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Finley v. Steenkamp5/18/2000
discussed not only May's belief that the deadline for filing the report had passed, but also Rios's belief that the trial court's scheduling order had extended the deadline for filing the report until October 19, 1998. Finally, Rios argued that Appellees' delay in answering discovery and Rios's problems with his expert witness caused him to miss the deadline. After the hearing, the trial court granted Steenkamp's motion and dismissed Finley's claim against Steenkamp with prejudice.
On appeal, Finley contends the trial court erred in failing to grant his request for an extension of time to file the expert report as permitted by section 13.01(g) of article 4590i. Id. ยง 13.01(g). Specifically, Finley alleges that he established that his failure to timely file the expert report was a mistake or accident because he reasonably believed that the report was not due until October 19, 1998, as set forth in the trial court's scheduling order.
A. Standard of Review
We review the trial court's dismissal of a health care liability claim for failing to comply with the expert report provision of section 13.01 under an abuse-of-discretion standard. See Schorp v. Baptist Mem'l Health Sys., 5 S.W.3d 727, 731 (Tex. App.-San Antonio 1999, no pet.); Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex. App.-Fort Worth 1998, no pet.). But see Palacios v. American Transitional Care Centers, 4 S.W.3d 857, 860 (Tex. App.-Houston [1st Dist.] 1999, pet. filed) (applying summary judgment standard to review trial court's dismissal of article 4590i claim). Whether a trial court abused its discretion depends on whether it acted without reference to any guiding rules or principles. See Estrello, 965 S.W.2d at 758. An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. See id. Moreover, a trial court does not abuse its discretion as long as some evidence of substantive and probative character exists to support the trial court's decision. See id.
B. Applicable Law
The Act does not define what constitutes an intentional act or conscious indifference, nor does it provide definitions or guidance as to what is considered an accident or mistake. However, because the language found in section 13.01(g) of article 4590i is identical to the language applicable in determining whether to grant a motion for new trial after a default judgment, recent cases have construed these terms to apply in a manner similar to their application in a default judgment context. See, e.g., Schorp, 5 S.W.3d at 732; Nguyen v. Kim, 3 S.W.3d 146, 150-51 (Tex. App.-Houston [14th Dist.] 1999, no pet.); McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.-Austin 1997, pet. denied).
An extension of time must be granted if the motion and affidavits filed by the movant set forth facts which, if true, would negate intentional or consciously indifferent conduct. See Director, State Employees Workers' Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). Some excuse, but not necessarily a good excuse, is enough to warrant an extension to file an expert report, as long as the act or omission causing the failure to file the report was in fact accidental. See Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App.-Texarkana 1998, no pet.). The burden is on the party seeking relief to show some evidence of accident or mistake to demonstrate that he did not act intentionally or with conscious indifference. See Schorp, 5 S.W.3d at 732. It is then the defendant's burden to controvert the plaintiff's evidence of mistake, or else an issue of mistake exists and an extension of time must be granted. See id.
In determining whether the claimant's failure was intentional
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