Samlowski v. Wooten

Abbott, immunity General of has not waived its for such ac Greg Attorney W. Weber, Texas, Kelly light Andrew tions. 332 S.W.3d at 370-71. Clarence Morales, Franka, LLP, Hallman David S. we petition Hart & doctors’ for Texas, review, Attorney Office of the General of hearing argu and without oral General, Attorney ment, First Assistant Deputy the court appeals’ judg reverse Herrera, Attorney Nelly R. Office of the ment and remand the case to the court of General, Division, Ron- Litigation Tort S. for further appeals proceedings. Tex. Keister, R.App. Attorney ald Office of the General P. 59.1. Division, Texas, Litigation Tort Ruth

Ruggero Hughs, William J. “Bill” Cobb

III, General, Attorney Daniel Office of the General, Hodge, Attorney

T. First Asst. Mattax, Director Liti-

David C. of Defense General,

gation, Attorney Office of the

Austin, TX, Romero, for Cesar M.D. Grost, Paso, TX, El John J. for Jacob SAMLOWSKI, Eberhard

Lieberman. M.D., Petitioner, PER CURIAM. Lieberman, Larry psychiatric After WOOTEN, Respondent. Carol

patient at Hospital, Terrell State died of No. 08-0667. sepsis allegedly complete as a result of a care, father, respondent lack of his Jacob Supreme Court Texas. Lieberman, petitioners, sued Doctors 18, Argued Nov. 2009. Romero, Claxton, and Korman. The doc tors moved to against dismiss suit 25, Decided Feb. 2011. 101.106(f) them under section of the Texas Rehearing April Denied 2011. Act, Tort Claims & Civ. Prac. Rem. 101.106(f), brought plea Code jurisdiction on the same ground, claim

ing that the suit was based on conduct general scope

within the employ their

ment with the State Hospital and could brought against

have been the State Hos

pital. The trial court dismissed the action.

On respondent appeal, Lieberman’s

court of appeals reversed. No. 05-08-

01636-CV, Tex.App. LEXIS

*5, at *2 (Tex.App. WL 2009) (mem.op.).

Dallas Nov. pending

While this case has been on

appeal, we have decided Franka v. Velas (Tex.2011),

quez, holding 332 S.W.3d 367

that, 101.106(f), for purposes of section

tort action brought “under” the Texas Act, government

Tort even if the Claims

Kay E. Ellington, Kay Law Office of E. P.C., Dallas, Ellington, for Eberhard Sam- lowski, Cramer,

Barney McCoy, L. Michael W. Firm, Houston, Law Cramer for Carol Wooten.

Justice MEDINA announced the judgment of the Court and delivered an opinion which Chief Justice joined. JEFFERSON and Justice HECHT Texas Civil Practice and Remedies Code a trial court requires section 74.351 liability case, granted dismiss a health care claim unless this I say cannot trial court abused its the claimant serves with- discretion in denying the extension. Although I days filing disagree in 120 after suit. Tex. Civ. with 74.351(b). the court of appeals’ analysis of the Prac. & This dis- application and its of the abuse of discre- requirement subject to the trial missal standard, tion I conclude that the interests court’s discretion to one justice require a remand extension for the claimant to cure a court in this case. Accordingly, would Id. served but affirm the appeals’ court of judgment re- The trial court in health this manding this cause as modified this liability care case determined that claim- opinion. ant’s served was deficient granting

and dismissed her suit without

her for an request extension of time to cure the The court of appeals Carol Wooten was admitted to Walls agreed was deficient con- but Cleburne, Regional in Hospital complain- cluded the trial court abused its discretion ing of severe abdominal Dr. pain. Eber- by denying requested extension. 282 hard Samlowski pri- assumed Wooten’s 91. mary care days performed and two later laparascopic gall surgery. bladder granted petition We to consider un- surgery failed to relieve pain. Wooten’s der what circumstances a trial might court Following additional tests and a consult abuse its denying discretion when such an recommending further surgery explore to extension. involving Like most cases abdomen, Dr. performed Samlowski single rule will not fit exploratory laparotomy that revealed a situation, every generally but a trial court complete perfor- bowel obstruction with should an extension when the defi- pelvic region. ations Dr. Samlowski cient can be thirty- cured within the attempted repair the perforations and day period the permits. The court he during adhesions found this surgery. concluded, appeals among other things, that the case should be remanded to the Postoperative complications resulted trial court for proceedings, further and a Hughley Wooten’s transfer Memorial majority of agrees the Court with that Medical Center in Fort Worth. Her ad- judgment. majority reasoning There is no diagnosis mission there included postoper- remand, why for we however. Three cholecystectomy repair ative and of bowel essentially members of the Court agree perforation, sepsis syndrome, respi- acute appeals’ analysis, with the court of three ratory syndrome, distress renal insufficien- disagree analysis members with that and anemia, cy/failure, acute blood loss respira- render, would and reverse and three mem- failure, tory mellitus, type diabetes bers disagree with the court of appeals’ surgical sarcoidosis. Four additional pro- analysis but would nevertheless remand in performed cedures were on Wooten at justice. the interests of I am in this last Hughley where she remained for over six- group. ty days.

Because the record does not establish subsequently Wooten sued Dr. Samlow- would have negligence, serving ski for medical Dr. R. been cured if the extension had been Don Patman’s days la- if report, thirty-day report,

ter.1 In this Dr. Patman discusses extension to cure the the standard of care and several instances court found deficient. Dr. care fell where Samlowski’s short. The trial court heard the motions and a opinion, patient’s Dr. Patman’s lab re- days signed dismissing few later an order sults, complaints, history did not indi- Wooten’s case. No record was made at gall surgery. cate the need for bladder hearing. expressly The court’s order Instead, Dr. Patman states that Dr. Sam- granted both of Dr. Samlowski’s motions performed lowski should have additional request but did not mention Wooten’s for a to discover the actual cause of the tests cure. The court’s patient’s pain acute abdominal com- order, however, —a disposed of Wooten’s plete pelvic bowel obstruction with several pending by reciting motion that all relief perforation. areas of necrosis and Re- expressly granted was denied. Woo- causation, garding Dr. Patman concludes appealed. ten diagnosis that Dr. Samlowski’s inaccurate appeals A divided court of reversed and incomplete preoperative evaluation remanded with directions that Wooten be proximately patient’s caused the subse- granted a extension. complications quent prolonged hospi- and Although agreed’ 91. the court talization, and that in all likelihood the expert report that was it patient require would future treatment nevertheless concluded the trial court surgery. and additional giving had abused its discretion2 Dr. promptly Samlowski filed a motion Wooten additional time to cure that defi challenging “wholly as ciency. Id. at 90-91. The report was providing any expert opinions regarding deficient, according to appeals, specifically how the care rendered ... [he] represent good-faith because did “not a harm, proximately injury, caused the or effort to relationship summarize the causal damages claimed.” Dr. Samlowski subse- between Dr. Samlowski’s to failures meet quently filed a motion to after the dismiss applicable standards of care and Woo statutory deadline for serving expert harm, re- ten’s injury, damages.” claimed and ports passed. had responded Wooten Id. at (citing Tex. Civ. Prac. & Rem.Code motions, 74.851(r)(6)). arguing § both that her re- But the court concluded sufficient, port asking but also for a that the trial court given should have Woo general 1. Dr. Patman a exactly is board-certified and ments deadlines are not the same. surgeon vascular and Clinical Assistant Pro- required, The former statute and current stat Surgery University fessor of at the of Texas requires, ute dismissal the suit in the event Attending Southwestern Medical School and timely expert report is not served. See Tex Surgeon Baylor University Medical Center 74.351(b); former Tex. Civ. Prac. & Rem.Code in Dallas. 13.01(e). Civ. Stat. art. 4590i The former court, statute authorized the trial under cer Gutierrez, 2. Walker v. we held circumstances, tain extra time to court's denial of an extension to cure an ex statutory requirements. meet the See former pert report 13.01(g) under former Section 13.01(g). Stat. art. 4590i So Tex.Rev.Civ. Liability Improve the Medical and Insurance does the current statute. See Tex. Civ. Prac. & Act, ment Texas Revised Civil Statute art. 74.351(c). Given the structural 4590i, was to be reviewed for abuse of discretion. and substantive similarities between section (Tex.2003). 1 13.01, 74.351 former section the abuse of procedures in former section 13.01 and sec applies serving discretion standard likewise to a trial expert reports tion 74.351 for granting deny of time to court's decision to an extension of time extensions correct defi similar, 74.351(c). although require ciencies are under section deficiency additional time to cure that ten motion to cure. 282 S.W.3d at 90. Woo- ten “good- because the was a concludes that the court appeals’ judgment should be attempt” comply faith with the statute affirmed because fair reading Dr. easily supple that could be cured with a Patman’s shows that her claim has merit report’s and the mental Id. at 91. A dissent ar easily defect cured.3 gued that the trial court had not abused its dismissing discretion in the underlying party’s Neither argument proposes a lawsuit because the was not “an reasonable scheme for the exercise or re- objective good comply faith effort to with view of the trial court’s discretion under [statutory] definition of an re 74.351(c). section Dr. argu- Samlowski’s port.” (Gray, dissenting). Id. at 93 C.J. suggests ment that trial court discretion in absolute,

this instance is while Wooten’s II appellate indicates that review is not for abuse of but de novo. Both argument Dr. Samlowski’s here is simi- arguments are based on a faulty similar lar to the dissent in the court of appeals. premise: that trial court discretion under complains He the court’s concession that 74.351(c) section should be measured or Wooten’s was not a “good controlled some notion of good faith. faith effort” with conflicts its abuse-of- faith, however, Good is not mentioned in holding discretion and submits that section negates former the latter. He further (c) submits that the appeals’ court of charac- merely Subsection states that “the report terization of the “good as a faith may court grant 30-day one extension” if attempt” is a meaningless distinction elements of the expert report are deficient. through merely 74.351(c).4 which the court has sub- Tex. § Civ. Prac. & Rem.Code judgment “good stituted its for that of the trial The term faith” is used in the stat ute, court. Dr. Samlowski but it good appears thus views a in a later provision discussing faith effort in producing expert report challenge an motions that “the ade quacy the predicate expert report.” as for the trial court’s dis- Id. 74.351(l). 74.351(c). (l) cretion under section Subsection states that court grant “[a] shall a motion challenging Wooten, hand, on the other argues that the adequacy expert report of an [when] court discretion under section the report represent objective does not an 74.351(c) should be judged by the relative good effort to comply with the defini faith good faith in a exhibited deficient tion of an report[.]” Tex. Civ. Prac. report. The court of appeals’ opinion simi- 74.351(0 added). (emphasis & Rem.Code view, larly adopts this suggesting that the deficiency in Dr. Patman’s report was too explained We have “good that a permit small to the denial of Wooten’s faith effort” in simply this context a means argued 3. Wooten appeals may also in the court of 30-day the court one and in her brief to this Court that Dr. Pat- extension to the claimant order to cure sufficient, argu- man's was but at oral deficiency. If the claimant does not ment she conceded that the defi- ruling granting receive notice of the court’s cient. 120-day the extension until after the dead- passed, 30-day line has then the extension 74.351(c) provides 4. Section in full: plaintiff shall run from the date the first (c) expert report If an has not been served received the notice. period specified by within the Subsection 74.351(c). Tex. Civ. Prac. & Rem.Code (a) because elements of the are found Appeals, Fourth 700 S.W.2d that does not contain a material Court (Tex.1985). Therefore, deficiency. elements, all the required includes its A trial court therefore abuses 91, 94 Jernigan Langley, v. 195 S.W.3d arbitrary it renders an discretion when (Tex.2006), their connec explains and that lacking support and unreasonable decision tion the defendant’s conduct in a non- of the case. in the facts or circumstances fashion, conclusory Bowie Memorial Hos 441, 446 Shoukfeh, v. 943 S.W.2d Goode (Tex. pital Wright, v. (Tex.1997). Similarly, a trial court abuses contrast, 2002), good is a faith effort. arbitrary its discretion when it acts in an report that omits an element or states the reference or unreasonable manner without conclusory form not expert’s opinions Mercedes- guiding principles. rules or good faith effort. Am. Transitional Rhyne, Corp. Benz Credit S.W.2d Tex., Palacios, 46 Care Ctrs. Inc. v. (citing Downer v. (Tex.2001). 873, 879 these Under Inc., Aquamarine Operators, cases, “good produce faith effort” will (Tex.1985)). 74.351(c)’s 238, 241 Section adequate expert report for which no exten text, however, guid no provides particular 74.351(c) sion under section is needed. A ance on how the court should exercise its predi deficient then is the merely that stating “the court cate for the exercise of the trial court’s may grant 30-day to the one 74.351(c), not, discretion under section claimant in order to cure but [a suggests, proof as Dr. Samlowski that the report].” See & Civ. Prac. correctly. trial court decided the matter Guidance must purposes come instead from the broader complaint Dr. Samlowski’s Liability the Texas Act of which Medical appeals merely court of has substituted its 74.351(c) part. section ais court, judgment for that of the trial howev er, troubling. ap is more Ill

peals Dr. Patman’s as described well-detailed, “thorough, except legislation for A core of this purpose and — easily deficiency— identify one small and curable was to and eliminate frivolous patently sufficiently specific.” liability expeditiously, 282 health care claims underlying preserving S.W.3d at 90. But the merit of while merit. potential those 2, 2003, R.S., claim Leg., Wooten’s and the relative ease of Act of June 78th ch. 204, 10.11(b)(1),(3), § curing report Dr. Patman’s are matters in 2003 Tex. Gen. Laws dispute. enough It is not that the court of (seeking to reduce frivolous claims “in appeals dispute unduly would have decided the but a manner that will not differently rights any because the abuse of discretion restrict a claimant’s more than crisis”); generally necessary standard the trial “insulates to deal with the see Brandal, judge’s appellate reasonable choice from also Leland v. (Tex.2008) Hall,

second guessing.” (noting W. Wendell Stan in “section Texas, 74.351, Legislature dards Review in 38 St. struck a careful bal Mary’s (2006). said, L.J. have “to ance between claims eradicating As we frivolous ones”). preserving find an abuse of discretion factual meritorious To [when goal, matters are in sets a dead dispute], reviewing further this statute court must conclude that the facts and line for the claimant to substantiate the extinguish any underlying liability circumstances of the case health care claim with expert reports. discretion in the matter.” v. Johnson required claimant is to serve each The Wooten has conceded this physician or other health care Court that her report defendant was deficient but maintains that provider with an within 120 she was entitled to an ex tension because her days filing suit. Tex. could Prac. & Rem. Civ. 74.351(a). easily have been cured. The ap court of pro This must Code peals agreed, but this only is the court’s summary expert’s vide a fair opin judgment best in the matter. The record “regarding applicable ions standards does not that the establish deficient care, the manner which the care ren would have been cured if the extension physician dered or health care pro granted, had been and a claimant’s mere standards, vider failed to meet the and the assertion or belief that it could have been relationship causal between that failure cured with an extension of time does not harm, injury, damages and the or demonstrate an abuse of discretion under 74.351(r)(6). claimed.” Id. If the report section When the trial court deficient, may challenged, be and a cure, denies a motion to the claimant must report may deficient likewise lead to dis amake record that demonstrates the defi (l). 74.351(a), (b) missal. Id. & But a ciency would have been cured. invariably does not require underlying dismissal of the health care The claimant must therefore be liability claim. The incorporates statute a prepared to cure a deficient expert report significant exception “explicitly tri giv[ing] whether or not the trial grants court al thirty day courts discretion to When, case, claimant’s motion. as in this extension so that parties may, possi where simultaneously court finds the ble, reports.” Ogletree cure deficient denies a motion to Matthews, cure, and underlying dismisses the health (citing claim, Civ. Prac. & Rem.Code liability care the claimant must 74.351(c)). move the court to reconsider promptly

fix any problems with the This overriding principle guiding should further be done within the statuto discretion under section ry, thirty-day period, thereby demonstrat 74.351(c) then is the elimination of frivo ing would have been cured lous preservation claims and the of merito granted. had the extension been If this is adequate expert rious ones. An report is accomplished and the court refuses to re how the distinguishes consider, between the compliant the now report will two. A trial court should therefore grant typically trial establish the court’s abuse of an extension when a re discretion. Wooten didn’t make such a port readily court, can be deny cured and record in the trial and thus we are extension when it In making speculate cannot. that left to about whether she could determination, have may a trial court sometimes cured her with an ex err tension. and dismiss a claim when the report

could have been cured. A reasonable er IV however, judgment, ror in is not an abuse Packer, of discretion. See Walker v. I, however, agree with Justice Guzman’s (Tex.1992) 839-40 (noting that view that “trial courts should err on the reviewing may not substitute its granting side of claimants’ extensions to judgment as to factual matters committed show the merits of their claims.” 332 discretion). court’s right many S.W.3d at 416. The answer in will be for the trial court to But when a motion to cure under section

cases 74.351(c) denied, timely is the claimant must act upon one re- any problems it. to correct with the quest and be done with Justice Guz- in manner to demonstrate that this agrees man extension, an abuse of discretion. good enough but to warrant an disagree. I do not again statute, however, express The does not today. I have however, procedure outlined Be- statute, grants The the trial principles the statute is silent on the matter, cause in court discretion and Justice procedure that should control the trial analysis no appeal’s Guzman’s to be differ in court’s discretion this area and the ar- ent from that of the court of appeals, guments parties unfocused as a merely which I view as substitution of result, that conclude interests appellate court’s discretion for that of justice by will best be served a remand to analysis, the trial court. Under her See, e.g., Henry, the trial court. Low v. we are distinguish remains unclear how (remanding reports between deficient that demon parties “to allow the to present evidence reports strate merit and deficient that do responsive guidelines”); to our [new] not, other than Justice Potter Stewart’s Gravel, Gomez, Sand & Humble Inc. famous maxim: “I know it when I see it.” (Tex.2004) (“Because Ohio, 184, 197, Jacobellis v. 378 U.S. parties have not on the focused issue (1964) 1676, 12 (Stewart, L.Ed.2d 793 S.Ct. crucial, we think is we conclude that the concurring) (stating J. his test for deter justice interests of would be best served mining pornography hard-core outside the trial.”). by a new protection). bounds of constitutional Be cause the was deficient as

served, agree unequivocally I cannot appeals’ judgment court of is modi- the trial court abused its discretion when fied reflect a remand to the trial court denying the motion to cure. proceedings, See Tex. Civ. for further and the court’s 74.351(b) modified, judgment, Prac. & as is affirmed. (stating served, if an expert report has not been Justice opinion GUZMAN filed an shall, subject the court to the court’s dis concurring in the in judgment which cretionary power to grant 30-day one ex joined Justice LEHRMANN and in Parts claim). tension, dismiss I & II.B of which Justice WAINWRIGHT joined. V Although the record this case Justice opinion WAINWRIGHT filed an clearly

does not indicate that dissenting part concurring in the court abused its Dr. Patman’s judgment. largely as described the court dissenting Justice JOHNSON filed a of appeals “thorough and well-detailed.” — opinion in which Justice GREEN and 282 S.W.3d at 90. The appeals court of joined. Justice WILLETT plainly jus concerned about whether GUZMAN, joined by Justice Justice tice had been done the trial court. And LEHRMANN, Justice although the claimant did not follow the II-B, to WAINWRIGHT as Parts I and procedure I set out in opinion, this I too concurring. unsympathetic. am not A claim is not typically by doing precisely saved what agree I with the proper Court permission trial court has refused to disposition do. is to remand this case to the proceedings; trial court for further accord- on that issue as well as the grant failure to extension, join judgment. I ingly, Court’s How- as Carol Wooten did in this ever, case? Is that plaintiff also join opinion required I do not Justice Medina’s to and, so, submit a new if would disagree I with procedure because the new plaintiffs action waive the complaint that Medina out challenge Justice sets a trial the initial report was not deficient? Addi- court’s failure to grant thirty-day exten- tionally, when a claimant files a new Additionally, disagree sion cure. I with after the trial court has denied a motion Justice Medina’s conclusion that the trial extension, for happens what if a trial court court did not abuse its discretion. declines to set a motion for recon- hearing? sideration for aIs claimant then I. Procedural Issues required to challenge the trial court’s fail- At issue in this case is whether the trial ure to set the motion for a hearing, further court abused its discretion denying delaying resolution of the question of Carol Wooten a thirty-day extension to whether the trial court erroneously denied cure her inadequate expert report. See the extension in place? the first Or must Tex. Civ. Prac. & Rem.Code the court of appeals consider whether the Justice Medina holds the trial court did amended is sufficient to establish proceeds abuse its but then the trial court abused its discretion de- territory into new to address the manner nying an extension? Justice Medina also in which a claimant challenge must a trial does not appellate address when the dead- court’s denial of a motion to cure. Justice lines begin to run —whether from the time Medina concludes that when a trial court signs the order of dismissal finds an inadequate and de- or, because a claimant must move the cure, nies a motion to the claimant “must reconsider, court to from the denial of a move the court to promptly reconsider and motion to reconsider. Nor does Justice any problems.” fix 332 S.W.3d at 411 Medina consider whether this deadline is added). (emphasis Justice Medina states different if a claimant chooses not to file subsequently that a compliant report filed report, amended but to stand on the will demonstrate the trial court abused its initial report filed. by failing discretion the extension. Aside from the procedural questions Id. Justice approach Medina’s thus estab- raised, erroneously Justice Medina con procedure lishes new for challenging cludes that an amended filed after denial of a motion to cure. the trial court has denied a motion for already But rules governing exist will “typically establish the trial manner in which a person may challenge court’s abuse of discretion.” 332 S.W.3d at cure, court’s denial of a motion to 411. It is well-established that a review see, e.g., Tex. Civ. Prac. & ing court is to determine whether a trial (establish- 74.351(c); Tex.R. Civ. P. 329b court abused its discretion based on the ing motions); timeline for filing certain record before the trial court at the time Tex.R.App. (establishing P. 26.1 timeline for the decision was made. Univ. Tex. v. perfecting appeal), and it is unclear how Morris, 162 Tex. these rules intersect with the procedure (1961); Owens-Corning see Fiberglas created in opinion. Malone, Justice Medina’s For Corp. v. 52 n. 7 (Tex.1998). example, if a plaintiff believe, what believes the princi based on this initially-served report is not deficient and ple purposes and the of the expert report challenge seeks to finding requirement thirty-day court’s and the 414 Review an Scope the Trial Court’s cure, considering than B. that rather trial after the report amended submitted 74.351 is of section purpose One stated extension, reviewing a court has denied severi frequency excessive to “reduce court a trial analyze court should whether Leland liability care claims.” ty of health expert based on the abused its discretion (Tex.2008) Brandal, 204, 257 208 v. S.W.3d initially

report submitted. 2003, 2, Leg., 78th R. Act of June (quoting S., 204, 10.11(b)(1), 2003 Tex. Gen. ch. II. Abuse of Discretion 884). 847, re The Laws Reviewing A. Discretion in accomplish purpose this quirement helps Expert Reports the trial court to by providing a basis for report If a court finds an trial Id. at 206- a claim has merit. determine one “may” grant the dissent both 07. Justice Medina and report. extension to cure the Tex. Civ. report that factors other than the conclude 74.351(c). This statu Prac. & Rem.Code to determine whether should be considered authority permissive couched in tory is the trial court abused its discretion terms, See In re but it is not unfettered. purpose But if one denying an extension. Tire, L.L.C., 670, 676 Pirelli 247 S.W.3d to inform the trial court report of the (orig. proceeding). While claim, purpose then the the merits of a discretion, “may” gives a trial court discre claimant the an extension is to provide arbitrary not be or tionary decisions must report point to a opportunity to amend a must be made with ref unreasonable and trial court to make that would allow the (citing Id. guiding principles. erence to previously that determination. We have 441, Shoukfeh, Goode v. 943 S.W.2d look no fur held that a trial court should (Tex.1997)); Berry, 156 Tex. Womack v. ther than the four corners of (1956) (orig. pro 291 S.W.2d considering when a motion chal ceeding) (noting permissive of the use adequacy of the because lenging “may” does not vest a court with word inquiry relevant to that all the information a trial requires unlimited but See Bowie is contained within that discretion within to exercise 48, 52 Hosp. Wright, Mem’l 79 S.W.3d by the of the “limits created circumstances 74.351(l) (Tex.2002). Section does not ex case”). principles that are particular may not look plicitly state that a trial court discretionary trial court’s deci guide a adequacy, beyond to determine of the purposes sion are determined is so because the but we have held this In re Van Waters & rule at issue. See specifically focuses on what (Tex. Inc., Rogers, report discusses. Am. Transitional Care 2004) Womack, 291 (orig. proceeding); Tex., Palacios, Inc. v. Ctrs. Medina acknowl S.W.2d 683. Justice (Tex.2001). is true in a The same edges pur this and looks to the “broader consideration of a motion for court’s Liability Act poses” of the Texas Medical provision extension: the extension focuses (TMLA) principles to determine the See Tex. Civ. only on the itself. determination guide should trial court’s 74.351(c) (providing Prac. & Rem.Code grant of whether an extension. an extension if may grant that a trial court purpose at 410. But the are found defi “elements permitting actual rule a trial court to n cient”). Further, re See an extension must also be considered. for a trial on quirement is not substitute Tex. Civ. Prac. & ¡just as a trial court should not for a trial court to determine the curability merits— of the report.1 pleadings consider the defendant’s ruling other when on a motion to evidence As further evidence that a trial court adequacy grounds, on dismiss need not consider more than the report similarly court should refrain from consid itself, nothing in section 74.351 requires a ering these extraneous matters when con trial hearing court to hold a deny before sidering a motion for an extension to cure. ing an extension to cure a report Palacios, See 46 S.W.3d at 878. dismissing a case. Compare id. 74.351(b)-(c) (requiring if dismissal though only Even the trial court should extension to cure deficient report is not the expert report consider when determin- granted), with Tex.Rev.Civ. Stat. art. 4590i extension, ing grant whether to that is § 13.01(g) (requiring a court to hold a say not to a claimant only entitled to an hearing before granting single thirty-day report extension when the contains specific good extension for cause under the former information or is not to an entitled exten- statute);2 see, e.g., Willens, Johnson v. report sion when the lacks certain informa- 560, (Tex.App.-Beau 565-66 Legislature tion. The clearly contemplat- 2009, filed) (trial pet. mont court granted ed that trial grant courts would extensions dismissing order case without holding a reports when contained varying degrees of hearing). Legislature Had the intended deficiencies. See Tex. Civ. Prac. & Rem. for a trial court to consider more than the 74.351(c) (providing that a trial Code determining when grant whether to may grant one thirty-day extension cure, an extension to it could have re when “elements” of the report are defi- quired hearing to allow a claimant to cient). Therefore, long as as a claimant present additional evidence. (as has filed a report defined the stat- Application III.

ute), specific deficiencies of a should not determine whether case, this Wooten’s Rather, court should an extension. Patman, R. Don M.D. was over nine sin- determine, a trial court should be able to gle-spaced pages. contained based on the report, initial if a claim war- history, Wooten’s medical applicable is, rants an extension —that whether a care, standard of and a numbered list of potentially claim could if have merit alleged Dr. Samlowski’s standard-of-care report were cured. A report quali- from a breaches, including failing to perform a fied health professional stating care a be- comprehensive diagnostic work-up and lief plaintiff that a has a claim against a thereby failing to determine the extent of defendant, though even elements of the Wooten’s illness. Dr. Patman concluded report are should be sufficient that Dr. Samlowski’s actions constituted 5, 1995, R.S., 140, approach 1. Justice Medina May Leg., contends this mir- 2. Act of 74th ch. 1, 985, appeals, 13.01(g), rors that of the court of and that it is sec. 1995 Tex. Gen. Laws 986, unclear the manner in which a amending Liability court will the Medical and In- distinguish Texas, reports Improvement Leg., between deficient that are surance Act of 65th R.S., curable and those that are not. But this ch. 1977 Tex. Gen. Laws 2, 2003, my position repealed by Leg., mischaracterizes court will be Act of June 78th —a R.S., 10.09, able to determine from the four comers of the ch. 2003 Tex. Gen. Laws qualified whether it is from a health 884. Former article 4590i section 13.01 professional stating care replaced by a belief that Texas Civil Practice and 74.351, plaintiff against has a claim a defendant. Remedies Code section as amended. 416

negligence proximate eradicating and were the causes careful balance between frivo- developing multiple life- preserving Wooten’s lous claims and meritorious ” report Leland, The in- threatening complications. 257 at 208. In ones.... S.W.3d Dr. performed ferred that Samlowski preserve highest order to the number of unnecessary surgery, delaying treating claims, meritorious trial courts should err however, report, Wooten’s condition. The granting on the side of claimants’ exten- explanation not contain an of how Dr. did sions to show the merits of their claims. inju- actions caused Samlowski’s Wooten’s price preserving The a meritorious was, and as Wooten now acknowl- ries thirty days, compared claim will be to a edges, deficient. 282 S.W.3d at 90. But much higher price dismissal. demonstrate, face, did not on its contrary, that it incurable. To the V. Conclusion that it the potential demonstrated had Because an expert Wooten filed quali- be cured since the was from a qualified expert explaining from a a belief professional explained fied health care that Samlowski’s actions caused Wooten’s a belief that Samlowski’s actions caused injuries, though even elements of the re- injuries. Nothing Wooten’s outside of this port were I would hold the trial report would have aided in the trial court’s by denying abused its discretion her determination that Wooten’s could join motion for an extension to cure. Therefore, have been cured. I would hold judgment remanding Court’s the case to court abused its discretion in de- the trial court. nying Wooten’s motion for an extension to cure her report, opportu- and allow her the WAINWRIGHT,

nity attempt dissenting to cure her Justice part concurring judgment. in the IV. Additional Considerations requirement expert The to serve an re- Justice Medina and the dissent conclude port from a qualified health care on that the trial court did not abuse its discre- providers defendant health care within 120 in denying tion extension days filing suit is to cull intended out at prove because Wooten failed to that early stage litigation medical report would have been cured. But the malpractice claims that have not been provision allowing for an is extension not shown to have merit. The Texas Medical punitive says nothing about withhold- —it Liability Act instructs courts to dismiss ing an when a claimant has such claims. Tex. Civ. Prac. & Rem.Code Rather, something. provision failed do stage, 74.351. At that the claims that curative, intending give claimants an likely may have been shown merit to have opportunity to save their claims from dis- Brandal, proceed. See Leland v. missal. While the Legislature, by enacting (noting TMLA, sought to “reduce excessive section 74.351 strikes balance between frequency severity of health care lia- frivolous “eradicating preserv- claims and claims,” bility 2, 2003, Act of June 78th ones”). ing meritorious The hurdle divid- R.S., 204, 10.11(b)(1), Leg., ch. ing expert report. the two is the Gen. Laws it intended to “do so Legislature in a manner that will The established an unduly restrict a 10.11(b)(3); rights,” claimant’s id. hurdle that should be cost and time Le- land, Cntr., enacting 257 S.W.3d at 208. “In efficient. See In re McAllen Med. (Tex.2008). 74.351, Inc., section the Legislature struck a question in this ease is how to define the written report by [A] an expert inadequate expert provides of an re- a fair summary characteristics of the expert’s port opinions that entitle a claimant to as of the nevertheless date of the report regarding applicable care, statutory obtain a extension to cure the standards of the manner in which the care report. rendered by the physician or health provider care Medina attempts just to erect a Justice standards, failed to meet the and the applicable standard under the statute for causal relationship between that failure reviewing trial court to grant decisions or harm, and the injury, damages or deny expert reports. extensions to cure claimed. view, “generally In his a trial court should 74.351(r)(6). § Civ. Prac. & Rem.Code grant an extension when the deficient re- Legislature The determined that a medical port can be cured within the malpractice claim supported by an period the permits.” statute 332 S.W.3d (r)(6) report that satisfies subsection pos Unfortunately, at 407. this standard is sesses the requisite merit proceed be opin- neither cost nor time efficient. His yond that hurdle. If such a report has not ion directs the trial court to consider mat- been served on the defendant health care beyond ters the four of corners the provider days 120 original after the within but leaves undecided the limits on the filed, petition is on motion of the defendant scope of extraneous matter that a trial the court “shall” dismiss the claim. Id. may court consider. Whether it’s an attor- 74.351(b). However, if the report fails schedule, busy ney’s the client’s unavaila- (r)(6) satisfy subsection “because ele mistake, bility, the expert’s something or deficient,” ments of the report are found else, the trial court must conduct a hearing then may grant the trial “court 30-day one on, of, weigh and the credibility such ex- extension to the claimant in order to cure opinion traneous assertions. His then re- the deficiency.” leg Id. quires plaintiff the to move the trial court requirement islative elements to reconsider a denial of an extension with expert report be found deficient aas condi option filing a cured report, tion to considering presumes an extension sufficiency which the trial court then elements least be included in ponders. passes. More time proce- This Matthews, See Ogletree v. dure will litigation often add to the (Tex.2007) (“[A] costs, time, raise the extend the and un- report differs from an absent report.”); purpose dermine the of the intended effi- (“The Leland, 257 S.W.3d at 207 cient hurdle. The statute contains no unless, does not allow for an extension evidence, mention of extraneous additional until, elements of a are found defi delay, or additional hearings, and neither it ”). cient .... an expert report Unless ad nor the opinion place comple- deadlines on elements, required dresses all of the sec procedures. tion of these new 74.351(c) tion does not authorize a trial view, my for an extension to be con- to consider an extension. As we sidered, must address all Gutierrez, explained in v. Walker a claim of the required by elements statute to be ant’s that omits one or more breach, in the report duty, and a causal statutorily required elements fails to — relationship between the breach and the eligible grace period. be for a plaintiffs injury.1 An expert report is: (interpreting prede challenge 1. There expert’s qualifications. is no in this case to the review the same Appellate ment. courts Liability Medical cessor statute —the Act, reviews. that the trial court Improvement pieces paper Insurance Tex.Rev.Civ. 4590i, (r)(6), repealed by Stat. art. 13.01 of human behavior Personal observations 2, 2003, Leg., 78th ch. Act of June suggest deference to appropriately 884).2 10.09, Tex. Gen. Laws rulings proceedings certain trial court question whether the standard for do not arise when I also with live witnesses adequacy a court’s determination of a document. See interprets trial court Parmelee, to consid- expert report, precondition Elevator Co. Otis extension, an of ering an should be abuse (Tex.1993) (“[Where] In American Transitional discretion. expressly heard no evidence but Palacios, Texas, v. we Inc. Care Centers filed and papers its decision on the based of held that to be the standard. S.W.3d ... counsel there are no argument the of (Tex.2001). But relied in Palacios in trial presume the factual resolutions prede- the in the large part on statement favor.”). a suggest I would de novo court’s 13.01(e), statute, 4590i, § cessor article rulings for on appeal standard of review on satisfy upon failure of the under adequacy reports the statutory requirements the court must & Acci Chapter 74. Provident Life Cf. Id. at 877. “enter an order as sanctions.” Knott, 211, 215 dent Ins. Co. Chapter language In the amended (Tex.2003) grant (reviewing a trial court’s 4590i, if 74 recodification of article an ex- novo); summary judgment de MCI Te served, pert report is not the Co., Elec. Corp. lecomms. v. Tex. Utils. an that dismisses court shall “enter order” (reviewing a S.W.2d 650-51 the claim. Tex. Civ. Prac. & Rem.Code on an unam legal trial court’s conclusions 74.351(b). The characterization that novo). biguous contract de been such an order is a “sanction” has the removed from the text of statute. argues that the word Justice Johnson it, Along proper sup- with Palacios’s 74.351(c) a trial “may” provides in section “[sjanctions porting gen- rationale that are denying an granting court discretion in or erally reviewed under abuse-of-discre- Act extension. But the Code Construction well. See 46 tion standard” was removed as “may” also instructs that could also denote at S.W.3d 877. to act. legislative grant power a 311.016(1) (“‘May5 creates Appellate review of is Gov’t Code discretionary authority grants permis or analogous summary judg- to review of a but not in 2. While a trial court’s consideration of a mo consideration in dismissal of claims tion to dismiss and a motion for an extension agree with extensions to cure the inseparable, Ogletree, 262 are 321, see "good opinion that faith” is Justice Medina’s statutory grounds the for dismissal of a analysis in an ex not a consideration the granting claim versus an extension to cure an 74.351(c). 332 S.W.3d tension under section are, degree, to some distinct. important faith” to deter at 409. "Good is 74.351(Z) a Section instructs that claim for mining adequacy expert report. the of an See corresponding expert which the does 74.351(2). & Tex. Civ. Prac. represent good provide an not faith effort to 74.351(2) term is in the text of section but adequate expert report be dismissed "shall” the text It therefore of section proper on & Rem Code motion. Tex. Civ. Prac. grounds considering appears for 74.351(2). governed If that mandate the extension of dismissal of a versus 74.351, entirety then the authoriza of section indepen adequate report are time to serve an 74.351(c) tion in section an extension dent, except the initial determination that for meaningless. Ogletree, 262 would be See Further, "good inadequate. S.W.3d at faith” is a 321. added)). (emphasis If motion for power.” sion or a reconsideration within thirty interpreting days courts are a document and after the trial court denied her mo- sanction, logic extension, are not for an issuing tion for those actions and the away; abuse of discretion standard falls cured could be considered in deter- expands if mining the trial court abused its discre- Medina Justice evidence, analysis to include extraneous tion denying the motion for extension. both before and after the trial court’s deci The trial court’s ruling on a motion for sion, laying groundwork for argu his reconsideration or motion for new trial ment for an abuse discretion standard. would have been reviewable for abuse of litigation expense, Besides increased them, discretion had Wooten filed either of dispa such standard will also result in which she did not. But events occurring rulings addressing rate different courts after a trial court’s ruling on a motion materially expert reports. indistinct should not be in determining considered circumstances, these a de novo standard whether the ruling was an abuse of discre- would promote consistency predict tion. ability across the state. The Court’s action in affirming and mod- Applying a de novo standard of review ifying appeals’ the court of judgment re- case, to this I would reverse the trial sults in the reversal of an errorless trial ruling although court’s because elements judgment. I would reverse the court deficient, of the were found appeals’ judgment and affirm that of the report the addressed each of the elements not, trial court. Because the Court does I

required by the statute. See Tex. Civ. dissent. 74.351(c); Walker, § Prac. & Rem.Code S.W.3d at 65. I in therefore concur the Background I. judgment, for the Court’s reasons ex- plained join herein. I I also Parts After Carol Wooten Dr. sued Samlow II.B of Justice Guzman’s concurrence. ski, alleging that he negligently treated her, timely she filed and served a report JOHNSON, joined Justice by Justice Patman, by R. Don M.D. See Tex. Civ. WILLETT, GREEN and Justice 74.351(a) § & (requiring Prac. Rem.Code dissenting. liability healthcare claimant to file an ex Texas Practice Civil and Remedies Code suit). pert report days filing within 120 section provides 74.351 that a trial court timely objected Dr. Samlowski to the re liability must dismiss a health care suit port, asserting report was conclu- unless the claimant serves an expert re- sory as to the relationship causal between port days within 120 filing after suit. It his care and damages Wooten claimed. provides report also if a is served motion, response See id. her to the deficient, timely but the trial court essentially repeated part Wooten “may” grant one thirty-day extension for contents, report’s report claimed the met the claimant report. to cure the 74.351, requirements of section and re agree with quested thirty-day Justice Medina that any extension to cure trial court did not inadequacies abuse discretion court found 74.351(c). afforded it in denying § Wooten’s See id. Dr. Samlow motion for an I do agree extension. not ski then filed a motion to dismiss Wooten’s with him to the extent he that if report indicates suit because the was deficient. See 74.531(b). report Wooten had served a cured id. “shall” the claim. Id. where no evidence was trial court dismiss hearing

After a 74.351(b). introduced, statutory directive to the trial court determined applies to both absent and defi a dismiss represent Dr. Patman’s did not 74.351(c); reports. See id. Lewis comply with the cient good faith effort to (Tex. Funderburk, 204, 207 requirements of section 74.351 and 2008). However, if has Dr. Samlowski’s motion to dis- granted not been served because elements miss. See Am. Transitional Care Ctrs. of Tex., Palacios, are found the court Inc. v. 879 of “may” grant one (noting that a that does deficiency. cure the allow the claimant to required by out elements the stat- set eonclusory Tex. Civ. Prac. & ute or states those elements good fashion does not constitute a faith B. of Review Standard statute). comply with the With-

effort any further action in the trial taking out discusses, As Justice Medina the stan court, appealed. Wooten dard which the trial court’s order is

reviewed is abuse of discretion. See 332 II. Discussion n. 2. when a trial court And reviewed for abuse order is Expert Report A. necessarily is reviewed based on order liability in a health care the record as it was at the time the trial The claimant ruling. suit serve each defendant with an court made its See Univ. Tex. v. must Morris, 60, 426, Tex. 429 expert report days filing within suit. 344 S.W.2d 74.351(a).1 (1961); v. Stephens County Tex. Civ. Prac. & Rem.Code If J. N. McCam Inc., served, mon, 148, 53, not 122 Tex. expert report an the 52 S.W.2d (1) part, physician the affected or 1. In relevant Texas Civil Practice and awards to Remedies Code section 74.351 reads as fol- provider health care reasonable attor- lows: ney’s by court incurred fees and costs of claim, (a) liability In a care a claim- health provider; physician the or health care shall, day ant not later than the 120th after filed, original petition the date the was (2) respect the claim with to dismisses party party's attorney serve on each or the physician provider, the or health care reports, expert one or more with a curricu- prejudice refiling with to the of the claim. report in lum vitae of each listed the (c)If expert report an has not been served physician provider for each or health care (a) by period specified the within subsection against liability whom a claim is asserted. because elements of the are found serving may The date for the be may grant 30-day the court one agreement extended written of the affect- in extension to the claimant order to cure parties. physician Each ed defendant or deficiency. If the the claimant does not provider health care whose conduct is im- ruling granting receive notice of the court's plicated any in a must file and serve 120-day the extension until after the dead- objection sufficiency to the not passed, 30-day line has then the day later than the 21st after the date it was plaintiff the the shall run from date first served, failing objections which all are the received notice. waived. If, (b) physician as to a defendant or health (/) grant challeng- A a motion court shall provider, an care has not report only ing adequacy of an if period specified by within been served court, hearing, appears after that (a), court, it to on the motion of subsection represent objective does not physician pro- the affected or health care shall, vider, (c), good comply subject faith effort to with the defini- to enter subsection (r)(6). tion of an in subsection order that: (1932) (“When an appellate court is called upon Court was called to construe a stat court, to ute upon ruling providing revise a trial that if a trial court “finds justice the interest of upon must do so the record before that a claim or action to which made.”); this section ruling applies court when such would be more properly heard in a forum Lawyer Beard v. outside Discipline, Comm’n for state, this the court 895, may 2009, decline exer 279 S.W.3d 902 (Tex.App.-Dallas jurisdiction.” cise See denied); pet. Methodist Hosps. Dallas Civ. Prac. & 71.051(a) added), Tall, (emphasis 898 (Tex.App. repealed by 2, 2003, Act of June 78th Leg., (“It -Corpus pet.) Christi no is axio R.S., ch. 3.09 Tex. Gen. Laws matic that an appellate court ac reviews 855. We had previously held that section tions of a trial court based on the materials 71.031 of the Civil Practice and Remedies before the trial court at the time it act Code afforded non-residents an absolute ed”).

right try cases such as the one filed against Pirelli in Texas courts. Dow C. Abuse of Discretion Alfaro, 674, 676, Chem. Co. v. and Section 74.351 (Tex.1990). Thus, the issue before us The Legislature provided has in In re Pirelli was whether the trial court statutes “unless the context in which the abused its discretion by failing phrase or appears necessarily word re forum non conveniens motion to dismiss quires a different construction or unless a pursuant to permission granted in sec different expressly provid construction is 71.051, tion despite section 71.031’s effec ... ‘[mjay1 ed creates discre tive mandate that the trial court exercise tionary authority grants permission or or a jurisdiction over the case. We held that “ power” imposes duty.” ‘[s]hall’ the trial court abused its discretion. We 311.016. parties do explained Tex. Gov’t Code purposes of the forum contend, not and the context does indi non conveniens doctrine informed the cate, that in section 74.351 either “shall” or guiding principles against which we meas “may” should be given meanings different ured the trial court’s exercise of discretion. than prescribed by those section 311.016. Pirelli, In re 247 S.W.3d at 675-76. See FKM P’ship, Regents Ltd. v. Bd. of In construing the trial authority court’s Univ. Sys., Houston 255 S.W.3d statute, permissive under the the Court (Tex.2008); Fleming see also Foods of relied, part, in on In re Van Waters & Tex., Rylander, Inc. v. 6 S.W.3d Inc., Rogers, (Tex.2004), 145 S.W.3d 203 (Tex.1999). Thus, if the trial proper court where the Court concluded mandamus re- ly determines that an lief was available because the trial court deficient, then the statutory language not abused its discretion consolidating only suit, authorizes dismissal of the twenty cases for trial even though the rule imposes duty on the trial court to dis governing consolidations permissive in miss it. Tex. Civ. Prac. & Rem.Code 174(a). nature. See Tex.R. Civ. P. The 74.351(b)(2). however, That duty, is Court looked to the principles underlying subject to the permissive power afforded the rule and said that in Van Waters “the in the same section for the trial court to trial court’s consolidation order did not 74.351(c). grant an extension. Id. comport principles with the we have artic- The situation is similar to the one the guide ulated must court’s exercise Tire, L.L.C., Court faced in In Pirelli, re Pirelli discretion under the rule.” In re (Tex.2007). There, 247 S.W.3d 670 247 S.W.3d at 676. 74.351(l) Prac. &

Similarly, Ethyl Corp., in In re 975 See Civ. Tex. (Tex.1998), (stating challenging that a motion the ade the Court con granted only of Texas of a shall be if permissive language quacy sidered the 174(b), court, pro appears hearing, Rule of Procedure which “it to the after Civil objective “in furtherance of an represent vides that a trial court does not may or prejudice good comply” convenience or to avoid faith effort to with the statu separate tory report requirements). trial” of claims or issues. In con der 174(b). trast, The refer is not so focused. It See Tex.R. Evid. Court section 74.351 Berry, may no limitation on what the court approval places enced with Womack (1956) exercising 291 S.W.2d 677 and the in consider its discretion: principle permissive set out there: (c) If been an has not “may5’ a trial court unlimit does not afford within the period specified served requires but rather the exer ed (a) elements of the subsection because on all the cise of sound discretion based deficient, may report are found particular circumstances of the case. Eth grant 30-day one to the claim- yl Corp., 975 S.W.2d at 610. deficiency. ant in order to cure the

Just determined that the as Court 74.351(c). So, although Id. the deficient trial court’s discretion was not unlimited in content report’s is one factor Womack, a In re Pirelli and trial court’s determining court must consider in if it pursu- discretion should not be unlimited cure, grant will an extension to the court permissive “may” ant to the in section considering only should not be limited to 74.351(c) requires Section id.; the content of the See Wom court to exercise sound discretion under all ack, 683. case, the facts and circumstances of the provides guidance as to

including language purposes may what factors a trial court consider 74. Chapter Ethyl Corp., See determining when whether at 610. purpose extension to cure. Part of the requiring health care D. Factors for a Trial liability suits is to remove unwarranted Court to Consider delays litigation expense and the attendant argues that if a as Wooten such disposing involved in of non-meritorious Dr. Patman’s is the trial court Ctr., Inc., claims. See In re McAllen Med. should not be limited to the (Tex.2008). 458, 467 Hard- deciding whether to an extension. serving and-fast deadlines for both and agree. objecting reports purpose to advance that challenges by accelerating disposition When a defendant the ade the of such quacy expert report, of an the trial court cases. See N. v. Hosp. Camp Intracare bell, 790, to 222 report (Tex.App.-Hous determine whether the is ade S.W.3d 797 2007, quate only upon based the contents of the ton pet.); no Mokkala v. [1st Dist.] Palacios, Mead, 66, report. See 46 at 178 (Tex.App.-Hous S.W.3d 878. S.W.3d 76 denied). Palacios, 2005, As we noted in the prior pet. ton From [14th Dist.] report Legislature’s establishing focused on the contents of the with the of a deadline regard serving report directing to the trial court’s determination of for a report objective whether the was an be the good suit shall dismissed unless deadline grants faith effort. Id. at 878. The current stat is met or the trial court an exten report’s deficiency,” ute also focuses on the contents. sion “in order to cure the

423 trial, appellate of an new court granting criteria for the could decline least three fully the See to review trial court’s on of time can be distilled. action extension 74.351(c)(em the example, motion. For if a trial court &Rem.Code Tex. Civ. Prac. added). denied an extension to a First, claimant whose report the deficient phasis timely-served report deficient, then report, as a albeit a qualify must timely the claimant filed a new motion for Second, report the deficient must one. trial or motion reconsider and served a statutorily- served within the have been the report, cured trial the ruling court’s on Third, time limit. the deficient specified motion be appeal. would reviewable on if be cured the extension during will R.R., (Tex. See In re S.W.3d granted. one is 2006) (“We review trial court’s denial most, many, if not the de instances a motion for new trial for abuse of discre of whether a will be termination tion.”); Simon v. York & Rigging Crane be a granted if extension is will cured Co., Inc., S.W.2d question. generally fact And a trial court that (concluding decision whether to by deny will not have abused its discretion for grant a motion new trial is addressed for an extension if there is ing motion discretion, to the court’s trial evidence on the matter. See conflicting will ruling ap court’s not be disturbed on Packer, 833, 839 Walker peal showing absent a of an abuse dis (Tex.1992) (“With respect to resolution cretion). And review would necessar to the factual or matters committed issues ily light Legislature’s be in purpose example, the trial court’s for to have non-meritorious promptly cases its reviewing may not substitute while disposed allowing meritorious court.”); for that of the judgment proceed. cases to (Tex. Huey, 571 Davis v. 1978) (noting that an abuse of discretion Application E. does not exist where the trial court bases re- Wooten served Dr. Patman’s evidence). So, on conflicting its decision was no port, but there evidence before discretionary court’s refusal trial court it ruled on the when motions ordinarily grant an will not be an extension prove Dr. Samlowski Wooten to abuse of discretion unless the record con if have been report would cured clusively shows that the would have had been granted. extension timely cured if an had been been Dr. motion to dismiss was Samlowski’s granted. 28, 2007, August heard on over three opinion import of Justice Medina’s he filed Dr. objection months after his thirty is that a cured served within As Patman’s relevant to this mat- can days after denial of an extension ter, before the trial the record court at determining be considered whether hearing consisted of Dr. Patman’s denying abused trial court its discretion in April April dated 2007 and served on ac- the extension. Because a trial court’s 26, 2007, objection, Samlowski’s Dr. be- tions are reviewed based on what was objection. to the response Wooten’s Woo- ruled, I fore at the time it dis- the court asserted the suf- response ten’s was Tex., Univ. 344 S.W.2d at agree. requested See an extension time ficient and of 429; at County, 52 S.W.2d 55. if it Stephens to cure the was not. Yet there say that if such in Which is not a claimant was no the record about evidence record be proper as Wooten were make a whether the could or would for were Cer- granted. on a motion to reconsider or motion cured if an extension 424 court). Neither of those conclusively prove by ted

tainly, did not Wooten exist here because the trial court by offering situations that the would be cured The not commit error. substance supplemental report as a did evidence such today Dr. Pat- action is to endorse actually curing deficiency in Court’s Thus, judgment that appeals has not shown erroneous court of man’s she judgment. trial court abused its discretion reversed an errorless trial court effect, then, request grants her for an extension. in a new denying The Court though procedure trial even the rules of III. Remand such discretion adopted this Court vest 320, courts, in trial Tex.R. Civ. P. see majority a of the Court is though Even Tex.R.App. 44.1, P. appellate courts. See opinion that the trial court not of 61.1. abused its discretion or otherwise commit- case, the by dismissing ted error Wooten’s Second, faced with a litigant when a is re- nevertheless determines Court to dismiss because of some defect motion appropri- proceedings mand for further filings, nothing or there is pleadings in her for two disagree ate. with decision filing her a cor- procedurally new about reasons. case, or, in a corrected pleading rected this First, provide judgment our rules that a seeking relief from the trial report, before on the may appeal not be reversed on Brandal, v. court. Leland Cf. that a trial court committed an ground (Tex.2008) 204, (discussing supple- 205 (1) probably error of law unless that error response mental served in judg improper caused the rendition of an objections). any- defendants’ Nor is there (2) ment, probably prevented ap or thing litigant new about a whose case has pealing party properly presenting from seeking a new trial or mov- been dismissed appellate to the courts. See case trial court ing the to reconsider its dis- R.App. 44.1, 61.1; P. In re Columbia Med. affi- ruling filing post-dismissal missal L.P., Colinas, Subsidiary, 290 Ctr. Las presenting support davits or evidence (Tex.2009) (“[Ajppellate S.W.3d 211 See, e.g., his or her motion. Tex.R. Civ. P. urged courts are limited to issues 320, 329b. presented by parties and ... record today” by ... “procedure outlined specifically reversing judg are limited to new, Justice Medina is not see 332 S.W.3d only probably ments for errors that result 412; encompasses proce- well-known entry judgment or improper ed ambushed; Wooten was not dural devices. precluded party properly present from exactly knew Dr. she what Samlowski’s Co., ing appeal.”); its case on Pat Baker objection adequate opportuni- and had (Tex. Wilson, Inc. v. S.W.2d 1998) (“It ty alleged to show the trial court that the an appellate is axiomatic that in Dr. Patman’s was cura- defect judg a trial court cannot reverse court’s either file a error.”); ble—if it was. She failed to properly assigned ment absent Sears, supplemental report attempting to address Marquez, Roebuck & Co. (Tex.1982) objection present that it Dr. Samlowski’s or other (noting S.W.2d hearing. such evidence at the Nor did she power appellate is not within the of an error); by filing post-dismissal motion judgment court to reverse a absent seek relief trial, Lopez, Barnum v. 568 for reconsideration or motion for new offering or (noting appellate serving supplemental report that an other evidence to demonstrate that Dr. may only reverse a case for error commit curable, request- Patman’s

ing ruling. a trial court sum, Wooten did not avail herself of procedural

standard avenues. She does present supports record revers-

ing the trial court’s judgment.

IV. Conclusion appeals’ judgment

The court of is erro-

neous because reverses an error-free judgment.

trial court I would reverse the

judgment of the court of appeals and af-

firm that court.

Sherry Lynn SMITH, Appellant, STATE Texas.

No. PD-0298-09. Appeals

Court of Criminal of Texas.

Feb. 2011.

Case Details

Case Name: Samlowski v. Wooten

Court Name: Texas Supreme Court

Date Published: Feb 25, 2011

Citation: 332 S.W.3d 404

Docket Number: 08-0667

Court Abbreviation: Tex.