Timmie Parks v. University of Texas Medical Branch

• Court: Court of Appeals of Texas
• Decided: June 24, 2011
• Docket: 06-10-00127-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________

No. 06-10-00127-CV ______________________________

TIMMIE PARKS, Appellant

V.

UNIVERSITY OF TEXAS MEDICAL BRANCH, Appellee

On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 09C1642A-202

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION

Timmie Parks filed suit against the University of Texas Medical Branch (UTMB)

October 29, 2009. 1 He alleged that, while he was incarcerated in the Texas Department of

Criminal Justice Telford Unit in New Boston, Texas, he was injured while working on the prison

boiler system and the resulting diagnosis and treatment by the UTMB staff members at the prison

was conducted negligently.

Parks alleged that he lacked the financial ability to secure his own medical expert and on

November 4, 2009, moved the court to appoint him a medical expert so that he could comply with

the medical expert report requirements of Chapter 74 of the Texas Civil Practice and Remedies

Code. Parks filed a motion for default judgment on December 23, 2009, alleging that UTMB’s

answer to his petition was untimely filed. Two months later, on February 11, 2010, Parks filed a

motion petitioning the court to order that a physician examine him so that he could prove the

elements of his health care liability claims.

On February 12, 2010, UTMB moved to dismiss2 Parks’ lawsuit because he had failed to

serve an expert report3 within 120 days of filing suit, as required by Section 74.351 of the Civil

Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011).

1 Parks also named the Texas Department of Criminal Justice (TDCJ) as a defendant, and asserted negligence and premises liability claims against it. 2 The motion also included a motion to sever Parks’ claims against UTMB from his claims against TDCJ, which was granted. 3 It is undisputed that Parks failed to serve UTMB with a medical expert report.

2 After a hearing where both UTMB and Parks4 appeared, the trial court granted UTMB’s motion to

dismiss and denied all other relief not expressly granted in the judgment.

On appeal, Parks argues that: (1) the trial court erred by not ruling on his three motions

prior to dismissing his claims against UTMB; and (2) this failure deprived him of his right to an

interlocutory appeal of those rulings.5 We affirm the trial court’s judgment.

The trial court’s order granting UTMB’s motion to dismiss did not specifically reference

Parks’ motions, but the order states: “the Court denies all relief not expressly granted in this

judgment.” In his first point of error, Parks contends that the trial court erred by failing to rule on

his three motions before dismissing his claims against UTMB.6

When a trial court’s express ruling on one motion necessarily implies a contrary ruling on

an opposing motion, the trial court may be deemed to have implicitly ruled on the opposing

motion. See Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997); see also In re Z.L.T., 124

S.W.3d 163, 165 (Tex. 2003) (holding trial court’s act of proceeding to trial without issuing

requested bench warrant was implicit denial of its request). Dismissing Parks’ claims against

UTMB necessarily implies that Parks’ motions were denied. Because the trial court’s judgment

implicitly denied Parks’ motions, we overrule his first point of error. Our ruling on the first point

of error makes the second point a moot issue.

4 Parks appeared and participated via closed-circuit television. 5 Parks does not argue that his motions tolled the running of the 120-day time period. 6 Parks does not argue that the trial court erred by denying his motions.

3 We affirm the judgment of the trial court.

Jack Carter Justice

Date Submitted: June 23, 2011 Date Decided: June 24, 2011