Jimmy Lee Henderson v. Christine Haskin, D.D.S.--Appeal from 218th Judicial District Court of Karnes County

No. 04-99-00641-CV

Jimmy Lee HENDERSON,

Appellant

v.

Christine HASKIN,

Appellee

From the 218th District Court, Karnes County, Texas

Trial Court No. No. 98-01-00008-CVK

Honorable Stella Saxon, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 30, 2000

AFFIRMED

Jimmy Henderson appeals from an adverse summary judgment. In five issues, he complains the trial court erred in overruling his motion for new trial, denying his motion for continuance, striking his discovery requests, failing to issue subpoenas for deposition testimony, and overruling various pre-trial rulings. Because Henderson's complaints find no support in the record, we affirm the judgment of the trial court.

Factual and Procedural Background

Henderson, a prison inmate at the Connolly Unit of the Texas Department of Criminal Justice, brought suit against Christine Haskin, the former dental director at the prison dental clinic, asserting the following claims: gross negligence, cruel and unusual punishment, unnecessary and wanton infliction of pain, violation of civil rights, retaliation, and intentional infliction of agony, anguish, and emotional distress. Henderson's claim arose during dental treatment for a tooth extraction.

Henderson obtained a default judgment against Haskin. Shortly thereafter, Haskin filed a motion for new trial, which the trial court granted. Haskin later filed a no-evidence summary judgment which the trial court also granted and from which Henderson now appeals pro se.

Motion for New Trial

In his first issue, Henderson argues the trial court erred in overruling his motion for new trial.

It is well-settled that an order granting a new trial is not subject to appeal. See Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex. 1984). A review of the record reveals this court dismissed Henderson's prior appeal of this issue for lack of jurisdiction. Accordingly, we overrule Henderson's first issue.

Motion for Continuance

In his second issue, Henderson complains the trial court erred in overruling his motion for continuance. We review the trial court's ruling on motions for continuance under an abuse of discretion standard. Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). A trial court abuses its discretion in the context of a ruling on a motion to continue a summary judgment hearing only if the record clearly demonstrates that the ruling was arbitrary and unreasonable. Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.-Beaumont 1992, no writ); Timothy Patton, Summary Judgments in Texas 4.05(3) (2d ed. 1996).

Henderson's motion for continuance alleged that he had insufficient time to prepare a response to Haskin's summary judgment due to his inability to access the law library because of an "institutional lockdown." As Haskin notes however, this lockdown did not prevent him from filing the motion for continuance, his attached affidavit explaining the lockdown, and his motion to be present at all hearings. Additionally, the record reveals Henderson was afforded more time than required by the summary judgment notice provisions. See Tex. R. Civ. P. 166(a)(c) (requiring twenty-one days notice prior to filing no-evidence summary judgment). Haskin gave Henderson twenty-six days notice of the summary judgment hearing. See Clemons v. State Farm Fire & Cas. Co., 879 S.W.2d 385, 394 (Tex. App.-Houston [14th Dist.] 1994, no writ) (holding no abuse of discretion where a party receives notice of date of summary judgment hearing in excess of required twenty-one days). More importantly, the substance of Henderson's continuance failed to identify with specificity the discovery evidence he intended to produce. In his affidavit in support of the continuance, Henderson merely alludes to evidence he intends to produce. Specifically, he states, ". . . there are certain facts, of which if are disclosed by the defendant in her answers and responses to the Affiant's discovery requests, will effectively refute the defenses presented by the defendant and prove the Affiant's case." See Tenneco, 925 S.W.2d at 647 (holding the mere fact that additional discovery might raise a fact issue is insufficient to defeat summary judgment); Kennedy v. Baird, 682 S.W.2d 377, 378 (Tex. App.-El Paso 1984, no writ) (holding non-movant must demonstrate how missing evidence would aid in defeating summary judgment motion). Finally, the record shows that Henderson made no attempt to conduct discovery until three months after the court set aside the default judgment. See Martinez v. Flores, 865 S.W.2d 194, 197 (Tex. App.-Corpus Christi 1993, writ denied) (noting whether diligence was exercised in obtaining discovery is a factor to consider in granting continuance of summary judgment hearing). Under the foregoing circumstances, the trial court did not err in overruling Henderson's motion for continuance. Accordingly, we overrule his second issue.

Discovery Requests & Subpoena Issuance

In his third and fourth issues, Henderson objects to the trial court overruling his requests for discovery and failure to issue his subpoena requests. First, he complains the trial court erroneously struck his interrogatories and requests for production. As Haskin correctly points out, the trial court correctly struck his discovery requests as Henderson failed to adhere to the new discovery rules. Henderson proceeded under the misconception that the Rules of Civil Procedure 192, 196, 197 were not effective immediately on January 1, 1999; rather, he erroneously concluded these rules were governed by the procedures in place for his pre-1999 case filing date. In any event, we hold any alleged error harmless in light of Henderson's failure to submit any evidence whatsoever to controvert Haskin's summary judgment. The record is completely devoid of any evidence attacking the merits of the summary judgment. Henderson neither filed his own affidavit detailing the specifics of his complaints nor the affidavit or sworn testimony from an expert in compliance with his health care liability claims. See Tex. Rev. Civ. Stat. Ann. art. 4590i 13.01(r)(6) (Vernon Supp. 2000) (requiring plaintiff to submit expert report detailing failure to apply standard of care and connection to plaintiff's complaint). As such, the trial court had no evidence before it to raise a genuine fact issue to controvert Haskin's summary judgment. (1)

Second, Henderson objects to the trial court's failure to require the district court to issue subpoenas for deposition questions. Henderson relies on the following provision in the Texas Civil Practice & Remedies Code which provides: "A deposition on written questions of a witness who is alleged to reside or to be in this state may be taken by: (1) a clerk of a district court." Tex. Civ. Prac. & Rem. Code Ann. 20.001 (a)(1) (Vernon 1997).

Our interpretation of the statute is that it is permissive in nature. It is well-settled that the inclusion of the word "may" implies a permissive rather than mandatory interpretation. See Tex. Gov't Code Ann. 311.016 (1) (Vernon 1998) (defining "may" as discretionary authority or permissive power). Accordingly, we overrule Henderson's third and fourth issues.Pre-Trial Motions

In his fifth issue, Henderson complains the trial court erred in overruling the following pre-trial motions: (1) motion for extension of time to respond to Haskin's motion for new trial; (2) motion for findings of fact and conclusions of law; (3) notice of past due findings of fact and conclusions of law; and (4) motion to be present for all hearings.

The first three motions are not reviewable on appeal because they relate to the motion for new trial, an issued previously dispensed with in this opinion. See Cummins, 682 S.W.2d at 236 (holding order granting new trial not reviewable on appeal). Thus, the only pre-trial motion remaining for our review is Henderson's motion to be present for all hearings.

With regard to personal appearance, it is well-settled that a prisoner has no absolute right to personally appear in court in a civil case. Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.-San Antonio 1991, no writ). In determining whether an inmate should attend court proceedings, courts consider the cost and inconvenience of transporting the prisoner, the security risk presented by the prisoner, the substance of the matter, the need for witnessing the prisoner's demeanor, whether the trial is before a jury or judge, and the possibility of delaying the trial until the prisoner is released. Id. In light of these factors, a prisoner must justify his personal appearance. Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App.-Corpus Christi 1997, no pet.).

Here, Henderson offered no evidence to justify his personal appearance. As discussed previously, he failed to submit his own affidavit, an expert report, or other evidence addressing the merits of Henderson's summary judgment to raise an issue of fact. Further, because Henderson failed to file a response, the only challenge available to him on appeal is a legal sufficiency challenge. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Henderson does not raise a legal sufficiency complaint. Accordingly, we overrule Henderson's fifth issue and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

1. While some patients may believe that any visit to a dentist constitutes cruel and unusual punishment, when a patient chooses to litigate the issue, the patient must produce evidence establishing a breach of the standard of care and resulting damages.