Raul Arizpe v. George Wilcox M.D.

i i i i i i
MEMORANDUM OPINION
No. 04-09-00408-CV
Raul ARIZPE, Individually, and Alvera D. Arizpe,
Individually and as Guardian of Linda Diane Arizpe,
Appellants
v.
George WILCOX, M.D., Carrie Cooper, M.D., and Vijay Kodali, M.D.,
Appellees
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2006 CI 08843
Honorable Janet Littlejohn, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: April 28, 2010
REVERSED AND REMANDED
Raul Arizpe, individually, and Alvera D. Arizpe, individually and as Guardian of Linda
Diane Arizpe, appeal the trial court’s order granting the motions to dismiss filed by George Wilcox,
M.D., Carrie Cooper, M.D., and Vijay Kodali, M.D. The Arizpes contend the trial court erred in
dismissing their health care liability claims because they timely served their expert report within 120
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days after they filed their amended original petition adding Wilcox, Cooper, and Kodali as
defendants. We reverse the trial court’s order and remand the cause for further proceedings.
BACKGROUND
This is the second appeal regarding an expert report involving the Arizpes, Wilcox, and
Cooper. See Cooper v. Arizpe, No. 04-07-00734-CV, 2008 WL 940490 (Tex. App.—San Antonio
Apr. 9, 2008, pet. denied) (Arizpe I). The factual and prior procedural background is detailed in
Arizpe I. See id. at *1. In Arizpe I, this court held the expert report with regard to Wilcox and
Cooper was deficient because “the entire standard of care and breach thereof [was] contingent on
the ED [emergency department] chart and Dr. Skeete’s progress notes being included in the floor
chart and available for review by Cooper and Wilcox.” Id. at *4. The expert report stated that the
ED chart and Dr. Skeete’s notes “should have been” with the floor chart. Id. at *3. We held the
report was deficient because the assumption that the ED chart and Dr. Skeete’s notes were with the
floor chart made the expert’s opinion, based on this assumption, speculative. Id. at *4. Because the
trial court could grant an extension of time to cure the deficiency, however, we remanded the cause
to the trial court for further proceedings. Id. at *5.
On remand, the Arizpes filed an amended motion for extension of time to cure their expert
report. The motion noted the procedural history of the case, including a quotation from Arizpe I
regarding the deficiency this court held to exist. The motion requested an extension to cure the
deficiency our court held to exist in Arizpe I and noted that the Arizpes had already served the
defendants with an addendum report.
Wilcox, Cooper, and Kodali each filed a second motion to dismiss. In her motion, Cooper
asserted the Arizpes did not timely serve their expert report. Although Cooper conceded that the
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expert report was served within 120 days after the amended petition was filed adding Cooper as a
defendant, Cooper argued the expert report was required to be served within 120 days after the
original petition was filed. In addition to requesting the trial court to grant her motion to dismiss,
Cooper also asserted that the trial court should deny the extension to cure the deficiency because
Cooper should have been named in the original petition, and the Arizpes’ lack of diligence in naming
her in the original petition should not be rewarded by granting a discretionary extension. In his
motion, Wilcox asserted the same basis for dismissing the lawsuit, i.e., the report was untimely, and
also asserted the same opposition to the trial court granting the extension. In his motion, Kodali only
sought a dismissal based on the report being untimely filed.
Almost one month after filing her second motion to dismiss, Cooper filed a supplement to
her second motion to dismiss. The supplement does not assert any additional grounds for a
dismissal, but simply states, “Pursuant to Texas Rules of Civil Procedure 193.7, Defendant Dr.
Cooper gives notice to all parties that the documents produced by any party to this case in response
to written discovery in this case will be used in any pretrial proceedings or at the trial of this case.”
The supplement further states, “Defendant Dr. Cooper specifically supplements her Second Motion
to Dismiss pending on the Court’s docket with the following:
1. Report of Joseph Varon, M.D. dated June 28, 2007;
2. Report of Joseph Varon, M.D. dated August 31, 2008;
3. Excerpted deposition testimony of Joseph Varon, M.D. dated October 10, 2008;
4. Correspondence between Plaintiffs’ counsel and Joseph Varon, M.D.;
5. Cooper v[.] Arizpe, 2008 WL 940490 (Tex. App.—San Antonio 2008); and
6. Methodist Charlton Medical Center v[.] Steele, 2[74] S.W.3d 47 (Tex. App.—Dallas
2008).”
In their response to the motions to dismiss, the Arizpes asserted that the expert report was
timely served within 120 days after the amended petition was filed. The Arizpes further responded
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that they amended their petition to add the claims against Cooper and Wilcox within the applicable
statute of limitations period and nothing required them to name Cooper and Wilcox in the original
petition. The trial court signed an order as follows:
INTERPRETATION OF TRIAL COURT’S ORDER
Before addressing the merits of the issues raised on appeal, we must first examine the trial
court’s ruling. Cooper argues that the order does not state the reasons for the dismissal; therefore,
in the absence of findings of fact and conclusions of law, Cooper posits that we must affirm “unless
this Court can imagine no legal theory on which the order can be supported by the implied record
in this case.” Cooper argues that the burden on the Arizpes is “to disprove every legal theory that
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a reasonable jurist could have applied to support the trial court’s order.” We disagree for several
reasons.
First, we construe the trial court’s order as granting the motions to dismiss without ruling on
the Arizpes’ motion for extension of time. If the trial court had intended to deny the Arizpes’
motion, the trial court would simply have stricken through the typewritten “GRANTED” in item 1
and inserted the word “DENIED” as it did for each of the other rulings. Instead, the trial court struck
through the entire typewritten ruling and made no indication as to whether it would have granted or
denied the motion. Because the granting of the motions to dismiss disposed of the case, the trial
court rightly determined that a ruling on the motion for extension of time was not necessary.
We also disagree with Cooper’s assertion that the Arizpes’ burden would be to disprove
every legal theory that could potentially support the trial court’s order. In this context, the scope of
appellate review from a trial court’s order that grants a motion to dismiss without stating the specific
ground on which the order was granted is limited to the arguments raised in the motion to dismiss.
See, e.g., Guillaume v. City of Greenville, 247 S.W.3d 457, 465 (Tex. App.—Dallas 2008, no pet.);
Nichols v. Sedalco Constr. Servs., 228 S.W.3d 341, 342-43 (Tex. App.—Waco 2007, pet. denied);
Williams v. Nealon, 199 S.W.3d 462, 464-65 (Tex. App.—Houston [1st Dist.] 2006, pet. filed);
McCauley v. Drum Serv. Co., 772 S.W.2d 135, 136-37 (Tex. App.—Houston [14th Dist.] 1989, writ
denied); Country Cupboard, Inc. v. Texstar Corp., 570 S.W.2d 70, 75 (Tex. Civ. App.—Dallas 1978,
writ ref’d n.r.e.); but see Hamilton v. Williams, 298 S.W.3d 334, 340 (Tex. App.—Fort Worth 2009,
no pet.) (addressing ground not raised in motion to dismiss in inmate litigation).
Finally, we construe the trial court’s order in this case as implicitly stating the specific ground
on which the trial court’s ruling was based. The trial court granted all three motions to dismiss. The
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only ground asserted in Kodali’s motion was that the expert report was required to be served not later
than the 120th day after the original petition was filed. In granting Kodali’s motion, the trial court
necessarily agreed with this assertion, which thereby served as the basis for its ruling.
TIMELINESS OF REPORT
This court has previously addressed whether an expert report is timely if served within 120
days of the filing of an amended petition adding a new defendant. See Osonma v. Smith, No. 04-08-
00841-CV, 2009 WL 1900404, at *1-2 (Tex. App.—San Antonio July 1, 2009, pet. denied) (mem.
op.). This court held that if a petition is amended to add new defendants, the expert report is timely
served if the report addressing the new defendants is served within 120 days of the filing of the
amended petition. Id. Because the Arizpes served their expert report addressing Cooper, Wilcox,
and Kodali within 120 days of the filing of their amended petition adding them as defendants, the
trial court erred in granting the motions to dismiss.1 Id. We do note the trial court signed its order
on April 20, 2009; therefore, the trial court did not have the benefit of our decision in Osonma when
it made its ruling.
CONCLUSION
The trial court erred in granting the motions to dismiss. Accordingly, the trial court’s order
is reversed. Because the trial court did not expressly rule on the Arizpes’ motion for extension of
time and because the trial court could grant an extension of time to cure the report’s deficiency we
1
… W ith regard to the argument that the Arizpes were required to name Cooper and W ilcox in their original
petition, we note that this court’s holding in Osonma, recognizing the timeliness of a report served on a defendant added
in an amended petition, appears contrary to this argument. W e also note that requiring a plaintiff to name all health care
providers involved in his or her treatment in an original petition in order to avoid dismissal could run afoul of the ethical
obligation that Texas Rule of Civil Procedure 13 is designed to promote. A party and his or her attorney may not believe
they have a good faith health care liability claim until an expert reviews the medical records and opines that the health
care provider breached the applicable standard of care resulting in injuries to the plaintiff.
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held to exist in Arizpe I, we remand the cause for further proceedings consistent with this opinion.
See Cooper, 2008 WL 940490, at *5.
Catherine Stone, Chief Justice
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