IN THE
TENTH COURT OF APPEALS
No. 10-14-00374-CV
COLLEGE STATION MEDICAL CENTER, LLC
D/B/A COLLEGE STATION MEDICAL CENTER,
Appellant
v.
ELEANOR KILASPA AND WILLIAM KILASPA,
Appellees
From the 85th District Court
Brazos County, Texas
Trial Court No. 13-002982-CV-85
DISSENTING OPINION
There are several problems with what we do in this appeal. The problems show
why we should be so very careful when we agree to accept a permissive appeal from an
interlocutory order. In this instance, I would reconsider the decision to allow the
permissive appeal, hold that permission was improvidently granted, and dismiss the
appeal from the interlocutory order. Because the Court addresses the issue and affirms
an interlocutory denial of a motion for summary judgment, I respectfully dissent.
First, I will discuss the process for permissive interlocutory appeals. Next, I will
discuss why this particular proceeding is not a good candidate for the use of that
procedure. Finally, I will discuss why, on the facts and briefing in this case, I would not
take the permissive appeal and having taken it would now dismiss it as improvidently
granted.
PERMISSIVE APPEALS
The closest procedure that we have in Texas to a permissive interlocutory appeal
is a certified question to the Texas Supreme Court from a Federal Court. This is because
the trial court must agree that the disposition of that legal issue may materially advance
the ultimate disposition of the case. Compare TEX. R. APP. P. 58. with TEX. R. CIV. P. 168.
It is, however, in some respects like a petition for review because it is the parties that
frame and brief the issue. Compare TEX. R. APP. P. 28.3(e) with 53.2. The reason that I
believe we should look more to the procedure for certified questions is that resolution
of the appeal should not be dependent on the resolution of fact questions or procedural
issues. It needs to be solely a question of law unconstrained by procedural or factual
issues. See Diamond Prods. Int'l, Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—
Houston [14th Dist.] 2004, no pet.) ("The statute does not contemplate permissive
appeals of summary judgments where the facts are in dispute. Instead, permissive
appeals should be reserved for determination of controlling legal issues necessary to the
resolution of the case."). In this proceeding, the Court reviews the propriety of the trial
court’s decision to deny a motion for summary judgment. Because the movant\
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appellant did not conclusively prove the notice was not given in conformity with the
statute, the trial court’s decision is affirmed. As framed by the parties and decided by
the Court, this holding does not take the issue of compliance with the statutory tolling
provision out of the case.
QUESTIONS OF LAW ONLY
In a permissive interlocutory appeal, the issue should be framed solely as a
question of law that needs to be resolved that disposes of the case. See TEX. R. APP. P.
28.3(e)(4); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West 2014). We do answer
one question for the parties, but it is not dispositive because there are similar questions
that will remain, as will be explained below. Further, because all the Court holds is that
the appellants’ evidence did not conclusively negate the application of the tolling
provision, the trial court’s order is affirmed. This does not prevent the defendant\
appellant from filing another summary judgment motion to attempt to conclusively
negate the application of the tolling provision. See In re Estate of Fisher, 421 S.W.3d 682,
686 (Tex. App.—Texarkana 2014, no pet.) (judicial economy of section 51.014(d) not
served when parties have the opportunity to appeal future orders that adjudicate a
substantial right).
PROBLEMS IN THIS PROCEEDING
In this proceeding there are several problems that lie beneath the surface, which
cannot be addressed now, that may arise in the future. I would rather not talk about
them at all before the proceeding is concluded, and we have a final judgment. In fact, at
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that point, they may be moot due to waiver, or the nature of the judgment may have
resolved the need to answer the larger questions, or the issue may have been raised and
resolved at the trial court level and no one complains about that resolution.
Nevertheless, to explain why this is not a good candidate for a permissive appeal, I feel
I must explain the basis upon which I would deny permissive appeal; and therefore,
will provide some discussion of the larger issues.
It is not at all clear why College Station Medical Center, LLC did not receive
notice of the suit at least 60 days before suit was filed. The only notice sent was to
Mukund Gundanna, M.D. It is clear College Station Medical Center, LLC was
identified as a target defendant by the date suit was filed because it is the first named
defendant. It is hard for me to imagine how the plaintiff was completely unaware of
the intended scope of the suit until the very date the suit was filed and therefore
provided no notice what-so-ever to College Station Medical Center, LLC. This
completely defeats the purpose of the statute. Can a party game the system thusly by
sending the only notice to a vacant office and completely deny all the other defendants
the intended benefits of the balance struck by the legislature?
But the more critical failure is that the parties, in discussing the issue before the
trial court and this Court, fail to discuss the single most critical word in the case. What
does the statute mean when it uses the term “give” notice? See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.051(a) (West 2011). While the Court does use the term, it does not
discuss or decide if “give” is synonymous with “send;” and if all the legislature meant
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was to send notice, why the legislature used a different term. Of course, there is a body
of law on the construction of statutes and agreements that if different terms are used,
the drafting party, in this case the legislature, must have meant something different. See
Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 116 (Tex. 2004) ("…we must
initially determine what, if anything, the Legislature intended by using different
language.”). And while there is some discussion of sending notice versus receiving
notice, there is no analysis of how sending notice to only one of the target defendants
would accomplish the purpose of giving notice to “each physician or health care
provider against whom” a claim is being made so that the problem can be resolved
without the need to file suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a) (West 2011).
Finally, and most fundamentally to the process in this permissive appeal from
the denial of a motion for summary judgment, I find it troubling that section 74.051(b)
of the Texas Civil Practice and Remedies Code was not addressed. In this proceeding,
the Court has placed on the summary judgment movant the burden to conclusively
negate giving of the notice that is required by section 74.051(a). This is proper under
existing case authority applicable to summary judgment on events that toll the statute
of limitations. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996); Zale Corp. v.
Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). But section 74.051(b) states the party
making the claim, normally the plaintiff, “…shall provide such evidence thereof [giving
notice] as the judge of the court may require to determine if the provisions of this
chapter have been met.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(b) (West 2011).
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And section 74.002 provides that, “[i]n the event of a conflict between this chapter and
another law, including a rule of procedure or evidence or court rule, this Chapter
controls to the extent of the conflict.” Id. § 74.002(a). Thus, the normal summary
judgment burdens simply do not apply. But the parties have not presented this issue
based upon the applicable law; so the Court has not addressed this critical part of the
issue in the opinion and has simply recited and decided the case based upon the usual
burdens of going forward with the evidence, burdens of proof, and the normal standard
of review as briefed and argued by the parties. I would not.
CONCLUSION
For the forgoing reasons, I do not believe that, on the briefing these parties have
provided and the nature of the issue as presented, this is an appropriate issue upon
which to grant a permissive appeal and would dismiss the permissive appeal as
improvidently granted. Because the Court proceeds to resolve an issue the parties have
not adequately framed or presented, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting Opinion issued and filed July 23, 2015
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