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Christus Health Southeast Texas v. Griffin10/20/2005
Sewell, Equitable Bill of Review: Unraveling the Cause of Action that Confounds Texas Courts, 48 Baylor L. Rev. 623, 630-31 (1996); see Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245-46 (Tex. 1974)(loss of right to file a motion for new trial or appeal). In Petro-Chemical Transport, Inc., for example, the Supreme Court said the trial error involved in the loss of a meritorious ground of appeal must be set out in the bill of review petition with particularity. See id. at 246. Here, the alleged "lost opportunity" relates to the timely filing of an adequate expert report in a health care liability claim. The expert report requirement allows the trial court to determine whether the claim is meritorious. I believe when a bill of review petitioner attacks an order dismissing a claim because of an inadequate expert report, the petitioner should at least include an adequate expert report with the bill of review petition. In my view, anything less would not sufficiently address the "meritorious claim or defense" element of the bill of review in that type of case, and would not state sufficient cause to set aside the prior dismissal order.
Because we have appellate jurisdiction under section 51.014(a)(9) to review the trial court's order, I respectfully dissent.
DAVID GAULTNEY Justice
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