Bankhead v. Spence, No. 10-09-00171-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: GRAY, REYNA, and DAVIS
• Citation: 314 S.W.3d 464
• Parties: Damon BANKHEAD, Appellant, v. David T. SPENCE, D.D.S., Appellee.
• Docket Number: No. 10-09-00171-CV.
• Decision Date: 24 March 2010

314 S.W.3d 464

Damon BANKHEAD, Appellant,
v.
David T. SPENCE, D.D.S., Appellee.

No. 10-09-00171-CV.

Court of Appeals of Texas, Waco.

March 24, 2010.

314 S.W.3d 465

Damon Bankhead, Palestine, pro se.

Greg Abbott, Office of the Atty. Gen., Austin, for Appellee.

Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.

OPINION

FELIPE REYNA, Justice.

Prison inmate Damon Bankhead appeals from the dismissal of the health care liability

314 S.W.3d 466

claim he filed against David T. Spence, a prison dentist. Bankhead contends in three issues that: (1) the court's denial of his motion for appointed counsel constitutes a "due process/open courts violation"; (2) the expert report requirement of section 74.351 of the Civil Practice and Remedies Code is an "exceptional circumstance" requiring the appointment of counsel; and (3) the dismissal of his claim denied him due process of law. We will affirm

Open Courts

Bankhead contends in his first issue that the court's denial of his motion for appointed counsel constitutes a "due process/open courts violation."

Bankhead claims that Spence was negligent in filling one of his teeth in November 2007. After exhausting his administrative remedies in the prison grievance system, Bankhead filed suit on October 23, 2008. The 120-day statutory deadline for filing an expert report was February 20, 2009. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (Vernon Supp. 2009). Bankhead filed a motion for appointment of counsel on February 23. Spence filed a motion to dismiss for lack of the required expert report on March 9. After a hearing, the court denied Bankhead's motion for appointment of counsel and granted Spence's motion to dismiss.

The Texas Constitution's open courts guarantee provides that "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." This provision assures that a person bringing a well-established common-law cause of action will not suffer unreasonable or arbitrary denial of access to the courts. "It is, quite plainly, a due process guarantee."

A statute has the effect of denying access to the courts if it unreasonably abridges a plaintiff's right to obtain redress for injuries caused by the wrongful acts of another. Proof of an open courts violation requires two elements: (1) a cognizable, common-law claim that is statutorily restricted, and (2) the restriction is unreasonable or arbitrary when balanced against the statute's purpose and basis.

Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 783 (Tex.2007) (quoting TEX. CONST. art. I, § 13; Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983)) (other citations omitted).

Bankhead contends that the denial of his motion for appointed counsel constitutes a due process and open courts violation "because the door to the court is closed to him without counsel to assist him in filing the expert report." This Court and others have determined that the expert report requirement itself does not violate the open courts guarantee because it "is rationally related to the purpose of the statute to discourage frivolous malpractice suits." Powell v. Clements, 220 S.W.3d 138, 140 (Tex.App.-Waco 2007, pet. denied); accord Offenbach v. Stockton, 285 S.W.3d 517, 522-24 (Tex.App.-Dallas 2009, pet. granted); see also Smalling v. Gardner, 203 S.W.3d 354, 370-71 (Tex.App.-Houston 14th Dist. 2005, pet. denied) (addressing prior law).

The Corpus Christi Court of Appeals has rejected a similar claim with respect to a trial court's refusal to appoint counsel in a civil case. See Nance v. Nance, 904 S.W.2d 890, 892-93 (Tex.App.-Corpus Christi 1995, no writ). In that case, the court concluded that a refusal to appoint counsel was not arbitrary or unreasonable and thus did not constitute a denial of access to the courts. Id.; cf. Yancy, 236 S.W.3d at 783 ("open courts provision assures that a person bringing a well-established common-law cause of action will

314 S.W.3d 467

not suffer unreasonable or arbitrary denial of access to the courts"). We reach the same conclusion here

Bankhead argues that the denial of appointed counsel deprived him of the opportunity to be heard at a meaningful time and in a meaningful manner. This is a due process claim. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'") (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)); Tex. Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex.2004) (citing Mathews).

We will limit our inquiry to the question of whether Bankhead was deprived of the opportunity to be heard in a meaningful manner because he did not file his motion for appointment of counsel until the eve of the statutory deadline.¹ Any lack of meaningful time lays solely at Bankhead's feet because of his delay in requesting the appointment of counsel.

As the Supreme Court of Texas has explained, "plaintiffs in medical malpractice cases are routinely represented by counsel on contingent fee contracts. As long as his claims against Gibson were meritorious, Tolbert's indigency should not have prevented him from employing able counsel." Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex.2003). In the same manner, Bankhead's indigency should not have prevented him from retaining counsel on a contingent-fee basis if his claims against Spence were...