Russell M. Davis v. Ahia Shabaaz & P. Barron, R.N.--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. 06-04-00119-CV

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RUSSELL M. DAVIS, Appellant

V.

AHIA SHABAAZ & P. BARRON, R.N., Appellees

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 03C1868-202

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

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Russell M. Davis, an inmate at the Telford Unit within the Texas Department of Criminal Justice Institutional Division (TDCJ-ID), suffered a broken ankle August 4, 2003. On November 24, 2003, Davis filed suit against Ahia Shabaaz (the Director of Clinical Services for the TDCJ) and P. Barron, R.N. (the nurse who allegedly treated Davis following his injury) for alleged medical malpractice in the treatment of his injuries. //

On June 16, 2004, the defendants filed a motion to dismiss Davis' lawsuit, contending dismissal was required because Davis had failed to file a medical expert report within 120 days of filing his lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(a) (Vernon Supp. 2004 2005) (claimant in healthcare liability case must file expert report within 120 days after commencement of suit). Two days later, the trial court granted the defendants' motion. However, on July 14, 2004, the trial court signed a document that appears to be a form scheduling order. The scheduling order set forth specific dates for trial, pretrial, and final conference. The order also set final deadlines for the adding of parties, amendment of pleadings, designating expert and fact witnesses, filing summary judgment motions, and the completion of discovery and mediation. The court's order did not reference, nor did it explicitly withdraw, the prior order of dismissal. Davis filed his notice of appeal with the trial court August 25, 2004.

On appeal, Davis contends the trial court's July 14 scheduling order acted to withdraw the court's previous order of dismissal. We disagree. The scheduling order did not discuss, reference, or otherwise directly (or impliedly) withdraw the trial court's prior order of dismissal. While it is true that a trial court generally retains plenary jurisdiction to reconsider any dispositive motion for thirty days from the date of judgment, see Tex. R. Civ. P. 329b(d), nothing in the record before us indicates the trial court intended to "vacate, modify, correct, or reform" its prior judgment of dismissal merely by signing a scheduling order for the case. Furthermore, we believe that, for an order of dismissal to be withdrawn, corrected, or modified, the trial court must have taken some affirmative step that clearly indicates the court's intent to effect a change of its prior disposition. Such changes are commonly effected by entering either a new judgment, a new order that formally withdraws the prior order of dismissal, or granting a new trial. A scheduling order as envisioned by the Texas Rules of Civil Procedure is used in connection with a pretrial conference and to establish discovery control plans. See Tex. R. Civ. P. 166(c), 190.4. Since this scheduling order contains no language setting aside, modifying, or even acknowledging the order of dismissal, we conclude that it was unnecessarily issued as a routine order to control pretrial matters and had no legal effect as to the dismissal order. Accordingly, we overrule Davis' sole point of error.

Moreover, the trial court properly dismissed Davis' lawsuit pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code. That law provides:

If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that:

(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and

(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.

Tex. Civ. Prac. & Rem. Code Ann. 74.351(b) (Vernon Supp. 2004 2005) (emphasis added). Davis' suit is for damages resulting from alleged medical malpractice. Davis did not file a medical expert report within 120 days from the date on which he filed his plaintiff's original petition, nor did he seek an extension of time to file the report. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(c) (Vernon Supp. 2004 2005). Because Davis did not file the required expert report, the trial court correctly dismissed Davis' lawsuit. See Jones v. Ark-La-Tex, 141 S.W.3d 790, 793 (Tex. App. Texarkana 2004, no pet.) (trial court does not err by dismissing suit with prejudice when plaintiff fails to file required expert report).

For the reasons stated, we affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: March 31, 2005

Date Decided: April 6, 2005