Jose Alberto Godinez, Individually, and Gregoria Cervantes-Godinez, Individually and Emily Bohls as the Temporary Administrator of the Estate of Monica Elizabeth Godinez Cervantes v. Timothy M. Hodges, M.D., and the Surgical Group of the Woodlands ( 2023 )

Affirmed and Memorandum Opinion filed August 3, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00409-CV
JOSE ALBERTO GODINEZ, INDIVIDUALLY, GREGORIA
CERVANTES-GODINEZ, INDIVIDUALLY, AND EMILY BOHLS, AS THE
TEMPORARY ADMINISTRATOR OF THE ESTATE OF MONICA
ELIZABETH GODINEZ CERVANTES, DECEASED, Appellants
V.
TIMOTHY M. HODGES, M.D. AND THE SURGICAL GROUP OF THE
WOODLANDS, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2020-02707
MEMORANDUM OPINION
Monica Cervantes-Godinez died while in the hospital following a serious car
accident. Appellants, Jose Alberto Godinez; Gregoria Cervantes-Godinez; and
Emily Bohls, as the temporary administrator of the estate (collectively, the
Godinezes), sued appellees, Timothy M. Hodges, M.D., the doctor who admitted
Monica to the hospital, and his professional group, The Surgical Group of the
Woodlands (collectively, Hodges), for medical malpractice allegedly resulting in
Monica’s death. Hodges filed a no-evidence motion for summary judgment. The
Godinezes filed a response as well as a motion for leave to late designate an expert
witness and, in the alternative, a motion for continuance, but the Godinezes did not
file any evidence from an expert in response to Hodges’ motion. The trial court
granted Hodges’ motion for summary judgment and denied the Godinezes’
motions. In four issues on appeal, the Godinezes contend that the trial court erred
in granting summary judgment, denying their motions for leave to late designate an
expert and for a continuance, and imposing a death penalty sanction. We affirm.
Background
The Godinezes filed their original petition on January 15, 2020, and served
Hodges with an expert report prepared by Dr. Brian Williams on June 19, 2020.
See Tex. Civ. Prac. & Rem. Code § 74.351(a) (requiring health care liability
claimants to serve expert reports on defendants within 120 days of when each
defendant filed their answer). Hodges filed a motion to dismiss the Godinezes’
claims for failing to timely serve the report, and the Godinezes filed a motion to
extend time to file the report. See id. The trial court granted the motion to extend
time and denied the motion to dismiss.
Hodges filed a no-evidence motion for summary judgment on December 17,
2021 and set it for submission on January 10, 2022. In the motion, Hodges asserted
that the Godinezes could produce no evidence that Hodges breached an applicable
standard of care or proximately caused the injuries alleged. See generally Windrum
v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019) (“To prevail in a wrongful-death suit
alleging medical malpractice, a plaintiff must establish the elements of
negligence[; t]hat is, the plaintiff must establish the existence of a legal duty, a
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breach of that duty, and damages proximately caused by the breach.”) (internal
citation and quotation marks omitted). Hodges also asserted in the motion that the
Godinezes had failed to designate a qualified expert to provide testimony regarding
the standard of care, breach, and causation and that the deadline to designate such
an expert had passed on May 10, 2021.
On January 3, 2022, the Godinezes filed a combined response to the
summary judgment motion, motion for leave to late designate an expert witness,
and in the alternative, a motion for continuance of the case. In this document, the
Godinezes requested that the trial court permit the late designation of Dr. Williams
as a testifying expert. The Godinezes asserted that they had good cause for the
failure to timely designate a testifying expert in that their “office was in a lock
down mode” and the lawyer in charge of calendaring medical malpractice cases
had been very ill. The Godinezes attached an affidavit from the attorney in
question describing his illness. The Godinezes further pointed out that Hodges had
not asserted he would be surprised or prejudiced by a late designation and noted
that Hodges had previously been served with Dr. Williams expert report.
Specifically in regards to the motion for summary judgment, the Godinezes
stated, “So by way of their summary judgment response, Plaintiffs’ response is that
Plaintiffs have a medical expert who will testify about duty, breach, causation and
damages. If the Plaintiffs’ motion to late designate their experts is granted, the
basis of the Defendant’s motion will be mooted.” Regarding the alternative motion
for a continuance in the event the court would not allow a late designation, the
Godinezes requested “that the Court continue the case to a date beyond the date the
case is currently set for trial to allow the parties to conduct whatever additional
discovery is needed to be done.” This statement appeared aimed at the possibility
Hodges might argue surprise or prejudice. The Godinezes suggested such an
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argument could be satisfied by “additional time . . . to ensure equal footing for all.”
The Godinezes did not discuss Williams’s opinions in their document or attach any
affidavit, declaration, or testimony by Williams.
The Godinezes set their combined motions for submission on February 7,
which was after the date of submission for Hodges’ motion for summary judgment.
On March 1, 2022, the trial court granted Hodges’ motion for summary judgment,
stating in that order “Defendants are entitled to summary judgment since there is
no evidence as to essential elements of plaintiffs’ claim.” On the same date, the
trial court issued an order denying the Godinezes’ motions for leave to late
designate experts and continuance, noting in this order that summary judgment had
been granted.
The Godinezes then filed a motion for new trial, arguing that the trial court’s
orders violated “their constitutional right to present medical testimony in support
of their lawsuit” and were effectively a death penalty sanction for failure to timely
designate an expert. Hodges responded to this motion by pointing out that to avoid
summary judgment, the Godinezes were required to present some evidence in
response to the no-evidence motion for summary judgment and failed to do so. The
trial court denied the motion for new trial and this appeal ensued.
Discussion
In four issues, the Godinezes contend that the trial court erred in (1) granting
summary judgment based on the Godinezes’ failure to timely designate an expert;
(2) denying the motion for leave to late designate; (3) denying the motion for a
continuance; and (4) imposing a death penalty sanction. We will discuss each issue
in turn.
Summary judgment. As stated, in their first issue, the Godinezes assert the
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trial court granted summary judgment on the ground that the Godinezes failed to
timely designate their testifying expert. Hodges responds that the motion was
granted because the Godinezes failed to present any evidence in response to the
motion, not simply because they failed to timely designate an expert. Indeed, as set
forth above, the trial court stated in its order that “Defendants are entitled to
summary judgment since there is no evidence as to essential elements of plaintiffs’
claim.”
Texas Rule of Civil Procedure 166a(i) provides that “[a]fter adequate time
for discovery, a party . . . may move for summary judgment on the ground that
there is no evidence of one or more essential elements of a claim or defense on
which an adverse party would have the burden of proof at trial.” Tex. R. Civ. P.
166a(i); see also Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021). A court
“must grant” such motion “unless the respondent produces summary judgment
evidence raising a genuine issue of material fact.” Tex. R. Civ. P. 166a(i); see also
LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). To defeat a no-evidence
summary judgment in a medical-malpractice case, the plaintiff must offer expert
testimony on the challenged elements of the claim, including, if challenged, the
standard of care, breach, and causation. See, e.g., Bailey v. Hillcrest Baptist Med.
Ctr., No. 10-18-00346-CV, 2022 WL 711119, at *4 (Tex. App.—Dallas Mar. 9,
2022, no pet.) (mem. op.); Dashtgoli v. Eye Care of Austin, P.A., No. 03-06-00744-
CV, 2008 WL 2852286, at *3 (Tex. App.—Austin July 23, 2008, no pet.) (mem.
op.).
In their reply brief, the Godinezes assert that Hodges’ motion for summary
judgment was limited to the argument that because the Godinezes failed to timely
designate an expert, they could provide no evidence on breach or causation. The
Godinezes insist Hodges only raised a general no-evidence challenge for the first
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time in this appeal. Thus, according to the Godinezes, the trial court must have
based its ruling on the failure to timely designate an expert not on the lack of
evidence. We disagree.
In his motion for summary judgment, after describing the nature of the case,
Hodges offered a “Statement of Claim for Relief,” asserting “[t]here is no evidence
that the Defendants breached an applicable standard of care, either by act or
omission, which caused or contributed to the injuries claimed. Accordingly, the
Defendants are entitled to summary judgment. See Tex. R. Civ. P. 166a(i).”
Hodges then set forth the requirements under Rule 166a(i), including that to avoid
summary judgment, the plaintiff must put forth enough probative evidence to raise
a genuine issue of material fact on each of the challenged elements. Hodges repeats
three more times in the argument and conclusion portions of the motion that the
plaintiffs have no evidence that Hodges breached any applicable standard of care
or that such breach proximately caused the injuries alleged. Although it is certainly
true that Hodges also argues in the motion that the Godinezes failed to timely
designate a testifying expert, the motion is not limited to that contention. It is a no-
evidence motion for summary judgment. Because the Godinezes did not present
any evidence on the challenged elements, the trial court was required to grant the
motion. See Tex. R. Civ. P. 166a(i); LMB, Ltd., 201 S.W.3d at 688; Bailey, 2022
WL 711119, at *4; Dashtgoli, 2008 WL 2852286, at *3. We therefore overrule the
first issue.
Motion for leave. In their second issue, the Godinezes challenge the trial
court’s denial of their motion for leave to late designate an expert. In its order
denying this motion, the trial court did not state a reason for denying the motion,
but the court did point out that summary judgment had been granted. The court
may have denied the motion for leave simply because it was moot in light of the
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granting of summary judgment. Basically, even if we were to agree with the
Godinezes that they had good cause for failing to timely designate an expert and
Hodges would not be surprised or prejudiced by the late designation, it would not
change the outcome of the case. See Tex. R. App. P. 44.1(a) (providing that no
judgment may be reversed due to trial court error unless that error probably caused
the rendition of an improper judgment or prevented the appellant from properly
presenting the case on appeal); In re Marriage of Moncur, 640 S.W.3d 309, 322
(Tex. App.—Houston [14th Dist.] 2022, no pet.); see also Sears Roebuck & Co. v.
ACM Eng’g & Env’t Servs., No. 14-11-00363-CV, 2012 WL 1137912, at *3 (Tex.
App.—Houston [14th Dist.] Apr. 3, 2012, no pet.) (mem. op.) (any alleged trial
court error was moot because even assuming court erred, no evidence summary
judgment was still appropriate). The Godinezes needed to present evidence in
response to the motion for summary judgment but failed to do so.
The Godinezes assert that because the trial court improperly excluded their
expert witness, the judgment turned on the excluded evidence. And they argue the
trial court violated their due process right to present evidence by preventing them
from presenting expert testimony, citing, inter alia, the Fifth and Fourteenth
Amendments to the United States Constitution. But the trial court did not
improperly exclude or prevent the presentation of any evidence as the Godinezes
did not offer any evidence. Moreover, even if the trial court had improperly
excluded evidence, the Godinezes have not properly presented this issue for
appellate review because no excluded evidence appears in the appellate record. See
Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 824 (Tex. App.—Houston
[1st Dist.] 2012, pet. denied) (explaining that an appellant has the burden to bring
forth a record sufficient to show that the trial court abused its discretion when it
excluded summary judgment evidence); Cantu v. Horany, 195 S.W.3d 867, 871
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(Tex. App.—Dallas 2006, no pet.) (same).1 The trial court did not err in denying
the motion for leave, and we overrule the second issue.
Motion for continuance. In their third issue, the Godinezes challenge the
denial of their alternative motion to continue the case. Based on their arguments in
the trial court and on appeal, it is clear that this issue is aimed at remedying any
surprise or prejudice that may have arisen for Hodges in the event the Godinezes
were given leave to late designate their expert. As the Godinezes point out, the
extra time would allow Hodges to depose the expert. Because we do not reach the
question of surprise or prejudice, we likewise need not reach this issue.
Death penalty sanction. In their fourth issue, the Godinezes assert the trial
court erred in effectively imposing a death penalty sanction against them for failing
to timely designate an expert witness without considering alternatives. Again, this
is not what happened in this case. The trial court did not impose any sanctions
regarding the designation of the expert; the trial court granted a no evidence
summary judgment because the Godinezes failed to produce any evidence in
response to the no-evidence motion. Accordingly, we overrule the fourth issue.
We affirm the trial court’s judgment.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
1
The Godinezes do not cite, and we have not discovered any place in the appellate record
containing, evidence by Dr. Williams, the Godinezes’ purported expert. The Godinezes attached
a report by Williams to their brief, but even assuming the report could constitute proper summary
judgment evidence, we generally cannot consider evidence attached to a brief. See, e.g.,
WorldPeace v. Comm’n for Law. Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied). See generally Hinojosa v. Koen, No. 04-18-00907-CV, 2019 WL
5773672, at *3 (Tex. App.—San Antonio Nov. 6, 2019, pet. denied) (mem. op.) (holding expert
report did not qualify as an affidavit or unsworn declaration).
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