Longoria v. United Blood Services

• Decision Date: 03 August 1995
• Docket Number: No. 13-93-005-CV,13-93-005-CV
• Citation: 907 S.W.2d 605
• Parties: Juan LONGORIA and Maria Longoria, Individually and as Next Friend of San Juanita Longoria, Appellants, v. UNITED BLOOD SERVICES, Appellee.
• Court: Texas Court of Appeals

Page 605

907 S.W.2d 605

Juan LONGORIA and Maria Longoria, Individually and as Next Friend of San Juanita Longoria, Appellants, v. UNITED BLOOD SERVICES, Appellee.

No. 13-93-005-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 3, 1995.

Rehearing Overruled Aug. 21, 1995.

Richard C. Arroyo, Brownsville, Melinda Garza, Weslaco, for appellants.

Terry D. Totterham, Dean A. Schaffer, Fulbright & Jaworski, Austin, Jose E. Garcia, McAllen, for appellee.

Before GILBERTO HINOJOSA, ¹ FEDERICO G. HINOJOSA, Jr., and YANEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

The Longorias appeal from the second summary judgment granted against them in their suit against United Blood Services (UBS) for the death of their daughter as a result of acquired immune deficiency syndrome-tainted blood given to her in a transfusion. We reversed the first summary judgment on the ground that, although the movants had conclusively disproved any negligence in failing to screen their blood for acquired immune deficiency syndrome (AIDS) at the time of the transfusion, a fact issue remained concerning their potential negligence in failing to screen for other diseases, which indirectly could have prevented those at high risk for AIDS from donating blood and probably prevented the blood from becoming contaminated with AIDS. ²

Upon remand, UBS again moved for summary judgment, this time presenting expert medical evidence that it was not negligent in failing to screen for other diseases, such as cytomegalovirus (CMV) or hepatitis. In addition, UBS challenged the Longorias' supposed expert, Melvin N. Kramer, as being unqualified to make assertions about the standard of care for blood banks and the screening of blood donors. UBS also urged for the first time the two-year statute of limitations as a bar to the present action.

The trial court granted the second summary judgment in favor of UBS on all claims asserted against it by the Longorias. The Longorias raise six points of error on appeal, arguing numerous errors in the procedure and the existence of fact questions precluding summary judgment. We reverse the second summary judgment and remand the case to the trial court for trial on the merits.

We first address the procedural questions raised by the Longorias concerning the hearing of UBS's second motion for summary judgment and the alleged errors affecting our review of the summary judgment evidence and the state of the pleadings at the time of the summary judgment.

By their fourth point of error, the Longorias complain that the trial court erred by refusing to consider additional evidence presented after the summary judgment had already been determined.

The present summary judgment order was signed on September 8, 1992. The Longorias then filed an unsworn motion for new trial on October 2, 1992, urging among other things that the trial court consider new evidence. The Longorias attached to the motion for new trial the depositions of two physicians who were deposed after the trial court took the motion for summary judgment under consideration. One physician testified concerning his knowledge of the procedures used by UBS in collecting blood. The other physician testified as an expert on hospital testing of blood. The Longorias urged the trial court to consider this new evidence.

A trial court may consider only the summary judgment evidence on file at the time of the hearing or filed thereafter and before judgment with permission of the court. Leinen v. Buffington's Bayou City Service Co., 824 S.W.2d 682, 685 (Tex.App.--Houston [14th Dist.] 1992, no writ); Tex.R.Civ.P. 166a(c). Accordingly, on motion for new trial after summary judgment is granted, the trial court may generally consider only the record as it existed prior to granting the summary judgment. Leinen, 824 S.W.2d at 685; Parchman v. United Liberty Life Ins. Co., 640 S.W.2d 694, 696 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.). Moreover, if the Longorias rely on newly discovered evidence as justification for a new trial, they must meet the due diligence requirement that such evidence could not have been obtained before the summary judgment hearing. See Mendez v. International Playtex, Inc., 776 S.W.2d 732, 734 (Tex.App.--Corpus Christi 1989, writ denied).

In the present case, the Longorias' unsworn motion for new trial failed to show that either physician's testimony was unavailable to them before the second summary judgment hearing or that the depositions could not have been presented earlier. The two physicians' depositions were not properly before the trial court and could not be considered as new evidence. In addition, the depositions may not be considered by us on appeal. Appellants' fourth point of error is overruled.

By their fifth point of error, the Longorias complain that they were not given proper notice of the summary judgment hearing.

A non-movant is generally entitled to at least twenty-one days' notice before the date specified for hearing the motion for summary judgment. See Lewis v. Blake, 876 S.W.2d 314, 316 (Tex.1994); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex.App.--Houston [14th Dist.] 1992, no writ); TEX.R.CIV.P. 166a(c).

After reviewing the record, we conclude that the Longorias waived their right to complain of lack of notice by failing to bring this complaint to the attention of the trial court by motion for new trial or other post-trial motion. See Lara v. Lile, 828 S.W.2d 536, 542 (Tex.App.--Corpus Christi 1992, writ denied); White v. Wah, 789 S.W.2d 312, 319 (Tex.App.--Houston [1st Dist.] 1990, no writ); TEX.R.APP.P. 52(a). Nevertheless, even if the Longorias had preserved their complaint of lack of notice, we conclude that the complaint is without merit. The record reflects that UBS sent a letter to the court, dated May 11, 1992, requesting a June 5, 1992 hearing on its second motion for summary judgment and that a copy of the letter was sent to the Longorias' counsel. The record also includes a May 12, 1992 letter stating that the motion was set for hearing on June 5, 1992 at 8:30 a.m. ³

A letter requesting a specific date for trial or hearing, at least when a copy of that letter is sent to the opposing parties, is itself sufficient notice of the setting on that date; it is generally reasonable to assume that if a particular setting is requested, the litigants are put on notice that trial or hearing may be had on that requested date. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.1978). In addition, as in the present case, a further letter indicating that the hearing is actually set for that date is additional notice of the setting. Appellants' fifth point of error is overruled.

By their sixth point of error, the Longorias complain that the trial court erred by granting special exceptions to their Fifth Amended Original Petition (5th Amended Petition).

The Longorias' Third Amended Original Petition (3rd Amended Petition) was filed on April 3, 1987 and constituted their live pleading at the time of the summary judgment hearing. On May 8, 1992, UBS filed special exceptions to the 3rd Amended Petition, and on August 3, 1992, the trial court heard those special exceptions concurrently with the summary judgment. On August 11, 1992, the trial court signed an order granting UBS's special exceptions and ordering amendment in conformity thereto by August 15, 1992. The Longorias immediately filed their 5th Amended Petition ⁴ on August 11, 1992. On August 28, 1992, UBS filed special exceptions to the Longorias' 5th Amended Petition together with a letter stating that UBS intended to urge the special exceptions at an August 31, 1992 hearing. The 5th Amended Petition and letter indicate that opposing counsel was provided copies. On August 31, 1992, the trial court heard and signed an order granting UBS's special exceptions to the Longorias' 5th Amended Petition. Thereafter, on September 9, 1992, the Longorias moved the trial court to reconsider the granting of special exceptions, but never mentioned in the motion or in their motion for new trial that they were urging lack of notice as a reason for the trial court to reconsider its rulings.

The Longorias complain that the trial court erred by granting UBS's special exceptions to their 5th Amended Petition after hearing the motion for summary judgment but before signing the order granting summary judgment. The Longorias argue that they never received notice of the August 31, 1992 hearing. The Longorias also argue that the trial court was substantively wrong in sustaining the special exceptions and striking that portion of the 5th Amended Petition that newly raised UBS's alleged violation of federal regulations as a ground for liability.

With regard to the Longorias' alleged lack of notice of the hearing, we again conclude that, as with similar claims regarding the summary judgment hearing discussed in our analysis of point five, the Longorias waived this complaint by failing to raise it in the trial court. See Lara, 828 S.W.2d at 542; White, 789 S.W.2d at 319; TEX.R.APP.P. 52(a). Moreover, even if their complaint was not waived, the clear indication in UBS's letter that it was requesting a hearing on August 31, 1992 should have been sufficient to put the Longorias on notice that the hearing would be held that day. See Mansfield State Bank, 573 S.W.2d at 185.

With regard to the alleged substantive error in sustaining special exceptions to the violation of federal regulation allegations, we note that these alleged violations were mentioned for the first time in the Longorias' 5th Amended Petition which was filed after the summary judgment hearing. The trial court may only consider pleadings and proof on file at the time of the summary judgment hearing, or filed thereafter and before judgment with permission of the court. TEX.R.CIV.P. 166a(c). Accordingly, a trial court does not abuse its discretion by refusing to consider summary judgment pleadings filed after a summary...