Mary Chiroo Ogamba, Evans Ogamba Mokaya, and Liz Nyaisawa Ogamba v. JPS Health Network D/B/A Tarrant County Hospital District

• Court: Court of Appeals of Texas
• Decided: November 14, 2024
• Docket: 02-24-00204-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00204-CV ___________________________

MARY CHIROO OGAMBA, EVANS OGAMBA MOKAYA, AND LIZ NYAISAWA OGAMBA, Appellants

V.

JPS HEALTH NETWORK D/B/A TARRANT COUNTY HOSPITAL DISTRICT, Appellee

On Appeal from the 236th District Court Tarrant County, Texas Trial Court No. 236-348071-23

Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

Appellant Mary Chiroo Ogamba and several members of her immediate family

(the Ogambas) filed the present suit against Appellee JPS Health Network, alleging

that a surgeon at JPS’s hospital—Dr. Garcia—failed to obtain Mary’s informed

consent and thus committed assault and battery when he operated on her. The

Ogambas later amended their petition to add Dr. Garcia as a defendant and filed a

motion to the same effect, but Dr. Garcia was never served, and the trial court never

ruled on the motion. Meanwhile, JPS moved for dismissal on procedural and

jurisdictional grounds, and the trial court granted both motions without specifying a

basis for its rulings.

The Ogambas appeal pro se, complaining of the trial court’s failure to rule on

their motion to add Dr. Garcia, of the deplorable nature of Dr. Garcia’s actions, and

of some—but not all—of the grounds supporting the dismissal of their claims against

JPS. The Ogambas were not required to obtain leave to add Dr. Garcia, though, and

they cannot blame the trial court for their failure to effectuate his addition by serving

him with process. Either way, Dr. Garcia was not a party to the judgment, so this

appeal does not concern the Ogambas’ potential claims against him.

Rather, this appeal concerns the Ogambas’ claims against JPS. And because

the Ogambas do not challenge all of the grounds independently supporting the

judgment in favor of JPS, we will affirm.

2 I. Procedural Background

After the Ogambas filed suit against JPS, and well in advance of any trial

setting,1 they amended their petition to list Dr. Garcia as a defendant.2 The amended

petition neither provided contact information for Dr. Garcia, nor sought the issuance

of a citation or service of process on him. And when the Ogambas supplemented

their amended petition a few days later, the supplemental petition again did not

provide contact information for or request service on Dr. Garcia. There is no

indication that the doctor was ever served with the Ogambas’ lawsuit, and he never

appeared or filed an answer in the case.

JPS, however, did file an answer. As to JPS, the Ogambas’ amended petition

alleged that the hospital was liable for Dr. Garcia’s assault and battery—the alleged

intentional torts resulting from his failure to obtain informed consent prior to Mary’s

surgery. JPS responded by (1) moving for dismissal due to the Ogambas’ failure to

serve an expert report, see Tex. Civ. Prac. & Rem. Code Ann. § 74.351; and (2) filing a

plea to the jurisdiction arguing that the Ogambas had failed to provide notice of their

claim; that JPS could not be held liable for Dr. Garcia’s alleged misdeeds because he

was not its employee; and that the Ogambas’ claims were not within the scope of the

1 The record does not reflect a trial setting at any point. 2 The Ogambas represented themselves in the trial court, and their pleadings did not bear traditional titles or labels. Our characterization of the Ogambas’ amended and supplemental petitions is based on the content of those documents.

3 Texas Tort Claims Act’s immunity waiver because the claims stated intentional torts

and did not involve the use of tangible personal property, see id. §§ 101.021(2), .057(2),

.101. The Ogambas protested that (1) no expert report was required; (2) JPS did, in

fact, receive notice; and (3) JPS had not informed them that Dr. Garcia was not an

employee.3 The trial court granted JPS’s motion to dismiss and plea to the jurisdiction

without specifying a basis for its orders.

The Ogambas also filed a motion to add Dr. Garcia to the case—despite

having already included him in their previously filed amended petition. But like the

Ogambas’ amended and supplemental petitions, the motion lacked any contact

information for Dr. Garcia or any request for service. The trial court never ruled on

the motion.

II. Discussion

The Ogambas’ primary appellate complaints relate to Dr. Garcia—the trial

court’s failure to add him and the reprehensible nature of his actions—with only a few

passing references to the legal grounds for dismissal of their claims against JPS.4

3 At the dismissal hearing, the Ogambas argued that JPS was required to inform them that Dr. Garcia was not an employee and that this was another example of the failure to obtain informed consent. They repeat this argument in portions of their appellate brief as well. But the only claims in their petition were assault and battery, and the Ogambas have repeatedly emphasized—in the trial court and on appeal—that they were pursuing only these intentional tort claims.

The Ogambas’ appellate brief lacks a list of issues presented and a statement of 4

the case, recites the factual background without any record citations, presents the Ogambas’ arguments with very few references to legal authority, and improperly

4 A. The trial court cannot be blamed for the failure to add Dr. Garcia.

First, the Ogambas complain of the trial court’s “decision not to respond to

[their] motion to add a new defendant,” arguing that the trial court erred by failing to

rule. But the Ogambas were not required to obtain leave from the trial court to

amend their petition and add Dr. Garcia as a defendant.5 See Tex. R. Civ. P. 63; Sosa v.

Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (confirming Texas Rule of Civil

Procedure 63’s intent “to authorize amendment without leave of court if it is filed

‘seven days or more before the date of trial’” (quoting Tex. R. Civ. P. 63 cmt.)); Shelby

v. James, No. 02-20-00052-CV, 2021 WL 4319706, at *4 (Tex. App.—Fort Worth Sept.

23, 2021, no pet.) (mem. op.) (citing Sosa and holding that plaintiff was not required to

seek leave from trial court to file amended protective order application). The Texas

includes a screenshot of a document that is outside the appellate record. See Tex. R. App. P. 38.1(d), (f), (g), (i). Such inadequate briefing could serve as an independent basis to affirm the trial court’s judgment. See Perkins v. Hicks, No. 02-19-00207-CV, 2020 WL 7393334, at *1–2 (Tex. App.—Fort Worth Dec. 17, 2020, no pet.) (per curiam) (mem. op.). But despite this inadequate briefing, we will address the merits of the Ogambas’ appeal. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (recognizing that “an appellate court has some discretion to choose [to] deem[] a point waived”); see also St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 213–14 (Tex. 2020) (reiterating that appellate courts “should reach the merits of an appeal whenever reasonably possible”). 5 The Ogambas did not seek leave from the trial court until a month after they listed Dr. Garcia in their amended petition. JPS did not object to the amended petition as a surprise, nor did the trial court strike the pleading. See Tex. R. Civ. P. 63 (authorizing amendment of pleadings “at such time as not to operate as a surprise to the opposite party”). To the contrary, both JPS and the trial court acknowledged the amended petition as operative.

5 Rules of Civil Procedure already conferred upon the Ogambas the relief they sought

from the trial court, so the Ogambas’ motion was unnecessary and the trial court’s

failure to rule on it was inconsequential.

At any rate, the specific cause of the Ogambas’ discontent appears to lie

elsewhere, as the substance of their argument focuses less upon the trial court’s failure

to rule on their motion than the trial court’s failure to effectuate service of process on

Dr. Garcia. But the Ogambas cannot lay blame for the failure to serve Dr. Garcia at

the trial court’s feet—obtaining service on Dr. Garcia was the Ogambas’

responsibility, not the trial court’s. See Tex. R. Civ. P. 99(a) (providing that clerk shall

issue a citation “when requested” and that “[t]he party requesting citation shall be

responsible for obtaining service of the citation and a copy of the petition”). Despite

the Ogambas’ expression of desire to have Dr. Garcia included in the case (by moving

to add Dr. Garcia as a defendant and by reurging this motion in their written and oral

responses to JPS’s plea), no one stood in their way of accomplishing this. Almost two

months passed between the filing of their amended petition—which included Dr.

Garcia as a party—and the trial court’s dismissal of their claims against JPS. During

those two months, the Ogambas never provided his address for service, requested the

issuance of citation, or sought substituted service on him. Dr. Garcia was never

served with citation, and the record contains no indication that the Ogambas had

taken any steps to serve him such that they could reasonably expect service would

occur. Thus, at the time the dismissal order was signed, Dr. Garcia had been

6 effectively nonsuited. See Kidwell v. Black, 104 S.W.3d 686, 689 (Tex. App.—Fort

Worth 2003, pet. denied) (holding that unserved defendants were effectively

nonsuited despite plaintiff’s insistence that they were necessary parties and

recognizing rule that “when a named defendant is not served with process and does

not file an answer, and when the plaintiff fails to exhibit any indication that he expects

to obtain service over the defendant, the defendant is considered to have been

nonsuited”). Because, in the end, Dr. Garcia was not served and was effectively

nonsuited from the case, he is not a party to the dismissal judgment before us. See id.

The judgment about which the Ogambas complain dismisses the claims against JPS—

not Dr. Garcia—and the Ogambas have not explained how Dr. Garcia’s presence in

the case would have undermined the legal grounds for JPS’s dismissal.

B. The merits of Dr. Garcia’s actions are not at issue in this appeal.

The same goes for the Ogambas’ next appellate argument.

The Ogambas dedicate the majority of their appellate brief to reciting Dr.

Garcia’s alleged misdeeds and to explaining why those actions were improper, but

they fail to explain how such misdeeds undermine the granting of JPS’s motion to

dismiss. Even if we assume that all of their factual allegations are true, the allegations

go to the merits of the Ogambas’ claims, and the trial court did not rule on the merits;

it dismissed the Ogambas’ claims on procedural and jurisdictional grounds. The

Ogambas’ allegations that Dr. Garcia committed atrocities say nothing about the

Ogambas’ satisfaction of the statutory expert report requirement, about JPS’s notice

7 of the Ogambas’ claims, about Dr. Garcia’s status as a JPS employee, or about

whether the Ogambas’ assault and battery claims fall under the Texas Tort Claims

Act. These are the legal grounds relied upon by the trial court to dismiss the

Ogambas’ claims against JPS, and again, that dismissal judgment is what is at issue in

this appeal.

C. The Ogambas do not challenge all grounds supporting the dismissal.

Turning to the dismissal judgment itself, we must affirm the dismissal of the

Ogambas’ claims against JPS if there is any unchallenged ground supporting the

judgment. See Bogan v. Denton Cnty. Dist. Att’y, No. 02-19-00264-CV, 2019 WL

7407738, at *2 (Tex. App.—Fort Worth Dec. 31, 2019, no pet.) (mem. op.) (affirming

order granting plea to the jurisdiction based on unchallenged ground and explaining

that “[i]f an unchallenged ground fully supports the complained-of ruling or

judgment, but the appellant assigns no error to that ground, then this court must

accept the validity of that unchallenged ground, and . . . we must affirm”); S.W. ex rel.

A.W. v. Arlington Indep. Sch. Dist., 435 S.W.3d 414, 419 (Tex. App.—Fort Worth 2014,

no pet.) (similar).

Here, the Ogambas dispute some of the grounds supporting the judgment—

such as the expert report requirement and whether JPS received notice of their

claims—but they leave other grounds for the judgment unchallenged. In particular,

the Ogambas do not so much as mention the trial court’s implied conclusions that the

Texas Tort Claims Act does not apply because (1) the Act does not extend to assault

8 and battery claims and (2) the Ogambas’ claims do not involve the use of tangible

personal property. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(2) (waiving

sovereign immunity for damages “caused by a condition or use of tangible personal or

real property” under certain conditions), .057(2) (excluding from immunity waiver

claims “arising out of assault, battery, . . . or any other intentional tort”); see also Tex.

Tech Univ. Health Scis. Ctr.-El Paso v. Bustillos, 556 S.W.3d 394, 403–04 (Tex. App.—El

Paso 2018, no pet.) (recognizing that “a physician who provides treatment without

consent commits a battery” and the TTCA “does not waive sovereign immunity for

the intentional torts of assault and battery,” nor do “claims regarding the failure to

receive informed consent fall within a waiver provision”). These unchallenged

grounds are sufficient to fully support the dismissal judgment, so we “must accept the

validity of th[e] unchallenged ground[s], and . . . affirm.” Bogan, 2019 WL 7407738, at

*2 (affirming order granting pleas to the jurisdiction on unchallenged ground).

III. Conclusion

We affirm the trial court’s dismissal of the Ogambas’ claims against JPS. See

Tex. R. App. P. 43.2(a).

/s/ Bonnie Sudderth

Bonnie Sudderth Chief Justice

Delivered: November 14, 2024