Amanda Marie Coci and Heart of Texas EMS, Inc., D/B/A Heart of Texas EMS v. April Dower

Order filed March 7, 2019
In The
Eleventh Court of Appeals
__________
No. 11-18-00353-CV
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AMANDA MARIE COCI AND HEART OF TEXAS EMS, INC.,
D/B/A HEART OF TEXAS EMS, Appellants
V.
APRIL DOWER, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV1801020
ORDER
In this accelerated appeal from an order in which the trial court denied a
motion to dismiss that was filed pursuant to Section 74.351(b) of the Texas Civil
Practice and Remedies Code, Appellants have filed a motion to stay. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(b) (West 2017). In their motion, Appellants ask
this court to issue an order to stay “any further proceedings in the trial court until
final disposition of the interlocutory appeal.” We grant the motion to stay.
Appellants indicate that Appellee and the trial court are pushing forward with
discovery, pretrial, and a trial setting. Appellants wish to stay all of the proceedings
in the trial court, including discovery, pending the outcome of their interlocutory
appeal in this court. Appellee opposes the motion to stay and has filed a response in
this court. In her response, Appellee points out that, pursuant to the statute
authorizing this interlocutory appeal, Section 51.014 of the Texas Civil Practice and
Remedies Code, only the commencement of the trial is stayed. CIV. PRAC. & REM.
§ 51.014(a)(9), (b) (West Supp. 2018).
While we agree that Section 51.014(b) only stays the commencement of a
trial, we do not agree that Section 51.014(b) controls. Section 74.351(s) provides:
Until a claimant has served the expert report and curriculum vitae
as required by Subsection (a), all discovery in a health care liability
claim is stayed except for the acquisition by the claimant of
information, including medical or hospital records or other documents
or tangible things, related to the patient’s health care through:
(1) written discovery as defined in Rule 192.7,
Texas Rules of Civil Procedure;
(2) depositions on written questions under Rule 200,
Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 205,
Texas Rules of Civil Procedure.
To the extent of a conflict between Section 51.014(b) and Section 74.351(s), “section
74.351(s) controls and mandates a stay of discovery other than the enumerated
exceptions.” In re Lumsden, 291 S.W.3d 456, 462 (Tex. App.—Houston [14th Dist.]
2009, orig. proceeding); see also CIV. PRAC. & REM. § 74.002(a).
The issue involved in this appeal is whether Appellee’s claims are health care
liability claims. In response to Appellants’ motion to dismiss, which was filed in the
trial court pursuant to Section 74.351(b), Appellee asserted that her lawsuit did not
involve “any qualifying health care liability claims.” The trial court apparently
2
agreed and denied Appellants’ motion to dismiss. Whether Appellee has asserted a
health care liability claim is a question to be determined in the interlocutory appeal;
however, if Appellee has asserted a health care liability claim (an issue which we are
not yet deciding and on which we express no opinion at this juncture), Appellants
are entitled to a stay pursuant to Lumsden and Section 74.351(s). We believe that a
stay is warranted until this court has had an opportunity to determine whether
Appellee’s claims are health care liability claims.
Accordingly, we grant Appellants’ motion and order that all proceedings
below—other than discovery permitted by Section 74.351(s)—are stayed until
further order of this court or final disposition of the interlocutory appeal in this cause.
PER CURIAM
March 7, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3