vascular, LLC d/b/a Star Vascular Access Center as a
defendant. In July 2017, the trial court granted summary judgment in favor of Star Vascular and
issued an order severing the claims against it.
2
graft (including the inflow and outflow vessels) during the
thrombectomy performed on January 12, 2013;
7. failed to use the appropriately sized angioplasty balloons for the
procedure being performed;
8. failed to properly supervise the performance of the
thrombectomy being performed on January 12, 2013; and
9. failed to adequately assess, monitor, and treat Alfonso’s
medical condition.
Norma filed expert reports early in the litigation, which Callahan challenged
as noncompliant with medical-expert-report requirements. Callahan filed a motion
to dismiss Norma’s claims. Before any ruling on Callahan’s motion to dismiss, the
trial court permitted Norma’s second set of attorneys to withdraw. Since April
2017, Norma has prosecuted her claims pro se and is representing herself in this
appeal.
Two and a half years after Callahan filed his motion to dismiss, the trial
court denied the motion. The trial court then issued a scheduling order, setting the
trial date (December 3, 2018) and imposing deadlines to designate experts and
complete discovery. Both parties signed the scheduling order, agreeing to the
deadlines the trial court ordered. Norma did not designate experts by the court-
ordered deadline. Shortly after the time passed for her to do so, Callahan filed a
no-evidence motion for summary judgment, urging the trial court to dismiss all of
Norma’s claims.
In a final order the trial court granted Callahan’s summary-judgment motion
and dismissed Norma’s claims. The record, including the trial court’s docket sheet
contains no indication that Norma filed anything with the trial court between the
filing of the summary-judgment motion and the granting of the motion. Norma
timely appealed.
3
II. ISSUES AND ANALYSIS
Norma’s appellate complaints and arguments lack clarity, want for detail,
and contain no references to legal authority. These deficiencies place her appellate
complaints in jeopardy of being waived. See Tooker v. Alief Indep. Sch. Dist., 522
S.W.3d 545, 555 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (finding waiver
of inadequately briefed issue containing conclusory assertions without legal
citations). Though Callahan complains of these shortcomings, we decline to find
briefing waiver and instead address Norma’s arguments as we discern them. See
Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008); Reule v. M & T Mortgage, 483
S.W.3d 600, 608 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). In the
“Issue Presented” section of her brief, Norma poses a single issue:
Whether the trial court erred in excluding critical evidence presented
of Mr. Alfonso Lopez [sic] Wrongful Death at Star Vascular LLC
D/B/A Star Vascular Access Center with Brian Callahan, MD as the
doctor who performed the procedure.
In an apparent reference to this exclusion of evidence, Norma asserts the “court
shall [sic] allow plaintiff to bring in the wittnesses [sic] such as Dr. Jeffrey Harris
and Star Vascular Administrator, Dr. Cabrera.”
Exclusion of Evidence
Norma does not point to any place in record where the trial court issued an
order excluding any expert witness or other evidence, and our independent review
has not revealed any such trial-court action. For Norma to prevail on this point on
appeal, the record must show that she offered evidence and that the trial court
actually excluded the evidence. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a);
Matter of Marriage of Rangel & Tovias-Rangel, 580 S.W.3d 675, 679 (Tex.
App.—Houston [14th Dist.] 2019, no pet.) (“To show that the trial court abused its
discretion in excluding evidence, a complaining party must preserve error by
4
actually offering the evidence and obtaining an adverse ruling from the court.”); In
re L.D.W., 14-11-00438-CV, 2013 WL 2247383, at *3 (Tex. App.—Houston [14th
Dist.] May 21, 2013, no pet.) (error not preserved on complaint that expert report
was erroneously excluded when the record revealed that it had not been offered
into evidence) (mem. op.). The record shows neither. Given Norma’s failure to
preserve error on her exclusion-of-evidence complaint, she cannot possibly prevail
on appeal. See Keyes Helium Co. v. Regency Gas Services, L.P., 393 S.W.3d 858,
861 (Tex. App.—Dallas 2012, no pet.) (concluding appellant failed to preserve
error as to exclusion-of-witness issue where appellant did not identify trial court’s
ruling excluding expert). Therefore, this complaint lacks merit.
Summary Judgment
Liberally construing Norma’s appellate brief, we conclude she argues that
the trial court erred in granting Callahan’s no-evidence summary judgment. In his
summary-judgment motion Callahan asserted that there is no evidence of each of
the essential elements of each of Norma’s claims. Norma did not respond to the
motion. Thus, Norma provided no summary-judgment evidence that might raise a
genuine issue of fact as to any of the essential elements challenged.
Because Norma failed to respond to Callahan’s no-evidence summary-
judgment motion, the trial court properly granted it, and Norma has not shown that
the trial court erred in doing so. See Modelist v. Deutsche Bank Nat. Trust Co., No.
14-10-00249-CV, 2011 WL 3717010, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 25, 2011, no pet.) (mem. op.); Tex. R. Civ. P 166a(i) (“The court must grant
the [no-evidence summary-judgment] motion unless the respondent produces
summary judgment evidence raising a genuine issue of material fact.”). Thus,
Norma’s challenge to the trial court’s summary judgment lacks merit.
5
III. CONCLUSION
Having liberally construed Norma’s brief to contain two complaints and
having found each complaint lacking in merit, we overrule her appellate challenge
and affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
6