Sheila Bailey v. Amaya Clinic, Inc and Dr. David W. Powell

Affirmed and Majority and Dissenting Opinions filed May 30, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00333-CV
SHEILA BAILEY, Appellant
V.
AMAYA CLINIC, INC. AND DR. DAVID W. POWELL, Appellees
NO. 14-12-00335-CV
DR. DAVID W. POWELL, Appellant
V.
SHEILA BAILEY, Appellee
NO. 14-12-00354-CV
AMAYA CLINIC, INC., Appellant
V.
SHEILA BAILEY, Appellee
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2010-74730
DISSENTING OPINION
After appellee/plaintiff Sheila Bailey served amended expert reports under
Texas Civil Practice and Remedies Code section 74.351, appellants/defendants
David Powell and Amaya Clinic, Inc. filed in a single document (1) objections to
the reports under section 74.351(a), (2) a motion asking the trial court to sustain
these objections, and (3) a motion asking the trial court to dismiss Bailey‘s claims
and to award the defendants attorney‘s fees and costs under section 74.351(b). The
trial court signed an interlocutory order in which it sustained some of the section
74.351(a) objections, overruled at least one of the objections, and did not address
other objections. In its order, the trial court did not mention the motion for relief
under section 74.351(b) at all, and under the unambiguous language of the order,
the trial court did not rule on this motion. Because the trial court did not deny any
relief sought by a motion under section 74.351(b), this court lacks appellate
jurisdiction in the appeals filed by Powell and the Amaya Clinic under Texas Civil
Practice and Remedies Code section 51.014(a)(9). Accordingly, this court should
dismiss cause numbers 14-12-00335-CV and 14-12-00354-CV for lack of appellate
jurisdiction. Because the defendants‘ motion seeking a ruling on their objections
constitutes a motion for relief under 74.351(l), this court has jurisdiction over
Bailey‘s appeal under Texas Civil Practice and Remedies Code section
51.014(a)(10), in which she challenges the trial court‘s order to the extent the trial
court granted relief sought by this motion. In Bailey‘s appeal in 14-12-00333-CV,
this court should affirm in part, reverse in part, and remand for further proceedings.
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Because this court instead affirms the order in all three appeals, I respectfully
dissent.
This court lacks appellate jurisdiction in the appeals filed by Powell and the
Amaya Clinic.
In these consolidated appeals, Powell, the Amaya Clinic, and Bailey all have
filed notices of appeal from the order signed by the trial court on March 30, 2012
(the ―Order‖). In the Order, the trial court did not dispose of all parties and claims
in the trial court; therefore, the Order is interlocutory. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). This court lacks jurisdiction over an
appeal from an interlocutory order unless a statute provides for an appeal from that
interlocutory order. See Ogletree v. Matthews, 262 S.W.3d 316, 319, n.1 (Tex.
2007). The only statute that Powell and the Amaya Clinic (collectively, the
―Powell Parties‖) invoke as a basis for appellate jurisdiction in their interlocutory
appeals is Texas Civil Practice and Remedies Code section 51.014(a)(9). See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West 2013). Under this statute, one
may appeal from an interlocutory order of a district court that ―denies all or part of
the relief sought by a motion under Section 74.351(b), except that an appeal may
not be taken from an order granting an extension under Section 74.351.‖ Id.
Courts are to strictly construe this statute authorizing interlocutory appeal as ―a
narrow exception to the general rule that only final judgments and orders are
appealable.‖ Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)
(quotations omitted).
Texas Civil Practice and Remedies Code section 74.351(b) provides:
If, as to a defendant physician or health care provider, an expert report
has not been served within the period specified by Subsection (a), the
court, on the motion of the affected physician or health care provider,
shall, subject to Subsection (c), enter an order that:
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(1) awards to the affected physician or health care provider reasonable
attorney‘s fees and costs of court incurred by the physician or health
care provider; and
(2) dismisses the claim with respect to the physician or health care
provider, with prejudice to the refiling of the claim.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (West 2013). The only motion to
which section 74.351(b) refers is a motion by an affected physician or health care
provider asking the trial court to award the affected physician or health care
provider reasonable attorney‘s fees or costs of court or to dismiss with prejudice
the claim against the physician or health care provider. See id. The term ―a
motion under Section 74.351(b),‖ as used in section 51.014(a)(9), means a motion
by an affected physician or health care provider seeking reasonable attorney‘s fees,
or court costs, or dismissal with prejudice of the claim against the physician or
health care provider. See id.; Davies v. Flores, No. 01-12-00017-CV, 2012 WL
1893755, at *2–3 (Tex. App.—Houston [1st Dist.] May 24, 2012, no pet.) (holding
that to be ―a motion under Section 74.351(b),‖ as used in section 51.014(a)(9), the
motion must seek some or all of the relief stated in section 74.351(b)). Objections
to an expert report are filed under section 74.351(a), not 74.351(b). See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(a) (West 2013). A motion asking the trial court
to sustain objections filed against an expert report is not a motion under section
74.351(b), and an interlocutory order denying such a motion is not appealable
under section 51.014(a)(9). See Davies, 2012 WL 1893755, at *2–4. Thus, the
Powell Parties may not appeal the Order under section 51.014(a)(9) unless, in the
Order, the trial court denied all or part of a motion seeking relief stated in section
74.351(b). See id.
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Within 120 days of filing her original petition, Bailey served an expert report
on the Powell Parties, in an attempt to comply with section 74.351(a). In response,
the Powell Parties filed objections under section 74.351(a), moved the trial court to
sustain these objections, and moved the trial court to grant the relief stated in
section 74.351(b). After an oral hearing, the trial court sustained the objections to
the report, granted Bailey a 30-day extension under section 74.351(c) to cure the
deficiencies in the report, and did not rule on the motion under section 74.351(b).
Within 30 days, Bailey served amended expert reports on the Powell Parties
in an effort to comply with section 74.351(a). In response, the Powell Parties filed
objections under section 74.351(a), moved the trial court to sustain these
objections, and moved the trial court to grant section 74.351(b) relief.1 The trial
court held an oral hearing on these motions and took them under advisement
without making any rulings on the date of the hearing. On March 30, 2012, the
trial court signed the Order.
In the Order, the trial court recites that the Powell Parties‘ objections had
been heard and considered and that the trial court sustained these objections in part
and overruled them in part. The trial court then sustained several of the Powell
Parties‘ objections and indicated that Dr. Bell and Dr. Francis should revise their
reports. The latter relief was not requested by the Powell Parties. In the Order, the
trial court indicated that the reports are defective as to the opinions of Dr. Bell and
Dr. Francis regarding the manner in which the care provided failed to meet the
1
The Powell Parties filed their objections, asked the trial court to sustain these objections, and
asked the trial court to grant section 74.351(b) relief, all in a single document. According to the
majority, ―[t]he prayer in the motion only asked the trial court to dismiss the case with prejudice
‗pursuant to [section] 74.351(b)‘. . . .‖ Ante at p.4, n.5. In the prayer, the Powell Parties asked
the trial court to sustain the objections that they had asserted under section 74.351(a) and to grant
section 74.351(b) relief; they did not limit their request to section 74.351(b) relief.
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applicable standard of care, but the trial court indicated that these defects may be
cured if Dr. Bell and Dr. Francis revise their reports. Though the trial court stated
that it believes ―Dr. Francis‘s causation opinions are a good faith effort,‖ nothing
in the Order indicates that the trial court concluded that either the report of Dr.
Francis or the report of Dr. Bell is an objective good faith effort to provide a fair
summary of the expert‘s opinions regarding the manner in which the care provided
failed to meet the applicable standard of care. In fact, the language of the Order
shows that the trial court sustained objections by the Powell Parties to this aspect
of these reports and that the trial court concluded that Dr. Bell and Dr. Francis
needed to revise their reports to make them sufficient on this issue. In no part of
the Order does the trial court overrule any objection in this regard or state that this
aspect of either report is sufficient or constitutes a good faith effort to comply with
section 74.351. In the Order, the trial court did not address whether Bailey‘s
claims should be dismissed with prejudice or whether the Powell Parties should be
awarded attorney‘s fees or costs under section 74.351(b). In fact, the trial court did
not refer to the section 74.351(b) motion at all; the trial court did not even mention
that this motion had been heard or was under consideration.
The language in the Order is unambiguous; therefore, this court must
interpret the Order as having the effect required by the Order‘s plain language,
even if this effect is contrary to the result required under applicable law. See Reiss
v. Reiss, 118 S.W.3d 439, 441–43 (Tex. 2003). Though the Powell Parties filed a
motion seeking 74.351(b) relief, under the unambiguous language of the Order, the
trial court did not grant, deny, or otherwise rule on the Powell Parties‘ motion for
this relief.2 Thus, this court has no appellate jurisdiction under section
2
No party moved for reconsideration of the Order, and, after the trial court signed the Order, the
Powell Parties did not ask the trial court to rule on their motion for 74.351(b) relief or object to
any alleged refusal of the trial court to so rule.
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51.014(a)(9).3 See Davies, 2012 WL 1893755, at *2–4. The parties have not cited
and research has not revealed any other statute that provides appellate jurisdiction
over the Powell Parties‘ respective appeals. Accordingly, these appeals should be
dismissed for lack of jurisdiction. See id.
In Bailey’s appeal, this court should affirm in part, reverse in part, and remand.
Bailey appeals the Order under section 51.014(a)(10) to the extent the trial
court sustained the Powell Parties‘ objections. Under section 51.014(a)(10), this
court has interlocutory appellate jurisdiction over the Order to the extent the trial
court ―grants relief sought by a motion under Section 74.351(l).‖ Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(10) (West 2013). Because the Powell Parties‘
motion requesting the court to sustain its objections qualifies as a section 74.351(l)
motion, the majority correctly concludes that this court has appellate jurisdiction
over Bailey‘s appeal under section 51.014(a)(10).4 Id. §§ 51.014(a)(10), 74.351(l).
The majority also correctly concludes that the trial court did not err in sustaining
the objections to Dr. Orlow‘s qualifications but erred in sustaining all of the
objections sustained in the Order as to Dr. Bell and Dr. Francis.5 In light of the
3
Though Bailey has not asserted that this court lacks appellate jurisdiction, this court is
obligated to review on its own motion issues affecting its appellate jurisdiction. See M.O. Dental
Lab. v. Rape, 139 S.W.3d 671, 673 (Tex. 2004).
4
To the extent the trial court suggested, ordered, or afforded Bailey the opportunity to revise the
expert reports, the Powell Parties did not request this relief, and therefore, this court lacks
appellate jurisdiction over this part of the Order. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(10).
5
The objections that the trial court did not sustain, for example, the objections to Dr. Francis‘s
opinions on causation, are not before this court in any of the three appeals, and no opinion
regarding these objections is expressed in this dissenting opinion.
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majority‘s analysis in Bailey‘s appeal, the appropriate appellate judgment in that
appeal is to affirm the trial court‘s sustaining of the objections to Dr. Orlow‘s
qualifications, reverse the sustaining of the objections as to Dr. Bell and Dr.
Francis, and to remand for further proceedings. Even if, contrary to the foregoing
analysis, the trial court had denied the Powell Parties‘ motion for 74.351(b) relief,
Bailey is not challenging this ruling in her appeal; she is appealing the trial court‘s
sustaining of the Powell Parties‘ objections as requested in the Powell Parties‘
74.351(l) motion. In Bailey‘s appeal, this court has no jurisdiction over any ruling
by the trial court on the motion for 74.351(b) relief. Therefore, in the judgment in
Bailey‘s appeal, this court should affirm or reverse the trial court‘s sustaining of
the Powell Parties‘ objections rather than address any ruling by the trial court on
the motion for 74.351(b) relief.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Christopher, and Jamison. (Jamison, J., majority.)
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