Affirmed and Majority and Concurring Opinions filed June 21, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-98-00166-CV
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ARLENE SCOTT, Individually and as Representative of the
ESTATE OF DORETHEA SCOTT, Deceased, JERRY SCOTT HUBBARD, JAMES DAVID SCOTT, NORMAN SCOTT, and ALBERT SCOTT, Appellants
V.
BEECHNUT MANOR, LIVING CENTERS OF TEXAS, INC.,
LIVING CENTERS OF AMERICA, INC., VENCARE, INC.,
VENCORE HOSPITALS, VENCOR, INC., and ROBERT B. TEAGUE, M.D., Appellees
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 96-61628
C O N C U R R I N G O P I N I O N
The majority=s judgment and analysis are correct. I write to address the Scotts= arguments regarding section 13.01(g).[1] Essentially, they urge this court to evaluate their claimed entitlement to relief under 13.01(f) based on section 13.01(g) cases.
Although the title of the Scotts= motion states that it is a section 13.01(f) motion, we review the motion based on its substance rather than simply looking at its title or label. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999). However, a careful review of the Scotts= motion shows that its substance is consistent with its title. The pertinent portions of the motion assert Agood cause@ for an extension under section 13.01(f). The Scotts do not cite section 13.01(g), and they do not assert that their failure to timely file the expert reports and curricula vitae within 180 days was the result of accident or mistake rather than intentional conduct or conscious indifference. Finally, although not dispositive, the motion does not even contain a general prayer; rather, it ends by praying Afor all the relief requested above.@ The record shows that the Scotts never sought an extension under section 13.01(g). See Rosa v. Caldwell, 159 S.W.3d 695, 698B99 (Tex. App.CAmarillo 2004, pet. denied) (holding that substance of motion to extend time was a section 13.01(f) motion rather than a section 13.01(g) motion and that trial court did not abuse discretion in denying the section 13.01(f) motion). And, in their appellate briefing, the Scotts have never asserted that they sought relief under section 13.01(g). Nonetheless, both at oral argument and in supplemental appellate briefing, the Scotts have argued that, even though they did not seek an extension under section 13.01(g), this court should use section 13.01(g) cases in determining whether the trial court abused its discretion in denying an extension under section 13.01(f).
The Scotts appear to be arguing that Agood cause@ under section 13.01(f) means Aaccident or mistake@ and the Alack of intent or conscious indifference,@ which is the legal standard under section 13.01(g). The Scotts arguments contradict the plain meaning of section 13.01.
Under section 13.01(f), the trial court Amay, for good cause shown . . . extend any time period specified in Subsection (d) of this section for an additional 30 days.@ See Act of May 5, 1995, 74th Leg., R.S., ch. 140, ' 1, 1995 Tex. Gen. Laws 985, 985B87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 887. Based on the plain meaning of the statutory language, an extension under section 13.01(f) is discretionary rather than mandatory. See James v. Brothers, 2005 WL 713671, at *2B3 (Tex. App.CDallas Mar. 30, 2005, no pet. h.) (mem. op.) (stating that even if a movant has shown good cause, the trial court still has discretion to deny a motion for extension under section 13.01(f)). Section 13.01(g) provides that if the trial court Afinds 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.@ See Act of May 5, 1995, 74th Leg., R.S., ch. 140, ' 1, 1995 Tex. Gen. Laws 985, 985B87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 887. Under section 13.01(g), the granting of a 30-day grace period is mandatory upon a finding that the failure to comply was the result of accident or mistake. Walker v. Gutierrez, 111 S.W.3d 56, 62B63 (Tex. 2003). Although a trial court has the discretion to find good cause and grant an extension under section 13.01(f) based on facts that also would constitute accident or mistake under section 13.01(g), this does not mean that the analysis under these two statutory provisions is the same. See James, 2005 WL 713671, at *2B4 (holding that analysis under section 13.01(g) is not the same as the analysis under section 13.01(f) and that the existence of accident or mistake is irrelevant because appellants moved for relief only under section 13.01(f)). Even if the Scotts had proven accident or mistake[2], that would not have mandated an extension under section 13.01(f). See id. at *4 . To hold otherwise would be contrary to the plain meaning of language enacted by the Texas Legislature. See id. at *2B4. Accordingly, the Scotts are incorrect in suggesting that the analysis under section 13.01(f) is the same as the analysis under section 13.01(g).
/s/ Kem Thompson Frost
Justice
Judgment rendered and Majority and Concurring Opinions filed June 21, 2005.
Panel consists of Justices Anderson, Hudson, and Frost. (Hudson, J., majority.)
[1] Section 13.01 of the Act was formerly found at Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, ' 1, 1995 Tex. Gen. Laws 985, 985B87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 887 (current version found at Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon Supp. 2004B05)). The former statute continues in effect for cases filed before September 1, 2003. Because this case was filed in 1996, the former statuteCTex. Rev. Civ. Stat. Ann. art. 4590iCis applicable and all references are to the former statute.
[2] It should be noted that, even if the issue were relevant, the record shows that the trial court would not have erred in finding intent or conscious indifference rather than accident or mistake.