Gerald Allen Perry v. Reginaldo Stanley, et al--Appeal from 202nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00045-CV

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GERALD ALLEN PERRY, Appellant

V.

REGINALDO STANLEY, ET AL., Appellees

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 00C1485-202

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Gerald Allen Perry was an inmate at the Barry Telford Unit in New Boston, Texas. Perry sued Reginaldo Stanley, Clovis Gilbert, Lowry Powers, and Jonathan Pleasant for allegedly providing negligent medical care and treatment to Perry for a hand injury he sustained while incarcerated at the Telford unit. The trial court dismissed Perry's suit because he failed to file a medical expert report as required by law. On appeal, Perry contends (1) the trial court erred by failing to rule on (and grant) his motion for sanctions against the defendants for alleged discovery abuses, and (2) the defendants' alleged failure to disclose information during the discovery process violated Perry's right of access to the courts. We affirm.

I. Sanctions

In his first point of error, Perry contends the trial court erred by failing to rule on, or grant, Perry's motion for sanctions against the defendants. Perry filed a motion for sanctions on January 17, 2003, alleging the defendants failed to turn over specific medical records.

The decision to award sanctions rests within the sound discretion of the trial court. Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 135 (Tex. App. Texarkana 2000, no pet.). We will not reverse a trial court's decision absent a showing it abused its discretion. Id. A trial court abuses its discretion when it acts without respect to any guiding principles or rules. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). "The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Id. at 242.

The record before us does not indicate the trial court ever ruled on Perry's motion. The court did, however, conduct a hearing on January 27, 2003, regarding the defendants' motion to dismiss. At the beginning of that hearing, the trial court stated, "Now, what we have here today, as I understand it, is a motion to dismiss because of your failure and we talked about this last time you were here because of your failure to provide a medical report that would comply with that latest case that is very stringent." Perry responded by telling the trial court he understood the purpose of the hearing. During the hearing, Perry never asked the trial court to rule on his motion for sanctions.

Perry has not referenced any place in the record showing any request that the trial court rule on the sanctions motion. We have independently reviewed the record and have not found that Perry asked the trial court to enter such a ruling. To preserve a complaint for appellate review, the record must demonstrate that a complaint was made to the trial court by a timely request, objection, or motion, and the trial court either ruled on that request, objection, or motion, or refused to rule on the request, objection, or motion. Tex. R. App. P. 33.1. In this case, the trial court neither ruled on Perry's motion nor refused to rule on Perry's motion. Accordingly, Perry failed to preserve his first issue for appellate review.

Even if the issue had been preserved, the record shows Perry did not file a report from a medical expert within the required time limit. See Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(d) // (plaintiff has 180 days with possibility of one thirty-day extension to file report from medical expert for each health care provider defendant). The Legislature, in its efforts to reduce frivolous lawsuits, has imposed strict requirements for providing expert reports early in the litigation. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Gill v. Russo, 39 S.W.3d 717, 719 (Tex. App. Houston [1st Dist.] 2001, pet. denied). If a plaintiff fails to abide by these time limits, then the trial court shall, on the motion of any affected health care provider, enter an order sanctioning the plaintiff by dismissing the plaintiff's action against that defendant with prejudice. Tex. Rev. Civ. Stat. Ann. art 4590i, 13.01(e). // At the January 27, 2003, hearing, Perry admitted he had failed to file an expert report for each defendant within the time frame allowed. Accordingly, the trial court was required to dismiss Perry's case with prejudice. See, e.g., Gill, 39 S.W.3d at 719 (trial court had mandatory duty to dismiss inmate's medical malpractice suit when, after 180 days, no expert report had been filed for each defendant). Once the case was dismissed, Perry's motion for sanctions was moot.

II. Denial of Access to Courts

In his second point of error, Perry contends the defendants' alleged failure to disclose relevant documents during discovery effectively denied him access to the judicial system. Perry's argument assumes the defendants intentionally withheld information which Perry intended to file as his report from a medical expert.

"All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, 13. "The open courts provision acts as an additional due process guarantee granted in the Texas Constitution, prohibiting legislative bodies from arbitrarily withdrawing all legal remedies from anyone having a well-defined, common-law cause of action." Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App. Texarkana 2002, no pet.). A litigant who wishes to prosecute an alleged violation of the Texas Constitution's open courts provision must first show he or she "has a cognizable common law cause of action that is being restricted." Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). The litigant then must demonstrate "the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute." Id.

As we previously discussed in Perry, Texas appellate courts, including this one, have held that, because a plaintiff raising a claim of negligent medical care cannot win at trial or at summary judgment absent competent expert testimony, "the statutory requirement of an expert report is a reasonable restriction directly related to the statute's purpose of discouraging frivolous lawsuits. [citation omitted]. Other courts, including this one, have applied similar reasoning in upholding the statute in the face of an open courts challenge." Perry, 83 S.W.3d at 825. Perry has failed to satisfy the second prong of the open courts analysis.

Today, we reaffirm our previous holding that the statute is not unconstitutional as applied to Perry. For the reasons stated, we affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: November 12, 2003

Date Decided: November 14, 2003