IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JANUARY 17, 2001
______________________________RONNIE WAYNE HUTTON, INDIVIDUALLY AND AS
INDEPENDENT ADMINISTRATOR OF THE ESTATE OF
IDA MARIE BOWEN, DECEASED, STEVE HUTTON AND MIKE HUTTON
Appellant
V.
GERALD PAYNE, M.D.
Appellee _________________________________
FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;
NO. CI-99F063; HON. EDWARD NOBLES, PRESIDING _______________________________
ORDER DIRECTING FILING OF REPORTER'S RECORD ________________________________
Before BOYD, C.J., and QUINN and REAVIS, JJ.
This proceeding involves the appeal of a final judgment entered on September 15, 2000. Notice of appeal was timely filed in the trial court on October 5, 2000. On October 8, 2000, this Court was notified by Barbara Younger, substituting as the official court reporter, that she did not receive a written request for the record until October 7, 2000. Therein, she asked that we grant her an extension until December 14, 2000 to prepare the record. Her first request was granted. On December 13, 2000, Ms. Younger advised this Court that, due to her work load, she would not be able to complete her record by December 14, 2000 and asked for a second extension to January 15, 2001. Again, her request was granted. On January 16, 2001, Ms. Younger filed a third request for extension, again citing her work load as the reason therefor, requesting until February 15, 2001 to prepare her record.
Accordingly, we grant Ms. Younger's third request and order her to transcribe and file with the clerk of this Court a reporter's record as required by the Texas Rules of Appellate Procedure and encompassing the trial had in cause number CI-99F-063. Said record shall include all argument, evidence, and exhibits presented to the court during trial as well as any pre-trial and post-trial hearings conducted by the court in said cause. We further order Barbara Younger to file the complete reporter's record in a manner by which it will be received by the clerk of this Court on or before 5:00 p.m. on February 15, 2000. No further motions for extension of time will be considered. Lastly, the failure to file the reporter's record by the date stated herein may result in a hearing requiring Ms. Younger to show cause why she should not be held in contempt, a complaint to the body governing certified court reporters, or appropriate sanction.
Per Curiam
Do not publish.
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NO. 07-08-00445-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 11, 2010
JOHN D. FAILS, JR., APPELLANT
v.
DAVID R. BASSE, M.D., APPELLEE
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 96,704-A; HONORABLE HAL MINER, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, John D. Fails, Jr., appeals an order dismissing Failss claims against appellee, David R. Basse, M.D., pursuant to Texas Civil Practice and Remedies Code section 74.351(b) and denying Failss motion for enlargement of time. We affirm.
Factual and Procedural Background
According to Failss petition, Fails, an inmate, suffered an accident affecting his left knee on or before January 29, 2006. Fails alleges that Basse failed to provide adequate medical care to the severily (sic) twisted left knee. Fails further alleges that, after several different injuries to the left knee occurring between January 29, 2006 and May 7, 2007, Fails is physically handicapped and permanently disabled due to the deliberate indifference of Basse. Specifically, Fails contends that Basses deliberate indifference was evidenced by Basse overriding two physicians assistants and attempting to override an orthopedic specialists recommendations for treatment. The relief that Fails seeks includes a declaration from Basse stating that his deliberately indifferent acts or omissions was a cause of Failss permanent disability, compensatory damages in [an] amount equal to the damages awarded, pursuant to § 41.003 [and] § 41.008(b),(1),(B), Texas Civil Practices & Remedies Code, for exemplary and noneconomic damages, and punitive damages in [an] amount of $200,000.
Fails initially filed suit against Basse and Denise DeShields, M.D.,[1] on May 29, 2008, alleging that Basse had been negligent and that he had breached the applicable medical standard of care. On July 2, Fails filed a motion to appoint an expert witness. On September 4, Fails filed a motion to dismiss DeShields without prejudice. On September 19, however, Fails filed an amended petition that included claims against DeShields and that asserted claims against Basse as identified in the preceding paragraph. On September 25, Fails filed a motion for enlargement of time which requested the trial court grant Fails additional time[2] to obtain an expert report required by section 74.351 of the Texas Civil Practice and Remedies Code. On September 30, Basse filed a motion to dismiss and response to Failss motion for enlargement of time contending that Fails failed to comply with the requirements of section 74.351 and, therefore, the trial court was required to dismiss Failss claims with prejudice. On November 6, the trial court granted Basses motion to dismiss and denied Failss motion for enlargement of time. Fails then filed a motion for new trial, which was overruled by operation of law, and notice of the instant appeal.
By his appeal, Fails presents four issues. By his first issue, Fails contends that the trial court abused its discretion in denying Failss motion to appoint expert witness. By his second issue, Fails contends that the trial court abused its discretion by denying Failss motion for enlargement of time. By his third issue, Fails contends that his amended pleading superseded his original pleading and the trial court erred in dismissing his claims against Basse pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. By his fourth issue, Fails contends that the trial court erred in failing to grant his motion to dismiss DeShields without prejudice.
Motion to Appoint Expert
By his first issue, Fails contends that the trial court abused its discretion in denying his motion to appoint expert witness. Initially, we note that the authorities cited by Fails regarding the appointment of an expert are all federal law authorities. Further, all of this federal authority makes it clear that the appointment of an expert is within the discretion of the trial court. In Texas, court-appointed medical experts are not uncommon in criminal proceedings, but, even in criminal proceedings, such appointments are not automatic. See McQueen v. Univ. of Tex. Med. Branch Galveston, No. 01-98-00059-CV, 2000 Tex.App. LEXIS 3617, at *3 (Tex.App.Houston [1st Dist.] June 1, 2000, no pet.) (unpub. op.) (citing Elmore v. State, 968 S.W.2d 462, 465 (Tex.App.Eastland 1998, no pet.)). Fails cites no authority that would establish that he was entitled to appointment of a medical expert in this civil suit. We overrule Failss first issue.
Dismissal
By his third issue, Fails contends that his amended petition, filed on September 19, 2008, superseded his Original Petition, filed on May 29, 2008, and, as such, the claims asserted in his live pleading were not health care liability claims subject to the requirements of chapter 74 of the Texas Civil Practice and Remedies Code.
We agree with Failss contention that a plaintiffs timely filed amended petition[3] supersedes all previous pleadings and becomes the controlling petition in the case regarding theories of recovery. Elliott v. Methodist Hosp., 54 S.W.3d 789, 793-94 (Tex.App.Houston [1st Dist.] 2001, pet. denied). However, Failss amended pleading fails to articulate a viable theory of recovery. By his amended petition, Fails seeks a declaration from Basse that his deliberately indifferent acts or omissions was a cause of Failss permanent disability, compensatory damages in [an] amount equal to the damages awarded, pursuant to § 41.003 [and] § 41.008(b),(1),(B), Texas Civil Practices & Remedies Code, for exemplary and noneconomic damages, and punitive damages in [an] amount of $200,000. The declaration sought by Fails is a declaration of a party and Fails has identified no authority in the trial court or on appeal that would authorize the trial court to compel such a declaration. Further, Fails seeks compensatory damages in an amount equal to the exemplary and noneconomic damages recoverable under chapter 41 of the Texas Civil Practice and Remedies Code as well as punitive damages. Compensatory damages are those damages that will compensate the injured party for the injury sustained and are otherwise known as actual damages. Blacks Law Dictionary 270 (6th ed. 1991). By contrast, exemplary damages are damages awarded to a plaintiff over and above actual damages and include noneconomic and punitive damages. Id. at 396. Recovery of exemplary damages, such as punitive damages, requires a finding of an independent tort with accompanying actual damages. Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex. 1995). Thus, as Failss live pleading fails to allege that he suffered actual damages, he is not entitled to recover the exemplary damages pled and, as such, has not presented a valid theory of recovery.
In addition, a claim is a health care liability claim, subject to the requirements of chapter 74 of the Texas Civil Practice and Remedies Code, if it is asserted . . . against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care . . . which proximately results in injury to or death of a claimant . . . . Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2005). The basis of Failss claim is that Basse was deliberately indifferent in his medical treatment of Failss left knee when he overrode two physicians assistants and attempted to override an orthopedic specialists recommendation for treatment. There is no dispute that Basse is a physician and that Failss claim arises from Basses treatment, lack of treatment, or other claimed departure from accepted standards of medical care. In fact, the only element of a health care liability claim that is drawn into question by Failss pleading is causation as Fails alleges that he has suffered several different accidents with injuries to his left knee since the January 29, 2006 date upon which Basse allegedly failed to provide adequate medical care. When the essence of a suit is a health care liability claim, a party cannot avoid the requirements of chapter 74 through artful pleading of the claim. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848-49 (Tex. 2005). Thus, we conclude that Failss claim was properly construed by the trial court to be a health care liability claim subject to the requirements of chapter 74.
Within 120 days of filing a health care liability claim, a claimant must file an expert report with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code § 74.351(a). If a timely expert report is not served on the physician defendant, the trial court must dismiss the claim against the physician defendant with prejudice. Id. § 74.351(b). We review a trial courts dismissal of a health care liability claim for failure to timely produce an expert report for an abuse of discretion. Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).
In the present case, Fails filed his health care liability claim against Basse on May 29, 2008. Consequently, he was required to serve Basse with an expert report by September 26, 2008. Fails did not comply with the expert report requirement and, therefore, the trial court was mandated to dismiss his claims against Basse with prejudice. See Tex. Civ. Prac. & Rem. Code § 74.351(b)(2).
We overrule Failss third issue.
Motion for Enlargement of Time
By his second issue, Fails contends that the trial court abused its discretion in denying his motion for enlargement of time. On September 25, 2008, one day prior to the expiration of the 120 day period in which Fails was required to file an expert report, Fails filed a motion seeking an enlargement of time to file his expert report. Fails did not identify how much additional time he would require and, rather, simply identified several hurdles that prevented him from obtaining an expert report. Further, the only extension of time allowed under the statute is a one-time 30 day extension when elements of the report are found deficient. Id. § 74.351(c). As Fails did not file an expert report within the 120 day deadline, he was ineligible for the only statutory extension of time available and the trial court did not err in denying his motion. We overrule appellants second issue.
Nonsuit of Claims Against DeShields
By his fourth issue, Fails contends that the trial court erred in failing to grant his motion to dismiss claims against DeShields without prejudice. Because this Court, on Failss motion, dismissed all appellate claims against DeShields, DeShields is not a party to this appeal and this issue is not properly before this Court.[4] We overrule Failss fourth issue.
Conclusion
Having overruled each of Failss issues, we affirm the trial courts order granting Basses motion to dismiss and denying Failss motion for enlargement of time.
Mackey K. Hancock Justice
[1] On motion filed by Fails, this Court dismissed all appellate claims against DeShields on June 30, 2009.
[2] In this motion, Fails did not identify how much additional time he was requesting.
[3] We express no opinion regarding the timeliness of Failss amended petition, but, for purposes of this opinion, will assume that his amended petition was timely filed.
[4] However, we note that Fails alleged a new cause of action against DeShields in his amended petition filed on September 19, 2008. This new cause of action was asserted after Fails filed his motion to dismiss DeShields on September 4, 2008.