author: BURGESS, Justice. RONALD L. WALKER, Chief Justice,

text:
    Andrew Paul DANIEL, Appellant, v. Thomas L. REEDER, Pam Reeder, and Tyler Reeder, Appellees.
    No. 09-99-027CV.
    Court of Appeals of Texas, Beaumont.
    April 6, 2000.

      Nathan Reynolds, Jr., Port Arthur, for appellant.
    Ernest W. Boyd, Jonathan C. Allen, Me-haffy & Weber, Beaumont, for appellees.
   OPINION

BURGESS, Justice.

Andrew Daniel filed a personal injury suit against Jeff Lawson, Thomas Reeder, Pam Reeder and Tyler Reeder. Tom and Pam Reeder were out of town the night of August 27, 1995, when their son, Tyler, hosted a party at which there was alcohol. Lawson, seventeen at that time, attended the party and became intoxicated. Daniel, who was eighteen, attended the party and at some point in the evening was struck and injured by Lawson. Daniel alleged battery, negligence, and gross negligence against Lawson and negligence, negligence per se, and gross negligence against the Reeders. Daniel claimed the Reeders were negligent in providing alcohol to a minor under the age of eighteen, namely Lawson. Daniel further claimed Tyler was negligent in aiding or encouraging the use of force against Daniel and in failing to warn him that Lawson was intoxicated.

The Reeders filed a motion for summary judgment that was granted by the trial court. Subsequently, Daniel’s claims against Lawson were settled and final judgment was entered. Daniel appeals, challenging the summary judgment in two points of error. First, he claims the trial court erred in finding that Texas law imposes no duty on a social host towards a third party when that social host provides alcohol to a seventeen year-old minor guest. Second, he claims the trial court erred in finding there was no evidence Tyler Reeder knew that Jeff Lawson was intoxicated and that appellees were entitled to judgment as a matter of law.

The Reeders claimed to be entitled to summary judgment “because there are no genuine issues of material facts that:

• Tom and Pam Reeder were not in town at the time of the incident made the basis of this suit
• Tom and Pam Reeder did not serve or provide an [sic] alcohol to Jeff Lawson on the night of the incident made the basis of this suit.
• Tyler Reeder did not serve or provide any alcohol to Jeff Lawson on the night of the incident made the basis of this suit.
• Jeff Lawson provided his own beer on the night of the incident made the basis of this lawsuit.
• There is no evidence that Tyler Reed-er encouraged the use of force against Plaintiff.
• There is no evidence Tyler Reeder had actual knowledge that Jeff Lawson was intoxicated and, as Plaintiff was a trespasser, Tyler Reeder had no duty to warn under the circumstances of this case.”

The Reeders argued no duty existed because “Texas law does not recognize social host liability.” They further argued Lawson provided his own alcohol and it was not provided by Tom and Pam Reeder or Tyler Reeder. The Reeders also claimed there was no evidence to support Daniel’s allegations that Tyler was negligent for aiding or encouraging the use of force against Daniel and that Tyler had actual knowledge Lawson was intoxicated and failed to warn Daniel of this condition. See Tex.R. Civ. P. 166a(i).

We first note the trial court’s order does not specify upon which of the several grounds summary judgment was granted. Therefore, if any of the grounds alleged in the Reeder’s motion for summary judgment are meritorious, the summary judgment will be affirmed. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

The parties focus on a letter from the trial court stating that “the Court does not believe that the logic employed in either the statute or the cases would allow a cause of action for social host liability against the minor defendant under the facts of this case.” However, “findings of fact and conclusions of law have no place in a summary judgment proceeding.” Linwood, v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994). An appellate court should not consider findings of fact and conclusions of law in connection with a summary judgment. See IKB Indus. Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex.1997). Therefore, we disregard the trial court’s statements in the letter and determine only whether the movants met their summary judgment burden by establishing that no genuine issue of material fact exists and that they were entitled to judgment as a matter of law. See Tex.R.Civ. p. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990).

The Texas Supreme Court has found there is no common-law duty for a social host to refrain from providing alcohol to a guest over the age of eighteen. See Smith v. Merritt, 940 S.W.2d 602, 605 (Tex.1997). Smith also found section 106.06(a) of the Texas Alcohol and Beverage Code does not create a social-host duty for providing alcohol to a person aged eighteen to twenty. Id. at 608; Tex. Alco. Bev.Code Ann. § 106.06(a) (Vernon 1995). Smith explicitly refrained from deciding the issue currently before this court: Is there a duty to third parties not to provide alcohol to guests under the age of 18? See Smith, 940 S.W.2d at 604, n. 1.

Daniel argues the Ryders were negligent per se because they violated section 106.06(a) by providing beer to the seventeen-year old Lawson. The Alcoholic Beverage Code prohibits the provision of alcohol to a minor by anyone other than the minor’s parents, guardian, spouse, court-ordered custodian. Tex. Alco. Bev.Code Ann. § 106.06(b).

Section 106.06 is not limited to the sale of alcohol to minors nor does it contemplate economic benefit on anyone’s part. It does not require that the minor become intoxicated, nor does § 106.06 speak to the relationship, if any, between the minor and the one furnishing the alcohol, whether master-servant, social host-guest or friends. The statute simply prohibits anyone from furnishing liquor to any minor, the very limited exception being the minor’s adult parent, spouse or legal custodian but even then only so long as that adult person ‘is visibly present when the minor possesses or consumes’ the alcohol. Tex. Alco. Bev.Code Ann. § 106.06(b) (1978). No other exceptions are provided by the code.

Chapa v. Club Corp. of America, 737 S.W.2d 427, 429-30 (Tex.App. — Austin 1987, no writ). Accordingly, section 106.06 applies in this case.

“The unexcused violation of a penal statute constitutes negligence as a matter of law if such statute was designed to prevent injuries to a class of persons to which the injured party belongs.” Murray v. O & A Exp., Inc., 630 S.W.2d 633, 636 (Tex.1982) (citing Missouri Pacific Ry. v. American Statesman, 552 S.W.2d 99 (Tex.1977)). The Alcoholic Beverage Code was designed to protect the safety and welfare of the general public, as well as any specific class expressly described. See El Chico Corp. v. Poole, 732 S.W.2d 306, 312-13 (Tex.1987). Accordingly, we find Daniel, the injured person, is a member of the protected class.

We next determine whether to adopt the standard set by section 106.06 as the standard of care for purposes of civil liability.

Negligence per se is a common-law doctrine in which a duty is imposed based on a standard of conduct created by a penal statute rather than on the reasonably prudent person test used in pure negligence claims. However, not every penal statute creates an appropriate standard of care for civil liability purposes; therefore, a court is not required to adopt the penal statute’s standard. In determining whether a penal statute creates an appropriate standard of care, we may consider whether the adoption of such a standard would be inconsistent with legislative intent.

Smith, 940 S.W.2d at 607 (citations omitted).

In Smith, the court found section 106.06 does not create a negligence per se cause of action when a social host provides alcohol to a person eighteen years of age or older because the legislature manifested its intent that Chapter 2 of the Texas Alcohol and Beverage Code should serve as the sole basis of civil liability for serving alcohol to persons aged eighteen to twenty. Id. at 607-08; Tex. Alco. Bev.Code Ann. § 2.03 (Vernon 1995). Section 2.03 provides that Chapter 2 is “the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older” and “is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages.” Id. To hold that providing alcohol to a person aged eighteen to twenty in violation of section 106.06 establishes a negligence per se cause of action against a social host would ignore the intent and policies of the legislature, the court concluded. Id.

The legislature’s enactment of Chapter 2 is likewise informative of its intent where the person provided the alcohol is under eighteen years of age. In that situation, Chapter 2 is not the exclusive cause of action. Therefore, under Chapter 2, civil liability for alcohol providers is not in lieu of any negligence per se cause of action. Id. Unlike the legislation enacted for those aged eighteen to twenty, the legislature has not enacted a “bifurcated civil and criminal liability scheme” when the provider serves alcohol to a person under age eighteen. Thus, the adoption of a standard of care for civil liability based upon the penal statute is not inconsistent with legislative intent. Id. at 607-08; Tex. Alco. Bev.Code Ann. § 106.06(a).

Accordingly, we hold a violation of Tex. Alco. Bev.Code Ann. § 106.06 by making available an alcoholic beverage to a minor under the age of eighteen gives rise to a claim for negligence as a matter of law.

Having so held, we next determine whether any of the Reeders violated the statute. Tex. Alco. Bev.Code Ann. § 106.06(a), provides it is an offense if a person “makes available an alcoholic beverage to a minor.” Lawson was a minor, under the age of eighteen, at the time of the incident. The issue, therefore, is whether Tom, Pam or Tyler Reeder “provided” the alcohol, within the meaning of the statute.

While the party took place in the home of Tom and Pam Reeder, they were not present and there is no evidence they were aware Tyler would be hosting a party at their home. Tom and Pam Reeder did not authorize Tyler to host the party and they did not provide or make available the alcohol served at the party. The record reflects the beer consumed by Lawson was purchased by Taylor Chapman, at Lawson’s request. According to Lawson, he and Taylor purchased the beer and took it to Tyler’s house, where they placed it in coolers and the refrigerator.

We find as a matter of law that Tom and Pam Reeder did not provide or make available any alcohol to Lawson within the meaning of section 106.06(a). As they did not violate section 106.06(a), we find the trial court properly granted summary judgment as to Tom Reeder and Pam Reeder.

Regarding Tyler Reeder, the record establishes that Tyler did not purchase the alcohol himself. It further establishes that Lawson accompanied Chapman to purchase the beer and carried it into Tyler’s house himself. However, Tyler hosted the party at which he knew alcohol would be available to minors. It is at least arguable, and therefore not established to the contrary as a matter of law, that by hosting the party Tyler made the alcohol available within the meaning of section 106.06(a). Therefore, there is a fact issue on whether Tyler violated the statute and the trial court could not have properly granted summary judgment on the basis that Lawson “provided” his own alcohol. Accordingly, we reverse the trial court’s judgment as to Daniel’s claims against Tyler Reeder for social host liability.

Regarding Daniel’s claims that Tyler was also negligent for aiding and encouraging the use of force and failing to warn, Daniel’s response to the motion for summary judgment only points to the following statement by Lawson, “... we were drinking. And he came over. We had told them all to leave, and he was still there. And I just decided to hit him.” The record reflects that Lawson recognized the friends accompanying Daniel as members of a fraternity at Lamar University. A week before the party, some of them (the record does not establish whether Daniel was involved) pulled a friend of Lawson’s out of a car and hit him. Another member of the group had previously assaulted Lawson. Lawson did not know if Daniel was a member of the fraternity but did know Daniel knew its members. Daniel claimed to be unaware of any conflict between the two groups. According to Daniel, to Ms knowledge the prior problems played no part in the incident with Lawson.

Daniel argues that “[a]ccepting the evidence in a light most favorable to the nonmovant, Tyler Reeder was included as one of the persons described by Jeff Lawson in his attempt to get Andrew Daniel to leave the premises.” Even if we assumed that the “we” Lawson refers to includes Tyler, that is simply evidence that Tyler wished Darnel and his Mends to leave. (Daniel testified that he was never asked to leave the party.) The record contains no evidence that Tyler knew or should have known Lawson would resort to force, much less that Tyler encouraged Lawson to use force. Lawson’s own statement belies any possibility that Tyler aided or encouraged the use of force against Daniel or that Tyler had any foreknowledge creating a duty to warn Daniel. Lawson said, “I just decided to hit him.” The record reflects that an intoxicated Lawson “just decided” to Mt Daniel, without any warning or indication of his Mtent to anyone, including Tyler. Daniel’s own testimony supports Lawson’s account. Darnel agreed that it happened “pretty quickly” and came “out of the blue.” Daniel agreed “there was no warning” he was “about to be Mt” and “no words were spoken” before he was hit. According to his testimony, Daniel had' no reason to believe he was in any danger of being hit when he arrived at the party. There is simply no evidence in the record that anyone else, including Tyler, had any reason to believe Daniel was in danger of being hit. Aceordmgly, we find the trial court did not err in granting summary judgment in favor of Tyler Reeder on Daniel’s negligence claims for aiding or encouraging the use of force and failure to warn.

The judgment of the trial court is affirmed in whole as to Tom Reeder and Pam Reeder. The judgment of the trial court is reversed as to Tyler Reeder on the claim of negligence in providing alcohol to a guest under eighteen years of age, and affirmed as to the other negligence claims against Tyler Reeder.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

RONALD L. WALKER, Chief Justice,

dissenting.

According to Smith v. Merritt, 940 S.W.2d 602, 605 (Tex.1997), the sole remedy available to one claiming damages resulting from the providing of an alcoholic beverage, by a commercial provider, is legislatively created and contained in Chapter 2 of the Texas Alcoholic Beverage Code (TABC). Chapter 2 provides, “the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.” Tex. Axgo. Bev.Code Ann. § 2.03 (Vernon 1995).

The present law in Texas provides liability “against commercial providers only.” Smith v. Merritt, 940 S.W.2d at 605. As yet, the Legislature nor our Texas Supreme Court has expanded the “commercial provider” concept to include our present fact situation (minor to minor), and I am most reluctant to pioneer that effort. I would affirm the trial court’s summary judgment in tato. Respectfully, I dissent.

      . The court rejected the argument that Chapter 2 does not preclude a negligence per se cause of action against a social host because it applies only to commercial providers.

      . The Reeders’ brief fails to address the no-evidence portion of their motion.


source: Caselaw Access Project

author: JOHN HILL, Justice (Assigned). DON BURGESS, Justice,

license: Public Domain

text:
    Hallie SUNSINGER, Appellant, v. Raoul PEREZ, M.D., a/k/a Ray Perez, individually and d/b/a Raoul Perez, M.D. and Associates, Appellee.
    No. 09-98-103 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 14, 1999.
    Decided April 6, 2000.

      Guy E. Hopkins, Paula E. Crow, Guy E. Hopkins & Associates, Conroe, Leslie Werner deSoliz (On Appeal Only), Victoria, for appellant.
    James B. Lewis, Glover, Anderson, Lewis & Prebeg, P.C., Houston, for appellee.
    Before WALKER, C.J., BURGESS and HILL, JJ.

      . The Honorable John Hill, sitting by assignment pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1998).

   OPINION

JOHN HILL, Justice (Assigned).

Hallie Sunsinger appeals from a summary judgment that she take nothing in her claim against Raoul Perez, M.D., a/k/a Ray Perez, individually and d/b/a Raoul Perez, M.D. and Associates. She contends in five issues that the trial court erred in granting summary judgment; in a sixth issue, she urges that the trial court erred by not granting her leave to file a second amended petition.

We affirm because the trial court did not err in granting the summary judgment and because the trial court did not abuse its discretion by not granting Sunsinger leave to file a second amended petition.

This cause of action arose after Dr. Perez, who practices general medicine and family practice, had consensual sexual relations with Sunsinger. In her first amended petition, Sunsinger alleges that she suffered injuries as a result of the negligence, gross negligence, breach of warranty, and/or medical malpractice of Perez as a result of those relations. Specifically, she asserts that he was negligent in: (1) mishandling transference phenomenon and becoming sexually involved with her; (2) failing to properly diagnose her psychological condition; (3) failing to refer her for psychological treatment; and (4) attempting to treat her for psychological problems without proper expertise. She further alleges that he was grossly negligent.

Perez moved for summary judgment, presenting evidence that, with respect to all of Sunsinger’s allegations of negligence, his actions were within the applicable standard of care. In her response, Sunsinger asserts that Dr. Perez mischaracterizes her claim when he insists that it is solely a medical malpractice claim; she indicates that it is also a general negligence claim. She insists that Dr. Perez’s affidavit testimony is incompetent because medical records referred to in the affidavit are not attached to the affidavit and because he is not qualified to express his opinion with respect to the standard of care for the diagnosis, care, or treatment of transference. She also argues that Dr. Perez’s affidavit contradicts his deposition testimony, thereby creating a material fact issue. Sunsinger did not present any summary judgment evidence from any health care provider that Dr. Perez’s actions were not within the applicable standard of care.

This is not a no evidence motion for summary judgment. In this type of motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In a case where a defendant physician has presented an affidavit detailing his or her treatment and attesting that his or her actions were within the applicable standard of care and the plaintiff fails to present summary judgment evidence by an appropriate expert that the physician’s actions were not within the applicable standard of care, the trial court does not err in granting summary judgment with respect to the plaintiffs claim for medical malpractice. See Perez v. Cueto, 908 S.W.2d 29, 31-32 (Tex.App. — Houston [14th Dist.] 1995, no writ). The only other claim that Sunsinger asserted was a claim for breach of warranty. Dr. Perez stated in his affidavit that he made no warranties to Sun-singer. She has presented no summary judgment evidence to contradict Dr. Perez’s statement. We therefore conclude that the trial court did not err in granting summary judgment that Sunsinger take nothing as to Dr. Perez.

In issue two, Sunsinger argues that the trial court erred to the extent that it granted summary judgment on one basis asserted by Dr. Perez, that basis being that she failed to allege an actionable case because there is no case for liability based upon sexual relations between a medical doctor, not involved in some type of psychiatric, psychological, or mental therapeutic care, and his or her patient. She insists that Dr. Perez should have brought special exceptions and allowed her to re-plead. She presents no authority that would support the existence of such a cause of action, nor does she state how she could have repleaded in such a way that would have presented a proper cause of action. She appears to assert that there is a cause of action for negligently having sexual relations when there is an existence of any nature of professional relationship and that such a cause of action does not fall within the realm of professional malpractice. She has not presented any authority for such a cause of action, or for her assertion that it would not fall within the realm of professional malpractice, and we are not aware of any. We also note that in granting summary judgment, the trial court did not state upon which grounds it was granting summary judgment; it may very well be that the trial court granted summary judgment upon the basis that we have already related, that being Sunsinger’s failure to present summary judgment proof to show that Dr. Perez’s conduct was outside the applicable standard of care. We overrule Sunsinger’s contentions presented in issue two.

Sunsinger asserts in issue three that the trial court erred by granting the summary judgment because Dr. Perez’s affidavit is incompetent. She initially refers us to an isolated statement in his affidavit that, “Based upon that conversation, I believed as of November 12, 1991, and it is my expert opinion that Ms. Sunsinger and I no longer had a physician/patient relationship and that she had terminated it as of that date.” Just previously, Dr. Perez had stated in his affidavit that Sunsinger had informed him on that date that she was moving to the Dallas area, would be seeing another physician there, and would be requesting a copy of her records in the near future. She argues that summary judgment should not be granted because statements of intent in summary judgment evidence are not readily controvertible. We note, however, that in any event her status as a patient is not material because, even if she was a patient, her claim for medical malpractice must fail because she failed to present summary judgment evidence from an appropriate health professional to refute Dr. Perez’s assertion that his conduct was within the applicable standard of care.

Sunsinger also urges that she was not required to present the sworn testimony of a health care provider to refute Dr. Perez’s testimony regarding the standard of care with respect to what she refers to as the transference-phenomenon because he is not an expert psychologist or psychiatrist and he presented no summary judgment testimony of such an expert mental health professional. As previously noted, Dr. Perez is an M.D. who has a general medicine and family practice. Liability in a medical negligence case is determined by a doctor of the same school of practice as the defendant. See Hart v. Van Zandt, 399 S.W.2d 791, 797 (Tex. 1965). Consequently, Dr. Perez’s testimony is competent on the issue of his liability. That being the case, Sunsinger was required, in the face of Dr. Perez’s affidavit, to present the affidavit of an appropriate expert to refute his assertion that his conduct was within the applicable standard of care. Even if Dr. Perez were treating her as a general practitioner for a psychiatric or psychological condition, he was competent to testify that such treatment was within the applicable standard of care. Sunsinger has provided no authority showing that a defendant general practitioner is required to obtain the affidavit of a specialist in order to sustain a summary judgment where the general practitioner is treating a medical condition that falls within a recognized medical specialty, and we are not aware of any.

Sunsinger also asserts that Dr. Perez’s affidavit is incompetent because he failed to attach any of her medical records to his affidavit. Rule 166a (f) of the Texas Rules of Civil Procedure provides that sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached to or served with the affidavit. At the beginning of his affidavit, Dr. Perez stated that, “I have personal knowledge of the facts, statements, opinions, and attachments contained herein and attached hereto based on my care and treatment of HALLIE SUNSINGER, my review of her medical records, and my education, training, and experience in the practice of medicine, and they are true and correct.” He did not attach a copy of Sunsinger’s medical records to his affidavit.

In her response to Dr. Perez’s motion for summary judgment, Sunsinger objected to Dr. Perez’s affidavit, in part because of his failure to attach her medical records to the affidavit. She did not obtain a written ruling on her objection from the trial judge. If an objection to the failure to attach records to an affidavit in support of a motion for summary judgment is made at trial, but no written ruling is obtained from the trial judge, the objection is waived if the objection relates to a defect of form and not of substance. See Watts v. Hermann Hospital, 962 S.W.2d 102, 105 (Tex.App. — Houston [1st Dist.] 1997, no writ); Roberts v. Friendswood Development Co., 886 S.W.2d 363, 365 (Tex.App. — Houston [1st Dist.] 1994, writ denied). Although there is possibly a conflict among courts of appeals as to whether the failure to attach records to an affidavit in support of summary judgment is a defect of form or substance, we agree with those courts that hold that such a failure is a defect of form, not of substance. See Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App. — Houston [1st Dist.] 1998, no writ); Martin v. Durden, 965 S.W.2d 562, 565 (Tex.App. — Houston [14th Dist.] 1997, pet. denied). Sunsinger, in her objection to the affidavit, referred the trial court to the case of Noriega v. Mireles, 925 S.W.2d 261 (Tex.App. — Corpus Christi 1996, writ denied), as authority for her contention that the defect in the affidavit is one of substance rather than form. Rather, the court in Noriega held that where there is no dispute about what treatment the patient received, but rather what treatment the patient should have received, but did not, and whether the treatment met the applicable standard of care, it is a formal, rather than a substantive defect. See id. at 265. We see no reason why the rule would not be the same in a case such as this where there is no dispute about what treatment the patient received, but what the plaintiff alleges that the physician should not have done, but did, and whether that conduct was violative of the applicable standard of care. We overrule Sunsinger’s contentions in issue three.

Sunsinger asserts in issue four that the trial court erred by granting summary judgment because there is a material fact issue as to whether a doctor-patient relationship existed from November 12, 1991, until December 26,1991 because Dr. Perez indicates that he believed that the doctor-patient relationship terminated on November 12, whereas he acknowledges examining Sunsinger and providing her medication on December 26, 1991, when she saw him at his office after previously moving from the area. Despite Sunsinger s assertion to the contrary, we construe her petition to allege only a cause of action for medical negligence and breach of warranty. Even if Sunsinger was Dr. Perez’s patient at the time they had sexual relations, the issue as to whether the doctor-patient relationship existed at the time they had such relations is not a material fact issue, where summary judgment is warranted based upon her failure to present expert testimony in order to show that Dr. Perez’s conduct, including his having sexual relations with her, was outside the applicable standard of care. We overrule Sunsinger’s contentions contained in issue four.

Sunsinger argues in issue five that the trial court erred in granting summary judgment because the motion did not address her general negligence cause of action. While Sunsinger does allege that she seeks money damages as compensation for her injuries sustained as a result of the “negligence, gross negligence, breach of warranty, and/or malpractice of [Dr. Perez],” she then alleges specific acts of negligence, all of which are related to medical negligence. As we have previously noted, a fair reading of Sunsinger’s petition, taken as a whole, alleges only a cause of action for medical negligence and breach of warranty, not negligence generally. We overrule her contentions as contained in issue five.

Sunsinger, in issue one, merely presents the general issue that the trial court erred in granting summary judgment for Dr. Perez, without presenting any argument or authority on its merits. Her specific bases for her contention that the trial court erred in granting the summary judgment motion are contained in issues two, three, four, and five. Because in our consideration of those issues we have concluded that the trial court did not err in granting summary judgment, we overrule Sunsinger’s contention as contained in issue one.

Sunsinger asserts in issue six that the trial court erred by not granting her leave to file a second amended petition. She sought to file the amended petition on December 1, 1997, shortly more than one hour before the trial court signed the order granting summary judgment. The record reflects that the petition had not even been prepared, much less sought to have been filed, at the time that the trial court granted summary judgment in favor of Dr. Perez. The trial court did not abuse its discretion by not granting Sun-singer leave to file an amended petition after the granting of summary judgment in favor of Dr. Perez. See Morris v. Hargrove, 351 S.W.2d 666, 668 (Tex.Civ.App.— Austin 1961, writ ref d n.r.e.). Rule 63 of the Texas Rules of Civil Procedure provides that any pleadings offered for filing within seven days of the date of trial shall be filed only after leave of the judge is obtained, which leave shall be granted unless there is a showing that such filing would operate as a surprise to the opposite party. In this case Dr. Perez was entitled to summary judgment on the basis of the pleadings that were before the court at the time the court ruled on his motion. The second amended petition ultimately filed alleged for the first time that Dr. Perez committed the torts of assault and battery against her in that he intentionally and knowingly caused physical contact with her when he knew or should have reasonably believed that she would regard this contact as offensive and provocative. We hold that the amendment itself constitutes a sufficient showing of surprise to Dr. Perez to justify the trial court’s failure to grant Sunsinger leave to amend her petition.

Sunsinger urges that there was no surprise, that her tort and battery allegation was not a new cause of action but one that was apparent from the context of the allegations of her previously filed amended petition. We disagree. There was absolutely nothing in the previously filed amended petition alleging medical liability and breach of warranty that would have put Dr. Perez on notice that she was claiming that Dr. Perez had committed an assault and battery against her or that she regarded his conduct as offensive and provocative at the time that it occurred. We overrule her contention as presented in issue six.

The judgment is AFFIRMED.

DON BURGESS, Justice,

dissenting.

I respectfully dissent. The pleadings allege Ms. Sunsinger was taken advantage of by her treating physician, Dr. Perez. Those pleading allege, among other things, that Dr. Perez was negligent in mishandling the “transference” phenomenon and in failing to refer Ms. Sunsinger for psychological treatment. The majority holds Dr. Perez’s affidavit is competent summary judgment evidence on this issue. I disagree.

Cluett v. Medical Protective Co., 829 S.W.2d 822, 828-29 nn. 4-5 (Tex.App.— Dallas 1992, writ denied), is instructive on transference:

Although no Texas court has addressed the issue of when sexual contact by a physician with a patient (FN4) is construed to be the rendition of professional medical services, (FN5) several other jurisdictions have considered this issue. The general rule in other jurisdictions is that the nature of the physician-patient relationship determines whether sexual contact should be considered to be based upon the rendition of professional services. These courts have held that sexual contact between physician and patient will not be considered by the courts to have arisen out of the rendition of professional services unless the patient is receiving psychothera-peutic treatment involving the transference phenomenon. The transference phenomenon occurs in the relationships of psychiatrists, psychologists, therapists, and similar professionals with their patients. Transference is “[t]he process whereby the patient displaces [onto] the therapist feelings, attitudes and attributes which properly belong to a significant attachment figure of the past, usually a parent, and responds to the therapist accordingly.” St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698, 700 (Minn.1990) (quoting S. WALDRON-SKINNER, A DICTIONARY OF PSYCHOTHERAPY 364 (1986)). Thus, the therapist, as part of the therapeutic relationship, serves as a substitute for the person with whom the patient has had difficulty communicating or acting out feelings. See Simmons v. United States, 805 F.2d 1363, 1365 (9th Cir.1986); St. Paul Fire & Marine Ins. Co. v. Love, 447 N.W.2d 5, 8 (Minn.Ct. App.1989), aff'd, 459 N.W.2d 698 (Minn.1990). Because the relationship between the therapist and the patient is crucial to the recovery of the patient, the mishandling of that relationship by the therapist’s becoming sexually involved with the patient has been declared by many courts to be malpractice. See Simmons, 805 F.2d at 1365-66 (and cases cited therein); Love, 459 N.W.2d at 702.
Where the physician-patient relationship does not involve the transference phenomenon as part of the treatment of the patient, courts have held that sexual relations between physician and patient do not involve the rendition of professional services. E.g., Standlee v. St. Paul Fire & Marine Ins. Co., 107 Idaho 899, 693 P.2d 1101, 1102 (App.1984) (doctor’s sexual assault on minor patient in hospital did not “result from actions necessary in physician’s work”); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440, 444 (App.1984) (doctor’s sexual assault on minor patient whom he had drugged did not involve the “providing or withholding of professional services”); St. Paul Fire & Marine Ins. Co. v. Quintana, 165 Mich. App. 719, 419 N.W.2d 60, 62 (1988) (electroencephalograph technician’s sexual assault on patient was not committed “in connection with professional services rendered or which [should] have been rendered”); Smith v. St. Paul Fire & Marine Ins. Co., 353 N.W.2d 130, 132 (Minn.1984) (doctor’s sexual assaults on minor patients in medical clinic did not involve “[provision] or withholding of professional services”); South Carolina Medical Malpractice Liab. Ins. Joint Underwriting Ass’n v. Ferry, 291 S.C. 460, 354 S.E.2d 378, 381 (1987) (dentist’s taking of “indecent liberties with private parts of’ patients did not involve rendition of professional services); Washington Ins. Guar. Ass’n v. Hicks, 49 Wash. App. 623, 744 P.2d 625, 627-28 (1987) (chiropractor who had sexual intercourse with patient during treatment session did not do so “in the furnishing of professional medical ... services”).
FN4. Whether Rose Cluett was a “patient” was disputed by the parties. Although the argument that Rose Cluett was a patient of Capino’s under the facts of this case is tenuous at best, we will assume, without deciding, that a doctor-patient relationship existed between hér and Capino.
FN5. The Fort Worth court decided a case involving sexual relations between a psychologist and his patient on statute-of-limitations grounds. Lenhard v. Butler, 745 S.W.2d 101 (Tex.App. — Fort Worth 1988, writ denied). The Texarkana court did not reach the issue of a plastic surgeon’s liability for negligence for having sexual relations with a patient. Wall v. Noble, 705 S.W.2d 727, 731 (Tex.App. — Texarkana 1986, writ refd n.r.e.). The Texas Supreme Court has suggested that a patient may be able to bring a cause of action for medical malpractice against a psychiatrist if the psychiatrist has sexual relations with the patient. Dennis v. Allison, 698 S.W.2d 94, 95-96 (Tex.1985). A case involving the liability of a medical partnership for the tortious conduct of one of the partners in alienating the affection of a patient from her husband reached the supreme court, but that case involved only the issue of the liability of the partnership for protecting its patients from the tortious conduct of one of its partners, not whether the alienation of affection was the result of the rendition of professional services. Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex.1971).

Similarly, Lenhard v. Butler, 745 S.W.2d 101, 103 n. 2 (Tex.App. — Fort Worth 1988, writ denied), noted:

Where a therapist mishandles transference and becomes sexually involved with his patient, courts commonly hold such action to constitute malpractice. (FN2)
FN2. See e.g. Simmons v. United States, 805 F.2d 1363 (9th Cir.1986); Waters v. Bourhis, 40 Cal.3d 424, 220 Cal.Rptr. 666, 709 P.2d 469 (1985); Cotton v. Kambly, 101 Mich.App. 537, 300 N.W.2d 627 (1980); Roy v. Hartogs, 85 Misc.2d 891, 381 N.Y.S.2d 587 (1976); Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968). See also: Psychiatry’s Problem mth No Name: Therapist-Patient Sex, 37 Am.J. Psychoanalysis 43, 48-49 (1977).

Our Supreme Court in Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex.1996), has enlightened us as to the “expert” issue:

Moreover, given the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of medical specialization. The Heises’ proposed rule would also eliminate the trial court’s role of ensuring that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion. After all, the proponent of the testimony has the burden to show that the expert “possess[es] special knowledge as to the very matter on which he proposes to give an opinion.” 2 RAY, TEXAS LAW OF EVIDENCE: CIVIL AND CRIMINAL § 1401 at 32 (Texas Practice 3d ed.1980)....

Dr. Perez’s affidavit does no more than establish his credentials as a family practitioner; it does not establish his knowledge of the transference phenomenon. Consequently, his affidavit was not competent summary judgment evidence on this issue and the summary judgment should not have been granted. I would reverse and remand for a new trial.


author: ADELE HEDGES, Justice.

text:
    Karston Wayne LOCKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00711-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 20, 2000.

      Roger Bridgewater, Houston, for appellant.
    Kelly Ann Smith, John B. Holmes, Houston, for State.
    Panel consists of Justices COHEN, HEDGES, and ANDELL.
   OPINION

ADELE HEDGES, Justice.

Appellant pled guilty to aggravated robbery without an agreed recommendation as to punishment. The trial judge accepted his plea and ordered a pre-sentence investigation report. After the report was prepared, the trial judge conducted a hearing and assessed punishment at 25 years in prison. We affirm.

Background

Appellant forced his way into the complainant’s home and demanded his wallet and his car keys. The complainant complied. When the complainant did not provide the “pin” number for his credit card, appellant grabbed him by the head, gouged his eye, and cut him with an unknown object. Before leaving the home, appellant threw the complainant to the floor, stepped on his chest, and threw him across the room.

At the punishment hearing, the State presented evidence of an extraneous offense, an aggravated robbery, allegedly committed by appellant. Appellant was never charged with the extraneous offense.

In one point of error, appellant argues that the trial judge erred by considering the extraneous offense because the evidence was insufficient to prove that he committed the offense beyond a reasonable doubt. We disagree.

Evidence of Extraneous Offense at Punishment

Texas Code of Criminal Procedure article 37.07, § 3(a) states that at a punishment hearing:

evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to ... any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt ... to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex.Code Crim. PROC. Ann. art. 37.07, § 3(a) (Vernon Supp.2000).

At the present punishment hearing, the State presented the extraneous offense evidence without objection from appellant. During final argument, appellant contested for the first time the consideration of the extraneous offense evidence because the State had not proven it beyond a reasonable doubt. Specifically, appellant’s counsel stated:

I think the Court would know that any defendant and defense attorney would be asking for an instructed verdict if this extraneous case were the case we were called to try. It still has to be proven beyond a reasonable doubt. I would suggest to the Court that not only has it not been proven beyond a reasonable doubt, but the evidence is far stronger that he did not do it.

Even if we believe that appellant’s counsel’s remarks were an objection to the consideration of the extraneous offense evidence, the record does not reflect that the trial judge ruled on the objection, nor does it reflect that the trial judge refused to rule on the objection. Therefore, appellant waived any error that may have occurred. See Tex.R.App. P. 33.1(a)(2)(A).

Furthermore, because the record does not reflect that the trial judge found or believed that appellant committed this extraneous offense, or that he considered this evidence in his assessment of punishment, it is impossible to ascertain whether appellant suffered any harm.

In order to create a record suitable for review, counsel should have asked the trial judge to rule that the extraneous offense not be considered because it was not proved beyond a reasonable doubt. If the trial judge had overruled that motion, we could have assumed that the trial judge found the offense was proved beyond a reasonable doubt and therefore considered it against appellant in assessing punishment.

We overrule point of error one.

Conclusion

We affirm the judgment of the trial court.

      . The complainant was at least 65 years old at the time of the offense.

      . Within this point of error, appellant makes the conclusory statement that the extraneous offense "should not have been argued by the prosecutor as an ‘addition’ in assessing punishment.” Because appellant provides no argument and cites no authority supporting this statement, nothing relative to this claim is presented for review. See TexR.App. P. 38.1(h).


author: PER CURIAM.

text:
    GALERIE BARBIZON, INC., Gustav Alker, Jr., and Robert Alker, Appellants, v. NATIONAL ASSET PLACEMENT CORPORATION, Appellee.
    No. 01-99-00167-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 20, 2000.

      Robert V. Holland, Jr., Houston, for appellants.
    John J. Diggins, Dallas, for appellee.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

      The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

PER CURIAM.

This is an appeal from a judgment signed on October 22, 1998. A motion for new trial was timely filed and appellants’ notice of appeal was due on or before January 20, 1999. TexR.App. P. 26.1(a)(1). Appellants filed their notice of appeal on February 11, 1999, 22 days late. Thus, appellants’ notice of appeal was outside the 15-day extension of time allowed under the rules. See Tex.R.App. P. 26.3.

Appellee filed a motion to dismiss this appeal for want of jurisdiction. On March 2, 2000, this Court issued an order stating that, unless within 15 days of the date of the order, appellants filed a supplemental clerk’s record showing that this Court has jurisdiction, we would dismiss the appeal. See Tex.R.App. P. 42.3(a).

On March 24, 2000, appellants filed a motion to supplement the clerk’s record requesting this Court to order the district clerk to prepare a supplemental record. Attached to the motion was a request, dated March 8, 2000, requesting a supplemental record “showing that the Appeals Court has jurisdiction over this case,” and a second request, dated March 23, 2000, requesting a supplemental record “to include the Defendants’ Motion for Rehearing and in the alternative Motion for New Trial.” Appellants’ timely filed motion for new trial was included in the clerk’s record on file with this Court. There is no reason to file a supplemental clerk’s record containing the motion for new trial.

Appellants assert in their motion to supplement the clerk’s record that this court has jurisdiction “because 75 days lapsed from the filing of the Motion for New Trial and it was overruled by operation of law.” Appellants misread the rules. If a motion for new trial is not determined by written order signed within 75 days after the judgment is signed, it is overruled by operation of law. Tex.R. Civ. P. 829b(c). However, the date on which a motion for new trial is overruled does not affect the jurisdiction of a court of appeals. To perfect appeal when a motion for new trial has been filed, the notice of appeal must be filed within 90 days after the date on which the judgment is signed. See Tex.R.App. P. 26.1.

The judgment in this case was signed on October 22, 1998. A timely motion for new trial was filed. Therefore, the notice of appeal was due on or before January 20, 1999. The appellate court may extend the time for filing the notice of appeal if, within 15 days after the deadline for filing the notice, the party files (1) the notice of appeal in the trial court and (2) a motion for extension of time in the appellate court reasonably explaining the need for an extension and complying in other respects with rule 10.5(b). Tex.R.App. P. 26.3; 10.5(b).

Appellants’ notice of appeal was filed on February 11, 1999, 22 days after the deadline for filing the notice of appeal. Because the notice was filed more than 15 days after the deadline for filing, we have no jurisdiction to grant an extension of time, even if properly requested, or to consider this appeal. See Chavez v. Housing Authority of City of El Paso, 897 S.W.2d 523, 527 (Tex.App. — El Paso 1995, writ denied).

Appellee’s motion to dismiss is granted. Accordingly, we dismiss the appeal.

Any other pending motions are denied as moot.