Brent Mills and Bruce & Judy Mills as Parents of Brent Mills v. Gloria D. Box, M.D.; Uvalde Bone and Joint Clinic, P.A. and Uvalde County Hospital Authority d/b/a Uvalde Memorial Hospital--Appeal from 38th Judicial District Court of Uvalde County

MEMORANDUM OPINION

No. 04-05-00701-CV

Brent MILLS and Bruce and Judy Mills as Parents of Brent Mills ,

Appellants

v.

Gloria D. BOX, M.D., Uvalde Bone and Joint Clinic, P.A.,

and Uvalde County Hospital Authority d/b/a Uvalde Memorial Hospital ,

Appellees

From the 38th District Court, Uvalde County, Texas

Trial Court No. 04-09-24, 318-CV

Honorable James M. Simmonds , Judge Presiding

Opinion by: Alma L. L pez , Chief Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Karen Angelini , Justice

Delivered and Filed: November 1, 2006

AFFIRMED

Brent Mills and his parents (collectively "Appellants") filed a medical malpractice suit against Gloria D. Box, M.D., Uvalde Bone and Joint Clinic, P.A., and Uvalde County Hospital Authority d/b/a Uvalde Memorial Hospital (collectively "Appellees"). Appellees filed motions to dismiss, which the trial court granted. On appeal, Appellants contend that the trial court's orders dismissing the suit are void because Appellants timely filed an objection to the assigned judge. We affirm the trial court's orders dismissing the case.

BACKGROUND

In September of 2004, Appellants filed a medical malpractice suit against Appellees. In February of 2005, Appellees Gloria Box and Uvalde Bone and Joint Clinic filed a motion to dismiss, and Appellee Uvalde County Hospital Authority d/b/a Uvalde Memorial Hospital filed a second motion to dismiss. On April 6, 2005, the court administrator notified the parties that Judge Simmonds was assigned to the case. Twelve days later, on April 18, 2005, Appellants faxed a document to the court objecting to the assignment of Judge Simmonds. The court administrator called Appellants' lawyer and informed him that the court did not accept faxed filings and that Appellants' lawyer would have to file an original. Appellants' lawyer indicated that he was considering withdrawing the objection; however, on April 21, 2005, Appellants filed an original objection to the assignment of Judge Simmonds. After hearings, Judge Simmonds granted both motions to dismiss.

DISCUSSION

Appellants contend that their objection to the assignment of Judge Simmonds was timely filed and that it automatically disqualified him and voided his subsequent orders. To be timely, an objection must be filed no later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial begins, whichever date occurs earlier. Tex. Gov't. Code Ann. 74.053(c) (Vernon 2005). If a party files a timely objection, the judge shall not hear the case. Id. at 74.053(b). Here, Appellants were notified on April 6, 2005, that Judge Simmonds was assigned to the case. Thus, they were required to file an objection no later than April 13, 2005, the seventh day after notification. However, Appellants did not file a proper objection until April 21, 2005, fifteen days after notification. Appellants did attempt to object by fax on April 18, but the court administrator informed them that the court did not accept fax filings. Even if the faxed objection had been accepted, however, it would still have been filed five days past the deadline. Because Appellants did not file a timely objection, Judge Simmonds was not prohibited from hearing the case. Accordingly, we affirm the trial court's orders dismissing the case.

Alma L. L pez, Chief Justice