NUMBER 13-12-00537-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WOMEN’S CLINIC OF SOUTH TEXAS, Appellant,
v.
SENAIDA ALONZO, Appellee.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Women's Clinic of South Texas challenges the trial court's denial of its
motion to dismiss appellee Senaida Alonzo's health care liability claim. By one issue,
the Clinic argues that the trial court abused its discretion in denying its motion to dismiss
Alonzo's vicarious liability claim because Alonzo failed to serve the Clinic with an expert
report after the vicarious liability claim was filed. We affirm.
I. Background
On April 23, 2009, Alonzo filed suit against the Clinic, Fernando J.
Otero, M.D., Orestes Molina, M.D., and Heriberto Rodriguez-Ayala, M.D.
claiming negligence in connection with their alleged failure to diagnose and
treat her ectopic pregnancy before emergency surgery required the
removal of her left fallopian tube and ovary. The Clinic answered on May
13, 2009. On August 17, 2009, Alonzo served the Clinic with her expert
report, authored by Margaret Thompson, M.D., J.D. On August 28, 2009,
the Clinic filed its objections to the expert report and its first motion to
dismiss, arguing that Alonzo's expert report failed to set out the required
standard of care, breach, and causation elements, that Dr. Thompson's
qualifications to author an expert report as to the Clinic were not
established, and that the report did not contain Dr. Thompson's curriculum
vitae (CV).
Women's Clinic of S. Tex. v. Alonzo, No. 13–10–00159–CV, 2011 WL 1106698, at *1
(Tex. App.—Corpus Christi Mar. 24, 2011, no pet.) (mem. op). On September 4, 2009,
Alonzo then amended her petition to add a vicarious liability claim against the Clinic for
the alleged negligence of the doctors, whom Alonzo alleged were employees of the
Clinic.
On November 5, 2009, the trial court denied the Clinic's first motion to dismiss and
granted Alonzo a thirty-day extension to cure the deficiencies in her report. Alonzo
utilized the thirty-day extension to produce her expert's CV, but made no other changes to
the expert report she originally served. The Clinic then filed a second motion to dismiss
on December 17, 2009, which the trial court denied after a hearing on March 10, 2010.
In none of its objections or motions to dismiss up to this point did the Clinic address the
vicarious liability claim added by Alonzo in her amended petition.
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After the trial court ruled on its second motion to dismiss, the Clinic appealed to this
Court, challenging only the trial court's rulings with regard to Alonzo's direct liability claims
against the Clinic. In our March 2011 memorandum opinion in that appeal, we reversed
the trial court's denial of the Clinic's motion to dismiss Alonzo's direct liability claim and
dismissed that claim with prejudice. Id. at *4. But because the Clinic brought no issues
regarding the vicarious liability claim, we remanded the case to proceed on that claim.
Id. at *4–5.
When the case resumed in the trial court in June 2011 on remand, the Clinic filed a
third motion to dismiss, for the first time addressing Alonzo's vicarious liability claims.
The third motion to dismiss argued that Alonzo's vicarious liability claim should be
dismissed because she failed to serve the Clinic with an additional expert report after
amending her petition in September 2009 to add the additional claim. The trial court
denied the third motion to dismiss, and this appeal followed.
II. Discussion
By one issue, the Clinic challenges the trial court's denial of its third motion to
dismiss. The Clinic argues that, because Alonzo did not serve it with an expert report
addressing her vicarious liability claim after that claim was added to her petition, Alonzo
failed to comply with section 74.351's expert report requirement. See TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(a) (West 2011). However, because we find that the Clinic
waived its issue in this subsequent appeal, we do not reach the merits of its argument.
Where error exists at the time of an initial appeal, an appellant waives its right to
complain in a subsequent appeal of the error it failed to present in the initial appeal. See
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Deaton v. United Mobile Networks, L.P., 966 S.W.2d 113, 115 (Tex. App.—Texarkana
1998, pet. denied); Koch Gathering Sys., Inc. v. Harms, 946 S.W.2d 453, 457–58 (Tex.
App.—Corpus Christi 1997, writ denied); Harris County v. Walsweer, 930 S.W.2d 659,
665–66 (Tex. App.—Houston [1st Dist.] 1996, writ denied); Tex. Dep't of Transp. v.
Cotner, 877 S.W.2d 64, 66 (Tex. App.—Waco 1994, writ denied) (citation omitted).
Here, the error about which the Clinic complains in this subsequent appeal—that Alonzo
did not comply with the expert report requirement as to her vicarious liability
claim—existed at the time of the initial appeal. The holding in our memorandum opinion
in the initial appeal reflected as much. See Women's Clinic, 2011 WL 1106698, at *6
("[B]ecause the Clinic failed to assert and argue on appeal that the expert report was
deficient as to the actions and decisions of the defendant doctors, the Clinic has
presented no reversible error as to the vicarious liability claims asserted by Alonzo in her
amended petition, and the trial court did not abuse its discretion in denying the Clinic's
motion to dismiss in this regard."). In short, the Clinic cannot now complain, in a second
appeal, of error that it could have raised in its initial appeal. It has waived its argument in
this regard. We overrule its sole issue.
III. Conclusion
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
13th day of June, 2013.
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