in Re Park Manor of Cypress Station ( 2007 )

  Opinion issued April 19, 2007.  

In The  

Court of Appeals

For The

First District of Texas

---

NO. 01-06-01063-CV

---

IN RE PARK MANOR OF CYPRESS STATION, Relator

---

Original Proceeding on Petition for Writ of Mandamus

---

MEMORANDUM OPINION

By petition for writ of mandamus, relator, Park Manor of Cypress Station ("Park Manor"), challenges the trial court's ⁽¹⁾ March 26, 2006 denial of Park Manor's plea in abatement pending arbitration. We deny the petition for writ of mandamus, but we write to explain the application of an existing rule of law to these facts, of a kind that are likely to recur in future cases. Tex. R. App. P. 47.4(a).

Background

In September 2004, Park Manor, a nursing home, admitted Ethel Carson as a resident. Her daughter-in-law, Loretta Carson, signed the intake paperwork, which included a memorandum entitled, "Dispute Resolution Plan." The Plan provides:

To strengthen and further our commitment to you, the Nursing Home has implemented a Dispute Resolution Plan to increase communication and resolve quality care problems that may arise between you and the Nursing Home.

A summary . . . (unreadable) . . . complete plan is available for your review at any time.

The Plan is simple. First, if you have a serious problem, try to resolve it by talking to the Nursing Home Administrator. If the problem is not resolved, the next step will be to discuss the problem with our dispute committee, made up of the Nursing Home management, employees, and residents. If the problem is still not resolved, a professional mediator, skilled in helping people find middle ground, will be brought in to help us solve our problem.

Finally, after the above steps have been exhausted, and if there is still no resolution to the problem, we will go to binding arbitration, pursuant to the Federal Arbitration Act, and let an arbitrator decide the problem. None of your legal rights are taken away. An arbitrator can make an award, just like a jury.

Loretta Carson signed under the word "Resident" on September 29, 2004. "Ethel Carson" was written in cursive above the words "Resident's Name," and under Loretta's printed name.

In January 2006, Bruce Carson, as the independent executor of Ethel Carson's estate ("Ethel's estate"), sued Park Manor. The underlying suit alleges that, in January 2005, Ethel, who was blind, suffered serious burns afer she spilled a cup of coffee that nursing home staff had placed on a tray in front her, resulting in Ethel's death days later. The suit seeks recovery for "Ethel Carson's physical pain and mental anguish, physical impairment, and medical expenses incurred prior to her death," and exemplary damages. Park Manor answered with a general denial, affirmative defenses, and a plea in abatement.

In its plea in abatement, Park Manor contended that, "Upon the admission of Ethel Carson, her responsible party who admitted her to the Park Manor of Cypress Station nursing facility signed the Arbitration Agreement, agreeing that any disputes or claims against Park Manor of Cypress Station would be resolved by binding arbitration conducted pursuant to the Federal Arbitration Act." Park Manor attached the two-page memorandum regarding the dispute resolution plan to the plea in abatement. Park Manor filed its "Brief in Support of Defendant's Plea in Abatement and/or Motion to Dismiss Plaintiff's Claims Pursuant to Binding Arbitration Agreement." Park Manor attached the Dispute Resolution Plan to its brief. Ethel's estate responded that there was no proof that Ethel Carson ever agreed to be bound by this plan. The court denied Park Manor's plea in abatement in March 2006.

In July 2006, Park Manor deposed Loretta Carson. The trial court did not review and could not have considered anything in Loretta's deposition, however, as she appeared for her deposition nearly four months after the court ruled on the plea in abatement.

In November 2006, upon becoming aware of the trial court's ruling, Park Manor filed this petition for writ of mandamus. ⁽²⁾ In its petition and reply, Park Manor relies on Loretta's deposition testimony. Park Manor later filed a supplemental record and appendix, to include a copy of Ethel's medical power of attorney executed in favor of Loretta. The mandamus record does not indicate that Park Manor filed the power of attorney in the underlying suit or presented it to the trial court before the trial court ruled on Park Manor's plea in abatement. See Tex. R. App. P. 52.3, 52.7.

Standard of Review

Mandamus relief is available only to correct a "clear abuse of discretion" when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). "A trial court clearly abuses its discretion if 'it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)).

A relator must file "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding." Tex. R. App. P. 52.7(a)(1). "Equity is generally not served by issuing an extraordinary writ against a trial court on a ground that was never presented to the court and that the court thus had no opportunity to address." In re Bank of America, N.A., 2003 WL 22310800, *2 (Tex. App.--Houston [1st Dist.] October 9, 2003, orig. proceeding). As we noted in Bank of America, "It would be hard to conclude, without circumstances that were highly unusual or that made a trial court's ruling void, that a trial court could abuse its discretion in making a ruling for a reason that was never presented to the court." Id.

Discussion

In this case, the trial court could not review or consider Loretta's deposition testimony--taken in July 2006--before it denied Park Manor's plea in abatement in March 2006. In addition, Park Manor has not shown that it presented Ethel's medical power of attorney to the trial court before it ruled on Park Manor's plea in abatement. A trial court does not abuse its discretion in failing to consider evidence never presented to it. See Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (citations omitted) ("Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court. Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles."). Rather, Park Manor should present the record in support of its request to abate for arbitration to the trial court before seeking mandamus relief based on that record.

Conclusion

Accordingly, we deny the petition for writ of mandamus.   

   Jane Bland

Justice

Panel consists of Chief Justice Radack, and Justices Jennings and Bland.

  Chief Justice Radack concurs in the disposition only.

1. -

2. -- ' -- '