Margie Canton-Carter v. Baylor College of Medicine--Appeal from 270th District Court of Harris County

Affirmed and Majority and Concurring Opinions filed December 23, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00351-CV

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MARGIE CANTON-CARTER, Appellant

V.

BAYLOR COLLEGE OF MEDICINE, Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2003-47770

C O N C U R R I N G O P I N I O N

The majority concludes that appellant Margie Canton-Carter has not assigned any error and that this court may resolve this entire appeal based on briefing waiver. Though both conclusions are incorrect, the court nonetheless reaches the right result because the timely filed summary-judgment evidence does not raise a genuine issue of material fact as to whether the alleged negligence of appellee Baylor College of Medicine proximately caused Canton-Carter=s injury.

The majority applies the rules of appellate procedure too strictly and contrary to binding precedent of the Texas Supreme Court. In concluding that Canton-Carter has failed to assign any error, the majority improperly restricts consideration of the issues that Canton-Carter has presented to the issues stated in the AIssues Presented for Review@ section of her brief. See Tex. R. App. P. 38.1(e)[1] (AThe brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.@); Perry v. Cohen, No. 07-0301, CS.W.3dC,C, 2008 WL 4891677, at *2B3 (Tex. Nov. 14, 2008) (holding that court of appeals erred by concluding appellant failed to assign error and by failing to liberally construe the issues presented and the subsidiary questions fairly included therein in light of the assertions by appellant in the argument section of the brief). The majority does not discuss the issues that are fairly included in the issues presented by Canton-Carter. The majority does not mention that Canton-Carter asserts that this court should reverse the trial court=s summary judgment. Nor does the majority address Canton-Carter=s arguments regarding the essential elements of her medical malpractice case. Appellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not lost by waiver. See Perry, 2008 WL 4891677, at *2. Appellate courts should reach the merits of an appeal whenever reasonably possible and should construe issues presented liberally to obtain a just, fair, and equitable adjudication of the rights of the litigants. See id. at *2B3. Under this legal standard, Canton-Carter has assigned error as to whether the trial court erred in granting Baylor College of Medicine=s motion for summary judgment.

In the alternative, the majority disposes of this entire appeal and affirms the trial court=s judgment based on briefing waiver under Rule 38.1(h).[2] However, under binding precedent, this court cannot resolve all of the issues in an appeal based on briefing waiver. See TEX. R. APP. P. 44.3 (AA court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.@); Inpetco, Inc. v. Texas American Bank/Houston, N.A., 729 S.W.2d 300, 300 (Tex. 1987) (per curiam) (stating that, under predecessor to Rule 44.3, a court of appeals cannot overrule all issues and affirm trial court's judgment based only on briefing waiver); Elder v. Bro, 809 S.W.2d 799, 802 (Tex. App.CHouston [14th Dist.] 1991, writ denied) (holding that appellate courts may overrule some of appellant's issues based on briefing waiver, but must not overrule all of them based on briefing waiver). Therefore, this court should not use briefing waiver to dispose of the entire appeal.

Nonetheless, the timely filed summary-judgment evidence does not raise a genuine issue of material fact as to whether the alleged negligence of Baylor College of Medicine proximately caused Canton-Carter=s injury. For this reason, the trial court=s judgment should be affirmed.

Accordingly, though I do not join in the majority=s opinion, I respectfully concur in the judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed December 23, 2008.

Panel consists of Justices Anderson, Frost and Hudson.[3] (Anderson, J., majority).

[1] Effective September 1, 2008, the relevant rule is Rule 38.1 (f), although the language is the same as former Rule 38.1 (e).

[2] Effective September 1, 2008, the relevant rule is Rule 38.1 (i), although the language is the same as former Rule 38.1 (h).

[3] Senior Justice Harvey Hudson sitting by assignment.