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Perez v. Cueto8/31/1995
Appellant Ramona Rodriguez Perez brings this appeal from a summary judgement in favor of appellee Jose Joaquin Cueto, M.D. In two points of error, appellant alleges the trial court erred in failing to provide appellant sufficient notice of the hearing on appellee's Motion for Summary Judgment, and in granting appellee's Motion for Summary Judgment. We affirm.
Appellee, assisted by a junior resident, attempted to perform a dilatation and curettage on appellant for complications arising from a possible aborted uterine pregnancy. In the process of sounding the uterus, appellee perforated the uterine wall and the anterior wall of the rectosigmoid colon with the sounding instrument. As a result of the perforations and the diseased nature of appellant's uterus and rectosigmoid colon, appellant incurred a hysterectomy and a diverting loop colostomy.
In her first point of error, appellant alleges the trial court erred in failing to give her sufficient notice of the hearing on appellee's Motion for Summary Judgement in violation of the due course of law provision in the Texas Constitution. TEX. CONST. art. 1, Section(s) 19. Approximately three and one-half years after appellant filed suit against appellee, the cause came to trial. On the day of trial, appellant exercised her right to strike the visiting judge assigned to the case. Instead of assigning another judge to the cause and proceeding with trial, the presiding trial judge announced that she would conduct a hearing on appellee's Motion for Summary Judgment immediately after lunch. At the hearing, the trial judge reversed a prior ruling denying the same, and granted the summary judgement in favor of appellee.
Appellant contends the short notice of the hearing denied her the opportunity to supplement the summary judgement record. Nevertheless, by appellant's own admission in her Motion for New Trial, the trial court gave notice at least two weeks before the trial setting that it intended to reconsider appellee's Motion for Summary Judgment, that it would hear arguments on the Motion, but that it would not allow the parties to file anything prior to the hearing. Moreover, the record before this Court does not indicate that appellant voiced any objection to the trial court's failure to timely notify her of the hearing, other than an objection to the lack of notice based on statutory grounds which she did not raise on appeal. Because appellant did not raise an objection to the lack of notice based on a constitutional violation to the court below, she has failed to preserve error for our review. A party must present to the trial court a timely request, objection, or motion in order to preserve a complaint on appeal. TEX. R. APP. P. 52(a); San Jacinto River Authority v. Duke, 783 S.W.2d 209, 210 (Tex. 1990) (per curiam); Cannon v. Lemmon, 843 S.W.2d 178, 183 (Tex. App. -- Houston [14th Dist.] 1992, no writ). Even a constitutional claim must have been asserted in the trial court in order to be raised on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993); Cannon, 843 S.W.2d at 183; Lynch v. Port of Houston Auth., 671 S.W.2d 954, 957 (Tex. App. -- Houston [14th Dist.] 1984, writ ref'd n.r.e). Appellant's first point of error is overruled.
In her second point of error, appellant contends the trial court erred in granting summary judgment. A defendant is entitled to prevail on his motion for summary judgement if he can establish with competent proof that as a matter of law, there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).
The standards for reviewing summary judgement proof ar
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