Opinion
NUMBER 13-15-00079-CV
02-04-2016
JAY DEAN GOODMAN, Appellant, v. LANELL DOSS, R.N., Appellee.
On appeal from the 267th District Court of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant, Jay Dean Goodman, appeals from a summary judgment in favor of appellee, Lanell Doss, R.N. By seven issues, Goodman contends that the trial court: (1) erred in not entering findings of fact and conclusions of law, by denying his motion for a bench warrant, and by denying his motion to compel discovery (issues 1-3); and (2) improperly granted appellee's motion for summary judgment (issues 4-7). We affirm.
I. PROCEDURAL BACKGROUND
Goodman is an inmate at a Texas Department of Criminal Justice facility, and appellee is a registered nurse at that facility. Goodman filed suit against appellee claiming a violation of the Texas Torts Claim Acts (TTCA), a violation of the civil rights act, and medical malpractice. Appellee responded claiming, among other things, official immunity from suit. Goodman then filed a motion for summary judgment claiming that appellee had made judicial admissions by failing to respond to discovery requests—admissions that he claimed supported each element of each of his causes of action.
Goodman filed his first motion to compel discovery; however, Goodman did not request a hearing on his motion. The trial court made no ruling on appellant's first motion to compel discovery. Appellee filed her response to Goodman's motion for summary judgment and her cross-motion for summary judgment requesting dismissal of Goodman's claims on, among other things, immunity. Goodman filed his second motion to compel discovery. Goodman did not request a hearing, and the trial court did not rule on this motion. Appellee filed a motion for protective order requesting protection from discovery until a ruling was made on the issue of qualified immunity. Appellee further filed a request to set a hearing on her motion for protective order, which the trial court set and heard. The trial court then granted appellee's motion for protective order. Goodman filed his third motion to compel discovery. He did not request a hearing on his motion, and the trial court did not make a ruling. The trial court granted appellee's motion for summary judgment and dismissed Goodman's claims with prejudice. This appeal followed.
In her response to Goodman's motion to compel discovery, appellee stated that she had not received any discovery requests from Goodman and requested that the trial court deny Goodman's motion to compel discovery
Goodman does not argue on appeal that the trial court should have granted his motion for summary judgment. Thus, we will not discuss his motion further.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
By his first issue, Goodman contends that the trial court failed to file properly requested findings of fact and conclusions of law. However, a request for findings of fact and conclusions of law is not appropriate in a summary judgment proceeding, and the trial court does not err by failing to file them. See IKB Industries v. Pro-Line Corp., 938 S.W.2d 440, 441-42 (Tex. 1997); Breshears v. Johnson, No. 13-07-00173-CV, 2008 WL 3906399, at *2 (Tex. App.—Corpus Christi Aug. 26, 2008, no pet.) (mem. op.) (recognizing that the appellant's request for findings of fact and conclusions of law were not proper in a summary judgment case and citing IKB Industries). Accordingly, we overrule Goodman's first issue.
III. MOTION FOR A BENCH WARRANT
By his second issue, Goodman contends that the trial court should have granted his motion for a bench warrant. However, the Texas Supreme Court has held that when an inmate's request for a bench warrant contains no basis for why his appearance in court would be necessary, the litigant has not met his burden to identify with sufficient specificity the grounds for the ruling he seeks. In re Z.L.T., 124 S.W.3d 163, 166-67 (Tex. 2003).
To satisfy his burden, the litigant inmate must provide factual information regarding why his interest in appearing in the trial court outweighs the impact on the correctional system; the litigant may do so by addressing the so-called Stone factors.Id. at 166 (explaining that although the appellant had listed the Stone factors, he had not addressed any of those factors or "provide[d] any factual information showing why his interest in appearing outweighed the impact on the correctional system").
The Stone factors include the following: the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner's claims are substantial; whether the matter's resolution can reasonably be delayed until the prisoner's release; whether the prisoner can and will offer admissible; noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; whether the prisoner's presence is important in judging his demeanor and credibility; whether the trial is to the court or to a jury; and the prisoner's probability of success on the merits. In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).
Here, in his motion for a bench warrant, Goodman did not mention or address any of the Stone factors. See id. Moreover, Goodman neither claimed that his appearance would be necessary nor provided any factual information showing why his interest in appearing outweighed the impact on the correctional system. See id. Therefore, we cannot conclude that the trial court abused its discretion by implicitly denying Goodman's motion for a bench warrant. See id. (holding that the appellant failed to meet his burden under similar circumstances and the trial court did not abuse its discretion by implicitly denying the appellant's motion for a bench warrant). We overrule Goodman's second issue.
IV. MOTION TO COMPEL DISCOVERY AND MOTION FOR PROTECTIVE ORDER
By his third issue, Goodman contends that the trial court improperly denied his motion to compel discovery. By a sub-issue to his third issue, Goodman claims that the trial court improperly granted appellee's motion for protective order.
To preserve error in the denial of a motion to compel discovery, the moving party must "obtain a pretrial ruling on discovery disputes that exist before commencement of trial. . . ." Corona v. Pilgrim's Pride Corp., 245 S.W.3d 75, 84 (Tex. App.—Texarkana 2008, pet. denied). And, although a hearing on a motion for summary judgment and a trial are significantly different, the failure "to obtain a pre-trial ruling on any discovery dispute existing before commencement of summary judgment proceedings constitutes a waiver" of any claim for relief. Id. (holding that the appellant's complaint concerning his motion to compel discovery was not preserved because the appellant failed to request a hearing, failed to present the motion to compel until the summary judgment hearing, and did not request a ruling on the motion at the hearing or file a motion for continuance); U. Lawrence Boze' & Assoc., P.C. v. Harris Cnty. Appraisal Dist., 368 S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (explaining that to preserve error on a discovery dispute, generally the appealing party must have obtained a ruling by the trial court on the discovery issue). In addition, "[w]hen a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance." Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).
Here, Goodman did not request or set a hearing on his motions to compel discovery, did not obtain a ruling on any of his motions, and did not file either an affidavit explaining the need for further discovery or a verified motion for continuance prior to the summary judgment. See Tenneco Inc., 925 S.W.2d at 647; Corona, 245 S.W.3d at, 84; U. Lawrence Boze' & Assoc., P.C., 368 S.W.3d at 32. Accordingly, Goodman failed to preserve error, if any. We overrule Goodman's third issue to the extent that he argues that the trial court abused its discretion by not granting his motion to compel discovery.
Next, Goodman attempts to challenge the trial court's grant of appellee's motion for protective order protecting appellee from any discovery prior to a ruling on her qualified immunity defense. Appellee argued in her motion for protective order that discovery should be halted while the trial court determined whether appellee was entitled to qualified immunity. The trial court granted the motion stating, "It is hereby ORDERED that [appellee's] Motion for Protective Order is hereby GRANTED, that [appellee is] hereby protected from discovery until such time as issues of qualified immunity have been ruled upon." Goodman states, "The facts of this case simply do not justify the protective order, and in rendering its overbroad order, the trial court abused its discretion and irreparably harmed [his] case." However, Goodman does not challenge the basis for the trial court granting appellee's motion for protective order or provide citation to appropriate authority with argument to support his claim.See TEX. R. APP. P. 38.1(i). Therefore, we conclude that Goodman has not adequately briefed this issue. See id. We overrule Goodman's third issue to the extent that he argues that the trial court abused its discretion by granting appellee's motion for protection.
We hold a pro se litigant to the same standards as a licensed attorney; therefore, the pro se litigant must comply with all applicable rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181,184-85 (Tex.1978); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). A pro se litigant must properly present his case to both the trial and appellate courts. Valadez, 238 S.W.3d at 845. Accordingly, we will not make allowances or apply different standards when a case is presented by a pro se litigant. See id.
V. SUMMARY JUDGMENT
By his fourth through seventh issues, Goodman challenges the trial court's grant of appellee's motion for summary judgment. Specifically, Goodman argues that the trial court improperly granted summary judgment on his causes of action under the TTCA, and under section 74.351 of the Texas Civil Practice and Remedies Code, based on appellee's immunity defense, and because questions of fact exist.
Goodman did not file a response to appellee's motion for summary judgment. However, in his motion for summary judgment Goodman claimed that appellee acted outside the scope of her authority.
A. Pertinent Facts
On May 28, 2012, Goodman complained of shaking and dizziness to a correctional officer and requested permission to go to the infirmary. Appellee was supervising the infirmary that day. The correctional officer called appellee who advised Goodman to send in a "sick call" to make an appointment. Goodman, believing that he was about to have a seizure, went back to his cell and took precautions to avoid any injury. The correctional officer then informed Goodman that he had permission to go to the infirmary. Once at the infirmary, appellee took his vital signs, which according to appellee, were within normal limits and did not indicate any symptoms that required emergency treatment. Appellee's notes indicate that Goodman's symptoms were not life threatening and that upon her evaluation, he did not have any symptoms that indicated emergency treatment was necessary. Godman returned to his cell, suffered a seizure, and injured his head when he fell. Appellee responded to his cell and noted that Goodman was lying on the floor, face down, with a laceration to his forehead. Appellee treated Goodman's laceration and allowed Goodman to remain in the infirmary for monitoring through her shift. Goodman was subsequently released back to security with no further seizure activity.
B. Questions of Fact
First, Goodman argues that questions of fact exist regarding a myriad of appellee's factual statements included in the evidence attached to her motion for summary judgment. However, Goodman neither cites the record wherein he provided evidence raising questions of fact nor provides legal analysis of this issue. Thus, we conclude that this issue is inadequately briefed. See TEX. R. APP. P. 38.1(i). We overrule Goodman's fourth issue.
C. TTCA
Next, by his fifth issue, Goodman contends that he has defeated appellee's TTCA section 101.106(f) defense because he provided evidence that appellee was grossly negligent and that his claim arises from a negligent exercise of her medical discretion. Goodman also claims on appeal that appellee misused tangible state property. Appellee responds that she is immune under the TTCA section 101.106(f) because she provided evidence that Goodman's suit is based on conduct within the general scope of her employment and because Goodman's suit could have been brought under the TTCA against the University of Texas Medical Branch at Galveston, the governmental unit that employs appellee.
Goodman further complains that appellee did not provide medical treatment to him. Based on our review of the record, it is clear that appellee provided medical treatment to Goodman. Goodman acknowledges that appellee provided some medical treatment; however, it is clear that he disagrees with the level of treatment that appellee provided.
We note that Goodman did not in the trial court and does not on appeal dispute that UT Medical Branch at Galveston is a governmental unit or that appellee is employed by a governmental unit. See Univ. of Tex. Med. Branch at Galveston v. Mullins, 57 S.W.3d 653, 657 (Tex. App. 2001) ("It is undisputed that UTMB is a governmental entity . . . .").
Generally, "public employees may assert official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority."Molina v. Alvarado, 463 S.W.3d 867, 870 (Tex. 2015). "The TTCA defines the term 'scope of employment' as 'the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.'" Id. at 870-71 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West, Westlaw through 2015 R.S.)). "A suit based on such conduct is not a suit against the employee; it is, 'in all but name only, a suit against the governmental unit.'" Id.
On appeal, Goodman does not claim that appellee did not act in good faith.
Appellee and Goodman presented evidence that on the date of the alleged tort, appellee was the registered nurse in charge of the infirmary who took Goodman's vital signs, assessed Goodman's health, diagnosed his condition, and subsequently treated Goodman for injuries he sustained after he suffered a seizure. Thus, the summary judgment evidence supports the trial court's implied conclusion that the tasks performed by appellee had been lawfully assigned to her by her governmental unit employer. See id. We conclude that as a matter of law appellee's and Goodman's summary judgment evidence establishes that when appellee allegedly committed the alleged torts, she was employed by a governmental unit, and she was treating Goodman within the scope of her employment there as a registered nurse. See id.
Section 101.106(f) provides that if a suit is brought against an employee of a governmental unit based on conduct that is within the scope of that employee's employment, and the suit could have been brought against the governmental unit, upon the employee's motion to dismiss, the plaintiff is required to amend his pleadings to include the governmental unit.See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). If the plaintiff fails to amend his pleadings to include the governmental unit within thirty days of the filing of the employee's motion to dismiss, the trial court must dismiss the case against the employee. Id. On appeal, Goodman has only challenged whether appellee acted within the scope of her employment. He has not challenged the status of appellee's employer as a governmental unit or that suit could have been brought against appellee's employer. Thus, we may not reverse the summary judgment on those grounds. We have concluded, as a matter of law, however, that appellee was acting within the scope of her employment when the alleged tort occurred. Accordingly, the trial court was required under section 101.106(f) to dismiss Goodman's TTCA claims when he failed to amend his pleadings within thirty days of appellee's motion to dismiss. We overrule Goodman's fifth issue.
As previously stated, appellee filed a motion to dismiss within her motion for summary judgment on the basis that she acted within the scope of her employment when the alleged acts occurred that formed the basis of Goodman's suit. The trial court granted appellee's motion to dismiss.
Goodman claims that appellee misused tangible state property and acted outside of her discretion. Although Goodman has cited to pertinent authority, he has not provided any legal analysis explaining how appellee misused tangible state property or acted outside her discretion. See TEX. R. APP. P. 38.1(i). Accordingly, we overrule Goodman's fifth issue on those grounds as inadequately briefed. See id.
D. Section 74.351
By his sixth issue, Goodman claims that he was excused from filing an expert report pursuant to section 74.351 of the Texas Civil Practice and Remedies Code because appellee made deemed admissions, which Goodman claims amounted to an expert report. See id. § 74.351(a), (b) (West, Westlaw through 2015 R.S.) (establishing that a plaintiff claiming that a negligence cause of action against a health care provider must serve the defendant with an expert report not later than 120 days after the petition is filed, and that if the plaintiff fails to do so, upon motion from the defendant, the trial court must dismiss the case with prejudice). Appellee responds that given that Goodman failed to file an expert report, the trial court had no discretion but to dismiss his health care claim.See id.
Goodman acknowledges that he did not file an expert report. And, instead he requests that we conclude that appellee's alleged deemed admissions served as an expert report.
Even assuming that there were deemed admissions in this case, Goodman cites no authority and we find none supporting his argument that deemed admissions satisfy section 74.351's expert report requirement. We are not persuaded by Goodman's argument.See id. Therefore, we conclude that Goodman's argument is without merit, and we overrule Goodman's sixth issue.
Goodman claimed in the trial court that appellee failed to respond to his interrogatories, and therefore her failure to respond resulted in her deemed admissions. Appellee responded that she had not received the requests for discovery from Goodman and that Goodman had not mailed them to her attorney as required by rule 21a. See TEX. R. CIV. P. 21a. Appellee did not sign the receipt of service for the discovery requests Goodman sent to her, and Goodman did not allege or show that the person who actually received and signed for the discovery requests was appellee's duly authorized agent. See id. (allowing service to a duly authorized agent); see also Ex parte Combs, 638 S.W.2d 540, 541 (Tex. App.—Houston [1st Dist.] 1982, no pet.) ("Moreover, the record shows that the notice was sent to the relator by certified mail at an address in Oklahoma, and the return receipt was signed by Marie Combs, who was not shown to be the relator's duly authorized agent or attorney of record for service, as required by Tex[as] Rules Civil Procedure 21a."). Thus, the trial court may have properly determined that service of discovery did not comply with rule 21a. See Ex parte Combs, 638 S.W.2d at 541. Goodman has not challenged this implied finding on appeal. --------
E. Deliberate Indifference
By his final issue, Goodman contends that appellee waived her immunity from suit due to her civil rights violation when she was deliberately indifferent to his medical needs. In her motion for summary judgment, appellee challenged each element of Goodman's cause of action for deliberate indifference and attached evidence, which she argued negated his claim as a matter of law.
"If an appellant does not challenge each possible ground on which summary judgment could have been granted, we must uphold the summary judgment on the unchallenged ground." Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied). On appeal, Goodman has not addressed the above basis for the trial court's decision to grant appellee's motion for summary judgment. Therefore, because Goodman has not challenged all grounds for the summary judgement, we are unable to reverse it and must affirm the summary judgment on the unchallenged ground. We overrule Goodman's final issue.
VI. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed the 4th day of February, 2016.