Escalante v. Rowan

• Decision Date: 22 January 2008
• Docket Number: No. 14-05-00828-CV.,No. 14-06-00197-CV.,14-05-00828-CV.,14-06-00197-CV.
• Citation: 251 S.W.3d 720
• Parties: Carmelita ESCALANTE, M. D., E. Edmund Kim, M. D., Edgardo Rivera, M. D., and Franklin C. Wong, M. D., Appellants, v. Donita ROWAN and James Niese, Appellees. Donita Rowan and James Niese, Appellants, v. Carmelita Escalante, M. D., E. Edmund Kim, M. D., Edgardo Rivera, M. D., and Franklin C. Wong, M. D., Appellees.
• Court: Texas Court of Appeals

251 S.W.3d 720

Carmelita ESCALANTE, M. D., E. Edmund Kim, M. D., Edgardo Rivera, M. D., and Franklin C. Wong, M. D., Appellants, v. Donita ROWAN and James Niese, Appellees.

Donita Rowan and James Niese, Appellants, v. Carmelita Escalante, M. D., E. Edmund Kim, M. D., Edgardo Rivera, M. D., and Franklin C. Wong, M. D., Appellees.

No. 14-05-00828-CV.

No. 14-06-00197-CV.

Court of Appeals of Texas, Houston (14th Dist.).

January 22, 2008.

Nancy Bolin Broaddus, Houston, for appellants.

Peter Kelly, Walter J. Kronzer, Houston, for appellees.

Panel consists of Justices FROST and MIRABAL.^*

MAJORITY OPINION

MARGARET GARNER MIRABAL, Senior Justice (Assigned),

This is a consolidated appeal. In cause number 14-05-00828-CV, appellants, Carmelita Escalante, M. D., E. Edmund Kim, M. D., Edgardo Rivera, M. D., and Franklin C. Wong, M.D. (the "doctors"), filed an interlocutory appeal from the trial court's denial of their motion to dismiss appellees Donita Rowan and James Niese's¹ medical malpractice lawsuit against them. In cause number 14-06-00197-CV, Rowan and Niese appeal the trial court's granting of the doctors' motion for final summary judgment. We affirm the denial of the motion to dismiss and we reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the fall of 2000, Rowan was diagnosed with Stage II metastatic breast cancer. At the time of Rowan's initial diagnosis, Rowan's breast cancer was regionally metastasized to her lymph nodes. Prior to seeking treatment at the University of Texas M.D. Anderson Cancer Center ("M.D.Anderson"), Rowan received treatment for her initial diagnosis of breast cancer, including surgery, chemotherapy, and radiation, at other medical facilities in Houston.

The defendant doctors are all employed by M.D. Anderson. In November 2001, Rowan became a patient of Dr. Rivera. In December 2001, she became a patient of Dr. Escalante. In September 2002, Dr. Kim interpreted a whole body bone scan of Rowan and in May of 2003, Dr. Wong interpreted a second whole body bone scan. Both Dr. Kim and Dr. Wong concluded there was no active bony metastasis present. In the late summer of 2003, the recurrence of Rowan's cancer was diagnosed, this time in her liver. According to Dr. Rivera, patients who experience metastatic cancer with transfer to the liver or another visceral organ have a five-year survival rate of fifteen to twenty percent at the time of diagnosis and the disease is considered to be incurable with a median survival of two years.

In November 2004, Rowan and Niese filed suit against the doctors alleging the doctors were negligent as a result of their delay in diagnosing the recurrence of Rowan's cancer. In May 2005, the doctors filed a motion to dismiss Rowan and Niese's lawsuit pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code.² The trial court denied the doctors' motion. On August 4, 2005, the doctors appealed the trial court's denial of their motion to dismiss pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code.³

On October 17, 2005, the doctors filed a motion for summary judgment claiming that Rowan and Niese's causes of action were barred as a matter of law because Texas does not recognize the loss-of-chance doctrine. On November 7, 2005, Rowan and Niese filed their summary judgment response with attached evidence as well as an amended petition. The trial court conducted an oral hearing on the doctors' motion for summary judgment on November 14, 2005. Rowan and Niese both appeared at the hearing. Neither Rowan nor Niese objected to the summary judgment hearing on the basis of the stay in place as a result of the doctors' interlocutory appeal of the trial court's earlier denial of their motion to dismiss.⁴ The trial court granted the doctors' motion for summary judgment on November 18, 2005. Rowan and Niese filed a motion for reconsideration of the summary judgment/motion for new trial ("motion for new trial") in which they raised, for the first time, the issue of the stay in place as a result of the doctors' interlocutory appeal. The trial court denied Rowan and Niese's motion for new trial and this appeal followed.⁵

DISCUSSION

In their appeal from the trial court's final summary judgment, Rowan and Niese raise three issues. In their first issue, Rowan and Niese contend the trial court's summary judgment is void because it was entered in violation of the stay in place as a result of the doctors' interlocutory appeal of the trial court's denial of their motion to dismiss. In their second issue, Rowan and Niese assert the trial court erred in granting the doctors' motion for summary judgment as it was not addressed to their causes of action.

I. The Trial Court's Summary Judgment is Not Void

A. The Standard of Review

In their first issue, Rowan and Niese assert the trial court's summary judgment was issued in violation of the statutory stay created by section 51.014(b) of the Texas Civil Practices and Remedies Code and is therefore void. It is well settled in Texas that statutory interpretation presents a question of law subject to de novo review. Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997). A trial court has no discretion when evaluating a question of law. See Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex.1996); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

B. Section 51.014(b) Creates a Mandatory Stay

In their response to Rowan and Niese's first issue, the doctors appear to argue that there was no stay imposed on the trial court's proceedings when the doctors filed their interlocutory appeal. We disagree, as the clear language of the statute imposes an automatic stay on all proceedings in the trial court as soon as an interlocutory appeal is filed. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b); Watts v. Rodriguez, 185 S.W.3d 931, 932 (Tex.App.-Austin 2006, no pet.) (per curiam).

C. The Trial Court Had Jurisdiction and Thus The Summary Judgment is Not Void

As we have determined there was an automatic stay in place once the doctors filed their interlocutory appeal, we now must decide if a summary judgment granted while that stay was in place is void. In this appeal, Rowan and Niese do not argue that the trial court's summary judgment is voidable. Instead, they very specifically argue only that, because the trial court acted while the interlocutory appeal stay was in place, the trial court's summary judgment is void.

Errors, other than a lack of jurisdiction, such as a court's action contrary to a statute or statutory equivalent, merely render the judgment voidable so that it may be corrected through the ordinary appellate process or other proper procedures. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003). There was no contention in the trial court or in this appeal that the trial court did not have jurisdiction, and we conclude that the section 51.014(b) stay does not deprive the trial court of jurisdiction. Therefore, the trial court's summary judgment is not void.

II. Rowan and Niese Did Not Preserve Error as to Any Complaint that the Summary Judgment is Voidable Because of the Stay

Even if Rowan and Niese's first issue could be construed as arguing the trial court's summary judgment is voidable because it was entered in violation of the interlocutory stay, the result is the same because Rowan and Niese did not preserve error as to this complaint.

An interlocutory appeal of the denial of a motion to dismiss a lawsuit based on the assertion of immunity stays all proceedings in the trial court pending resolution of the appeal. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) & (b). However, the failure to object based on this stay waives any error that the trial court may have committed by failing to stay the proceedings during the pendency of the interlocutory appeal. Henry v. Flintrock Feeders, Ltd., No. 07-04-0224-CV, 2005 WL 1320121, at *1 (Tex.App.-Amarillo June 1, 2005, no pet.) (mem.op.)(holding a procedural error must be preserved by timely action of the party bringing the error to the trial court's attention).⁶ A summary judgment is a trial within the meaning of section 51.014(b) of the Texas Civil Practice and Remedies Code. Lee-Hickman's Investments v. Alpha Invesco Corp., 139 S.W.3d 698, 701 (Tex.App.-Corpus Christi 2004, no pet.). Here, Rowan and Niese did not object to the trial court hearing the doctors' motion for summary judgment. In addition, Rowan and Niese filed amended discovery responses, a summary judgment response, and an amended petition prior to the hearing on the doctors' motion. We hold Rowan and Niese waived their complaint concerning the interlocutory stay and removed any bar to the trial court hearing and ruling on the doctors' motion for summary judgment.

Because we have determined the trial court's summary judgment is not void, and that Rowan and Niese failed to preserve error as to any objection that the summary judgment is voidable based on the stay, we overrule Rowan and Niese's first issue.

III. The Loss-of-Chance Doctrine

In their second issue, Rowan and Niese contend the trial court erred in granting the doctors' motion for summary judgment as the motion was not addressed to their causes of action. We agree.

A. The Standard of Review

The movant for a traditional summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in the non-movant's favor. Id. at 548-49. We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

B. Sole Ground in Motion for Summary Judgment

In their second amended petition, Rowan and Niese alleged medical...