                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00374-CV

COLLEGE STATION MEDICAL CENTER, LLC
D/B/A COLLEGE STATION MEDICAL CENTER,
                                    Appellant
v.

ELEANOR KILASPA AND WILLIAM KILASPA,
                                   Appellees



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 13-002982-CV-85


                           DISSENTING OPINION


      There are several problems with what we do in this appeal. The problems show

why we should be so very careful when we agree to accept a permissive appeal from an

interlocutory order. In this instance, I would reconsider the decision to allow the

permissive appeal, hold that permission was improvidently granted, and dismiss the

appeal from the interlocutory order. Because the Court addresses the issue and affirms

an interlocutory denial of a motion for summary judgment, I respectfully dissent.
          First, I will discuss the process for permissive interlocutory appeals. Next, I will

discuss why this particular proceeding is not a good candidate for the use of that

procedure. Finally, I will discuss why, on the facts and briefing in this case, I would not

take the permissive appeal and having taken it would now dismiss it as improvidently

granted.

PERMISSIVE APPEALS

          The closest procedure that we have in Texas to a permissive interlocutory appeal

is a certified question to the Texas Supreme Court from a Federal Court. This is because

the trial court must agree that the disposition of that legal issue may materially advance

the ultimate disposition of the case. Compare TEX. R. APP. P. 58. with TEX. R. CIV. P. 168.

It is, however, in some respects like a petition for review because it is the parties that

frame and brief the issue. Compare TEX. R. APP. P. 28.3(e) with 53.2. The reason that I

believe we should look more to the procedure for certified questions is that resolution

of the appeal should not be dependent on the resolution of fact questions or procedural

issues. It needs to be solely a question of law unconstrained by procedural or factual

issues.     See Diamond Prods. Int'l, Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—

Houston [14th Dist.] 2004, no pet.) ("The statute does not contemplate permissive

appeals of summary judgments where the facts are in dispute. Instead, permissive

appeals should be reserved for determination of controlling legal issues necessary to the

resolution of the case."). In this proceeding, the Court reviews the propriety of the trial

court’s decision to deny a motion for summary judgment.               Because the movant\


College Station v. Kilaspa                                                              Page 2
appellant did not conclusively prove the notice was not given in conformity with the

statute, the trial court’s decision is affirmed. As framed by the parties and decided by

the Court, this holding does not take the issue of compliance with the statutory tolling

provision out of the case.

QUESTIONS OF LAW ONLY

        In a permissive interlocutory appeal, the issue should be framed solely as a

question of law that needs to be resolved that disposes of the case. See TEX. R. APP. P.

28.3(e)(4); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West 2014). We do answer

one question for the parties, but it is not dispositive because there are similar questions

that will remain, as will be explained below. Further, because all the Court holds is that

the appellants’ evidence did not conclusively negate the application of the tolling

provision, the trial court’s order is affirmed. This does not prevent the defendant\

appellant from filing another summary judgment motion to attempt to conclusively

negate the application of the tolling provision. See In re Estate of Fisher, 421 S.W.3d 682,

686 (Tex. App.—Texarkana 2014, no pet.) (judicial economy of section 51.014(d) not

served when parties have the opportunity to appeal future orders that adjudicate a

substantial right).

PROBLEMS IN THIS PROCEEDING

        In this proceeding there are several problems that lie beneath the surface, which

cannot be addressed now, that may arise in the future. I would rather not talk about

them at all before the proceeding is concluded, and we have a final judgment. In fact, at


College Station v. Kilaspa                                                            Page 3
that point, they may be moot due to waiver, or the nature of the judgment may have

resolved the need to answer the larger questions, or the issue may have been raised and

resolved at the trial court level and no one complains about that resolution.

Nevertheless, to explain why this is not a good candidate for a permissive appeal, I feel

I must explain the basis upon which I would deny permissive appeal; and therefore,

will provide some discussion of the larger issues.

        It is not at all clear why College Station Medical Center, LLC did not receive

notice of the suit at least 60 days before suit was filed. The only notice sent was to

Mukund Gundanna, M.D.            It is clear College Station Medical Center, LLC was

identified as a target defendant by the date suit was filed because it is the first named

defendant. It is hard for me to imagine how the plaintiff was completely unaware of

the intended scope of the suit until the very date the suit was filed and therefore

provided no notice what-so-ever to College Station Medical Center, LLC.                 This

completely defeats the purpose of the statute. Can a party game the system thusly by

sending the only notice to a vacant office and completely deny all the other defendants

the intended benefits of the balance struck by the legislature?

        But the more critical failure is that the parties, in discussing the issue before the

trial court and this Court, fail to discuss the single most critical word in the case. What

does the statute mean when it uses the term “give” notice? See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.051(a) (West 2011). While the Court does use the term, it does not

discuss or decide if “give” is synonymous with “send;” and if all the legislature meant


College Station v. Kilaspa                                                             Page 4
was to send notice, why the legislature used a different term. Of course, there is a body

of law on the construction of statutes and agreements that if different terms are used,

the drafting party, in this case the legislature, must have meant something different. See

Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 116 (Tex. 2004) ("…we must

initially determine what, if anything, the Legislature intended by using different

language.”). And while there is some discussion of sending notice versus receiving

notice, there is no analysis of how sending notice to only one of the target defendants

would accomplish the purpose of giving notice to “each physician or health care

provider against whom” a claim is being made so that the problem can be resolved

without the need to file suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a) (West 2011).

        Finally, and most fundamentally to the process in this permissive appeal from

the denial of a motion for summary judgment, I find it troubling that section 74.051(b)

of the Texas Civil Practice and Remedies Code was not addressed. In this proceeding,

the Court has placed on the summary judgment movant the burden to conclusively

negate giving of the notice that is required by section 74.051(a). This is proper under

existing case authority applicable to summary judgment on events that toll the statute

of limitations.     Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996); Zale Corp. v.

Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). But section 74.051(b) states the party

making the claim, normally the plaintiff, “…shall provide such evidence thereof [giving

notice] as the judge of the court may require to determine if the provisions of this

chapter have been met.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(b) (West 2011).


College Station v. Kilaspa                                                          Page 5
And section 74.002 provides that, “[i]n the event of a conflict between this chapter and

another law, including a rule of procedure or evidence or court rule, this Chapter

controls to the extent of the conflict.” Id. § 74.002(a). Thus, the normal summary

judgment burdens simply do not apply. But the parties have not presented this issue

based upon the applicable law; so the Court has not addressed this critical part of the

issue in the opinion and has simply recited and decided the case based upon the usual

burdens of going forward with the evidence, burdens of proof, and the normal standard

of review as briefed and argued by the parties. I would not.

CONCLUSION

        For the forgoing reasons, I do not believe that, on the briefing these parties have

provided and the nature of the issue as presented, this is an appropriate issue upon

which to grant a permissive appeal and would dismiss the permissive appeal as

improvidently granted. Because the Court proceeds to resolve an issue the parties have

not adequately framed or presented, I respectfully dissent.




                                          TOM GRAY
                                          Chief Justice

Dissenting Opinion issued and filed July 23, 2015




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