Opinion
No. 13-03-301-CV
Memorandum Opinion delivered and filed March 10, 2005.
On appeal from the 332nd District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
MEMORANDUM OPINION
This is an appeal of a summary judgment granted in favor of appellee, Daniel Drefke, D.D.S., against appellant, Sarah Soto. In three issues, appellant asserts summary judgment is improper because the trial court erred: (1) by granting appellee's no-evidence motion for summary judgment based on the alleged inadmissibility of an expert affidavit when appellee failed to specifically object to its use as summary judgment evidence at the hearing; (2) by concluding an expert affidavit and curriculum vitae did not satisfy the expert designation requirement embodied in rule 194.3; and (3) by denying appellant's request for a continuance to amend her responses to appellee's designation requests. We reverse and remand for a trial.
See Tex. R. Civ. P. 194.3.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The underlying cause of action in this case was filed on April 4, 2002, asserting medical negligence under the Medical Liability and Improvement Act. See TEX. REV. CIV. STAT. art. 4590i (Vernon 2002). Discovery was conducted under discovery control plan level II.
Appellant amended her petition to include a cause of action for battery; however, the trial court severed and reassigned the claim. This appeal only covers the trial court's ruling regarding appellant's medical negligence claim.
Repealed by Acts 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003.
See TEX. R. CIV. P. 190.3.
The due date of the first response to written discovery was May 21, 2002, and the deadline for designation of expert witnesses was November 21, 2002. Appellant failed to make an expert designation within the applicable time period, and appellee filed a no-evidence motion for summary judgment on December 23, 2002. The motion for summary judgment was based on the premise that:
See Tex. R. Civ. P. 195.2(a).
Appellant was required to prove by expert testimony the standard of care, failure to conform to the standard of care, resulting injury and a causal connection between the conduct and the injury. Because Appellant failed to timely designate an expert in accordance with the Texas Rules of Civil Procedure there could be no evidence presented at trial regarding the applicable standard of care, its breach, or how any alleged negligence could have proximately caused the injury and damages that Appellant was claiming in this case.
Appellant filed a response to appellee's motion on January 16, 2003, which included a motion for continuance. A hearing was held on appellee's motion on February 13, 2003, and the trial court granted the motion by order dated February 20, 2003. Appellant timely filed a notice of appeal.
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite additional facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
II. ANALYSIS Standard of Review
The standard of review used in challenges to a no-evidence summary judgment is well-settled. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we will not recite it here. See TEX. R. APP. P. 47.4.
Motion for Continuance
Appellant's third issue asserts the trial court erred by denying her request for a continuance to amend her response to appellee's designation request and add Dr. Harold J. Seiler, D.D.S., as an expert witness . Appellant's assertion is based on rule 193.6 which provides:
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
(b) Burden of establishing exception. 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.
(c) Continuance. Even if the party seeking to introduce the evidence or call the witness fails to carry the burden under paragraph (b), the court may grant a continuance or temporarily postpone the trial to allow a response to be made, amended, or supplemented, and to allow opposing parties to conduct discovery regarding any new information presented by that response.
TEX. R. CIV. P. 193.6. Appellant contends that she established allowing an amendment to add Dr. Seiler as an expert witness would not unfairly surprise or prejudice appellee and the trial court's discovery sanction was unjustifiably harsh.
We will not address appellant's claim that the trial court's discovery sanction was unjustifiably harsh as it is not necessary to our disposition of appellant's third issue. See TEX. R. APP. P. 47.4.
After reviewing the record, we conclude the trial court clearly abused its discretion by denying appellant's motion for continuance. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (holding that trial court's denial of motion for continuance will not be disturbed unless record demonstrates clear abuse of discretion). The record shows appellee was aware an expert witness was necessary to appellant's cause of action, and appellee was aware of the specific expert witness and the testimony the witness was to provide. Further, appellant immediately made a request for continuance, appellant's counsel admitted fault and no trial date had been set. Under these circumstances, we conclude appellant has shown appellee would not be unfairly surprised or unfairly prejudiced by allowing appellant to amend her response to appellee's designation request and add Dr. Seiler as an expert witness. See TEX. R. CIV. P. 193.6. We sustain appellant's third issue.
Appellee's motion for summary judgment was based on appellant's preclusion from offering necessary expert testimony.
Dr. Harold J. Seiler, D.D.S., provided the affidavit establishing causation included in appellant's 4590i report . See TEX. REV. CIV. STAT. art. 4590i (Vernon 2002), repealed by Acts 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003. Although the 4590i report does not satisfy the expert designation requirement of rule 195.2, the report does detail Dr. Seiler's opinion and the basis of his opinion. See TEX. R. CIV. P. 195.2.
Appellee asserts two cases, Patriccia v. Frost, 98 S.W.3d 303 (Tex.App.-Houston [1st Dist.] 2003, no pet.) and Ersek v. Davis and Davis, P.C., 69 S.W.3d 268 (Tex.App.-Austin 2002, pet. denied), are directly on point and support appellee's position. We disagree. In Patriccia, the trial court granted a no-evidence summary judgment based primarily on the plaintiff's failure to provide necessary summary judgment evidence of causation in her summary judgment response or at the hearing. See Patriccia, 98 S.W.3d at 306. Unlike Patriccia, appellant attached the necessary medical expert affidavit to her summary judgment response. Further, Patriccia does not address a motion for continuance to allow an amendment under TEX. R. CIV. P. 193.6. See id. The Ersek court found that Rule 193.6(a) applied to a summary judgment, in regard to the admissibility of the evidence, when a party failed to timely designate an expert witness and the deadline for doing so had expired before the summary judgment proceeding. See Ersek, 69 S.W.3d 271-72. While we do not wholly disagree with the application of rule 193.6 in a summary judgment context under the revised rules, we note that prior to the revision of the rules we stated that the rules of discovery are not applicable in a summary judgment context because the summary judgment rules provide a comprehensive framework for summary judgment proceedings. Gandara v. Novasad, 752 S.W.2d 740, 742 (Tex.App.-Corpus Christi 1988, no writ). However, consideration of that principle is not necessary to distinguish Ersek from the present case. The Ersek court's conclusion is based on the premise that a party cannot assert lack of surprise simply because the adverse party was aware an expert was necessary to the cause of action; the adverse party is not aware of the specific witness and what testimony that witness will provide. See Ersek, 69 S.W.3d 271-72. Here, the record shows appellee was aware an expert witness was necessary to appellant's cause of action, and appellee was aware of the specific expert witness and the testimony the witness was to provide.
We have concluded appellant is entitled to a continuance to designate Dr. Seiler as an expert witness. Given our conclusion, the trial court's order granting appellee's no-evidence motion for summary judgment is improper. See TEX. R. CIV. P. 166a(i); Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 235 (Tex. 2004) (reiterating that no-evidence motion for summary judgment is only proper after adequate time for discovery and the non-movant fails to bring forth more than scintilla of evidence to raise genuine issue of material fact as to essential element of the claim). Further, appellant provided the necessary expert testimony in her summary judgment response. See Patriccia v. Frost, 98 S.W.3d 303, 306 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (granting no-evidence summary judgment based on failure to attach expert affidavit of expert identified in late filed response). Appellant identified Dr. Seiler in her summary judgment response as an expert witness and attached his expert affidavit and curriculum vitae. Thus, the trial court's error was harmful as it resulted in an improper judgment. See TEX. R. APP. P. 44.1. Accordingly, we reverse the trial court's decision and remand the case back to the trial court for proceedings consistent with our opinion.
Appellee is thus entitled to additional discovery regarding appellant's designated expert witness. See TEX. R. CIV. P. 190.5.
Because of our disposition of appellant's third issue, we need not address his remaining issues. See TEX. R. APP. P. 47.4.
II. CONCLUSION
We reverse the trial court's decision and remand the case back to the trial court for proceedings consistent with our opinion.