Smith v. Baptist Memorial Hosp. System
| Decision Date | 15 October 1986 |
| Docket Number | No. 04-85-00558-CV,04-85-00558-CV |
| Citation | 720 S.W.2d 618 |
| Parties | Pleas R. SMITH, As Guardian of the Person and Estate of Evan W. Smith, Jr., Mentally Incompetent, Appellant, v. BAPTIST MEMORIAL HOSPITAL SYSTEM and Emergency Physician's Affiliates, Appellees. |
| Court | Texas Court of Appeals |
Andrew Todesco, Jim M. Perdue, Perdue, Turner & Berry, Houston, for appellant.
Thomas H. Crofts, Jr., Groce, Locke & Hebdon, Emilio M. Garza, San Antonio, for appellees.
Before ESQUIVEL, TIJERINA * and DIAL, JJ.
This is an appeal from a summary judgment in favor of appellees, Baptist Memorial Hospital System (BMHS) and Emergency Physician's Affiliates (EPA), and against appellant, Pleas R. Smith (Smith). Smith is the guardian of the person and estate of Evan W. Smith, Jr., the plaintiff in this cause.
This case arose from an emergency room incident in which Evan W. Smith experienced severe spasms and cardio-respiratory arrest after the administration of penicillin and bicillin for the treatment of a sore throat. Smith sued the emergency room physician Dr. Harry Henderson, the professional association with whom the doctor was affiliated (EPA), and the hospital (BMHS). BMHS and EPA filed motions for summary judgment.
The trial court's first order partially granted BMHS's motion for partial summary judgment and denied EPA's motion for severance. The order left two issues unresolved:
1) whether Dr. Henderson was unqualified or incompetent as a physician, and
2) whether an agent or employee or servant of BMHS was negligent in the treatment of Smith.
Finally, the trial court specifically found that Dr. Henderson was not an agent or employee of BMHS. Smith amended his petition to allege that BMHS was estopped from denying that the Doctor was its agent.
A second order was issued by the trial court granting in all things BMHS's second motion for summary judgment. In a subsequent third order, the trial court rendered summary judgment that Smith take nothing from EPA, severed Smith's claim against Dr. Henderson, and ordered BMHS to take nothing by its cross-claim against EPA.
Smith brings two points of error on appeal:
POINT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING THE HOSPITAL'S MOTION FOR SUMMARY JUDGMENT WHEN THERE WAS A FACT ISSUE RAISED AS TO WHETHER DR. HENDERSON WAS THE OSTENSIBLE AGENT OF THE HOSPITAL.
AFFILIATES' MOTION FOR SUMMARY JUDGMENT WHEN FACT ISSUES WERE RAISED REGARDING THE VICARIOUS LIABILITY OF EMERGENCY PHYSICIANS AFFILIATES FOR THE ACTS OF DR. HENDERSON.
BMHS, in its reply point one, alleges Smith waived the issue of ostensible or apparent agency by not timely responding to BMHS's second motion for summary judgment. In its second reply point, BMHS alleges the trial court correctly rendered summary judgment that Smith take nothing from BMHS, because there was no genuine issue of fact as to whether BMHS could be vicariously liable for the negligence of Dr. Henderson on a theory of ostensible agency.
Smith urges this Court to consider three counter-points in response to BMHS's reply points:
(1) SINCE OSTENSIBLE AGENCY WAS NOT IN ISSUE AND NOT BEFORE THE TRIAL COURT IN THE HEARING ON THE SECOND MOTION FOR SUMMARY JUDGMENT ON BEHALF OF BAPTIST MEMORIAL HOSPITAL, APPELLANT DID NOT WAIVE THAT THEORY FOR APPEAL.
(2) THE ISSUE OF OSTENSIBLE AGENCY WOULD HAVE BEEN PROPERLY BEFORE THE TRIAL COURT IN THE SECOND SUMMARY JUDGMENT HEARING BY VIRTUE OF PREVIOUS RESPONSES AND MOTIONS FILED BY APPELLANT.
(3) THE TRIAL COURT INCORRECTLY GRANTED SUMMARY JUDGMENT BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT ON THE THEORY OF APPARENT AGENCY REGARDING THE VICARIOUS LIABILITY OF BAPTIST HOSPITAL FOR THE NEGLIGENCE OF DR. HARRY HENDERSON.
In considering Smith's first point of error, we are faced with deciding:
(1) Was the issue of ostensible agency before the trial court during its consideration of BMHS's first motion for summary judgment?
(2) What effect did the untimely filing of Smith's response to BMHS's second motion for summary judgment and Smith's third amended original petition have on the issue of ostensible agency?
As an affirmative answer to the first issue is dispositive, we decline to address the second question.
The procedural history of this case is as follows:
May 26, 1981--Smith's original petition filed.
June 4, 1981--BMHS's original answer filed.
April 27, 1982--Smith's first amended original petition filed.
May 20, 1982--EPA's original answer to Smith's first amended original petition.
Oct. 28, 1983--BMHS and EPA file their first motion for summary judgment.
--BMHS files original cross claim against EPA.
Nov. 16, 1983--EPA files its first supplemental motion for summary judgment.
Dec. 1, 1983--Smith's response to BMHS's motion for summary judgment; The Doctrine of Ostensible Agency is first included in Smith's response.
Dec. 1, 1983--Smith's response to EPA's motion for summary judgment is also filed.
Jan. 9, 1984--Smith's second amended original petition.
Jan. 13, 1984--First order granting partial summary judgment for EPA and BMHS.
March 7, 1985--Cross-action filed by BMHS complaining of the doctor and EPA.
April 29, 1985--Smith's third amended original petition; the doctrine of ostensible agency is first plead as a defense by Smith.
July 30, 1985--Smith files a motion to dissolve and/or reverse the alleged erroneous partial summary judgment for EPA and BMHS. (based on ostensible agency).
July 31, 1985--Smith files a first supplemental petition wherein he argues ostensible agency as a defense.
Aug. 12, 1985--Smith files a second supplemental petition wherein he again argues ostensible agency as a defense.
Aug. 23, 1985--BMHS files its first amended original answer.
--EPA files its response to Smith's motion to dissolve and/or reverse the alleged erroneous partial summary judgment for EPA and BMHS.
--BMHS files its response to Smith's motion to vacate the partial summary judgment.
Sept. 11, 1985--Motion for Summary Judgment of EPA.
--Smith's motion to dissolve and/or reverse an alleged erroneous partial summary judgment is overruled.
Oct. 4, 1985--Smith files a response to BMHS's motion for summary judgment.
Oct. 10, 1985--Second order grants BMHS's second motion for summary judgment.
Nov. 13, 1985--Smith files a response to EPA's motion for summary judgment.
--Third order by the trial court grants EPA's motion for summary judgment. (Supplemental order Dec. 5).
Dec. 5, 1985--Judgment--Smith takes nothing against BMHS.
In considering the foregoing history, pleadings do not constitute summary judgment proof. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540, 545 (Tex.1971). Contentions must be expressly presented in the written motion or in a written answer or response to the motion, and pleadings are not to be considered in determining whether fact issues are expressly presented in summary judgment motions. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). With the exception of an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment, the non-movant must expressly present to the trial court any reasons seeking to avoid movant's entitlement, such as those set out in TEX.R.CIV.P. 93-94, and he must present summary judgment proof when necessary to establish a fact issue. City of Houston, 589 S.W.2d at 678. The non-movant must, in a written answer or response to the motion, expressly present to the trial court those issues that would defeat the movant's right to a summary judgment and failing to do so, may not later assign them as error on appeal. City of Houston, 589 S.W.2d at 679.
In the case at bar, Smith initially alleges the doctrine of ostensible agency in his December 1, 1983, response to the appellee's first motion for summary judgment. Smith failed to plead the ostensible agency of Dr. Henderson against appellees until his third amended petition which he filed subsequent to the entry of the trial court's first order. This Court is confronted with the following procedural issue: Was Smith required to plead the affirmative defense of ostensible agency in his original petition pursuant to Rule 94 or could Smith argue the agency issue for the first time in his summary judgment response? We hold that he was not required to so plead.
TEX.R.CIV.P. 94 requires that the affirmative defense of estoppel, and its variations, of which ostensible agency is one, must be plead or it is waived. When responding to a party's motion for summary judgment by raising an affirmative defense, unless each element of the affirmative defense is raised by evidence which would be admissible upon the trial of the case, the affirmative defense will not prevent the granting of a summary judgment. The party raising the affirmative defense must make a fact issue on this defense. Hittner, Summary Judgments in Texas, 35 BAYLOR L.REV. 207 (1983).
In an analogous cause to the one at bar, a petitioner failed to allege in his pleadings that the respondents had waived compliance with certain provisions regarding notice of suit in an automobile liability policy. Womack v. Allstate Insurance Co. 156 Tex. 467, 296 S.W.2d 233 (1956). Our Supreme Court held therein that despite the requirements of Rule 94 requiring a trial court to be guided by the pleadings in determining the issues that may exist in a case, when the depositions, admissions or affidavits disclose facts which show that an amendment to the pleadings of the opposite party will render the position of the moving party insupportable under the substantive law, it cannot be said that the latter has established his right to judgment as a matter of law. Womack, 296 S.W.2d at 237; Rossiter v. Vogel, 134 F.2d 908, 912 (2d Cir.1943).
The procedural issue must then be answered in conjunction with a close...
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