Opinion
No. 04-05-00134-CV
Delivered and Filed: June 7, 2006.
From the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CI-01903, Honorable David A. Berchelmann, Jr., Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Maria Gonzalez, individually and as personal representative of the Estate of Ramiro Leal, deceased, Mary Gomez, Roland Gonzalez, and Graciela Perez ("appellants") appeal the dismissal of their medical malpractice action against South Alamo Medical Group, arguing that the trial court erred in refusing to grant an extension of time to file an expert report and in dismissing their lawsuit with prejudice.
Background
On August 20, 2003, appellants filed a medical malpractice suit against Domingo Meza, M.D., and his employer, South Alamo Medical Group ("South Alamo"). Appellants alleged that Dr. Meza was negligent in failing to inform Ramiro Gonzalez to stop taking blood-thinning medication, thereby causing his death. Appellants also alleged that South Alamo was liable for Dr. Meza's actions under the doctrine of respondeat superior and that South Alamo was negligent in failing to establish proper protocols for notifying patients to change consumption of medication.
Although appellants were required, pursuant to the Texas Medical Liability and Insurance Improvement Act, to file an expert report by February 16, 2004, they failed to do so. On March 1, 2004, because appellants failed to timely file their expert report, South Alamo filed a motion to dismiss, which was set for a hearing on March 12, 2004. On March 2, 2004, on the request of appellants' attorney, the hearing was reset for March 26, 2004. On March 24, 2004, appellants' attorney filed appellants' "Designation of Retained Experts" and "Notice of Filing Expert Report and Curriculum Vitae." The following day, March 25th, appellants' attorney also filed an unverified motion to extend time to file appellants' expert report, explaining that he had missed the deadline because he had been preoccupied with representing another client in a complex proceeding in federal court. In that motion, appellants' attorney also states the following:
On March 3, 2004, Dr. Meza also filed a motion to dismiss; however, he later withdrew it. After the trial court dismissed appellants' claims against South Alamo, it granted South Alamo's motion to sever.
Counsel for each defendant agreed that if plaintiffs' expert medical reports were filed prior to the hearing on defendants' motion to dismiss, originally set for March 12, 2004 and agreed to be continued by both defendants' counsel to March 26, 2004, then both defendants would drop their motions to dismiss and cancel said hearing. Plaintiffs' counsel filed and served on both defense counsels the expert report of Dr. Michael Williams on March 24, 2004. Counsel for defendant Meza has dropped his motion to dismiss, pursuant to our agreement, but counsel for defendant South Alamo Medical Group has refused to drop their hearing and insists on moving forward.
We note that appellants do not argue on appeal that they were entitled to an extension of time to file their expert report because of an agreement between the parties.
On March 26, 2004, the trial court heard South Alamo's motion to dismiss. At the hearing, appellants' attorney explained that he had missed the deadline to file the expert report because he had been preparing for and presenting oral argument in another case and was of the impression that defendants' attorneys would drop their motions to dismiss once an expert report was filed. The trial court verbally granted South Alamo's motion to dismiss.
Thereafter, on April 12, 2004, counsel for South Alamo filed a motion to enter judgment and set the hearing for April 22, 2004. On April 22nd, a few hours before the hearing, appellants' attorney filed a "Motion for Leave to Supplement Plaintiffs' Testimony in Support of Motion to Extend Time to File Expert Report." In his affidavit and at the hearing on the motion to enter judgment, for the first time, appellants' attorney stated that the expert report had not been filed timely because the paralegal responsible for calendaring the deadline to file the expert reports had been on maternity leave and, as a result, had not timely placed the deadline on the calendar. Furthermore, according to appellants' attorney, a less-experienced paralegal had also failed to calendar the deadline, and because appellants' attorney had been preoccupied with another complex proceeding, he missed the deadline to file the expert report. Appellants' attorney's testimony regarding a scheduling error was not controverted by South Alamo. The trial court then entered an order dismissing appellants' claims with prejudice. Appellants now bring this appeal. Discussion
Section 13.01 of the Texas Medical Liability and Insurance Improvement Act requires a plaintiff in a medical malpractice case to file an expert report within 180 days of filing a suit, or face sanctions, including but not limited to dismissal with prejudice. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon 1998). In this case, it is undisputed that appellants missed the 180-day deadline to file their expert report. However, appellants argue that the trial court should have granted their motion to extend time to file the expert report pursuant to section 13.01(g) because their failure to file the report was not intentional or the result of conscious indifference but instead was due to accident or mistake.
Article 4590i was repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884, and has been re-codified at Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon Supp. 2005) (effective Sept. 1, 2003). Because the underlying lawsuit was filed on August 20, 2003, all references in this opinion will be to former article 4590i.
The dismissal of a medical malpractice lawsuit under section 13.01 for failure to file an expert report is reviewed under an abuse of discretion standard. Schorp v. Baptist Mem'l Health Sys., 5 S.W.3d 727, 731 (Tex.App.-San Antonio 1999, no pet.). Whether a trial court abused its discretion is dependant on whether it acted without reference to any guiding rules or principles. Id. An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. Id. In addition, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. Id.
Section 13.01(g), provides:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.
Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g) (Vernon 1998). Section 13.01(g) contains no requirement that the extension be sought before the expiration of 180 days. See id.; Pfeiffer v. Jacobs, 29 S.W.3d 193, 197 (Tex.App.-Houston [14th] 2000, pet. denied). It requires only that the request for an extension be made "before any hearing" on a motion to dismiss under section 13.01(e). Pfeiffer, 29 S.W.3d at 197. Here, although appellants missed the 180-day deadline, they filed their motion for an extension before the hearing on South Alamo's motion to dismiss and, thus, the request for an extension of time was filed timely under section 13.01(g). See id.; see also Walker v. Thornton, 67 S.W.3d 475, 479 (Tex.App.-Texarkana 2002, no pet.).
We now address the issue of whether appellants' failure to file an expert report was intentional or the result of conscious indifference or whether it was the result of accident or mistake. Texas courts have equated the test for section 13.01(g)'s intentional or conscious indifference with the test for an equitable motion for new trial in the default judgment setting or reinstating a case dismissed for want of prosecution. See Walker v. Gutierrez, 111 SW.3d 56, 63 (Tex. 2003). An extension of time must be granted if the motion and affidavits filed by the movant set forth facts which, if true, would negate intentional or consciously indifferent conduct. Finley v. Steenkamp, 19 S.W.3d 533, 539 (Tex.App.-Fort Worth 2000, no pet). Some excuse, but not necessarily a good excuse, is enough to warrant an extension to file an expert report, as long as the act or omission causing the failure to file the report was in fact accidental. Id. The burden is on the party seeking relief to show some evidence of accident or mistake to demonstrate that he did not act intentionally or with conscious indifference. Id.; Schorp, 5 S.W.3d at 732. It is then the defendant's burden to controvert the plaintiff's evidence of mistake, or else an issue of mistake exists and an extension of time must be granted. Finley, 19 S.W.3d at 539; Schorp, 5 S.W.3d at 732.
In determining whether the claimant's failure was intentional or the result of conscious indifference, we look to the knowledge and acts of the party seeking relief. Thornton, 67 S.W.3d at 479. Generally, an accident or mistake in this context is characterized by the claimant's inadequate knowledge of the facts or by an unexpected happening that precludes compliance. Id. at 480. In contrast, conscious indifference is the failure "to take some action that would seem indicated to a person of reasonable sensibilities under similar circumstances." Id. (citation omitted).
In their unverified motion to extend time to file the expert report, appellants state their reason for failing to timely file the report: "Plaintiffs' counsel was preparing for and presenting oral arguments for the 5th Circuit Court of Appeals as Appellee and Cross-Appellant." Thus, appellants failed to allege that the report was not timely filed due to accident or mistake, but merely stated that appellants' attorney was working on another case. At the hearing on the motion to dismiss, appellants' attorney explained that he was working on a complex case of another client in federal court. At no point during the hearing, however, did appellants' attorney claim that not filing the report on time was due to accident or mistake. An attorney's failure to timely file an expert report because of an excessive workload, created by his other cases, does not establish mistake or accident under section 13.01(g). See Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex.App.-Dallas 1999, no pet.) (holding that the trial court did not abuse its discretion in dismissing a suit in which the attorney's reasons for not filing the expert report included the large amount of work attorney was handling, and his assumption that opposing counsel would not enforce the statutory deadline); see also Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 533 (Tex.App.-San Antonio 1988, writ denied) (holding that the trial court did not abuse discretion in denying motion for new trial because record showed failure to respond was intentional when appellant claimed general manager of business was "too busy" to answer lawsuit). Therefore, here, we cannot hold that the trial court abused its discretion by denying appellants' motion for extension of time and by granting South Alamo's motion to dismiss.
We note that it was proper for the trial court to consider appellants' motion to extend time even though it was not verified. See Marquez v. Providence Mem'l Hosp., 57 S.W.3d 585, 592 (Tex.App.-El Paso 2001, pet. denied) ("[A] motion under section 13.01(g) need not be verified in order to be considered timely under the statute. It is by far the better practice, but it is not procedurally required.").
Almost a month after the first hearing, on April 22, 2004, the trial court heard South Alamo's motion to enter judgment. A few hours before the hearing began, appellants' attorney filed a supplement to appellants' motion for extension of time. In an affidavit attached to the supplement, for the first time, appellants' attorney stated that he had missed the deadline due to mistake or accident because both of his paralegals had failed to mark the 180-day deadline on the calender. See Thornton, 67 S.W.3d at 480-81 (noting that "calendaring errors" have been held to establish accident or mistake). That the failure to file the expert report was due to the paralegals' scheduling error, however, was not mentioned in the motion to extend time to file the expert report or at the hearing on motion to dismiss. Therefore, the trial court could have determined that appellants' last-minute claim of scheduling error was not credible. We must defer to the trial court's resolution of factual matters that underlie its discretionary rulings and must not substitute our judgment for the trial court's judgment in those matters. Williams v. Chisolm, 111 S.W.3d 811, 815 (Tex.App.-Houston [1st] 2003, no pet.) (citing Walker, 111 S.W.3d at 62)). Thus, we hold that the trial court did not abuse its discretion by refusing to grant appellants an extension of time pursuant to section 13.01(g).
Conclusion
Because the trial court did not abuse its discretion in dismissing appellants' claims, we affirm the judgment of the trial court.