Yldefonso M. Avila v. Baylor Scott and White

• Court: Court of Appeals of Texas
• Decided: March 8, 2023
• Docket: 05-22-00377-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed March 8, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00377-CV

YLDEFONSO M. AVILA, Appellant V. BAYLOR SCOTT AND WHITE, Appellee

On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-21-02232-E

MEMORANDUM OPINION Before Justices Carlyle, Goldstein, and Kennedy Opinion by Justice Goldstein Yldefonso M. Avila appeals the trial court’s judgment dismissing with

prejudice his medical negligence and malpractice claims against Baylor Scott and

White. Following the filing of Avila’s pro se brief and his motion for an extension

of time to file his brief, this Court issued an order on July 12, 2022, granting an

extension of time but cautioning Avila that that his pro se brief did not comply with

the rules of appellate procedure and ordered him to file an amended brief that

complied with rule of appellate procedure 38.1. The notice advised Avila that his

brief was deficient because it did not contain the following: 1. a complete list of all parties to the trial court’s judgment or appealed order, and the names and addresses of all trial and appellate counsel;

2. a table of contents with references to the pages of the brief;

3. an index of authorities arranged alphabetically and indicating the pages of the brief where the authorities are cited;

4. a concise statement of the nature of the case, the course of the proceedings, and the trial court’s disposition of the case, supported by record references;

5. a concise statement of the issues presented for review;

6. a concise, non-argumentative statement of the facts pertinent to the issues presented, supported by record references;

7. a succinct, clear, and accurate statement of the arguments made in the body of the brief;

8. a clear and concise argument for the contentions made, with appropriate citations to authorities and the record; and,

9. a short conclusion that clearly states the nature of the relief sought.

See TEX. R. APP. P. 38.1 (a)-(d), (f)-(j). The order directed Avila to file an amended

brief no later than July 22, 2022, and cautioned Avila that failure to file an amended

brief could result in his appeal being dismissed without further notice. On July 22,

2022, Avila filed a document purporting to be an amended brief consisting of a

twelve-page “after visit summary” dated July 20, 2022, from Methodist Dallas

Medical Center Emergency Department. On February 21, 2023, this case was

submitted on these filings by Avila and the brief filed by Baylor Scott and White.

We construe liberally pro se pleadings and briefs; however, we hold pro se

litigants to the same standards as licensed attorneys and require them to comply with

applicable laws and rules of procedure. In re N.E.B., 251 S.W.3d 211, 211–12 (Tex. –2– App.—Dallas 2008, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181,

184–85 (Tex. 1978)). To do otherwise would give a pro se litigant an unfair

advantage over a litigant who is represented by counsel. Id. at 212. The law is well

established that, to present an issue to this Court, a party’s brief shall contain, among

other things, a concise, nonargumentative statement of the facts of the case,

supported by record references, and a clear and concise argument for the contention

made with appropriate citations to authorities and the record. TEX. R. APP. P. 38.1;

In re N.E.B., 251 S.W.3d at 212. Bare assertions of error, without argument or

authority, waive error. In re N.E.B., 251 S.W.3d at 212; see also Fredonia State

Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court

has discretion to waive point of error due to inadequate briefing). When a party fails

to adequately brief a complaint, he waives the issue on appeal. In re N.E.B., 251

S.W.3d at 212.

Avila has failed to provide us with argument, analysis, or authorities that make

his appellate complaints viable. Id. By failing to adequately brief his complaints,

Avila has waived our review of his complaints. See id. Accordingly, we need not

further address Avila’s complaints.

While we were not favored with a compliant brief, based upon the limited

appellate record we are able to discern that Avila filed his original petition asserting

medical negligence and malpractice claims on June 8, 2021, and Baylor Scott and

White filed its original answer on September 9, 2021. As Avila’s claims constitute

–3– a health care liability claim, Avila was required to serve an expert report not later

than 120 days thereafter. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). If

no expert report is served within 120 days, the trial court shall, upon motion of the

affected physician or health care provider, enter an order awarding the physician or

health care provider reasonable attorney’s fees and costs of court and dismissing

with prejudice the claim against the physician or health care provider. See id. §

74.351(b).

It is uncontroverted in the record that Avila failed to serve an expert report at

any time, and Baylor Scott and White filed a motion to dismiss on January 11, 2022

asserting that Avila’s failure to serve an expert report required dismissal of Avila’s

lawsuit. On March 25, 2022, the trial court entered an order dismissing Avila’s

claims with prejudice. We conclude this course of proceedings conformed to the

requirements of section 74.351. See id.

We affirm the trial court’s judgment.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

220377F.P05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

YLDEFONSO M. AVILA, Appellant On Appeal from the County Court at Law No. 5, Dallas County, Texas No. 05-22-00377-CV V. Trial Court Cause No. CC-21-02232- E. BAYLOR SCOTT AND WHITE, Opinion delivered by Justice Appellee Goldstein. Justices Carlyle and Kennedy participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee BAYLOR SCOTT AND WHITE recover its costs of this appeal from appellant YLDEFONSO M. AVILA.

Judgment entered this 8th day of March 2023.

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