Rittenhouse v. Sabine Valley Center Found.

• Decision Date: 03 February 2005
• Docket Number: No. 06-04-00064-CV.,06-04-00064-CV.
• Citation: 161 S.W.3d 157
• Parties: Dennis RITTENHOUSE, Appellant, v. SABINE VALLEY CENTER FOUNDATION, INC., d/b/a Oak Haven Recovery Center, et al., Appellees.
• Court: Texas Supreme Court

161 S.W.3d 157

Dennis RITTENHOUSE, Appellant, v. SABINE VALLEY CENTER FOUNDATION, INC., d/b/a Oak Haven Recovery Center, et al., Appellees.

No. 06-04-00064-CV.

Court of Appeals of Texas, Texarkana.

Submitted January 20, 2005.

Decided February 3, 2005.

COPYRIGHT MATERIAL OMITTED

Danna K. Mayhall, Danna Kirk Mayhall, PC, Athens, for appellant.

Douglas W. Black, Carvan E. Adkins, Tim G. Sralla, Taylor, Olson, Adkins, Sralla & Elam, LLP, Fort Worth, for Sabine Valley Center Foundation, Inc., d/b/a Oak Haven Recovery Center.

Ken W. Good, Kent, Good & Anderson, PC, Tyler, for Isidore J. Lamothe, Jr., M.D.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Dennis Rittenhouse appeals the dismissal of his medical malpractice suit against Sabine Valley Center Foundation, Inc., d/b/a Oak Haven Recovery Center, Dr. Isidore Joseph Lamothe, Jr., Dr. Shahrokh Safarimary Aki, Millie Brown, Philip Glover, Laura Henderson, W. Robinson, Jim Louvier, Johnny Oliver, Jr., Twilla Simmons, and Claudia Gonzales¹ due to failure to file an expert report pursuant to Article 4590(i). Rittenhouse's attorney withdrew shortly before the expert report was due under the statute. Although Rittenhouse's prior attorney obtained approximately a thirty-day extension with most of the parties, Rittenhouse did not file a report by the extended deadline.

Rittenhouse alleges in his first point of error the trial court abused its discretion by dismissing his claim when he had timely filed a motion for extension. In his second point of error, Rittenhouse contends the motion to withdraw was defective because it failed to state the date on which the expert report was due; therefore, the trial court violated Rittenhouse's due process rights by granting the motion to withdraw. We first address the unassigned error concerning the lack of a reporter's record. Because the record contains no objection to the failure to record the proceedings, Rittenhouse has not preserved error for our review. Next, we address whether Rittenhouse has shown reversible error due to the denial of the motion for extension. Because there is no reporter's record, we must presume the trial court reached the correct decision in finding no accident or mistake. Therefore, the trial court did not err in dismissing the suit. Last, we address whether Rittenhouse has shown that his due process rights were violated. Because this issue was not raised before the trial court, any error was waived. We affirm the judgment of the trial court.

Factual Background

On August 15, 2003, Rittenhouse sued Oak Haven for improperly removing him from Xanax,² which removal allegedly caused him to become delusional and resulted in injuries and damages. On February 6, 2004, Rittenhouse's counsel filed a motion to withdraw as Rittenhouse's attorney and sent a copy of the motion to Rittenhouse. Although the motion to withdraw was filed five days before the expert report was due, Rittenhouse's counsel did obtain an agreed extension of the deadline with most of the parties to file the expert report.³ On February 9, 2004, the trial court granted the motion to withdraw. On March 15, 2004, Oak Haven and Dr. Lamothe filed motions to dismiss for failure to file an expert report. On March 18, 2004, Rittenhouse's new counsel filed a notice of appearance and a motion to extend the deadline for submission of the expert report. On March 22, 2004, an unsigned expert report dated March 17, 2004, was filed, and the trial court held a hearing concerning the motions for extension and for dismissal. Rittenhouse alleges in his brief that the proceedings were "not electronically recorded."

In the record on appeal, there is no reporter's record of the hearing. On April 1, 2004, the trial court denied the motion for extension. The trial court granted both motions to dismiss April 2, 2004.

Discussion

As a medical malpractice action, this appeal is governed by the Medical Liability and Insurance Improvement Act as codified in former Section 4590i of the Texas Revised Civil Statutes. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204 § 10.09, 2003 Tex. Gen. Laws 884 (hereafter cited as 1995 Tex. Gen. Laws 985-87). Section 13.01(d) of the Act provides:

Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period ..., the claimant shall, for each physician or health care provider against whom a claim is asserted:

(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or

(2) voluntarily nonsuit the action against the physician or health care provider.

1995 Tex. Gen. Laws 985-87.

The trial court denied Rittenhouse's motion to extend and dismissed the lawsuit. Rittenhouse has failed to show reversible error on appeal because 1) the error concerning the lack of a reporter's record is not preserved; 2) we must presume the trial court's conclusion, that Rittenhouse did not prove that an accident or mistake prevented the timely filing of an expert report, was correct since there is no reporter's record; and 3) in the absence of a reporter's record, any error in granting the motion to withdraw has not been shown to have resulted in harm.

The Error in Failing to Record Proceedings is not Preserved

Although not raised by Rittenhouse, we note the court reporter apparently failed to report the hearing held on the motions for extension and to dismiss. Under the Rules of Appellate Procedure, a court reporter must make a full record of all proceedings unless excused by agreement of the parties. See TEX.R.APP. P. 13.1. However, any error in this failure was not preserved for appellate review.

Before the 1997 amendment to the Rules of Appellate Procedure, a record was only required when requested. Rule 13.1(a) replaced Rule of Appellate Procedure 11(a)(1) and (2), which required the court reporter to record proceedings only when requested by the trial court or the attorney for any party. Compare TEX.R.APP. P. 13.1(a) with TEX.R.APP. P. 11(a), 49 TEX. B.J. 561 (Tex. and Tex.Crim.App. 1986, amended 1997). Rule of Appellate Procedure 13.1(a) provides "[t]he official court reporter or court recorder must: (a) unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings." TEX.R.APP. P. 13.1(a).

We note there is disagreement among the courts of appeals as to the interpretation and effect of Rule 13.1(a) of the Rules of Appellate Procedure. This Court and the Corpus Christi Court of Appeals have held the court reporter has a duty to record all proceedings unless a party expressly waives his or her right to have a court reporter record the proceedings. Brossette v. State, 99 S.W.3d 277, 284 (Tex.App.-Texarkana 2003, pet. dism'd, untimely filed); Palmer v. Espey Huston & Assocs., 84 S.W.3d 345, 351 (Tex.App.Corpus Christi 2002, pet. denied); Tanguma v. State, 47 S.W.3d 663, 670 (Tex.App.Corpus Christi 2001, pet. ref'd), overruled in part, Valle v. State, 109 S.W.3d 500, 508-09 (Tex.Crim.App.2003) (an objection is still required to preserve error for appellate review). In contrast, the First District Court of Appeals found that Rule 13.1(a) was in conflict with Texas Government Code Section 52.046(a) and held that Section 52.046(a) governs the recording of court reporters.⁴ As we held in Brossette, the court reporter must record all proceedings unless the parties expressly waive their right to have a court reporter record the proceedings. See Brossette, 99 S.W.3d at 284. Unless the parties expressly waive their right to a record, the court reporter's failure to transcribe the proceedings violates Rule 13.1(a) and constitutes error.⁵

Any error here, however, was not preserved for appellate review. The record contains no indication that any objection was made to the failure of the court reporter to record the proceedings. Rule 33 provides: "(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion...." TEX.R.APP. P. 33.1(a). In Valle, the Texas Court of Criminal Appeals held that an objection is still required to preserve the failure to record the proceedings for appellate review. Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2003); Brossette, 99 S.W.3d at 284; see Williams v. State, 937 S.W.2d 479, 487 (Tex.Crim.App.1996) (former Rule 11); see also Morin-Spatz v. Spatz, No. 05-00-01580-CV, 2002 WL 576513, at *8 (Tex.App.-Dallas Apr. 18, 2002, no pet.) (not designated for publication). We hold that Rittenhouse did not preserve the error for appellate review.

The Failure to Grant an Extension was not Reversible Error

Rittenhouse contends the trial court erred in dismissing his suit when he had timely filed a motion for extension. He contends that his original trial counsel never adequately informed him of the deadline and that the failure to file the report was due to confusion surrounding the substitution of counsel. According to Rittenhouse, the motion was timely filed as a motion under Section 13.01(g) and the trial court was required to grant a thirty-day extension. Because there is no record of the hearing on the motion, or other evidence of accident or mistake, we overrule Rittenhouse's first point of error.

Article 4590i, Section 13.01(d) requires a plaintiff asserting a claim against a healthcare provider or physician to submit an expert report, along with the expert's curriculum vitae, no later than the 180th day after filing suit.⁶ The Act requires an expert report to provide "a fair summary of the expert's opinions ... regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet...