Morgan v. Chandler8/16/1995
AUGUST 16, 1995
Appellant, Sherry Renee Morgan, filed this medical malpractice action against appellees, Pamela Chandler, M.D., John Crane, M.D., Kelly Wilson, M.D., Gaston Prieto, M.D. (collectively referred to as the physicians), Amarillo Hospital District d/b/a Northwest Texas Hospital (the Hospital), and Texas Tech University Health Sciences Center (the Center), seeking damages for medical care rendered to her in connection with the delivery of her still-born child. After finding that Morgan filed her petition on Sunday, February 13, 1994, the trial court dismissed the lawsuit. We affirm in part, and reverse and remand in part.
The undisputed facts show that Morgan's original petition was filemarked on Sunday, February 13, 1994. On March 4, 1994 and March 14, 1994, the Hospital and the Center respectively filed their original answers. Then, on March 21, 1994, the physicians filed a motion to dismiss, arguing that Morgan's petition was void because it was filed on a Sunday in contravention of Texas Rule of Civil Procedure 6. The trial court granted the physicians' motion on June 1, 1994. Thereafter, the Hospital and the Center filed similar motions to dismiss which were eventually granted by the trial court.
By her first point of error, Morgan contends the trial court erred in granting the motions to dismiss. Essentially, she claims it was not counsel's intent to file the original petition on Sunday, but rather to simply deliver it into District Clerk Cindy Groomer's hands so that it could be timely filed on Monday. In this connection, Morgan claims by three supplemental points of error that the evidence is legally and factually insufficient to support the trial court's findings that (1) counsel did not communicate to Groomer that she should wait to file the petition on Monday, (2) counsel intended to have Groomer file the petition on Sunday, and (3) Groomer accepted the petition for filing from counsel on Sunday with the intent that it be placed among the official papers of the cause. We disagree.
In reviewing a legal insufficiency point, we must look at the record in the light most favorable to the finding to see if any probative evidence or any reasonable inferences therefrom support the finding, while at the same time disregarding all evidence or reasonable inferences therefrom to the contrary. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1991); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). In reviewing a factual insufficiency point, we must look at the entire record to determine if probative evidence exists to support the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). If it does, we must determine whether the evidence supporting the finding is so weak or the answer so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Garza v. Alviar, 395 S.W.2d at 823; In Re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).
Here, the record shows counsel telephoned Groomer on Friday, February 11, 1994, and Saturday, February 12, 1994, to arrange a time to deliver to her the original petition in this cause. Counsel informed Groomer that he wanted the petition in her hands before he left town on Monday, February 14, 1994, to begin a trial in Lubbock in federal court. Counsel and Groomer agreed to meet at the district clerk's office on Sunday, February 13, 1994.
When counsel tendered the petition to Groomer, she file-stamped it and handed to him a file-marked copy of the pleading. Groomer did not know if counsel saw her file-stamp the petition. Counsel reported that he did not see her file-stamp the document. Along with the petition, counsel also gave Groomer a
Page 1 2 3 Texas Personal Injury Attorneys
Personal Injury Lawyers
|