Perry v. Stanley

• Decision Date: 03 July 2002
• Docket Number: No. 06-01-00158-CV.,06-01-00158-CV.
• Citation: 83 S.W.3d 819
• Parties: Gerald Allen PERRY, Appellant, v. Reginaldo STANLEY, Clovis Gilbert, and Jonathan Pleasant, Appellees.
• Court: Texas Court of Appeals

83 S.W.3d 819

Gerald Allen PERRY, Appellant, v. Reginaldo STANLEY, Clovis Gilbert, and Jonathan Pleasant, Appellees.

No. 06-01-00158-CV.

Court of Appeals of Texas, Texarkana.

Submitted March 18, 2002.

Decided July 3, 2002.

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Gerald Allen Perry, New Boston, Appellant, Pro se.

Anne L. Morgan, Assistant Attorney General, Austin, for Appellee.

Before GRANT, ROSS, and CORNELIUS,^* JJ.

OPINION

Opinion by Justice GRANT.

Gerald Allen Perry appeals the dismissal of his medical negligence cause of action against Reginaldo Stanley, Clovis Gilbert, and Jonathan Pleasant. Perry, an inmate in the Barry Telford Unit of the Texas Department of Criminal Justice, Institutional Division (TDCJ), sued Stanley, Gilbert, Pleasant, and Lowry Powers for their purported failure to properly diagnose and/or treat an injury to his right hand. Specifically, Perry alleged Gilbert, a vocational nurse with the Telford Unit, and Pleasant and Powers, physician assistants in the same unit, did not act as reasonably prudent practitioners in failing to request an x-ray of his fractured hand and in failing to provide pain medication. Perry alleged their negligence caused him pain and suffering and caused his hand to heal improperly, leading to its permanent disfigurement. Perry also alleged Stanley, as medical director of the Telford Unit, is vicariously liable for the actions of Gilbert, Pleasant, and Powers.

Stanley, Gilbert, and Pleasant each filed an answer and, approximately ten months later, a Motion to Dismiss based in part on Perry's failure to file an expert report in compliance with TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01 (Vernon Supp.2002).¹ The trial court dismissed the suit. Perry filed a Motion for New Trial, which was overruled by operation of law. On appeal, Perry contends that Article 4590i, § 13.01 is unconstitutional and that the trial court abused its discretion in failing to grant his Motion for New Trial.

Appellees contend this court lacks jurisdiction because the judgment is not final. As a general rule, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final regardless of its language. Id. at 200. But the language of an order or judgment may make it final, even though it should have been interlocutory, if that Ianguage expressly disposes of all claims and all parties. Id. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. Id. If the intent to dispose of the case is clear from the order, the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. Id. A judgment that grants more relief than a party is entitled to is erroneous and subject to reversal, but it is not, for that reason alone, interlocutory. Id.

Stanley, Gilbert, and Pleasant's Motion to Dismiss did not purport to address Perry's claims against Powers, and Powers did not move for a dismissal. In its order granting dismissal, the trial court recites that it considered Stanley, Gilbert, and Pleasant's Motion to Dismiss and that it dismissed Perry's cause of action against only those defendants. From this record, it is clear the trial court did not intend for its judgment to apply to Powers. Therefore, the judgment is not a final judgment.

The situation in this case is different from the situation in Kleven v. Tex. Dep't of Criminal Justice — Inst. Div., 69 S.W.3d 341, 343-44 (Tex.App.-Texarkana 2002, no pet.), in which an inmate sued TDCJ and two guards, and the trial court granted TDCJ's motion for summary judgment. Though TDCJ's motion did not address the claims against the guards, the trial court ordered the cause of action dismissed with prejudice and stated that its order was a "final judgment" disposing of "all issues and all parties," and denying "[a]ll relief not specifically granted" and "[a]ll motions not previously ruled on...." Id. at 344. We held the judgment was final but erroneous in that it granted more relief than the guards were entitled to. Id.

Unlike the judgment in Kleven, the trial court's order in the present case does not purport to be a final judgment and does not seek to dispose of "all issues and all parties." Because the judgment is not a final judgment, this court is without jurisdiction over the appeal. See Lehmann, 39 S.W.3d at 206.

Because a partial summary judgment is severable from the remainder of a suit for the purpose of appealing the granting of summary judgment, see, e.g., Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex.2001) (per curiam), in the interest of judicial efficiency, we sever Perry's claims against Stanley, Gilbert, and Pleasant from his claims against Powers. See In re Estate of Loveless, 64 S.W.3d 564, 571 (Tex.App.-Texarkana 2001, no pet.); see also TEX.R. CIV. P. 41 ("Any claim against a party may be severed and proceeded with separately.").

Perry first contends the trial court erred in dismissing his suit because Article 4590i, § 13.01 is unconstitutional. Except for actions brought under the Texas Family Code, a suit brought by an inmate who has filed an affidavit or unsworn declaration of inability to pay costs is governed by Chapter 14 of the Texas Civil Practice and Remedies Code. TEX. Civ. PRAC. & REM.CODE ANN. § 14.002 (Vernon Supp.2002). Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate either before or after service of process if the court finds the claim is frivolous or malicious. TEX. CIV. PRAC. & REM.CODE ANN. § 14.003(a)(2) (Vernon Supp.2002). In determining whether a claim is frivolous or malicious, the trial court may consider (1) whether the claim's realistic chance of ultimate success is slight; (2) whether the claim has no arguable basis in law or in fact; (3) whether it is clear the party cannot prove facts in support of the claim; or (4) whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. TEX. CIV. PRAC. REM.CODE ANN. § 14.003(b) (Vernon Supp.2002).

The Texas Supreme Court has expressed doubt concerning whether a trial court may appropriately dismiss a suit only because the claim's realistic chance of ultimate success is slight or because it is clear the party cannot prove facts in support of the claim. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex.1990). Practically speaking, therefore, the trial court is limited in most cases to determining whether the claim has an arguable basis in law or fact. Bohannan v. Tex. Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex.App.-Austin 1997, writ denied). Where, as here, the trial court dismisses a claim without conducting a fact hearing, we are limited to reviewing only whether the claim had an arguable basis in law. Sawyer v. Tex. Dep't of Criminal Justice, 983 S.W.2d 310, 311 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 579 (Tex.App.-San Antonio 1997, no pet.); Bohannan, 942 S.W.2d at 115; In re Wilson, 932 S.W.2d 263, 265 (Tex.App.-El Paso 1996, no writ).

We review a dismissal under Chapter 14 of the Civil Practice and Remedies Code using an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). The trial court abuses its discretion if it acts without reference to any guiding rules or principles. Id.

The Medical Liability and Insurance Improvement Act, TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(d)(1), requires a plaintiff, within 180 days of filing a claim, either to furnish one or more expert reports for each physician or health care provider against whom the plaintiff asserts the claim to counsel or to nonsuit the case. An expert report is not required for any issue other than an issue related to liability or causation. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(j).

If the plaintiff fails to provide an expert report or to nonsuit the case within the time required, the trial court must, on the defendant's motion, award as sanctions (1) the defendant's reasonable attorney's fees and court costs; (2) the forfeiture of the plaintiff's cost bond to the extent necessary to pay the award; and (3) the dismissal of the plaintiff's action with prejudice. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(e). A trial court must grant an additional thirty days to a party if, after a hearing, the trial court determines the party's failure to file an expert report was not intentional or the result of conscious indifference, but was the result of an accident or mistake. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g). Just as we apply an abuse of discretion standard when reviewing a dismissal of an indigent inmate's cause of action under Chapter 14 of the Civil Practice and Remedies Code, we also apply an abuse of discretion standard when reviewing a dismissal under Article 4590i, § 13.01. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001).

Perry does not dispute that he failed to provide an expert report as required by Article 4590i, § 13.01(d). Rather, he contends the requirements that he obtain an expert report and that his cause of action be dismissed with prejudice if he does not obtain an expert report violate the open courts provision of the Texas Constitution because he cannot afford to employ an 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...