Opinion
No. 05-04-01726-CV
Opinion filed January 5, 2006.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-01914-03.
Affirm.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Debbie Cooper appeals the take-nothing summary judgment in her medical malpractice case against Berry Fleming, M.D. In two issues, Cooper argues the trial court erred in: (1) failing to grant her leave to designate her expert and (2) granting the motion for summary judgment. The facts are well known to the parties so we do not recite them in any detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We affirm.
Cooper sued Fleming alleging he failed to properly diagnose and treat her breast cancer. After the deadline passed for Cooper to designate expert witnesses, Fleming filed a no-evidence motion for summary judgment. He asserted that Cooper had not designated an expert and, therefore, there was no evidence of the elements of her claim. Two days later, Cooper filed a "motion for leave to amend filing," in which she acknowledged the deadline to designate experts had passed and asked the trial court to permit her to designate an expert within a reasonable time. Cooper, however, never scheduled the motion for hearing or otherwise presented it for the trial court's decision, although his counsel did inform the trial court at the summary judgment hearing that the motion had not been ruled on at that time. The trial court never ruled on the motion.
In her first issue, Cooper asserts the trial court should have granted her leave to designate her expert because her failure to timely disclose the expert's information was an accident. Cooper relies on Texas Rule of Civil Procedure 193.6(a) as authority that the trial court may allow her to amend her discovery response where there is "good cause" and the amendment will not unfairly surprise or unfairly prejudice the other parties. See Tex. R. Civ. P. 193.6(a).
Initially, we note this issue is not preserved for our review because the trial court did not rule on her motion. Even assuming the error was preserved, we nevertheless conclude that Cooper failed to meet her burden to establish "good cause" as required by rule 193.6(b). See Tex. R. Civ. P. 193.6(b).
Rule 193.6(b) provides that: "The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record." Tex. R. Civ. P. 193.6(b).
In her brief, Cooper refers only to her counsel's arguments during the summary judgment hearing as evidence of "good cause." At the hearing, however, Cooper's counsel told the court the failure to timely designate an expert witness was an "error" but offered no further explanation. Consequently, we cannot conclude the trial court abused its discretion in failing to allow her to amend her discovery response. We resolve Cooper's first issue against her.
In her second issue, Cooper complains that the motion for summary judgment was prematurely granted because the discovery period was "open" at the time that Fleming filed his June 23, 2004 motion for summary judgment and at the time Cooper filed her June 25, 2004 "motion for leave to amend filing." According to Cooper, the discovery period ended on August 30, 2004. However, the record reflects that the motion for summary judgment was not granted until September 8, 2004, some nine days later. Also, we note that although the discovery period had not ended at the time the summary judgment motion was filed, the issue on summary judgment was the failure to designate expert witnesses, and the time for designation of experts had expired prior to the filing of the motion for summary judgment. The record does not support Cooper's issue that the motion was prematurely granted, nor did she preserve this issue with the trial court by including this argument in her motion for new trial. See Tex.R.App.P. 33.1. To the extent Cooper complains that the motion for summary judgment was prematurely granted because the trial court failed to expressly rule on her motion for leave to amend, we also note that Cooper failed to preserve her error on this complaint for our appellate review. See id. We resolve Cooper's second issue against her.
We affirm the trial court's judgment.