*1 An appellant’s brief must con The trial court did in granting not err summary judgment tain a argument clear and concise for the as to the Interest Owners’ made, alleged fraud claims appropriate contentions with cita because, Crawford even under a liberal tions to authorities and the record. construction, their Tex.R.App. pleading live did not 38.1(h). P. interpret We must contain such claims. The Interest requirement reasonably this liberally. inadequately Owners have briefed their Republic Underwriters Ins. Co. v. Mex- fifth issue in which assert that the Tex, Inc., (Tex.2004). trial court in granting summary erred Nonetheless, parties asserting ap error on grounds.” on “other The trial peal put specific still must forth some ar by striking court abused its discretion sub- gument analysis showing that the rec stantially all of the Interest time- Owners’ supports ord and the law their contentions. ly-filed summary-judgment response based Tex.R.App. 38.1(h); See P. Deutsch v. Hoo upon its that response determination ver, Slovacek, L.L.P, Bax & substantively inadequate. Because 198-99 (Tex.App.-Houston [14th Dist.] summary in granting erred 2002, no pet.). The Interest Owners cite judgment as to Overriding San Saba’s part specific of the record and make no Claim, Royalty we the trial reverse court’s argument under their fifth They issue. extent, judgment to this and we sever and only assert there are additional part judg- remand this of the trial court’s grounds to judg reverse the trial court’s proceedings ment for further consistent ment and that summary judg the entire opinion. with this affirm We the remain- injustice. ment should be to avoid reversed judgment. der of the construction, Even under a liberal this con tention is not sufficient to articulate a clear argument why
and concise as to we should
reverse the trial judgment. court’s Fur
ther, the Interest Owners have not cited to Deutsch,
any part of the record. See SCOTT, Individually Rep Arlene and as S.W.3d at 198-99. Because it is inade resentative of the Estate of Dorothea briefed, quately we overrule the fifth issue. Scott, Deceased, Jerry Hubbard, Scott Scott, Scott, James David Norman IV. Conclusion Scott, Appellants, Albert San Saba’s execution of the Doughtie Assignment Release and the MANOR, Living BEECHNUT Centers Overriding Royalty Interest does moot Texas, Inc., Living Centers of appellate issue as to the trial whether America, Inc., Vencare, Inc., Vencore in granting summary judg- court erred Vencor, Inc., Hospital, B. and Robert ment as to San claim under the Saba’s Teague, M.D., Appellees. Operating Agreement regarding Craw- convey ford’s Overriding failure No. 14-98-00166-CV. Royalty to Blacklake. The trial court did Texas, Appeals Court of granting summary judgment not err in as Dist.). (14th Houston Assignment to the Term Claim because 21, 2005. point the Interest Owners did not out Rehearing Aug. Overruled summary-judgment response any evi- fact allegedly raising genuine dence issue damages.
as to challenged element *3 Parrott,
Alice Oliver Benton Mussle- white, Turner, Cheryl Gillum Maria Teresa Houston, TX, Arguindegui, appellants. Simmons, Midlo, Alexandra Bennett A. Ramos, Proctor, Lori Dion C. D. Michael Heyman, L. Roger Doug- Andrew Sullivan Welmaker, Houston, TX, las B. for appel- lees. ANDERSON,
Panel consists of Justices HUDSON, and FROST. the mainte- completing After ventilator.
MAJORITY OPINION however, the technician procedure, nance HUDSON, J. HARVEY Justice. Ms. failed to Scott’s allegedly reconnect Scott, individually repre- Arlene and as day. later oxygen. Ms. Scott died Scott, the Estate Dorethea sentative of 6, 1996, the Scotts sued On December Hubbard, deceased, Jerry Scott James appellees alleging negligence under Scott, Scott, David Norman and Albert Act, on res law based common (the “Scotts”) Scott, sum- appeal DTPA. ipsa loquitur, violations mary granted in appel- favor trial court dismissed On June lees, Manor, Living Beechnut Centers liability un- the Scotts’ health care Texas, Inc., America, Living Centers (“Beechnut Act, der and on Manor”), Vencare, Inc., November Inc. *4 Vencor, (“Vencor”), granted appellees’ trial motion for Inc. Hospital, Vencor M.D., Teague, summary judgment B. on on the Scotts’ remain- Robert their of of Deceptive ing negligence claims violations the Trade for common law Protection ipsa Practices-Consumer based res and DTPA viola- loquitur on (“DTPA”)1 and law negligence common tions. ipsa
based on loquitur, res and the dis- missal of their claim of the Act Dismissal Claims under Liability Improve- Medical and Insurance issue, In first the Scotts contend their “Act”). (the ment Act affirm. We dismissing in their erred Dorethea a Scott suffered overruling in claims under Act and dependent stroke that left her on a ventila- for a new trial. motion 28, 1994, family tor. On October Scott Act, a must provide Under the claimant nursing admitted her to Beechnut Manor expert and curricula vitae coun- reports to home, respiratory where she in the resided physician pro- sel for or health care each unit, by care which was staffed Vencor. liability vider whom a health care against Ms. Scott was under of Dr. Teag- the care Further, claim asserted. the claimant is ue, who oxygen therapy ordered constant provide reports must these and curricula for her. The Scotts claim were as- days filing vitae after the of within sured the administrator that Ms. Scott liability voluntarily claim or health care kept oxygen would be on at all times. The against physician nonsuit the action or allege Scotts Ms. Scott was taken off of 27, 1994, oxygen provider. on December rou- healthcare while Tex.Rev.Civ. Stat. 13.01(d).2 4590i, § tine If claim- performed maintenance art. Ann. §§ 1. See Bus. & 17.41-.63 former statute —Tex. Rev. Civ. Stat. Ann. Com.Code Ann. (Vernon Supp.2004-05). 2002 & all art. 4590Í—is references 13.01(d) are to the former statute. Section 2. Section 13.01 of the Act was states: 4590i, § Tex.Rev.Civ. Stat. Ann. 13.01. day of the Not later than the later 5, 1995, May See Act of date on a health liabili- after the which care 985, 985-87, 1,§ ty day is filed the last or repealed by period extended established under Subsec- 204, § 2003 Tex. Gen. Laws section, (h) (f) or of this the claimant tion at version found Tex. Civ. shall, physician pro- each health care (Vernon or Supp. Prac. & Ann. Rem.Code 05)). vider whom a claim asserted: The former statute continues in 2004— effect for cases filed before (1) physician to each September counsel for furnish provider expert or 2003. this filed in care one more Because case was health ant requisite fails to furnish the reports pet.); City Roberts Medical and curricula vitae and Inc., fails nonsuit the Hosp., Dallas defendants, shall, the court on the motion denied). (Tex.App.-Texarkana pet. physician the affected or health care Accordingly, the trial court did not err provider, dismiss the action with prejudice. denying the Scotts’ motion for an exten 13.01(e)(3). Id. at time, sion of dismissing their suit with prejudice, overruling their motion for The timely Scotts did not expert file new point trial. The first of error is over reports and curricula vitae within days ruled. filing required by their suit as 13.01(d). filing The time for reports Thus, expired on June Summary judgment on June 5 and appellees sought issue, In their second the Scotts contend dismissal of all claims pur- under the Act the trial granting court erred in summary 13.01(e)(3). suant to section The Scotts appellees. Scotts responded on by filing following causes of action their sec- necessary reports and curricula vitae along (1) petition: ond amended common-law 13.01(f) with a “Section Motion for Exten- negligence involving the doctrine res sion of Time.” *5 (2) ipsa loquitur; medical un- malpractice 13.01(f) provides the Act, (3) der the and violations of the may, “court good for cause shown after 1997, In September DTPA. the trial court motion hearing, and peri extend time granted appellees’ request special for ex- (d) specified od in Subsection of this sec ceptions, ordering replead the Scotts to tion for an days.”3 additional 30 and eliminate their DTPA claims com- Scotts assert that their motion for exten negligence mon law claims based on art. sion supported of time was by uncontro- ipsa loquitur. 4590i and res After the verted establishing “good affidavits cause” Scotts failed to replead, appellees moved nine-day delay the in filing expert for summary judgment on grounds that reports Thus, and curricula vitae. the the Scotts’ claim for common negli- law argue Scotts the trial court abused its gence ipsa based on res did loquitur not fit discretion in denying their motion for an in recognized exceptions one the appli- extension of time as a matter of law. malpractice cable to a medical suit and the It inconsequential is whether the Scotts merely attempted negli- Scotts to recast a “good established cause” because even if gence claim as a DTPA claim. On Novem- they made a showing “good clear ber granted sum- cause,” the trial court not obliged to mary judgment on remaining the Scotts’ grant requested extension. See Tesch claims. Stroud, v. 28 (Tex.App. S.W.3d 787 denied);
-Corpus pet. prevail Christi To on a motion for sum Knie v. Piskun, mary (Tex.App. judgment, 23 S.W.3d 462 a defendant must estab denied); pet. -Amarillo lish that Schorp v. no material fact issue exists and Baptist Memorial System, Health 5 that it is entitled to as a matter Rhone-Poulenc, Steel, S.W.3d 732 (Tex.App.-San Antonio of law. Inc. v. reports, with a curriculum vitae of each Id. expert report; listed in the 4590i, (2) 13.01(f). voluntarily 3. Tex.Rev.Civ.Stat. Ann. art. nonsuit the action physician provider. or health care management (Tex.1999). de- to have been 217, 222 Once the S.W.2d Arn v. Haddock of the defendant. control issue genuine that no fendant establishes (Tex.1990). 948, 950 spiger, 793 S.W.2d an ele- regarding fact exists of material evidence is a rule of loquitur ipsa Res claim, plaintiff plaintiffs ment of by the many be inferred negligence which summary judg- competent present must of action separate cause jury; it is not on that raising a fact issue ment evidence Id. negligence. Cochran, 998 S.W.2d element. Guest Dist.] (Tex.App.-Houston [14th malprac to medical regard With conducting our review pet.). no only to cases, applies ipsa loquitur res tice we take as true summary judgment, of the as applied it had been to which those cases nonmovants, to the all evidence favorable date of the effective August in all reasonable inferences and make 4590i, Ann. the Act. Tex.Rev.Civ. Stat. Peat Marwick nonmovant’s favor. KPMG inapplicable to loquitur is ipsa § 7.01.4Res Corp., Fin. County v. Harrison Hous. where except cases malpractice medical (Tex.1999). defendant, A alleged malpractice nature of the judg- movant, summary as is entitled knowledge the common injuries are within one disproves if it either at least ment testimony. laymen, requiring expert plaintiffs element of each essential Haddock, three at 951. The 793 S.W.2d all the ele- causes of action or establishes loquitur ipsa res areas wherein recognized Ameri- ments of an affirmative defense. malpractice to medical Grinnell, can Tobacco Co. v. of mechanical in the use are (Tex.1997). If the trial court sus- instruments, wrong por operating exception that special tains a defendant’s in leaving surgical body, and tion of the of action failed to state cause body. sponges within struments or *6 or- replead the fails to when mal However, every not medical so, may summary judgment to do dered a me the of involving case use practice Glazner, granted. Haase v. properly be applica the permits chanical instrument (Tex.2001); 62 800 Sumerlin S.W.3d ipsa Id. Res ipsa loquitur. tion of res Co., 724, 726 v. Houston Title 808 S.W.2d cases to those applicable is not loquitur 1991, writ (Tex.App.-Houston [14th Dist.] in of the mechanical in which the use denied). the not a matter within is strument Id. knowledge laymen. of common Ipsa Loquitur
Res neg the allege the Although Seotts is ipsa loquitur Res i.e., instrument, use of a mechanical ligent are following the two circumstances when ventilator, of the conclude the use (1) we accident the the character of the present: the plainly not fall within in does ordinarily occur instrument that it would not is such Dr. (2) knowledge lay person. of a in common negligence, of the absence that Ms. in his affidavit Teague claimed causing injury is shown strumentality 05)). common- "[t]he 7.01 states Section the Act was 4. Section 7.01 of 4590i, only ipsa loquitur § shall Ann. art. 7.01. See of res Tex.Rev.Civ. Stat. law doctrine liability against apply care to health 7.01, re- § Tex. Gen. Laws 1977 physicians providers in those care or health pealed by Act of June applied by the it has been cases to which effective this state as of the appellate courts of version found at Civ. Prac. & subchapter.” Id. this date of (Vernon Supp.2004- Ann. Rem.Code by respiratory accepted Scott’s death was caused standard of medical breach failure, to, likely consequence due or as the care, precluded by such DTPA claim is not of, a Teague explained stroke. Dr. further 12.01(a). A claim that a physi- dependent, that Ms. Scott was “ventilator provider negligent cian or health care required ne- feeding, tube continuous may not a DTPA claim be recast as to treatments, bulizer and trach care.” Even in avoid the standards set forth the Act. knowledge it is common that a ventilator a DTPA claim is Id. To determine whether breathe, patient lay assists a to we find negligence, fo- based on should persons require expert of assistance solely plaintiffs pleadings. cus on the testimony presume before can that an MacGregor Campbell, Med. Ass’n v. injury negligent to the due misuse (Tex.1998). Thus, the un- such an instrument. a derlying nature of claim determines alleged Because Scotts have not 12.01(a) claim whether section bars a for falling facts exception within the narrow Id.; Sorokolit, violation of the DTPA. ipsa loquitur malprac- for res in a medical liability at 242. A 5.W.2d health care case, tice in did err claim “a is defined as cause granting summary judgment against provider action a health care or grounds that relying claim treatment, treatment, physician for lack of on ipsa loquitur res fails as a matter of accepted or claimed from departure other law. standards of medical care or health care or injury in safety proximately which results DTPA patient, or to death whether apply The DTPA does not patient’s claim or of action sounds in cause health providers respect care with tort or contract.” Tex.Rev.Civ. Stat. Ann. damages personal injury claims for for or 1.03(a)(4).6 12.01(a) 4590i, § art. Section resulting, death or to have result preclude DTPA does not actions know- ed, negligence. Tex.Rev.Civ. Stat. express ing misrepresentation or breach 12.01(a).5 4590i, § Ann. a warranty physician cases which 12.01(a) DTPA precludes a provider particular health care warrants if it physician is based on a breach of the Sorokolit, at 242. result. accepted standard of medical care. Sorok- *7 Rhodes, (Tex. 239, olit 242 v. claim,
1994). to DTPA However, respect With alleged DTPA physician’s alleged: claim is not based on the the Scotts resulted, negli- formerly tag, alleged from 5. Section 12.01 of the Act was found or to have § at Act gence part any physician 12.01. See of or health Tex.Rev.Civ. Stat. Ann. R.S., 817, 16, 1977, Leg., 65th ch. provider.” care Id. 12.01, 2039, 2053, § 1977 Tex. Gen. Laws by Leg., repealed of June 1.03(a)(4) of the Act was Section R.S., 204, 10.09, § ch. 2003 1.03(a)(4). § at Stat. Ann. Tex.Rev.Civ. 847, (current found at Tex Civ. version See Act of June (Vernon Supp. § Prac. & Rem.Code Ann. 12.01, § Laws 1977 Tex. Gen. 2004-05)). 12.01(a) provides that repealed by law, ''[njotwithstanding any provi- other no 2003 Tex. Gen. 17.41-17.63, & sions of sections Business Laws version found Code, apply physicians or Commerce shall to 74.001(a)(13) Civ. Prac. & Rem.Code Ann. providers health care as defined in Section (Vernon Supp.2004-05)). Act, 1.03(a) respect of this with to claims for damages personal injury or death result- not. 844 S.W.2d it had vices when show that Defendants Plaintiffs would writ). no (Tex.App.-Dallas represented and expressly warranted nursing home that oxygen, alleged kept would be on that Ms. Scott physi- express express that warranties Defendants breached breached but that provide, al- it would and care warranty representation and cal and medical adequate or and go oxygen, provide to off personnel lowed Ms. Scott its would care, com- all to her detriment. that it would inadequate oxygen, proper supervised by “knowing” pro- representation participation This with all standards ply warranty question Department and the defendants the Texas mulgated by a warranty partic- that “warrants the defi- Health, was a it correct and that would result”, namely that Ms. Scott appeals ular Id. The court of ciencies in care. The breach kept oxygen. be on would claims were plaintiffs that the determined warranty knowing and the mis- of such or other of treatment claims for lack alleged just above consti- representation accepted stan- departure from claimed all of deceptive practices, trade care, tuted care, health or safe- dards of medical cause of the proximate which were a ty. Id. alleged. damages actual hereinafter DTPA we find the Scotts’ Similarly, Enters.-Tex., Mulligan Beverly “expressly warranted appellees that
Inc., claims were essen we found similar would be that Ms. Scott represented and than tially claims rather negligence-based [appellees] that oxygen, but kept on (Tex. DTPA claims. warranty repre- express breached that pet.). App.-Houston [14th Dist.] go off allowed Ms. Scott sentation and case, Mulligan alleged In that that all to her inadequate oxygen, oxygen, or about nursing representations home made detriment,” imper- than an nothing more the services her aunt was to receive a attempt to recast missible the care to be express warranties about claim is one DTPA claim. Their claim as a However, we determined provided. Id. accepted concerning departure warranty representa or that each care, care, health of medical standards provided tion to the level of care went guaranteed There is no claim safety. nursing home to the aunt. Id. We provide appellees would the care results Mulligan allege that that noted did that the Any determination to Ms. Scott. entirely from her services were withheld warranties were representations aunt, provided services were but a de- necessarily require would breached or in acceptable not of a level she found failed appellees of whether termination compliance with normal standards. for Ms. medical care meet the standard of representa that the We held conclusion proper- conclude the trial Scott. We re and warranties were breached tions summary judgment on the ly granted *8 a determination of whether quired precluded Act the Scotts ground that the to meet the standard nursing home failed as a casting negligence their therefore, and, Mulligan of medical care issue is The Scotts’ second DTPA claim. her attempting to recast was overruled. claim as a DTPA claim. of the trial Accordingly, Inc., Del-Ky, v. Waters court is affirmed. home for nursing defendant sued the that express warranty breach of an FROST, J., concurring. specific ser- provide would
nursing home FROST, Justice, they sought KEM THOMPSON that relief under section concurring. Nonetheless, at oral 13.01(g). argu both supplemental ment and in brief appellate majority’s judgment analysis The that, ing, argued the Scotts have even are correct. I 'write to address the Scotts’ they an though did not seek extension arguments regarding 13.01(g).1 section 13.01(g), under this court should section Essentially, they urge this court to evalu- 13.01(g) determining use section cases in ate their claimed entitlement to relief un- whether the trial court abused its discre 13.01(f) 13.01(g) der based on section denying in tion an extension under section cases. 13.01(f). Although the title of the Scotts’ motion 13.01(f) motion, states that it is a section appear arguing The to be that Scotts we review the motion based on its sub 13.01(f) “good cause” under section means looking stance rather than at its simply “accident or mistake” and the “lack of Surgitek, Bristol-Myers title or label. See indifference,” intent or conscious which is (Tex. Abel, Corp. v. 997 S.W.2d 13.01(g). legal standard under section 1999). However, a careful review of the arguments plain The contradict the Scotts’ Scotts’ motion shows that its substance is meaning of section 13.01. pertinent consistent with its title. The 13.01(f), the trial court Under section portions “good of the motion assert cause” “may, ... extend good cause shown 13.01(f). for an extension under section (d) period specified time in Subsection 13.01(g), do not cite section Scotts days.” of this section for an additional 30 that do not assert their failure to R.S., ch. May Leg., See Act of timely expert reports file the and curricula 140, 1, 985, 985-87, § 1995 Tex. Gen. Laws days vitae the result of within was repealed by Act of accident or mistake rather than intentional 204, 10.09, § Finally, conduct or conscious indifference. plain meaning 887. Based on the
although dispositive, the motion does statutory language, an extension under rather, general prayer; not even contain a 13.01(f) discretionary than section rather by praying it ends “for all the relief re Brothers, mandatory. See James quested The record shows that above.” Mar. (TexApp.-Dallas at *2-3 WL sought never an extension un Scotts h.) pet. (mem.op.) (stating that Caldwell, 13.01(g). der section See Rosa v. cause, good even if a movant has shown (Tex.App.-Amarillo 698-99 deny denied) the trial court still has discretion 2004, pet. (holding that substance motion for extension of motion to extend time was a section 13.01(f)). 13.01(f) 13.01(g) provides motion rather than a section trial “finds that the failure of the that trial court did not 13.01(g) motion and attorney was not or the claimant’s denying in section claimant abuse discretion 13.01(f) motion). indif- And, result of conscious appellate intentional or the of an accident ference but was the result briefing, the Scotts have never asserted (Vernon Supp. Prac. & Rem.Code Ann 1. Section 13.01 of the 4590i, 2004-05)). The former statute continues Tex.Rev.Civ. Stat. Ann. 13.01. September May effect for cases filed before See Act of 985, 985-87, 1,§ 2003. Because this case was filed in 1995 Tex. Gen. Laws *9 2003, by Leg., the former statute —Tex. Rev. Civ. Stat. Ann. repealed R.S., all are to Laws 4590i—is references ch. Gen. statute. version Tex. Civ. the former mistake, grace grant court shall HERNANDEZ, Jr., Appellant, Armando claimant to days permit period of 30 Act of comply with that subsection.” See 140, §
May Texas, Appellee. STATE 985-87, repealed Laws 1995 Tex. Gen. No. 14-04-00055-CR. by Act of June Texas, 204, 10.09, Appeals Laws 887. 2003 Tex. Gen. Court (14th Dist.). of a 13.01(g), granting section Houston Under period mandatory upon 30-day grace 21, 2005. finding comply that the failure to Rehearing Sept. 2005. Overruled of accident or mistake. Walker v. result (Tex. Gutierrez, 62-63
2003).
Although a trial court has the discretion good grant
to find cause and an extension 13.01(f) facts that
under section based on
also would constitute accident or mistake 13.01(g), this does not mean
under section statutory analysis
that the under these two James,
provisions is the same. See (holding analysis at *2-4
WL 13.01(g)
under is not the same as section 13.01(f) analysis under section and that
the existence of accident or mistake is appellants
irrelevant because moved for 13.01(f)). only
relief under section Even proven
the Scotts had accident or mis-
take2, an that would not have mandated 13.01(f). at
extension under section See id. contrary to
*4. To hold otherwise would be plain meaning language enacted *2-4. Legislature.
the Texas See id. at
Accordingly, the Scotts are incorrect analysis that the
suggesting under section
13.01(f) analysis is the same as the 13.01(g). that, than accident indifference rather even if the issue or conscious It should be noted relevant, the trial were the record shows that or mistake. finding intent court would not have erred in