Hollis Horton

Hardin County District Judge Earl Stover III must dismiss a personal injury suit against health care provider Care Center Ltd. and award fees to its attorneys, the Ninth District court of appeals ruled April 17.

Chief Justice Steve McKeithen and Justices Hollis Horton and Charles Kreger reversed Stover, who had ruled that Betty Sutton could pursue a claim against Care Center.

According to the Ninth District, Stover miscalculated when he figured that Sutton filed an expert report ahead of a court deadline.

The decision makes no difference to Sutton. She died in January, two weeks before the Ninth District heard oral arguments on her case.

Sutton's attorney, Trenton Bond, represented her estate at oral arguments. Dennis Drouillard and Ann Comerio represented Care Center.

Sutton filed suit Sept. 18, 2006, at the courthouse in Kountze. She did not name Care Center as a defendant.

She sued Regency Nursing Center of Lumberton and Priority-1 Emergency Medical Services, alleging they injured her as they moved her.

Bond attached an expert report to her petition, satisfying Texas law that requires a report within 120 days in a claim against a health care provider.

The plaintiff amended the petition Nov. 7, 2006, to add claims against Care Center, Arboretum Group, Harvest Communities Inc. and Priority One Ambulance Service.

However, Sutton did not attach an expert report to the amended petition.

On March 7, 2007, the 120 day deadline passed on the amended petition.

Nevertheless, Care Center and all other parties agreed to a scheduling order on April 18, 2007. Care Center did not raise the issue of the deadline.

But in July, Care Center raised the issue and filed a motion to dismiss.

The plaintiff responded in three weeks with another amended petition. Attached was the expert report from the original petition.

Judge Stover denied Care Center's motion to dismiss. Care Center asked for findings of fact and conclusions of law, but Stover didn't enter any.

Care Center appealed in September.

Sutton argued to the Ninth District that Care Center agreed to extend the deadline when its attorney signed the scheduling order last April.

The plaintiff also argued that the second amended petition asserted new claims against Care Center, giving another 120 days to attach the report.

Sutton relied on a decision from the appellate court at San Antonio in a similar case, McDaniel v. Spectrum Healthcare.

The Ninth District, however, identified an important difference. In McDaniel, Horton wrote, the scheduling order specifically took precedence over deadlines in state law.

"No similar provisions exist in the agreed order before us," he wrote.

Nothing in the order suggests the parties intended to extend the deadline, he wrote.

Horton also rejected the argument that the second amended petition asserted new claims that set the calendar back to day one.

The additional allegations did not assert any additional injury, he wrote.

"When Betty filed her second amended petition containing the claims the estate now characterizes as 'new,' she did not attach a new expert report," he wrote.

"Instead," he wrote, "Betty attached the same expert reports to her second amended petition as she attached to her original petition."

He wrote, "If the claims were 'new,' they would require a report that addressed them."

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