Opinion
Nos. 01-03-00471-CV, 01-03-00472-CV
Opinion issued July 8, 2004.
On Appeal from the 405th District Court, Galveston County, Texas, Trial Court Cause Nos. 02-CV-0258-A, 02-CV-0258-B.
Dan Thomas, Rosharon, TX, pro se.
Nelly R. Herrera, Assistant Attorney General, Tort Litigation Division, Austin, TX, and Greg Abbott, Office of the Attorney General, Austin, TX, for appellee.
MEMORANDUM OPINION
Appellant, Dan Thomas, appeals from orders dismissing with prejudice his medical-malpractice claims against appellees, The University of Texas Medical Branch at Galveston ("UTMB") and Nalini P. Reddy, M.D. (together, "appellees"), under former article 4590i, section 13.01 of the Revised Civil Statutes.See Act of April 19, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2064 [hereinafter "former article 4590i, section 13.01"], repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon Supp. 2004)). In both appeals, we determine whether the trial court abused its discretion (1) in dismissing Thomas's claims with prejudice because he failed to file an expert report pursuant to former article 4590i, section 13.01(d); (2) in denying Thomas's motion for a bench warrant to appear at a pre-trial status conference; (3) in allegedly failing to rule on a motion to stay proceedings to allow for mediation, when that motion does not appear in the record; and (4) in denying Thomas's motion to appoint counsel for mediation. In the appeal in the cause involving UTMB, we also determine whether the trial court erred in allegedly denying Thomas's motion for default judgment, when no such motion appears in the record. We affirm the judgments in both appeals.
Former article 4590i, section 13.01 applied because the suit was filed before September 1, 2003, the effective date of the amended statute. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(a), (d), 2003 Tex. Gen. Laws 847, 899.
Thomas's brief in the appeal involving Reddy (appellate cause number 01-03-00472-CV) omits any argument, authority, or record citations. Reddy requests that we overrule all of Thomas's issues for lack of adequate briefing. See TEX. R. APP. P. 38.1(h). We decline to do so because (1) with one immaterial exception, the issues in both appeals are identical; (2) appellees were originally parties to the same lawsuit below; (3) Thomas has briefed all issues stated in the appeal involving Reddy in his brief in the sister appeal (appellate cause number 01-03-00471-CV); and (4) Reddy has addressed the merits of all of Thomas's appellate issues, apparently based on Thomas's arguments in his brief filed in the sister appeal, and thus does not appear to have been adversely affected by the lack of argument or authority in Thomas's brief in appellate cause number 01-03-00472-CV.
Facts
Thomas, a prison inmate, sued UTMB, Reddy, and another doctor, alleging that he was injured by the defendants' negligence in using an intravenous apparatus on him. Appellees separately moved to dismiss Thomas's claims pursuant to former article 4590i, section 13.01(e) because Thomas had not filed an expert report. Each appellee's motion also contained a request to sever Thomas's claims against that appellee from the claims against the other defendants. Thomas never filed an expert report. On March 7, 2003, the trial court, by separate orders, granted appellees' motions, dismissed Thomas's claims against appellees with prejudice, and severed the dismissed claims from the claims against the third defendant, who is not a party to this appeal.
Dismissal With Prejudice
In issue five in the appeal involving UTMB (appellate cause number 01-03-00471-CV) and in issue four in the appeal involving Reddy (appellate cause number 01-03-00472-CV), Thomas asserts that "[t]he trial court abused its discretion in his granting the def[endants'] motion to sever and dismiss with prejudice." Thomas's entire argument is as follows:
The trial court abused its discretion in dismissing with prejudice, after granting def[endants'] motion to sever. Because the trial court should look to the live pleadings on file and not consider any evidence, and the injury is indivisible, which it was in this case. The dividing of the cause of action, when the def[endants] had the same type of liability.
Regarding the severance, we note that Thomas is incorrect in claiming that the trial court severed his claims against the defendants before dismissal; rather, the court dismissed the claims against appellees and simultaneously severed those dismissed claims from the ones remaining in the cause. If all claims against all defendants had still been pending, then whether all three defendants had the "same type of liability" might have been a relevant consideration in deciding whether to sever the claims against the two appellees. See Guaranty Fed'l Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (holding that trial court properly exercises discretion in severing claims when, among other things, severed actions are not so interwoven with other claims that they involve the same facts and issues). However, this consideration became moot after the trial court dismissed the claims against appellees: once those claims were dismissed, it was irrelevant whether the dismissed claims had anything in common with the still-pending ones.
To the extent that Thomas complains of the dismissal, we review a dismissal under former article 4590i, section 13.01(e) for abuse of discretion. Am. Transitional Care Centers v. Palacios, 46 S.W.3d 873, 875, 878 (Tex. 2001). Former article 4590i, section 13.01(d) requires a plaintiff asserting a medical-malpractice claim to file an expert report and the expert's curriculum vitae or to nonsuit his claims within 180 days of his filing suit. Former art. 4950i, § 13.01(d); Palacios, 46 S.W.3d at 877. This requirement has been held constitutional even when applied to an incarcerated, indigent plaintiff who appears pro se. See Gill v. Russo, 39 S.W.3d 717, 718 (Tex. App.-Houston [1st Dist.] 2001, pet. denied) (overruling challenge under Open Courts Provision of Texas Constitution). If the plaintiff fails to non-suit the case or to provide the expert report and curriculum vitae within the 180-day period, the trial court must dismiss the claim with prejudice. Former art. 4950i, § 13.01(e); Palacios, 46 S.W.3d at 877. It is undisputed that Thomas did not file an expert report. Therefore, we hold that the trial court did not abuse its discretion by dismissing Thomas's claims against appellees with prejudice. See id.
We overrule Thomas's issue five in appellate cause number 01-03-00471-CV and his issue four in appellate cause number 01-03-00472-CV.
Motion for a Bench Warrant
In issue two in the appeal involving UTMB and in issue one in the appeal involving Reddy, Thomas contends that the trial court abused its discretion in refusing "to bench warrant [him] to the pre-trial conference in person or [to] allow him to appear by any other means." The pre-trial hearing to which Thomas refers was a status conference.
We first note that, although Thomas's motion was titled a motion for bench warrant "or [to] appear by other means in the alternative," the only relief that the motion sought was for Thomas to be allowed to appear in person, rather than by telephone or otherwise.
"[A]n inmate does not have an absolute right to appear in person in every court proceeding." In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Instead, an inmate's right to appear is weighed against the protection of our correctional system's integrity. Id. Factors to consider in this determination include the cost and inconvenience of transporting the prisoner to the courtroom; the security risk that the prisoner presents; whether the prisoner's claims are substantial; whether the matter's resolution can reasonably be delayed until after the prisoner's release; whether the prisoner can and will offer admissible, non-cumulative testimony that cannot be presented by some other means; whether the prisoner's presence is important in judging his credibility and demeanor; whether the trial is to a jury or to the court; and the prisoner's probability of success on the merits. Id. at 165-66. It is the inmate's burden to show that his presence is required. Id. at 166.
Thomas offered the trial court — and offers this court — no reason why his presence was required at what appears to have been a routine status conference. The only factor cited in In re Z.L.T. that he discussed was how no cost would be incurred in transporting him to court. Moreover, several of the In re Z.L.T. factors weighing in favor of an inmate's presence do not apply to a routine status conference. See id. Accordingly, we hold that the trial court did not abuse its discretion in denying Thomas's request. See id.
We overrule Thomas's issue two in appellate cause number 01-03-00471-CV and his issue one in appellate cause number 01-03-00472-CV.
Mediation
A. Motion to Stay Proceedings to Allow for Mediation
In issue three in the appeal involving UTMB and in issue two in the appeal involving Reddy, Thomas contends that the trial court erred in failing to rule on his motion to stay proceedings until mediation was completed.
The record contains neither a motion to stay, nor a ruling on any such motion. We cannot review an alleged ruling on a motion when the record reveals neither the motion nor the ruling. See TEX. R. APP. P. 33.1(a)(1).
In another part of his brief, Thomas asserts that he filed a motion to stay, but no such motion exists in our record. The only statement that Thomas made in the trial court that in any way relates both to mediation and to staying proceedings appeared in his motion for new trial: "The trial court abused its discretion in granting def[endants'] motion for dismissal [because of] . . . the stay to obtain counsel herein, to mediate and due to exception [sic] case by appointment or contingency fee basis." This statement came too late for the trial court to act on it and was thus too late to preserve the complaint. Finally, we note that Thomas has attached as an appendix to his brief a copy of a motion to stay proceedings, but that motion does not appear in our record and is not file-stamped. We cannot consider materials attached to a brief that do not appear in the record. See Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (noting that courts cannot consider documents attached to briefs unless documents are part of appellate record).
We overrule Thomas's issue three in appellate cause number 01-03-00471-CV and his issue two in appellate cause number 01-03-00472-CV.
B. Motion to Appoint Counsel for Mediation
In issue four in the appeal involving UTMB and in issue three in the appeal involving Reddy, Thomas contends that the trial court abused its discretion by denying his motion for appointment of counsel for mediation. Specifically, Thomas argues that he "attempted to do mediation with the court-appointed mediator, Charles Jordan" but that Jordan "told Thomas that he needed to mediate through his attorney, and thus [Jordan] did nothing else on mediation."
We overrule Thomas's challenge for the following reasons. First, the docket-control order set May 23, 2003 as the date for completion of mediation. The trial court dismissed Thomas's claims with prejudice on March 7, 2003, over two months before the mediation-completion date. Because nothing in the record shows that mediation occurred before dismissal, anything relating to mediation would have been moot as soon as the suit was dismissed. Second, none of the four motions for appointment of counsel that Thomas filed advised that the mediator would work only with counsel, and no motion requested that counsel be appointed so that mediation could go forward. The challenge is thus waived. See TEX. R. APP. P. 33.1(a)(1). Third, nothing in the record supports Thomas's factual statement that the "Mediator . . . told Thomas that he needed to mediate through his attorney" or that the mediator "thus did nothing else on mediation."
The motions instead stated that (1) the issues were complex, and Thomas had limited knowledge of the law, and (2) the circumstances justifying appointment were exceptional because Thomas needed counsel to obtain experts and expert reports. The first time that Thomas mentioned that the mediator would not mediate without counsel was in his motion for new trial: "Thomas . . . could not mediate with the appointed mediator Mr. Jordan without appointed or retain [sic] counsel, as indicated by Mr. Jordan's letter to Thomas." (The mediator's letter to which Thomas referred is not in the record.) Nothing shows that Thomas advised the trial court before dismissal that the mediator refused to proceed without court-appointed counsel.
Fourth, trial courts have discretion to appoint counsel for indigent litigants in civil cases. See TEX. GOV'T CODE ANN. § 24.016 (Vernon 2004) ("A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause."); Gibson v. Tolbert, 102 S.W.3d 710, 712-13 (Tex. 2003). "Some courts of appeals . . . have concluded that the discretionary boundary of section 24.016 is similar to a court's inherent power to appoint counsel — counsel may be appointed in cases in which exceptional circumstances exist." Gibson, 102 S.W.3d at 712-13 713 n. 14 (noting courts of appeals' conclusion and assuming without deciding that that conclusion was correct because parties had so assumed); Wigfall v. Tex. Dep't of Crim. Justice, No. 01-02-01264-CV, 2004 WL 800363, at *4 (Tex. App.-Houston [1st Dist.] Apr. 15, 2004, no pet.) ("The Texas Supreme Court has suggested . . . that in 'exceptional circumstances,' a trial court could appoint counsel to an indigent civil litigant.") (quoting Gibson, 102 S.W.3d at 713). "In evaluating what might constitute exceptional circumstances, we are to consider the 'unique circumstances' of the case and determine whether the trial court had 'no reasonable alternative but to appoint counsel.'" Wigfall at * 4 (quoting Gibson, 102 S.W.3d at 713). Thomas simply did not explain to the trial court any exceptional circumstances requiring that he have appointed counsel for mediation, nor do we see any factual circumstances supported by the record that show that the court had "no reasonable alternative but to appoint counsel."See Wigfall at *4.
Thomas instead advised the trial court that the exceptional circumstances justifying appointment of counsel were that he needed counsel to obtain experts and expert reports, that the issues were complex, and that he was untrained in the law. As an aside, we note that our Court has recently found no abuse of discretion in a court's denying appointed counsel to an indigent prisoner in a civil suit in which the plaintiff relied on similar circumstances in support of the request for counsel's appointment. See Wigfall at * 5 ("The obstacles that confronted Tolbert are similar to those that confronted Wigfall. Both are indigent, lack legal skill and training, and desire expert testimony to refute the defendant's defensive theory and evidence. Following [ Gibson v.] Tolbert, we conclude that Wigfall's circumstances do not warrant appointed counsel.").
We thus hold that the trial court did not abuse its discretion in denying Thomas's motion to appoint counsel.
We overrule Thomas's issue four in appellate cause number 01-03-00471-CV and his issue three in appellate cause number 01-03-00472-CV.
Motion for Default Judgment
In issue one in the appeal involving UTMB, Thomas argues that the trial court abused its discretion in failing to grant his motion for default judgment.
Although Thomas asserts that he "took action for default judgment on April 12, 2002," nothing in the record supports his contention. Neither does the record contain a ruling on any such motion. Again, we cannot review an alleged ruling on a motion when the record shows neither the motion nor the ruling. See TEX. R. APP. P. 33.1(a)(1).
Thomas has attached in the appendix to his brief copies of a motion for default judgment and related materials, including a docket-sheet entry noting the motion's filing. None of these documents appears in the appellate record, and none of the attached materials generated by Thomas is file-stamped. We cannot consider materials attached to a brief that do not appear in the record. See Till, 10 S.W.3d at 733-34. Moreover, "[g]enerally, a docket entry forms no part of the record we may consider; it is a memorandum made for the trial court and clerk's convenience." Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.-Houston [1st Dist.] 1990, no writ).
Moreover, a defendant's answer must be filed by 10:00 a.m. on the Monday next following the expiration of 20 days after the date of service. Tex. R. Civ. P. 99(b). The record shows that citation issued on June 5, 2002 and that the return of service was filed with the Galveston District Clerk on June 10, 2002. UTMB filed its answer on June 20, 2002, well within the time period provided by rule 99. See id. Accordingly, even had the record revealed that Thomas had presented such a motion to the trial court, the trial court would not have abused its discretion in denying that motion.
We overrule Thomas's issue five in appellate cause number 01-03-00471-CV.
Conclusion
We affirm the judgments of the trial court.