                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-15-00102-CV

                                          Cathy GIDDINGS,
                                              Appellant

                                                  v.

                                        Ralph CURTIS, M.D.,
                                              Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-06825
                           Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 10, 2015

AFFIRMED

           This case stems from a final summary judgment in a health care liability claim brought

pursuant to chapter 74 of the Texas Civil Practices and Remedies Code. See, generally, TEX. CIV.

PRAC. & REM. CODE ANN. ch. 74 (West 2011). On appeal, Appellant Cathy Giddings asserts that,

because she was not provided with notice of the hearing or an opportunity to present evidence, the

trial court erred in granting Appellee Ralph Curtis, M.D.’s no-evidence motion for summary

judgment. We affirm the trial court’s judgment.
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                           FACTUAL AND PROCEDURAL BACKGROUND

       On April 24, 2012, Giddings filed suit against Curtis for damages resulting from alleged

departures from acceptable standards of medical care. Specifically, Giddings alleged Curtis was

negligent in the treatment of Giddings’ post-operative care and complaints of foot and leg pain,

numbness, and weakness.

       On October 20, 2014, Giddings’ counsel filed a motion to withdraw and requested the

March 16, 2015 trial setting be postponed for at least ninety days to allow Giddings time to hire

new counsel. The trial court granted the motion to withdraw on November 5, 2014. The order

was silent as to any continuance of the trial setting or abatement of the case.

       On December 2, 2014, Curtis filed a no-evidence motion for summary judgment asserting:

       [Giddings] in this case cannot bring forth any legally competent or sufficient
       evidence to raise a genuine issue of material fact as to any one of the elements of
       [Giddings]’s cause of action. Specifically, there is no evidence that (a) [Curtis]
       owed [Giddings] a duty of care, (b) [Curtis] breached that duty—that is, [Curtis]
       did not meet the applicable standards of care, or (c) [Curtis]’s breach proximately
       caused [Giddings]’s injury and claimed damages.

The certificate of service indicates a copy of the motion and notice that the matter was set for

hearing on January 5, 2015 was sent via certified U.S. Mail and First Class U.S. Mail to the address

provided in Giddings’ counsel’s motion to withdraw. On January 20, 2015, the trial court granted

summary judgment in favor of Curtis.

       In her sole issue on appeal, Giddings asserts she was not provided notice of the hearing on

the no-evidence summary judgment and, therefore, could not be present at said hearing or be aware

of the deadline to file and serve her response and summary judgment evidence. Curtis counters

the trial court was compelled to grant the no-evidence motion for summary judgment because

Giddings failed to present expert testimony necessary to raise a genuine issue of material fact

regarding the elements of her health care liability claim.


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                       NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

A.     Standard of Review and Applicable Law

       After an adequate time for discovery, a party may move for no-evidence summary

judgment on the ground that no evidence exists of one or more essential elements of a claim on

which the adverse party bears the burden of proof at trial. TEX. R. CIV. P. 166(a)(i); Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008); Valence Operating Co. v. Dorsett, 164 S.W.3d 656,

661 (Tex. 2005). “Rule 166(a)(i) does not require that discovery must have been completed, but

rather that there was an ‘adequate time.’” In re Guardianship of Patlan, 350 S.W.3d 189, 196

(Tex. App.—San Antonio 2011, no pet.). We note Giddings filed suit on April 24, 2012, and

Curtis’s no-evidence motion was on December 2, 2014, more than two and a half years after

Giddings filed suit.

       The burden then shifts to the non-movant to produce evidence raising a genuine issue of

material fact on the elements specified in the motion. TEX. R. CIV. P. 166(a)(i); Hamilton, 249

S.W.3d at 426; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The trial court

must grant the motion unless the non-movant presents more than a scintilla of evidence raising a

genuine issue of material fact on the challenged elements. TEX. R. CIV. P. 166(a)(i) (emphasis

added); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (“More than a

scintilla of evidence exists when the evidence supporting the finding, as a whole, ‘rises to a level

that would enable reasonable and fair-minded people to differ in their conclusions.’”) (internal

citations omitted).

       Although a motion for no-evidence summary judgment is reviewed de novo, Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009), we indulge

every reasonable inference and resolve any doubts in the non-movant’s favor. Sw. Elec. Power

Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). A no-evidence point will be sustained when (1)
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there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or

evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence

offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively

establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003) (quoting Havner, 953 S.W.2d at 711). Because the trial court’s order does not specify the

grounds for its ruling, we may affirm the summary judgment if any of the theories presented to the

trial court and preserved for appellate review are meritorious. Browning v. Prostok, 165 S.W.3d

336, 344 (Tex. 2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003)).

B.     Health Care Liability Claim

       Section 74.001(a)(13) defines a health care liability claim as:

       [A] cause of action against a health care provider or physician for treatment, lack
       of treatment, or other claimed departure from accepted standards of medical care,
       or health care, or safety or professional or administrative services directly related
       to health care, which proximately results in injury to or death of a claimant, whether
       the claimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13); see Diversicare, 185 S.W.3d at 848.

“[C]laims premised on facts that could support claims against a physician or health care provider

for departures from accepted standards of medical care . . . directly related to health care are

HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those

standards.” Loaisiga, 379 S.W.3d at 255 (emphasis original).

       To prevail on a medical-malpractice claim, the plaintiff must prove: (1) the health care

provider had a duty to act according to a certain standard; (2) the provider breached that standard;

and (3) the breach proximately caused the plaintiff to sustain injury. See Hamilton, 249 S.W.3d at

426 (recognizing required elements applied by appellate court).



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       We, therefore, look to the record to determine whether Giddings raised a scintilla of

evidence establishing a genuine issue of material fact on the challenged elements. See TEX. R.

CIV. P. 166(a)(i).

C.     Appellate Record

       1.      Lack of Notice

       Giddings contends she was not provided with notice of the hearing and therefore did not

file a response or appear for the hearing. Rule 166a affords the nonmovant the right to have

minimum notice of the hearing on a motion for summary judgment. See Lewis v. Blake, 876

S.W.2d 314, 315 (Tex. 1994). Lack of notice to the nonmovant of the summary judgment hearing

violates the nonmovant’s due process rights. See Etheredge v. Hidden Valley Airpark Ass’n, Inc.,

169 S.W.3d 378, 381 (Tex. App.—Fort Worth 2005, pet. denied).

       A document may be served on a party by delivering a copy via certified or registered mail

to the party’s last known address. See TEX. R. CIV. P. 21a. Service by mail is complete upon

deposit of the document, enclosed in a postpaid, properly addressed wrapper, in a post office or

official depository under the care and custody of the United States Postal Service. Id. Rule 21a

was amended effective January 1, 2014, to permit service by regular mail. See TEX. R. CIV. P. 21a.

Therefore, the mailing of the no-evidence summary judgment motion and subsequent hearing

notice was a proper manner of service prescribed by Rule 21a. A certificate by a party or an

attorney of record is prima facie evidence of the fact of service. Id. “In the absence of evidence

to the contrary, the presumption has the force of a rule of law.” Cliff v. Huggins, 724 S.W.2d 778,

780 (Tex. 1987). The opposing party may rebut the presumption by an offer of proof. Id.

       Here, although Giddings contends she did not receive notice regarding the hearing, we

conclude that Rule 21a created a presumption that Curtis’s notice of the hearing on Curtis’s no-



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evidence motion for summary judgment was properly mailed and received by the addressee, i.e.

Giddings. See id.

          2.     Expert Report

          Giddings contends an expert report was prepared and that she did not attend the summary

judgment hearing because she was not provided notice. Attached to her appellate brief were

several documents, including a file-stamped copy of an expert report prepared on April 23, 2012,

and filed with the Bexar County District Clerk on June 23, 2012.

          On appeal, an appellate court may not consider documents that are not admitted as evidence

or made part of the appellate record. See TEX. R. APP. P. 34.1; Fox v. Alberto, 455 S.W.3d 659,

668 n.5 (Tex. App.—Houston [14th Dist.] 2014, no pet.). “The appellate record consists of the

clerk’s record and, if necessary to the appeal, the reporter’s record.” TEX. R. APP. P. 34.1; see also

Whytus v. State, 624 S.W.2d 290, 291 (Tex. App.—Dallas 1981, no pet.) (holding in direct appeal

that record must affirmatively show the existence of a certification order and that State’s quotation

of certification order in its brief could not be relied on because not part of appellate record).

Because documents attached to Giddings’ appellate brief are not part of the record, they may not

be considered by this court.

                                            CONCLUSION

          In the absence of proof to the contrary, the Rule 21a presumption that Giddings received

notice of the motion for no-evidence summary judgment and hearing has the force of a rule of law.

Additionally, although Giddings attached several documents to her appellate brief, they are not a

part of the appellate record and may not be considered on appeal. Accordingly, we conclude

Giddings failed to present a scintilla of evidence creating a material fact issue as to her medical

liability claims. The trial court, therefore, did not err in granting summary judgment in favor of

Curtis.
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Giddings’ sole issue on appeal is overruled and we affirm the trial court’s judgment.


                                         Patricia O. Alvarez, Justice




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