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Neasbitt v. Warren6/15/2000
1999) (emphasis added). We are aware of no legislative history indicating a concern that an insurance crisis was affecting the cost of veterinary health care. The medical malpractice insurance crisis perceived by the Legislature concerned the cost of health care to people, not animals. We hold that veterinarians are not "physicians" within the plain meaning of article 4590i, and that statute does not apply to this case.
II. Invited Error
Warren alternatively contends that, if article 4590i does not apply to veterinarians, the Neasbitts are nevertheless precluded from complaining of the dismissal order by the doctrine of "invited error." Specifically, Warren argues that he had previously filed a motion for summary judgment under rule 166a(i) of the Texas Rules of Civil Procedure. His "no-evidence" motion asserted that the Neasbitts could produce no evidence of negligence. He points out that the Neasbitts responded by contending that they filed this suit pursuant to article 4590i, under which they had 180 days from the date of filing of suit to provide an expert report, and that they argued they were well within that time limit for providing such a report. He contends that, by invoking article 4590i, the Neasbitts, themselves, thus invited error of the trial court in holding that the statute is applicable to this case.
It is elementary that a party may not "invite" error by requesting that the trial court take specific action and then complain on appeal that the trial court erred in granting the request. Northeast Tex. Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487-88 (1942); See also Austin Transp. Study Policy Advisory Comm. v. Sierra Club, 843 S.W.2d 683, 689 (Tex. App.-Austin 1992, writ denied); Dolenz v. American Gen. Fire & Cas. Co., 798 S.W.2d 862, 863 (Tex. App.-Dallas 1990, writ denied). The rule, "grounded in even justice and dictated by common sense," is based on estoppel. Northeast Tex. Motor Lines, 158 S.W.2d at 488.
The record does not reflect that the trial court took any action based on the Neasbitts' response to Warren's motion for summary judgment. Warren, himself, not the Neasbitts, invoked article 4590i as the basis for his motion to dismiss for want of prosecution. The trial court's action in granting that motion was at Dr. Warren's request, not that of the Neasbitts. The Neasbitts opposed the dismissal, seeking reinstatement on the ground that article 4590i did not apply to veterinarians. Therefore, it is apparent that the Neasbitts did not "invite" the action of the trial court of which they now complain. Under these circumstances, we hold that the doctrine of invited error does not apply.
CONCLUSION
We hold that the trial court erred in dismissing this cause for want of prosecution. It follows that the trial court also erred in failing to reinstate the case which was improperly dismissed. We further hold that Appellants are not estopped from asserting the trial court's error by the doctrine of invited error. Accordingly, we reverse the dismissal order and remand this cause to the trial court for reinstatement in accordance with this opinion. See Maida v. Fire Ins. Exch., 990 S.W.2d 836, 843 (Tex. App.-Fort Worth 1999, no pet.).
PUBLISH
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