Summary
holding it was improper for the trial court to grant summary judgment in favor of appellees because appellant failed to present prima facie proof to support his bill of review petition
Summary of this case from Akinwamide v. Transp Ins. Co.Opinion
No. 05-05-00912-CV
Opinion issued July 31, 2006.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-267-05.
Vacated and Dismissed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
MEMORANDUM OPINION
In this bill of review case, Robbie Rich, individually and as sole heir of the estate of Jimmy L. Rich, deceased, appeals the trial court's summary judgments in favor of Dr. Brian K. Cooley and Dr. Timothy Chappell. In six points of error, Rich contends the trial judge erred in granting Dr. Cooley's motion for summary judgment because Rich established she was entitled to prevail on her bill of review and the trial judge erred in granting Dr. Cooley's and Dr. Chappell's motions for severance in the previous case. For the reasons that follow, we vacate the trial court's judgment and render judgment dismissing the case.
The facts are known to the parties and are recited here in brief detail. Rich sued Dr. Cooley, Dr. Chappell, and others alleging medical malpractice. In support of the medical malpractice claim against Dr. Cooley and Dr. Chappell, Rich filed an expert report by Dr. Scott Gruber. Thereafter, Dr. Cooley filed a motion for summary judgment, a motion to sever, and a motion to dismiss. Dr. Chappell filed a motion challenging Dr. Gruber's expert report and likewise filed a motion to dismiss. The trial judge granted Dr. Cooley's and Dr. Chappell's motions to dismiss and, on January 8, 2004, severed their claims from the remaining defendants.
On January 24, 2005, Rich filed a bill of review, alleging she did not receive timely notice of the January 2004 severance. Both Dr. Chappell and Dr. Cooley filed motions for summary judgment on the grounds that Rich was not entitled to relief because (i) she had not filed a writ of error, (ii) the expert report was insufficient to meet the requirements of the statute, and (iii) Rich was barred from relitigating the issue of the report's sufficiency. The trial judge granted Dr. Chappell's motion for summary judgment on May 25, 2005 and Dr. Cooley's motion for summary judgment on May 26, 2005. This appeal followed.
In her sixth point of error, Rich contends the trial judge "abused [his] discretion and erred in granting a severance" following the trial judge's granting of summary judgments in favor of Dr. Cooley and Dr. Chappell. Under this point, Rich argues a "common sense approach" mandates that all judgments of this case should be appealed together, regardless of whether or when they were severed from the underlying case. Nevertheless, Rich cites no authority in support of this "common sense approach" and, in fact, cites numerous cases for the contrary proposition. Because the law is well settled that an interlocutory order granting summary judgment becomes final and appealable when severed from the primary case, we decline Rich's suggestion to embrace her "common sense approach." See Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (severance of interlocutory judgment into separate cause makes it final for appeal purposes). We overrule Rich's sixth point of error.
In her first point of error, Rich claims the trial judge abused his discretion and erred in granting Dr. Cooley's motion for summary judgment because Rich established a meritorious claim under her bill of review. A party who participated at trial but has been prevented from filing a timely motion for new trial or perfecting a timely appeal may file a bill of review challenging the trial court's judgment. Petro-Chem. Transport, Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex. 1974). To prevail on her petition for bill of review, the petitioner must assert in her petition that
(i) she failed to timely file a motion for new trial or otherwise advance an appeal of the trial court's judgment,
(ii) her failure to do so was caused by an official mistake or by the fraud, accident, or wrongful act of the opposing party,
(iii) her failure to act was unmixed with any fault or negligence on the petitioner's part, and
(iv) she has a meritorious ground of appeal.
See Thompson v. Ballard, 149 S.W.3d 161, 164 (Tex.App.-Tyler 2004, no pet.) (citing Petro-Chem. Transport, 514 S.W.2d at 244-46). "A meritorious ground of appeal means a claim that would likely be a successful point of error in the court of appeals." Thompson, 149 S.W.3d at 164-65; see McDaniel v. Hale, 893 S.W.2d 652, 672 (Tex.App.-Amarillo 1994, writ denied) (holding that "a meritorious ground of appeal means a meritorious claim, whether that claim be a meritorious defense to the cause of action alleged to support the judgment or merely a meritorious basis for the modification of the judgment in some respect.").
As a pretrial matter, the petitioner must present prima facie proof to support her claims of a meritorious ground on appeal. Petro-Chem. Transport, 514 S.W.2d at 245-46; Thompson, 149 S.W.3d at 165. Thus, the only relevant inquiry initially is whether the petitioner has made a prima facie showing of a meritorious ground of appeal. Thompson, 149 S.W.3d at 165 (citing Beck v. Beck, 771 S.W.2d 141, 142 (Tex. 1989) and Martin v. Martin, 840 S.W.2d 586, 591 (Tex.App.-Tyler 1992, writ denied)); see Petro-Chem. Transport, 514 S.W.2d at 245-46. If a prima facie meritorious ground of appeal is shown, the judge then conducts a trial on the merits of the bill of review. See In re L.N.M., 182 S.W.3d 470, 474 (Tex.App.-Dallas 2006, no pet.). However, if the petitioner fails to make a prima facie showing, the proceeding terminates, and the case is dismissed. See Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979); In re L.N.M., 182 S.W.3d at 474-75. Thus, we first address whether the trial judge erred in failing to find that Rich made a prima facie showing of a meritorious ground of appeal.
In her March 29, 2005 amended bill of review, Rich alleges the trial judge "erred in failing to sustain plaintiffs' claim that the defendants failed to timely file an objection to the report of Dr. Gruber and thus 'waived their right to contest the report,'" and "erred and abused its discretion overruling plaintiffs' objections that Dr. Chappell and Dr. Cooley 'waived any right to object to Dr. Gruber's report' by their failure to file the objections within 21 days after they had received their CVs and reports." Rich concludes, "Because defendants failed to timely file objections to Dr. Gruber's report, they waived any complaint relating to the report and the court erred in dismissing the case as to the two defendants." The remainder of Rich's March 29, 2005 bill of review addresses the failure to receive notice of the severance. Although Rich filed a May 11, 2005 supplemental corrected bill of review, this document corrects the "clerical error" as to the date of discovery of the trial court's severance and submits certain facts under oath. Rich does not make additional points or arguments addressing or relating to the prima facie issue of a meritorious ground of appeal in the supplemental corrected bill of review. Thus, based on the amended bill of review before the trial judge, Rich's claim of a prima facie meritorious ground of appeal was that the objections to the expert report were untimely filed and the trial judge erred in allowing the objections.
At the time Rich filed her original petition on April 28, 2003, article 4590i governed the filing of expert medical reports in a medical malpractice case. Although article 4590i was repealed and reenacted in Chapter 74 of the Texas Civil Practices and Remedies Code, the new statute applies "only to an action filed on or after" September 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 23.02(a), (d), 2003 Tex. Gen. Laws 847, 899. Rich's claim, filed in April 2003, is "governed by the law in effect immediately before the change in law made by" the June 2, 2003 Act, i.e., Rich's claim is governed by article 4590i. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 899.
Article 4590i, section 13.01(e) provides that, if a claimant fails to file an expert report as set forth in article 4590i, section 13.01(d), the trial court "shall, on the motion of the affected physician or health care provider, enter an order awarding . . . the dismissal of the action of the claimant against that defendant with prejudice to the claim's refiling." See Act of May 25, 1993, 73rd Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 2347, amended by Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon Supp. 2005)). Although section 13.01(d) imposes a deadline on the claimant to file an expert report, section 13.01 does not impose a deadline on a healthcare provider to file a motion to dismiss or a motion challenging the report. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003); In re Sheppard, 2006 WL 802431, *2 (Tex.App.-El Paso 2006, orig. proceeding). Both Dr. Chappell and Dr. Cooley filed motions challenging Dr. Gruber's report under section 13.01. Because section 13.01 does not impose a deadline, Dr. Chappell's and Dr. Cooley's objections, challenges, and motions to dismiss were not untimely. See Jernigan, 111 S.W.3d at 156. Thus, Rich did not present prima facie proof in support of her claim of a meritorious ground on appeal. We overrule Rich's first point of error. Because Rich did not meet her burden of making a prima facie showing of a meritorious ground of appeal, we need not address Rich's remaining points of error.
Finally, we note that when a petitioner fails to make a prima facie showing, the proceeding terminates, and "the trial court shall dismiss the case." Baker, 582 S.W.2d at 409; see In re L.N.M., 182 S.W.3d at 474-75. In this case, when Rich failed to make a prima facie showing of a meritorious ground of appeal, the trial judge should have dismissed the case rather than grant summary judgments in favor of Dr. Cooley and Dr. Chappell.
Therefore, we vacate the trial court's May 25, 2005 summary judgment in favor of Dr. Chappell and the May 26, 2005 summary judgment in favor of Dr. Cooley judgment. We render judgment that Rich's bill of review case against Dr. Cooley and Dr. Chappell be dismissed.