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Finley v. Steenkamp5/18/2000
e his failure, we do not believe these excuses are adequate to show accident or mistake. See, e.g., Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex. App.-Dallas 1999, no pet.) (holding no accident or mistake had been shown where appellant's attorney knew of expert report deadline but failed to meet it because the case had only recently been referred to him, he had a large workload, and he assumed opposing counsel would not seek strict compliance with section 13.01(d)); Estrello, 965 S.W.2d at 758 (holding appellant failed to show accident or mistake where her only excuses for not meeting section 13.01(d) deadline were that appellant had missed several meetings with her attorney and appellee-physician had failed to return appellant's attorney's phone calls).
Finally, we disagree with Finley's contention that Steenkamp failed to specifically controvert the evidence presented by Finley regarding his mistaken belief. The uncontradicted evidence at the hearing demonstrated that in June 1998, Rios admitted that he knew the deadline for filing Finley's expert report had passed, but Rios did not believe the trial court would dismiss the case. The trial court was entitled to infer from this testimony that Finley's attorney knew about the deadline but deliberately ignored it because he did not believe the trial court would dismiss the case. Absent a showing of accident or mistake that would justify Finley's failure to provide the expert report within the time required by section 13.01(d), we cannot conclude the trial court abused its discretion in dismissing Finley's claim against Steenkamp. Point one is overruled.
IV. TOLLING OF LIMITATIONS PERIOD
In his second issue, Finley argues that the trial court erred in granting summary judgment in favor of CDS. To support its motion, CDS argued that it was entitled to summary judgment based on the affirmative defense of limitations. Specifically, CDS argued that because a dialysis center was not a "health care provider" as defined by article 4590i, the 2-year statute of limitations for a personal injury suit applied. Alternatively, CDS argued that if the trial court determined CDS was a health care provider, Finley's claim should be dismissed for failure to timely file his expert report. In response, Finley alleged that CDS was not entitled to summary judgment because (1) CDS failed to plead the affirmative defense of limitations, (2) even if CDS was not a health care provider, it was liable to Finley under the doctrine of respondeat superior for Steenkamp's actions, and (3) Finley's suit was timely filed because the applicable statute of limitations was tolled for 75 days when Finley gave presuit notice of his health care liability claim, as provided by section 4.01(c) of article 4590i.
We turn first to Finley's contention that CDS failed to plead this affirmative defense as required by Rule 94 of the rules of civil procedure. Tex. R. Civ. P. 94. An unpleaded affirmative defense may serve as the basis for a summary judgment when it is raised in the summary judgment motion and the non-movant does not object to the lack of a Rule 94 pleading in either its written response or before the rendition of judgment. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991); John Bezdek Ins. Assocs., Inc. v. American Indem. Co., 834 S.W.2d 401, 403 (Tex. App.-San Antonio 1992, no pet.); see also Tex. R. Civ. P. 166a(c) (providing that issues not expressly presented to the trial court may not serve as grounds for reversal of a summary judgment on appeal). Here, the record reflects that Finley failed to bring CDS's pleading deficiency to the trial court's attention. As a result, he waived the right to complain about this issue on a
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