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Rittenhouse v. Sabine Valley Center Foundation2/3/2005
Dennis Rittenhouse appeals the dismissal of his medical malpractice suit against Sabine Valley Center Foundation, Inc., d/b/a Oak Haven Recovery Center, Dr. Isidore Joseph Lamothe, Jr., Dr. Shahrokh Safarimary Aki, Millie Brown, Philip Glover, Laura Henderson, W. Robinson, Jim Louvier, Johnny Oliver, Jr., Twilla Simmons, and Claudia Gonzales due to failure to file an expert report pursuant to Article 4590(i). Rittenhouse's attorney withdrew shortly before the expert report was due under the statute. Although Rittenhouse's prior attorney obtained approximately a thirty-day extension with most of the parties, Rittenhouse did not file a report by the extended deadline.
Rittenhouse alleges in his first point of error the trial court abused its discretion by dismissing his claim when he had timely filed a motion for extension. In his second point of error, Rittenhouse contends the motion to withdraw was defective because it failed to state the date on which the expert report was due; therefore, the trial court violated Rittenhouse's due process rights by granting the motion to withdraw. We first address the unassigned error concerning the lack of a reporter's record. Because the record contains no objection to the failure to record the proceedings, Rittenhouse has not preserved error for our review. Next, we address whether Rittenhouse has shown reversible error due to the denial of the motion for extension. Because there is no reporter's record, we must presume the trial court reached the correct decision in finding no accident or mistake. Therefore, the trial court did not err in dismissing the suit. Last, we address whether Rittenhouse has shown that his due process rights were violated. Because this issue was not raised before the trial court, any error was waived. We affirm the judgment of the trial court.
Factual Background
On August 15, 2003, Rittenhouse sued Oak Haven for improperly removing him from Xanax, which removal allegedly caused him to become delusional and resulted in injuries and damages. On February 6, 2004, Rittenhouse's counsel filed a motion to withdraw as Rittenhouse's attorney and sent a copy of the motion to Rittenhouse. Although the motion to withdraw was filed five days before the expert report was due, Rittenhouse's counsel did obtain an agreed extension of the deadline with most of the parties to file the expert report. On February 9, 2004, the trial court granted the motion to withdraw. On March 15, 2004, Oak Haven and Dr. Lamothe filed motions to dismiss for failure to file an expert report. On March 18, 2004, Rittenhouse's new counsel filed a notice of appearance and a motion to extend the deadline for submission of the expert report. On March 22, 2004, an unsigned expert report dated March 17, 2004, was filed, and the trial court held a hearing concerning the motions for extension and for dismissal. Rittenhouse alleges in his brief that the proceedings were "not electronically recorded."
In the record on appeal, there is no reporter's record of the hearing. On April 1, 2004, the trial court denied the motion for extension. The trial court granted both motions to dismiss April 2, 2004.
Discussion
As a medical malpractice action, this appeal is governed by the Medical Liability and Insurance Improvement Act as codified in former Section 4590i of the Texas Revised Civil Statutes. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985--87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884 (hereafter cited as 1995 Tex. Gen. Laws 985--87). Section 13.01(d) of the Act provides:
Not later than the later of the 180th day after the
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