author: TERRIE LIVINGSTON, Justice.

text:
    Harvey G. DAVISSON, Ph.D. and Angela Donna Self, M.D. and the Davisson Clinic, Appellants, v. James T. NICHOLSON, individually, and Patricia Nicholson, individually as next Friend of Jason Thomas Nicholson and Ryan James Nicholson, Minors, Appellees.
    No. 2-09-169-CV.
    Court of Appeals of Texas, Fort Worth.
    March 25, 2010.

      Watson, Caraway, Midkiff & Luning-ham, L.L.P., David Luningham & Lauren Lockett, Bodoin, Agnew, Greene & Maxwell, P.C., John W. Greene & Rebecca E. Heinemann, Ray, Valdez, McChristian & Jeans, P.C., John W. McChristian, Jr. & Sunny L. Smith, Fort Worth, for appellants.
    W. Brice Cottongame, Fort Worth, for Appellees.
    Panel: LIVINGSTON and WALKER, JJ.
   OPINION ON REHEARING

TERRIE LIVINGSTON, Justice.

After considering the motion for rehearing filed by appellant Harvey G. Davisson, Ph.D., we deny the motion, but we withdraw our prior opinion and judgment of February 4, 2010 and substitute the following.

This is an interlocutory appeal from the trial court’s order denying appellants’ motions to dismiss for failure to timely file an adequate expert report in this health care liability case. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon 2008). We affirm in part and reverse and remand in part.

Factual and Procedural Background

On November 24, 2008, appellees James T. Nicholson and his wife Patricia filed a health care liability claim against appellants Harvey G. Davisson, Ph.D., Angela Donna Self, M.D., and The Davisson Clinic (the Clinic). The Nicholsons alleged that in February 2003, James responded to a radio advertisement by Dr. Davisson and went to the Clinic complaining of “feeling stressed and having an inability to concentrate.” Dr. Davisson diagnosed James with Attention Deficit Disorder (ADD), and Dr. Ferrell prescribed him Adderall. The Nicholsons further alleged that between February 2003 and February 2008, appellants were negligent by continuing “to provide medical care and treatment” to James and “by providing continued prescriptions for Adderall,” despite collectively having seen James in the office only two or three times during that five-year period. The Nicholsons claimed that this negligence caused James to develop Adderall addiction and psychosis.

Their specific allegations of negligence faulted appellants for the following:

• Failing to timely and properly diagnose James;

• Diagnosing James with ADD;

• Continuing to diagnose James with ADD;

• Failing to adequately or properly assess, monitor, and treat James; and

• Continuing to prescribe Adderall without timely and properly seeing James for medical and psychiatric evaluation.

The Nicholsons also generally alleged re-spondeat superior liability as follows:

Whenever in this Petition it is alleged that a Defendant did any act or thing, it is meant that said Defendant, or its agents, servants, employees or representatives did such act or thing and that at the time such act or thing was done, it was done with full authorization or ratification of that Defendant or was done in the normal routine or course and scope of employment of that Defendant or its agents, servants, employees or representatives.[]

The Nicholsons filed two expert reports on March 23, 2009: one from a psychologist, Dr. Swen Helge, and the other from an internal medicine specialist, Dr. Lige B. Rushing, Jr. All three appellants objected to both reports. After a hearing, the trial court overruled all of appellants’ objections to the reports and refused to dismiss the claims against each of the appellants. Appellants appeal the trial court’s refusal to dismiss the Nicholsons’ claims against them.

Issues on Appeal

Dr. Davisson and the Clinic each bring three issues challenging the adequacy of both Dr. Helge’s and Dr. Rushing’s expert reports as to causation and each expert’s qualifications to render expert opinions on the standard of care applicable to Dr. Davisson and the manner in which he allegedly breached that standard of care. Dr. Self brings a single issue challenging the adequacy of Dr. Rushing’s report, alleging specifically that the report fails to show that he is qualified to give an opinion as to the applicable standard of care and that his opinion on causation is conclusory.

Standard of Review

A trial court’s decision on a motion to dismiss under section 74.351 is subject to an abuse of discretion standard. See, e.g., Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Craig v. Dearbonne, 259 S.W.3d 308, 310 (Tex.App.-Beaumont 2008, no pet.); San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 811 (Tex.App-Houston [14th Dist.] 2008, no pet.); Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 471 (Tex.App.-Fort Worth 2007, no pet.). Additionally, a trial court’s decision on whether a physician is qualified to offer an expert opinion in a health care liability claim is reviewed under an abuse of discretion standard. See Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id. at 242. A trial court does not abuse its discretion if it commits a mere error in judgment. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995).

Applicable Law

In a health care liability claim, a claimant must serve on each defendant an expert report that addresses standard of care, liability, and causation no later than the 120th day after the claim is filed. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (j) (Vernon Supp.2009); Barber v. Mercer, 303 S.W.3d 786, 790-91 (Tex.App.-Fort Worth 2009, no pet.). If an expert report has not been served on a defendant within the 120-day period, then on the motion of the affected defendant, the trial court must dismiss the claim with prejudice and award the defendant reasonable attorney’s fees and costs. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b); Barber, 303 S.W.3d at 790-91. A report “has not been served” under the statute when it has been physically served but it is found deficient by the trial court. Lewis v. Funderburk, 253 S.W.3d 204, 207-08 (Tex.2008); Barber, 303 S.W.3d at 790-91. When no report has been served because the report that was served was found to be deficient, the trial court has discretion to grant one thirty-day extension to allow the claimant the opportunity to cure the deficiency. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c); Barber, 303 S.W.3d at 790-91.

A report is deficient (therefore subjecting a claim to dismissal) when it “does not represent an objective good faith effort to comply with the definition of an expert report” in the statute. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(Z); Barber, 303 S.W.3d at 791. While the expert report “need not marshal all the plaintiffs proof,” Palacios, 46 S.W.3d at 878, it must provide a fair summary of the expert’s opinions as to the “applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); Barber, 303 S.W.3d at 791.

To qualify as a good faith effort, the report must “discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 875; Barber, 303 S.W.3d at 791. A report does not fulfill this requirement if it merely states the expert’s conclusions or if it omits any of the statutory requirements. Palacios, 46 S.W.3d at 879; Barber, 303 S.W.3d at 790-91. The information in the report “does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879; Barber, 303 S.W.3d at 791. When reviewing the adequacy of a report, the only information relevant to the inquiry is the information contained within the four corners of the document alone. Palacios, 46 S.W.3d at 878; Barber, 303 S.W.3d at 790-91; see Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). This requirement precludes a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. Barber; 303 S.W.3d at 790-91; see Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.) (citing Bowie Mem’l Hosp., 79 S.W.3d at 53).

Analysis

Standard of Care

The Clinic and Dr. Davisson each contend that (1) the Helge report does not demonstrate that Dr. Helge is qualified to offer an expert opinion regarding the accepted standards of care for the diagnosis, care, or treatment of ADD, the prescribing of Adderall to treat adult ADD, Adderall addiction, Adderall psychosis, or all of these; (2) the Helge report fails to set forth the specific standard of care applicable to each of the doctors and the Clinic; and (3) the report fails to set forth the specific manner in which the doctors and Clinic employees failed to meet the applicable standard of care. They, along with Dr. Self, also challenge Dr. Rushing’s qualifications to opine to the standard of care applicable to each of them.

Dr. Helge’s Qualifications

An expert report concerning standards of care “authored by a person who is not qualified to testify ... cannot constitute an adequate report.” See Moore v. Gatica, 269 S.W.3d 134, 140 (Tex.App.-Fort Worth 2008, pet. denied); In re Windisch, 138 S.W.3d 507, 511 (Tex.App.Amarillo 2004, orig. proceeding); see Ehrlich v. Miles, 144 S.W.3d 620, 624-25 (Tex.App.-Fort Worth 2004, pet. denied). To be qualified, an expert must satisfy the requirements in section 74.402. Tex. Civ. Prac. & Rem.Code Ann. § 74.402 (Vernon 2005); Terry A. Leonard, P.A. v. Glenn, 293 S.W.3d 669, 678 (Tex.App.-San Antonio 2009, pet. filed). Specifically, section 74.402(b)(1) requires an expert to have been

practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose.

Tex. Civ. Prac. & Rem.Code Ann. § 74.402(b)(1).

As to Dr. Helge, the Clinic and Dr. Davisson specifically contend that Dr. Helge is not practicing health care in a field of practice involving the same type of care or treatment as that delivered by the doctors in this case, that Dr. Helge does not have knowledge of the accepted standards of care for health care providers for such matters, and that he is not qualified on the basis of training or experience to offer an expert opinion on the accepted standards of care.

Dr. Helge has been a practicing clinical psychologist for the past thirty-seven years in addition to being a practicing forensic psychologist for the past twenty-four years. Although the Clinic and Dr. Davisson claim that Dr. Helge’s most recent expertise is in forensic psychology as opposed to clinical psychology, Dr. Helge’s report and curriculum vitae show that at the time he authored the report, he had a private clinical practice in psychology and was a member of the division of clinical psychology and division of psychotherapy of the American Psychological Association. Although many of his more recent diplo-mates and papers involved forensic psychology, nothing in his report or curriculum vitae shows that he was practicing forensic psychology to the exclusion of clinical psychology. Thus, we conclude that the trial court did not abuse its discretion by overruling this objection to Dr. Helge’s qualifications. See id.; Benish v. Grottie, 281 S.W.3d 184, 206 (Tex.App.Fort Worth 2009, pet. denied); Foster v. Zavala, 214 S.W.3d 106, 113 (Tex.App.-Eastland 2006, pets, denied) (holding, based on legislative history and statutory construction principles, that the statute does not require that expert be in same field of practice, only a field involving the same type of care or treatment).

Dr. Davisson and the Clinic also challenge Dr. Helge’s knowledge of the accepted standard of care for ADD treatment, care, and diagnosis, including the use of Adderall in such treatment. According to the Clinic, although Dr. Helge states that he has had the occasion to see and evaluate patients who have had Adde-rall prescribed for them in the regular course of his psychological practice, he does not explain how seeing those patients, or how being familiar with the pharmacology of amphetamines and their adverse effects, “provides him with the knowledge of the accepted standards of care for providing diagnosis, care, and treatment to an adult diagnosed with ADD and prescribed Adderall, or Adderall addiction or Adderall psychosis.”

Section 74.402(c) states that

[i]n determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.

Tex. Civ. Prac. & RermCode Ann. § 74.402(c). Dr. Helge meets both of these requirements; he is certified by the State of Texas as a psychologist, and he treats patients who have been prescribed Adderall. Although Dr. Helge does not prescribe Adderall himself, his report states that he has practical knowledge of what is customarily and usually done by a practitioner under circumstances similar to those confronting the defendant doctors. See Ehrlich, 144 S.W.3d at 625; see also Barber, 303 S.W.3d at 793-94, 795-96.

Dr. Davisson is a psychologist, as is Dr. Helge. Appellees allege that after diagnosing James with ADD and recommending a prescription for Adderall, as evidenced by Dr. Davisson’s signature along with Dr. Ferrell’s on the notes setting forth the diagnosis and prescription recommendation, Dr. Davisson failed to provide any followup care or evaluation of James. Having treated patients in his clinical psychology practice who have been prescribed Adderall, Dr. Helge is thus at least qualified to opine to the ongoing standard of care for a psychologist who has made a diagnosis for which the patient was prescribed Adderall by a medical doctor. See Tex. Civ. Prac. & Rem.Code Ann. § 74.402(c); Terry A Leonard, P.A., 293 S.W.3d at 680; Chindstaff v. Michie, 242 S.W.3d 536, 542 (Tex.App.-El Paso 2007, no pet.); Burrell, 230 S.W.3d at 760-61.

Dr. Davisson and the Clinic also contend that the Helge report does not demonstrate that Dr. Helge is qualified on the basis of training or experience to offer an expert opinion on the accepted standards of care in that he does not explain how his experience or training, which they claim is overwhelmingly in the field of forensic psychology, provides him the necessary training or experience with the omissions alleged here: involving the diagnosis, care, and treatment of an adult diagnosed with ADD and prescribed Adderall, Adderall addiction, or Adderall psychosis. However, the Clinic and Dr. Davisson fail to read the report and Dr. Helge’s curriculum vitae as a whole. Dr. Helge’s curriculum vitae shows that he is a practicing psychologist and that he has treated patients who are taking Adderall prescribed by a doctor. As such, he meets the requirements of section 74.402 as to the Clinic’s principal, Dr. Davisson, at least. Tex. Civ. Prac. & Rem.Code Ann. § 74.402; see Barber, 303 S.W.3d at 793-94 (holding that court must not view any one part of expert report or curriculum vitae in isolation).

Dr. Helge’s Articulation of Standard of Care

Dr. Davisson and the Clinic further claim that the Helge report fails to provide a fair summary of Dr. Helge’s opinions regarding the standard of care for each defendant and how each of them specifically breached that standard of care. Dr. Helge opined as follows regarding the standard of care:

a. The standard of care requires that [James’s] psychologist, Dr. Harvey G. Davisson, provide that level of care and treatment that a reasonably prudent psychologist would provide under the same or similar circumstances. The prescription of controlled substances and particularly amphetamines on a chronic basis requires careful monitoring and supervision. This means that the patient should be seen at a minimum of every 180 days and depending on the clinical status, possibly more often in order to meet the standard of care.
b. The standard of care requires ... [James] to be seen and examined every 180 days and assessed for adverse effects from the amphetamines such as amphetamine psychosis, including any change in sociological factors.
c. The standard of care also requires that appropriate clinical records be kept in accordance with acceptable professional standards. These records need to, in order to meet the standard of care, clearly reflect the patient’s clinical status, the medicines being received, his emotional or psychological status, his response to treatment or lack of response and evidence of any adverse effects or the absence of adverse effects must be documented.

Dr. Davisson and the Clinic contend that because the report goes on to state that “the care rendered by the Davisson Clinic, its employees, and Harvey G. Davisson, Ph.D. failed to meet the standard of care ... [in that] the Davisson Clinic, its employees, and Harvey G. Davisson, Ph.D. failed to examine and assess ... [James] every 180 days in [an] appropriate timely manner,” it does not delineate between the standards of care applicable to the various defendants. But as we have stated, Dr. Helge is a psychologist, like Dr. Davisson, and he articulates the standard of care for a psychologist, specifically Dr. Davisson, in his report. Thus, he clearly articulates the standard of care as it relates to Dr. Davis-son. Because the Nicholsons’ claims against the Clinic are based on respondeat superior, and, thus, through the alleged negligence of Dr. Davisson as well as Dr. Self, the report is therefore not deficient for failing to set forth a standard of care as to anyone other than Dr. Davisson. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008); Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.); see also Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 295 (Tex.App.Fort Worth 2008, pet. denied).

Moreover, the same reasoning applies to Dr. Helge’s articulation of the breach of the standard of care, which provides a fair summary as to Dr. Davisson: as a psychologist monitoring a person for whom he had diagnosed as having ADD and who he knew was being prescribed Adderall, Dr. Davisson failed to examine James every one hundred eighty days for signs of adverse effects from the amphetamines, including social factors. It is undisputed that Dr. Helge’s summary of the notes and records in James’s file shows that there are no entries indicating Dr. Davisson examined James after the initial diagnosis. And because the claims against the Clinic are based solely on respondeat superior, including through the alleged negligence of Dr. Davisson, Dr. Helge’s inclusion of the Clinic in his articulation of Dr. Davisson’s breach of the standard of care does not fail to inform Dr. Davisson of his specific conduct that breached the standard of care. See, supra, page 15.

Accordingly, we conclude and hold that the trial court did not abuse its discretion by overruling Dr. Davisson’s and the Clinic’s objections to Dr. Helge’s report based on his qualifications and articulation of the standard of care as to their claim that Dr. Davisson failed to “adequately or properly assess, monitor, and treat James.”

Dr. Rushing’s Qualifications

The Clinic and Dr. Davisson likewise challenge Dr. Rushing’s qualifications to give an expert opinion on the standard of care applicable to Dr. Davisson. They further contend that his report is deficient as to Dr. Davisson because it only sets forth a standard of care for Dr. Self, Dr. Mercau, and the Clinic, rather than Dr. Davisson, and because it fails to set forth the specific manner in which Dr. Self, Dr. Mercau, and the Clinic’s employees failed to meet the applicable standard of care. Dr. Self also challenges Dr. Rushing’s qualifications to opine as to an applicable standard of care.

To be an “expert” on the departure from a physician’s standard of care, a person must be a physician who

(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(A), § 74.401(a) (Vernon 2005). In determining whether a physician is qualified on the basis of training or experience, courts must consider whether the physician who completed the report (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim, and (2) is actively practicing medicine in rendering medical care services relevant to the claim. Id. § 74.401(c). In other words,

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.... [T]he proponent of the testimony has the burden to show that the expert possesses special knowledge as to the very matter on which he proposes to give an opinion.

Ehrlich, 144 S.W.3d at 625 (quoting Broders v. Heise, 924 S.W.2d 148,152-53 (Tex.1996)); see Barber, 303 S.W.3d at 791-92. For this reason, the offered report (along with the physician’s curriculum vitae) must generally demonstrate that the expert has “knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” Ehrlich, 144 S.W.3d at 625 (quoting Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex.2003)); see Tex.R. Evid. 702; Barber, 303 S.W.3d at 791-92.

However, “there are certain standards of medical care that apply to multiple schools of practice and any medical doctor.” Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Therefore, a physician “who is not of the same school of medicine [as the defendant] ... is competent to testify if he has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those confronting the defendant.” Ehrlich, 144 S.W.3d at 625; see also Marling v. Maillard, 826 S.W.2d 735, 740 (Tex.App.-Houston [14th Dist.] 1992, no writ).

Appellants contend that the Rushing report does not show that Dr. Rushing is qualified to offer an expert opinion regarding the accepted standards of care applicable to each of them because it does not show that he is familiar with “the specific issues involved in the claim.” Specifically, they contend that he is not practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the doctors, that he does not have knowledge of the accepted standards of care regarding ADD, Adde-rall prescription, or Adderall psychosis, and that he is not qualified on the basis of training or experience to offer an expert opinion regarding those standards.

Dr. Rushing’s curriculum vitae shows that he is board certified in internal medicine, geriatrics, and rheumatology and is an attending physician at Presbyterian Hospital in Dallas. His report states that he has been practicing medicine since he graduated from medical school in 1951 and has provided primary medical care for more than 10,000 patients in a hospital setting and “many more than that” in an office setting. Dr. Rushing also states that he is familiar with the pharmacology of amphetamines and the adverse effects they produce. He also offers,

In the regular course of my medical practice I have occasion to see and evaluate patients who have had Adderall prescribed for them for attention deficit disorder. I have three such patients currently in my practice who are receiving Adderall prescribed by the psychiatrist for their attention deficit disorder. I see these patients for their regular medical problems and provide their primary medical care. [Emphasis added.]

Dr. Rushing’s report and curriculum vitae show that he was (a) actively and currently practicing medicine at the time it was written, (b) has actually treated and was currently treating patients being prescribed Adderall specifically for ADD, and (c) is board certified in internal medicine. Thus, he meets the requirements set forth in section 74.401(a) and (c) for being qualified to render an opinion as to the standard of care applicable to the treatment of a person diagnosed with ADD and being prescribed Adderall. See Tex. Civ. Prac. & Rem.Code Ann. § 74.401(a), (c); Terry A. Leonard, P.A., 293 S.W.3d at 677; cf. Barber, 303 S.W.3d at 795-96 (holding that anesthesiologist who had participated in numerous similar surgeries and had observed proper padding and positioning technique as part of surgical team was qualified to provide expert report as to standard of care applicable to general surgeon).

Appellants contend that because Dr. Rushing is not the person who actually prescribed the Adderall to his patients, he is not qualified to opine regarding the standard of care for this claim. But the statute does not go so far. Dr. Rushing’s report shows he is actively involved in the management of care for persons who are being prescribed ADD medication, specifically Adderall; this experience is sufficient to allow him to opine on the applicable standard of care in a claim that relates to the medical supervision and management of persons with such a diagnosis and prescriptions. See San Jacinto Methodist Hasp., 256 S.W.3d at 813-14. Thus, we conclude and hold that Dr. Rushing is qualified to opine on the applicable standard of care for a doctor who has not only prescribed Adderall to a patient, but who also manages the care of a patient for whom that doctor has prescribed Adde-rall.

Dr. Rushing’s Articulation of Standard of Care

Next, Dr. Davisson and the Clinic contend that the Rushing report fails to set forth the specific standard of care applicable to each of the defendants and the Clinic as well as the specific manner in which each breached the standard of care.

Because Dr. Rushing is an internal medicine specialist, his report was offered primarily to articulate the standard of care for Dr. Self and Dr. Mercau, although he did opine as to the standard of care applicable to Dr. Davisson. Because we have already determined that Dr. Helge’s report sufficiently articulated the standard of care and breach as to Dr. Davisson, we will focus on whether Dr. Rushing sufficiently articulated the standard of care and breach as to Dr. Self.

Dr. Rushing opined as follows:
1. (Applicable standard of care):
a. The standard of care requires that ... Angela D. Self, M.D. ... provide that level of care and treatment that a reasonable prudent physician would provide under the same or similar circumstances. The prescription of controlled substances and particularly amphetamines on a chronic basis requires careful monitoring and supervision. This means that the patient should be seen at a minimum of every 90 days and depending upon the clinical status, possibly more often in order to meet the standard of care.
b. The standard of care requires that [James] be seen and examined every 90 days and assessed for adverse effects from the amphetamines such as amphetamine psychosis, elevated blood pressure, weight loss, and assessment of the cardiovascular system.
c. The standard of care also requires that appropriate clinical records be kept in accordance with acceptable professional standards. These records need to, in order to meet the standard of care, clearly reflect the patient’s clinical status, the medicines being received, his emotional or psychological status, his response to treatment or lack of response and evidence of any adverse effects or the absence of adverse effects must be documented.
2. The manner in which the care rendered by the ... Clinic and its employees and Angela D. Self, M.D. ... failed to meet the standard of care and the conduct that is called into question here is set forth below. The ... Clinic and its employees and the physicians, Angela D. Self, M.D. ... failed to examine [James] every 90 days in [an] appropriate timely manner. During the entire approximately 5 years, as far as I can tell, he was seen twice at the clinic and possibly a third time. It is incredible that this man received amphetamines for approximately 5 years with only three physician visits over the entire period of time. The clinic and the doctors were simply running a mail order prescription mill dispensing controlled substances in an inappropriate and incorrect way as described above. This conduct by the ... Clinic and its employees, and Angela D. Self, M.D. ... is clearly below the accepted standards of medical care. The medical records are such that one cannot be certain what was going on other than that he was receiving mail order prescriptions. [Emphasis added.]

This same standard of care was repeated, specifically mentioning only Dr. Self, in a later section of the report.

According to the Clinic,
Rushing fails to specifically describe the standard of care applicable to Dr. Self, Dr. Mercau, and the ... Clinic, i.e. what steps should have been taken and when. Rushing fails to state when [James] allegedly should have been examined and what assessments, testing, or evaluation allegedly should have been done and what such testing and evaluation allegedly would have shown. Rushing fails to set forth when during the medical care he believes assessments should have been done and then, if such assessments had been performed, how these assessments would have changed the patient’s condition.

Again, the inclusion of the Clinic in the articulation of the standard of care is not fatal because all of the claims against the Clinic are based on respondeat superior and therefore flow from the alleged breach of the standard of care by its agent or employees, in this case, the doctors. And although Dr. Self and Dr. Mercau are both mentioned in one part of the articulation of the standard of care, the standard of care is later ascribed to each of them separately in different paragraphs. See Foster v. Richardson, 303 S.W.3d 833, 843 (Tex.App.-Fort Worth 2009, no pet.) (holding report not insufficient “merely because it contains some collective statements regarding actions that both doctors should have taken while they independently cared for Richardson”); Romero v. Lieberman, 232 S.W.3d 385, 391-92 (Tex.App.-Dallas 2007, no pet.) (holding that standard of care need not be listed separately in report when same standard applies to each health care provider). Thus, the conduct of Dr. Self that the report calls into question is clear: (a) Dr. Selfs alleged failure to see James every ninety days during the six month period she prescribed him Adderall to assess him “for adverse effects from the amphetamines such as amphetamine psychosis, elevated blood pressure, weight loss, and assessment of the cardiovascular system” and (b) her alleged failure to keep appropriate medical records during that same time period. Although Dr. Rushing’s report does not marshal all the Ni-cholsons’ proof, it is not required to do so. Palacios, 46 S.W.3d at 878. Reading the report in its entirety, it at least provides a fair summary of Dr. Rushing’s opinions as to the standard of care applicable to Dr. Self and the manner in which the care she rendered James failed to meet that standard. See Barber, 303 S.W.3d at 793-94.

Based on the above analysis, we conclude and hold that the trial court did not abuse its discretion by determining that Dr. Helge’s and Dr. Rushing’s reports, when read together, represent a good faith effort to comply with the statutory definition of an expert report as to Dr. Davisson and Dr. Self regarding the Nicholsons’ allegations of failure to adequately or properly assess, monitor, and treat James and the continuing prescription of Adderall without timely and properly seeing James for medical and psychiatric evaluation. Additionally, because the Nicholsons’ allegations against the Clinic are based on respondeat superior through the alleged negligence of both Dr. Self and Dr. Davis-son, we conclude and hold that the trial court did not abuse its discretion by determining that the reports are also adequate as to the Clinic regarding those claims.

Causation

The Clinic and Dr. Davisson challenge both Dr. Helge’s and Dr. Rushing’s reports as to causation; Dr. Self challenges Dr. Rushing’s causation opinion as well. According to Dr. Davisson and the Clinic, Dr. Helge is not qualified to give an opinion on causation under section 74.403(a) because he is a clinical and forensic psychologist, not a physician. Section 74.403(a) provides as follows:

[I]n a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a).

“Physician” is defined as a person who is

(1) licensed to practice medicine in one or more states in the United States; or
(2) a graduate of a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association only if testifying as a defendant and that testimony relates to that defendant’s standard of care, the alleged departure from that standard of care, or the causal relationship between the alleged departure from that standard of care and the injury, harm, or damages claimed.

Id. § 74.001(a)(23) (Vernon 2005). The Ni-cholsons admit that Dr. Helge is not a physician under the statute, but they contend that he does not need to be qualified to render an opinion on causation because the causation opinion is provided by Dr. Rushing’s report and that the two reports together constitute a sufficient report as to standard of care and causation.

Section 74.351(i) explicitly contemplates the use of multiple expert reports in the same case:

Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving an expert report by serving reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation.

Id. § 74.351 (i). Accordingly, if Dr. Rushing’s report is adequate as to causation, then Dr. Helge’s qualifications to opine on causation are of no import.

After providing a summary of James’s medical records that he reviewed, and concluding that James “had seen the physician only three times over the last seven years during the time that he was receiving Adderall,” Dr. Rushing opined that

“James ... suffered an addiction to amphetamines due to the failure to examine him every 90 days. He also developed an amphetamine psychosis and his behavior was such as described earlier• to be disruptive such that he lost his employment that he was a threat to his wife, and a threat to himself and required extensive treatment as a result of his amphetamine addiction and amphetamine psychosis. All of this was a result of improper amphetamine prescription and improper supervision. Had [he] been examined every 90 days his addiction would have been diagnosed and treated in a timely manner thereby preventing his addiction from advancing to psychosis[.]” [Emphasis added.]

Dr. Davisson and the Clinic contend that this opinion is eonclusory in that it “does not set forth any facts demonstrating a mechanism that supports his conclusion” and that it requires them to infer the facts supporting the conclusion. But they ignore the detailed factual summary set forth in Dr. Rushing’s report. Dr. Rushing clearly details the doctors’ alleged omissions — failure to see James on a timely, regular basis — as well as the behavior which James ultimately engaged in and his ultimate diagnosis. Dr. Rushing thus clearly opines that if the doctors had seen James in the office, they would have observed the behavioral manifestations Dr. Rushing described. Moreover, as the Clinic can act only through its employees or agents, the Nicholsons’ allegations against the Clinic are likewise supported by sufficient factual detail and are therefore not eonclusory. See Benavides v. Garcia, 278 S.W.3d 794, 799 (Tex.App.-San Antonio 2009, pet. denied) (holding that causation section of expert medical report was not eonclusory when read in context of entire report).

Dr. Davisson and the Clinic contend that even if Dr. Rushing’s causation opinion is sufficient as to the medical doctors, it is nevertheless insufficient as to Dr. Davis-son because it fails to specifically discuss or link Dr. Davisson’s failure to meet the standard of care described in Dr. Helge’s report with James’s resulting injury. However, after describing that injury in his report, Dr. Rushing states specifically that the injury was “a result of improper amphetamine prescription and improper supervision.” [Emphasis added.] To fulfill the requirements of section 74.351(i) by supplementing Dr. Helge’s report as to Dr. Davisson, Dr. Rushing was not required to mention Dr. Helge’s exact description of the standard of care applicable to Dr. Davisson, especially when, as here, that standard of care is accurately described as a failure to properly supervise or monitor, which is precisely the conduct that Dr. Rushing implicates as causing James’s injuries. See Packard v. Guerra, 252 S.W.3d 511, 526-27 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (holding that we must review multiple reports “in the aggregate” to determine if they are adequate as to liability and causation); Perez v. Salinas, No. 13-08-00192-CV, 2008 WL 4981565, at *3 (Tex.App.-Corpus Christi Nov. 25, 2008, pet. denied) (mem. op.). Therefore, we conclude and hold that the trial court did not abuse its discretion by overruling appellants’ objections as to the causation part of Dr. Rushing’s report.

And because Dr. Rushing’s report is sufficient as to causation, it is of no import that Dr. Helge is not qualified to render an opinion on causation. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(i); Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570-72 (Tex.App.-Dallas 2007, pet. denied) (holding expert report requirement fulfilled in claim against nurse by providing expert report of nurse as to standard of care and expert report of medical doctor as to causation); cf. Walgreen Co. v. Rieger, 243 S.W.3d 183, 187 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (Seymore, J., dissenting).

Having determined that the trial court did not abuse its discretion by overruling appellants’ objections to Dr. Helge’s and Dr. Rushing’s reports as to their claims regarding failure to properly and adequately assess, monitor, and treat James and the continuing prescription of Adderall without timely and proper evaluation, and, thus, by refusing to dismiss those claims against them, we overrule the Clinic’s and Dr. Davisson’s three issues and Dr. Selfs two issues as to those claims. However, neither Dr. Helge’s report nor Dr. Rushing’s report faults Dr. Davisson’s or Dr. Selfs conduct as to the other claims alleged in the Nicholsons’ petition: the failure to timely and properly diagnose James and the initial and continuing diagnosis of James with ADD. Accordingly, we conclude and hold that neither report is adequate as to those claims and we therefore sustain appellants’ issues to the extent they complain about the reports as to those claims. See Richardson, 303 S.W.3d at 841-42.

Conclusion

Having overruled all of each appellants’ issues as to the failure to adequately monitor and the continuing prescription of Ad-derall without adequate supervision claims, we affirm the trial court’s order as to those claims. But having sustained appellants’ issues as to the Nicholsons’ other claims— the failure to timely and properly diagnose James and the initial and continuing diagnosis of James with ADD — we reverse the trial court’s order as to those claims and remand those claims to the trial court to consider whether to grant a thirty-day extension to cure the deficiency. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex.2008); Richardson, 303 S.W.3d at 845-46.

      . They both sued in their individual capacities, and Patricia also sued as next friend of the Nicholsons' minor children.

      . They also sued Dr. Ana Mercau and Dr. Clifford Charles "Chuck” Ferrell, deceased, and any unknown administrator of his estate. Dr. Mercau is not a party to this appeal, and the Nicholsons nonsuited their claims related to Dr. Ferrell.

      . Appellants’ answers did not raise any affirmative defenses as to the respondeat superior allegations. See Springer v. Johnson, 280 S.W.3d 322, 334 (Tex.App.-Amarillo 2008, no pet.).

      . Because the Nicholsons provided two reports to satisfy their expert report obligations as to all defendants, and because some of appellants' challenges to the reports are interdependent, we will review appellants' issues by topic rather than in chronological order.

      . Additionally, in November 2007, Dr. Helge co-presented a workshop entitled, “It Looks Like ADHD, It Sounds Like ADHD, It's Not ADHD.” See Foster v. Richardson, 303 S.W.3d 833, 844 (Tex.App.-Fort Worth 2009, no pet.).

      . Dr. Helge's report notes that ”[t]here is a page in the records dated 02/26/03 that simply states to whom it may concern, [James] (patient) was diagnosed with attention deficit disorder on 02/26/03 (date) at the ... Clinic. My recommendation is prescription for Adde-rall (medication). Below that are two signatures. The first is Chuck Ferrell, M.S., D.O., general/family practice and Harvey G. Davis-son, Ph.D., psychologist.”

      . Although it is unclear who initially prescribed the Adderall because both Dr. Davis-son’s and Dr. Ferrell’s signatures follow the prescription, it is clear that Dr. Davisson acquiesced in the prescription.

      . Thus, contrary to Dr. Self's contention, this case is distinguishable from this court's opinion in Collini v. Pustejovsky, 280 S.W.3d 456, 465-66 & n. 6 (Tex.App.-Fort Worth 2009, no pet.).

      . Moreover, because Dr. Helge's report is sufficient as to the standard of care for Dr. Davisson (and the Clinic, by virtue of the respondeat superior allegations), there is no need for Dr. Rushing’s report to articulate a separate standard of care for them or to opine as to how Dr. Davisson may have breached the standard of care.

      . "He also developed an amphetamine psychosis and his behavior was such as described earlier to be disruptive such that he lost his employment that he was a threat to his wife, and a threat to himself and required extensive treatment as a result of his amphetamine addiction and amphetamine psychosis.”

      . Because we determine that it was not necessary that Dr. Helge’s report provide an opinion on causation, we need not address the Clinic's and Dr. Davisson's contentions that Dr. Helge’s opinion as to causation is conclusory. See Tex.R.App. P. 47.1; Horsley-Layman v. Adventist Health Sys./Sunbelt, Inc., 221 S.W.3d 802, 809 (Tex.App.-Fort Worth 2007, pet. denied).


source: Caselaw Access Project

author: JAMES T. WORTHEN, Chief Justice.

license: Public Domain

text:
    Rex SMITH, Appellant, v. CDI RENTAL EQUIPMENT, LTD. d/b/a Future Rental Services and FEI Equipment, Ltd. d/b/a Future Equipment Company and d/b/a Equipment Support Services, Appellees.
    No. 12-09-00113-CV.
    Court of Appeals of Texas, Tyler.
    March 30, 2010.
    Rehearing Overruled May 3, 2010.

      Jeffrey C. Irion, Gun Barrel City, for Appellant.
    Diane M. Guariglia, Anthony T. Golz, Charles W. Getman, Houston, for Appel-lee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J„ and HOYLE, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

This is an assumed name case. Rex Smith appeals from a judgment, rendered after a trial before the court, favoring Ap-pellees CDI Rental Equipment, Ltd. d/b/a Future Rental Services and FEI Equipment, Ltd. d/b/a Future Equipment Company and d/b/a Equipment Support Services, in Appellees’ suit for damages. In thirteen issues, Smith alleges that Appel-lees cannot properly maintain suit against him because he did not have a contract with the business entities named as plaintiffs, there is no evidence of a valid contract or the elements of a sworn account, and the trial court erred in awarding attorney’s fees and in failing to find spoliation of evidence. We reverse and render.

Background

On March 22, 2005, Smith rented a doz-er, signing a rental agreement that has the name “Future Rental Services” printed at the top. Smith had problems with that dozer in mid-May and exchanged it for a different one. On June 22, the second dozer was driven into a “water hole,” got stuck in mud, and stopped working. The dozer had to be pulled out and taken to the repair shop where it was determined that there was water and sand in the transmission, the radiator was “plugged with mud,” and the torque converter was full of sand. The dozer was repaired and Smith received a repair bill in the amount of $16,012.82. Smith was also billed $1,420.40 for costs to inspect the dozer on his property and transport it back to the shop. These two invoices have the name “Equipment Support Services” printed at the top. One of them also has the name “Future Equipment” either typed or stamped at the top. The other one also has the name “Future Equipment Co.,” which appears to be printed by a fax machine.

Because Smith did not pay the invoices, he was sued in a Dallas County district court in January 2006 for breach of contract and a sworn account. The named plaintiff on the original petition was Equipment Support Services, Inc. d/b/a Future Equipment Company, Inc. The named defendants were Smith and The Travelers Lloyds Insurance Company. In their first amended petition, Appellees named as plaintiff Equipment Support Services, Inc. d/b/a Future Rental Services and d/b/a Future Equipment Company, Inc. In their second amended petition, Appellees named as plaintiffs CDI Rental Equipment, Ltd. d/b/a Future Rental Services and FEI Equipment, Ltd. d/b/a Future Equipment Company and also d/b/a Equipment Support Services. They further identified themselves as follows:

CDI RENTAL EQUIPMENT, LTD. d/b/a FUTURE RENTAL SERVICES is a Texas limited partnership with its principal place of business in Houston, Harris County, Texas. Its registered agent is Equipment Support Services, Inc. FEI EQUIPMENT, LTD. d/b/a FUTURE EQUIPMENT COMPANY and also d/b/a EQUIPMENT SUPPORT SERVICES is a Texas limited partnership with its principal place of business in Euless, Texas. Plaintiffs are sister entities and are hereafter collectively referred to as ‘ESS’.

In June 2006, Appellees nonsuited The Travelers Lloyds Insurance Company and the suit was transferred to Henderson County, where Smith resides.

Smith filed special exceptions complaining that he did not know which plaintiff, CDI Rental Equipment, Ltd. or FEI Equipment, Ltd., is doing business as Future Rental Services, the name on the rental agreement. He further argued that the plaintiffs should state why the entity that is not Future Rental Services is a plaintiff in this cause of action. He filed a sworn affidavit in support of his special exceptions denying, among many other specific items, the execution of a written contract identifying CDI Rental Equipment, Ltd. or FEI Equipment, Ltd. as parties to the agreement. He also denied that either of those two entities did business under the name of Future Rental Services.

In its order granting Smith’s special exceptions, the trial court explained that plaintiffs’ exhibits show that CDI Rental Equipment, Ltd. and its assumed name registration in the assumed name of Future Rental Services ceased to exist on August 6, 2003 when it merged into Equipment Support Services, Inc. The court noted that no plaintiff in the suit had shown that it is registered to do business under the name of Future Rental Services. The trial court gave the plaintiffs fifteen days “to identify which of the two Plaintiffs [sic] are doing business under the assumed name of ‘Future Rental Services’ and stating facts as to why the other party plaintiff, [sic] is a proper party to this suit.”

Shortly thereafter, Appellees filed their third amended petition, identifying themselves exactly as they had in their second amended petition. A month later, Appel-lees filed their fourth amended petition, identifying themselves exactly as they had in their third amended petition. However, in the factual background section of the petition they explained that Smith “executed a rental agreement with CDI Equipment, Ltd. [sic] d/b/a Future Rental Services” and the bulldozer he rented “was owned by FEI Equipment, Ltd. d/b/a Future Equipment Company.” They explained that from the “time of the contract to the present, CDI Equipment, Ltd. [sic] d/b/a Future Rental Services and FEI Equipment, Ltd. d/b/a Future Equipment Company were ultimately being operated by Equipment Support Services.”

Smith filed a motion to dismiss, arguing that the plaintiffs still had not identified which plaintiff was doing business under the assumed name of Future Rental Services or explained why the other plaintiff was a party to the suit as ordered by the trial court. The trial court denied Smith’s motion to dismiss.

On the day of trial, December 9, 2008, Smith moved to abate the lawsuit until the plaintiffs provided proof that a proper assumed name certificate had been filed for CDI Rental Equipment, Ltd. Counsel for the plaintiffs produced evidence that an assumed name certificate had been filed on November 27, 2007 showing that Equipment Support Services, Inc. is doing business as Future Rental Services. Smith again argued that the entity named on the assumed name certificate as doing business as Future Rental Services is not a plaintiff in this lawsuit and that no assumed name certificate shows that CDI Rental Equipment, Ltd. does business as Future Rental Services. Noting that it was hard to make sense of all the different names, the trial court denied the motion to abate and proceeded to try the case.

After a bench trial, the court found in favor of Appellees. Mirroring the live petition, the judgment names as plaintiffs CDI Rental Equipment, Ltd. d/b/a Future Rental Services and FEI Equipment, Ltd. d/b/a Future Equipment Company and also d/b/a Equipment Support Services, collectively ESS. The court ordered Smith to pay $17,433.22 in actual damages for breach of contract, $25,000.00 in attorney’s fees, and prejudgment and postjudgment interest.

CDI Rentai.: Equipment, Ltd.

In his first and twelfth issues, Smith contends the judgment against him cannot stand because he signed a rental agreement with Future Rental Services, not the named plaintiffs who sued him. He asserts that CDI Rental Equipment, Ltd., a named plaintiff, ceased to exist when it merged with Equipment Support Services, Inc. in 2003 and therefore could not later enter into a contract with him or file suit against him. Further, he contends that no named plaintiff was registered to do business as Future Rental Services. Conversely, he asserts that the only entity registered to do business as Future Rental Services is Equipment Support Services, Inc., which is not a party to this suit.

Appellees Response

Appellees respond that Rule 28 of the Rules of Civil Procedure permits a party to sue in its assumed name. They also assert that as a result of the merger, all of the attributes of corporate life were transferred to the successor, Equipment Support Services, Inc. Citing Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 53 (Tex.2003), Appellees assert that Texas law supports their position that their petition, filed under assumed names, was effective to maintain suit against Smith on behalf of Equipment Support Services, Inc. They argue that the Texas Business and Commerce Code does not require them to amend their petition to name a party using the assumed name and that Smith cites to no case law to the contrary.

Standard of Review

Special exceptions may be used to challenge the sufficiency of a pleading. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998). When the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading. Id. Thereafter, if the plaintiff refuses or fails to amend its petition in compliance with the trial court’s order, the trial court may dismiss the case. Perry v. Cohen, 285 S.W.3d 137, 142 (Tex.App.-Austin 2009, pet. denied). In determining whether dismissal was appropriate, we consider whether the last amended pleading complied with the trial court’s order. Id. at 146. We take all allegations, facts, and inferences in the pleadings as true and view them in the light most favorable to the plaintiff. Id. We review the trial court’s ruling for an abuse of discretion. See Cole v. Hall, 864 S.W.2d 563, 566 (Tex.App.-Dallas 1993, writ dism’d w.o.j.) (en banc). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles or acted in an arbitrary or unreasonable manner. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241— 42 (Tex.1985).

Applicable Law

Rule 28 of the Texas Rules of Civil Procedure provides that an entity or individual doing business under an assumed name may sue or be sued in that assumed name. Tex.R. Civ. P. 28. The Assumed Business or Professional Name Act provides penalties for failing to file a certificate. A company’s failure to comply with the Act does not impair the validity of any contract, but that company is prohibited from maintaining an action in a Texas court arising out of a contract or act in which an assumed name was used until an assumed name certificate has been filed. Act of May 23, 1977, 65th Leg., R.S., ch. 403, § 1, 1977 Tex. Gen. Laws 1095, 1100-01, repealed by Act of May 15, 2007, 80th Leg., R.S., ch. 885, § 2.01, 2007 Tex. Gen. Laws 1905, 1935 (current version at Tex. Bus. & Com.Code Ann. § 71.201 (Vernon 2009)).

Analysis

The business entity named on the rental agreement in this case is Future Rental Services. In 2000, CDI Rental Equipment, Ltd. filed an assumed name certificate stating that it does business in the name of Future Rental Services. As Appellees note, when CDI Rental Equipment, Ltd. merged with Equipment Support Services, Inc., all liabilities and obligations belonging to CDI Rental Equipment, Ltd. became the liabilities and obligations of the surviving entity, Equipment Support Services, Inc. See Tex. Bus. Corp. Act, art. 5.06, §§ A(3), C (Vernon Supp.2009). In a merger, the privileges, powers, rights, and duties of the corporation are transferred to the surviving corporation and are there continued and preserved. Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex. 1995). Moreover, CDI Rental Equipment, Ltd. ceased to exist on August 6, 2003 when it merged with Equipment Support Services, Inc. See Tex. Bus. Corp. Act, art. 5.06, § A(l) (Vernon Supp.2009); Bailey, 894 S.W.2d at 759. Thus, as a result of the merger, CDI Rental Equipment, Ltd., one of the two named plaintiffs, has no actual or legal existence. See Bailey, 894 S.W.2d at 759. Civil suits may be maintained only by or against parties having an actual or legal existence. Id. Accordingly, CDI Rental Equipment, Ltd. was not a proper party to the suit and judgment cannot be rendered in its favor. See id.

While there was no valid assumed name certificate on file for Future Rental Services on the date Smith rented the dozer or when this suit was filed, Equipment Support Services, Inc. filed an assumed name certificate during the course of the lawsuit stating that it does business in the name of Future Rental Services. Thus, pursuant to the Assumed Business or Professional Name Act, Equipment Support Services, Inc. could bring suit in its assumed name. See Sibley, 111 S.W.3d at 53. Moreover, Equipment Support Services, Inc., as the surviving corporation in the merger, may prosecute the claims of CDI Rental Equipment, Ltd., the merging entity. See N. Am. Land Corp. v. Boutte, 604 S.W.2d 245, 246 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.).

In the original petition, the named plaintiff was Equipment Support Services, Inc. d/b/a Future Equipment Company. In the first amended petition, the named plaintiff was Equipment Support Services, Inc. d/b/a Future Rental Services and d/b/a Future Equipment Company, Inc. However, beginning with the second amended petition, Equipment Support Services, Inc. was not a named plaintiff.

An amended pleading supersedes and supplants earlier original pleadings. Tex.R. Civ. P. 65; Mercare Co., N.V. v. Rowland, 715 S.W.2d 677, 679 (Tex.App.-Houston [1st Dist.] 1986, writ refd n.r.e.). Parties to a suit, including plaintiffs, are just as effectively dismissed from a suit by omitting their names from an amended pleading as where a formal order of dismissal is entered. Rowland, 715 S.W.2d at 679. When Equipment Support Services, Inc.’s name was not included in the second amended petition, it was effectively dismissed from the suit. Woodruff v. Wright, 51 S.W.3d 727, 731-32 (Tex.App.-Texarkana 2001, pet. denied). Even though Smith repeatedly raised the issue and Appellees repeatedly amended their petition, Equipment Support Services, Inc. was not named as a plaintiff in the live pleading.

Appellees’ argument that neither the statute nor case law requires them to amend their petition to name the party using the assumed name is only partially correct. The statute does not include, such a requirement. However, the Texas Supreme Court has, in a case cited by Appel-lees in their brief, held unequivocally that, under Rule 28, the correct legal name of the party using the assumed name must be substituted before judgment. Sibley, 111 S.W.3d at 53. Equipment Support Services, Inc., the party currently doing business under the assumed name Future Rental Services, was not a named party to the suit. Because CDI Rental Equipment, Ltd. no longer exists, the trial court abused its discretion in denying Smith’s motion to dismiss the suit as to CDI Rental Equipment, Ltd. See Bailey, 894 S.W.2d at 759. Accordingly, we sustain Smith’s issues one and twelve.

FEI Equipment, Ltd.

In his sixth issue, Smith contends, in part, that the trial court erred in concluding that a contract existed between Smith and FEI Equipment, Ltd. He points out that the name of the entity on the written rental agreement dated March 22, 2005 was Future Rental Services. He then argues that since FEI Equipment, Ltd. did not prove that it was Future Rental Services, and no other contract was proven, FEI Equipment, Ltd. does not have the capacity to sue on the contract and there is no evidence to support the trial court’s conclusion that FEI Equipment, Ltd. was a party to the contract. In his eighth issue, Smith asserts the trial court erred in concluding that he is liable on a sworn account because FEI Equipment, Ltd. was not a party to the rental agreement and because a lawsuit involving breach of a rental agreement is not a valid claim on a sworn account.

Although he used the word “capacity,” the substance of Smith’s complaint is that FEI Equipment, Ltd. does not have standing to sue for breach of the rental agreement. Standing is a component of subject matter jurisdiction and cannot be waived. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993). Standing limits subject matter jurisdiction to cases involving a distinct injury to the plaintiff and a real controversy between the parties that will be actually determined by the judicial declaration sought. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005). In reviewing standing on appeal, we construe the petition in favor of the petitioner, and if necessary, review the entire record to determine if any evidence supports standing. See Tex. Air Control Bd., 852 S.W.2d at 446. We review a challenge to a party’s standing, as well as a challenge to the trial court’s conclusions of law, de novo. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.2004); Richardson Indep. Sch. Dist. v. GE Capital Corp., 58 S.W.3d 290, 293 (Tex.App.-Dallas 2001, no pet.).

The general rule is that only the parties to a contract have the right to complain of a breach thereof. Wells v. Dotson, 261 S.W.3d 275, 284 (Tex.App.-Tyler 2008, no pet.). In contract actions, privity of contract is an essential element of recovery. See Gonzales County Water Supply, Corp. v. Jarzombek, 918 S.W.2d 57, 61 (Tex.App.-Corpus Christi 1996, no writ). In order to maintain an action to recover damages flowing from the breach of a written contract, there must be privity existing between the party damaged and the party sought to be held liable for the repudiation of the agreement. Id. Additionally, a suit on a sworn account is not an independent cause of action; it is a procedural rule with regard to evidence necessary to establish a prima facie right of recovery of certain types of contractual (account) claims. See Tex.R. Civ. P. 185; Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 914 (Tex.App.-Dallas 2008, no pet.).

A review of the rental agreement reveals that privity exists between Future Rental Services and Smith. The record shows that Future Rental Services is the assumed name of Equipment Support Services, Inc., an entity that is not a party to this suit. The record also shows that FEI Equipment, Ltd. is not Future Rental Services and not a party to the rental agreement. Therefore, FEI Equipment, Ltd. lacks standing to maintain a cause of action against Smith for breach of the rental agreement or for a sworn account arising out of the agreement. See Wells, 261 S.W.3d at 284-85. Accordingly, there is no evidence to support the trial court’s conclusion that FEI Equipment, Ltd. was a party to the rental agreement or that Smith is hable to FEI Equipment, Ltd. Id. at 285. To the extent Smith complains that the trial court erred in concluding that a contract existed between Smith and FEI Equipment, Ltd., we sustain Smith’s sixth and eighth issues.

Conclusion

Appellee CDI Rental Equipment, Ltd. did not exist at the time suit was filed against Smith. Therefore, it did not have standing to assert a claim against him. See Armes v. Thompson, 222 S.W.3d 79, 83-84 (Tex.App.-Eastland 2006, no pet.) (Decedent did not have actual or legal existence, did not represent a legal entity for purposes of filing suit, had no standing, and her petition did not invoke the trial court’s jurisdiction.). FEI Equipment, Ltd. was not a party to the rental agreement and therefore lacks standing to sue on the agreement. Because issues one, six, eight and twelve present error that is dispositive of the entire case, we need not consider the remainder of Smith’s issues. See Tex.R.App. P. 47.1.

Accordingly, we reverse the trial court’s judgment and render judgment dismissing the cause for want of jurisdiction.


author: JIM R. WRIGHT, Chief Justice.

text:
    MASGAS, a Partnership, and MHW, Inc., Appellants, v. E.D. ANDERSON et al, Appellees.
    No. 11-08-00180-CV.
    Court of Appeals of Texas, Eastland.
    March 31, 2010.
    Rehearing Overruled May 6, 2010.

      F. Franklin Honea, The Law Office of F. Franklin Honea, Lawrence S. Fischman, Seth A. Horwitz, Glast, Phillips & Murray, P.C., Dallas, Craig T. Enoch, Melissa Prentice Lorber Winstead PC, Austin, for appellants.
    Don M. Connally, Abilene, William B. Wright Jr., Cisco, for appellees.
    Panel consists of: WRIGHT, C.J., Chief Justice McCALL, J., and STRANGE, J.
   OPINION

JIM R. WRIGHT, Chief Justice.

This case involves the ownership of working interests in certain oil and gas properties. There are three parties involved in a dispute over the ownership of oil and gas leases: Masgas, a partnership; MHW, Inc.; and E.D. Anderson and his sons. Masgas filed suit against the Andersons seeking recovery of distributions, an accounting, and a declaratory judgment that Masgas owns the disputed working interests. MHW filed a plea in intervention for declaratory relief that MHW owned the disputed working interests. Masgas sought a declaratory judgment against MHW and alleged a trespass to try title action against MHW. The Andersons brought a counterclaim against MHW for a declaratory judgment that the Andersons own the disputed working interests. The Andersons and MHW filed cross-motions for summary judgment. The trial court granted the Andersons’ motion for summary judgment against MHW and denied MHW’s motions for summary judgment against both the Andersons and Masgas. The trial court heard the remaining issues during a bench trial on February 19, 2008. The trial court entered judgment that the Andersons are the owners of the disputed working interests, that Masgas take nothing in its claims against the Andersons, that MHW has no interest in the disputed leases, and that the Andersons are entitled to attorney’s fees. We affirm.

William Pat Massey, the president and CEO of MHW, is the father of Mike Massey, a partner in Masgas. Pat and Mike Massey acquired oil and gas leases in the name of MHW and operated the wells for many years. After a family dispute, Pat and Mike Massey entered into an agreement on December 1, 1994. After the 1994 agreement, MHW paid Masgas proceeds from the disputed working interests. MHW sold the leases to the Andersons on August 19, 1996. The Andersons became operators of the leases and continued to make payments to Masgas based upon documentation furnished by MHW.

In October 2005, the Andersons requested Masgas to furnish title information or a conveyance document to substantiate its claim of ownership of the leases. Masgas provided the Andersons with the 1994 agreement, a joint operating agreement, and division orders. The Andersons were not satisfied with the documentation, and they stopped making payments to Masgas. Masgas filed suit. The trial court found that the Andersons are the owners of the disputed working interests. This appeal followed.

Masgas brings four issues on appeal. Masgas first argues that the trial court erred in holding that the Andersons are the owners of the disputed working interests. The record shows, and Mike Massey testified, that he and his father, Pat Massey, acquired the oil and gas leases in the name of MHW. Mike Massey testified that there is no recorded instrument under which Masgas claimed title to the disputed working interests. Mike Massey stated that the Andersons “knew” about Masgas’s interests because of the joint operating agreement and the division orders. Mas-gas claims that the 1994 agreement, the JOA, and the division orders should be read as a single integrated instrument and that, read together, they comprise a valid deed. The 1994 agreement states:

Enclosed is a copy of AAPL Form 610-1977, Model Form Operating Agreement dated 10-1-84 that is in effect for other W.I. owners in properties operated by MHW, INC. Such Operating Agreement applies to the properties operated by MHW, INC. that you own an interest in....
Also enclosed are Oil & Gas Division Orders covering the properties you own an interest in....
As part of this package, MHW, INC. & W. Pat Massey, First Party, and MASGAS, Michael W. Massey & Cheryl Chaney Massey, Second Party, by signatures below waive all claims, disputes, etc. between the two parties concerning these properties and pledge not to be antagonistic toward each other in the future.
Notwithstanding the above ... properties (leases) presently owned by MHW, INC. and future properties (leases) acquired by MHW, INC. that you do not presently own an interest in, are excluded from any effect of the Operating Agreement dated 10-1-84.

By statute, a deed must be in writing and must be subscribed or delivered by the conveyor or the conveyor’s agent. Tex. Prop.Code Ann. § 5.021 (Vernon 2004). For a deed or instrument to effect conveyance of real property, it is not necessary to have all the formal parts of a deed formerly recognized at common law or to contain technical words. If, from the whole instrument, a grantor and grantee can be ascertained, if there are operative words or words of grant showing an intention of the grantor to convey title to a real property interest to the grantee, and if the instrument is signed and acknowledged by the grantor, it is a deed that is legally effective as a conveyance. Harlan v. Vetter, 732 S.W.2d 390, 392 (Tex.App.-Eastland 1987, writ ref d n.r.e.).

The 1994 agreement does not contain operative words or words of grant showing an intent by MHW to convey the disputed working interests to Masgas. The 1994 agreement references “the properties ... you own an interest in.” This does not indicate an interest to convey title but, instead, suggests a prior acquisition. Nor can granting language be found in any attachment.

The JOA, in fact, disclaims any intent to do so. Article III(B) of the JOA contains the following language:

All production of oil and gas from the Contract Area, subject to the payment of lessor’s royalties which will be borne by the Joint Account, shall also be owned by the parties in the same manner during the term hereof: provided, however, this shall not be deemed an assignment or cross-assignment of interests covered hereby.

Finally, the division orders do not contain words of grant or conveyance and, by themselves, are not a conveyance of an oil and gas interest. Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 691 (Tex.1986). Because there are no operative words of grant conveying title to Masgas, the 1994 agreement is not a valid deed.

Masgas further claims that, even if the 1994 agreement is not a deed, then it is enforceable as a contract pursuant to Tex. Prop.Code Ann. § 5.002 (Vernon 2004). Section 5.002 states that “[a]n instrument intended as a conveyance of real property or an interest in real property that, because of this chapter, fails as a conveyance in whole or in part is enforceable to the extent permitted by law as a contract to convey the property or interest.” A deed based on a valuable consideration but ineffectual to operate as a conveyance is treated in equity as a contract to convey. Magee v. Young, 145 Tex. 485, 198 S.W.2d 883, 886 (1946). Unlike the document in Magee, the 1994 agreement does not show an intent to convey an interest in real property; it merely references interests already owned by Masgas. Masgas further claims ownership of the disputed working interests pursuant to es-toppel by contract. Estoppel by deed or contract precludes parties to a valid instrument from denying its force and effect. Angell v. Bailey, 225 S.W.3d 834, 841 (Tex.App.-El Paso 2007, no pet.); Schroeder v. Tex. Iron Works, Inc., 769 S.W.2d 625, 628-29 (Tex.App.-Corpus Christi 1989), aff'd on other grounds, 813 S.W.2d 483 (Tex.1991). Estoppel by deed is the product of a good and valid deed. Angell, 225 S.W.3d at 842; Powers v. Wallis, 258 S.W.2d 360, 362-63 (Tex.Civ.App.-Eastland 1953, writ ref'd n.r.e.). The effect of the doctrine is to prevent a party to the deed from denying the truth of the recitals in a valid deed. Freeman v. Stephens Prod. Co., 171 S.W.3d 651, 654 (Tex.App.-Corpus Christi 2005, pet. denied). Because the 1994 agreement is not a valid deed, this doctrine does not apply.

Masgas also argues that MHW and the Andersons have waived any right to contest Masgas’s ownership of the disputed working interests because of their uninterrupted payments of the proceeds from the interests. Masgas claims that silence or inaction for so long a period as to show an intention to yield the known right is enough to prove waiver (citing Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640, 643 (Tex.1996)). Tenneco does not allow the conveyance of an interest in property based upon waiver. MHW agreed to pay Masgas a percentage of the proceeds from the disputed working interests, and the Andersons continued paying the proceeds. The Andersons subsequently revoked the division orders and discontinued payments. The Andersons did not waive their right to contest ownership of the disputed working interests.

The trial court did not err when it found that the Andersons are the owners of the working interests. Masgas produced no evidence that it acquired title to the disputed interests, the Andersons did establish record title, and the Andersons are not estopped or otherwise precluded from denying Masgas’s claim. We overrule Mas-gas’s first issue on appeal.

Masgas argues in its second issue that the trial court erred when it denied Mas-gas’s claim to establish its overriding royalty interest in the “Choate # B6” well. Mike Massey testified that he acquired an overriding royalty interest in the Choate # 6 back in the “early '90s.” Mike Massey further testified that MHW recognized his overriding royalty interest in the Choate # 6 but that he did not receive payments from the Andersons on the interest.

The record shows that Mike Massey and Pat Massey acquired oil and gas leases in the name of MHW. Mike Massey testified that there is no document in his possession or on record that transfers to him any interest in the Choate # 6. Consequently, the trial court did not err by denying Masgas’s claim to an overriding royalty interest in the Choate # 6. We overrule Masgas’s second issue.

MHW argues in two issues that the trial court erred when it denied its motions for summary judgment and when it granted the Andersons’ motion for summary judgment. When, as here, a party files a traditional motion for summary judgment, the standard of review is well settled. Questions of law are reviewed de novo. Jeffries v. Pat A. Madison, Inc., 269 S.W.3d 689, 690 (Tex.App.-Eastland 2008, no pet.). When cross-motions are filed and the trial court grants one and denies the other, we review all issues presented and enter the judgment that the trial court should have entered. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex.1999); Moon Royalty, LLC v. Boldrick Partners, 244 S.W.3d 391, 394 (Tex.App.-Eastland 2007, no pet.). To determine if a fact question exists, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex.2007). We must consider all the evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmovant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979).

MHW and the Andersons entered into an assignment of oil and gas leases and bill of sale that contains the language:

MHW ... has, BARGAINED, SOLD, TRANSFERRED ASSIGNED AND CONVEYED and by these presents BARGAINS, SELLS, TRANSFERS, ASSIGNS AND CONVEYS in equal shares unto [the Andersons] their heirs, successors and assigns, all of MHW, Inc.’s right, title and interest in and to the oil and gas leases described in Exhibit “A” attached hereto and made a part hereof for all purposes....
... MHW ... does covenant [the Andersons] ... that MHW, Inc. is the lawful owner of said leases described in Exhibit “A.” ... MHW, Inc. further warrants that it is the owner of the working interest as set out beside each leasehold estate name in Exhibit “A.”

Whether a document is ambiguous is a question of law. Moon Royalty, 244 S.W.3d at 394. A document is ambiguous when the application of the pertinent rules of interpretation to the face of the instrument leaves the court genuinely uncertain which one of two or more meanings is the proper meaning. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951); Moon Royalty, 244 S.W.3d at 394. Lack of clarity does not create an ambiguity. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994). Neither party argues that the assignment is ambiguous, and we do not find it to be ambiguous.

MHW filed a plea in intervention arguing that it retained some title to the disputed working interests. The assignment states that MHW assigns all of its rights to oil and gas leases described in Exhibit “A.” Exhibit “A” specifically names seven leases. Each named lease is labeled with a percentage working interest. MHW argues that it only assigned the fractional interest noted on Exhibit “A” and retained title to the “disputed working interests.”

The granting clause states that MHW “SELLS, TRANSFERS, ASSIGNS, AND CONVEYS ... all of [MHW’s] right, title and interest in ... the oil and gas leases described in Exhibit ‘A’ ” (emphasis added). We give each word its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. McMillan v. Dooley, 144 S.W.3d 159 (Tex.App.-Eastland 2004, pet. denied). Therefore, the assignment provides that MHW grants to the Andersons its entire interests in the leases described in Exhibit “A.” The reference to MHW’s fractional interest was in the warranty provision. While MHW assigned all of its interests, it only warranted that it owned the fractional interests described in Exhibit “A.” The trial court did not err when it granted the Andersons’ motion for summary judgment and neither did it err when it denied MHW’s motions for summary judgment. We overrule MHW’s first and second issues on appeal.

Masgas claims in its third issue on appeal that the trial court erred when it awarded attorney’s fees to the Andersons and when it denied Masgas’s attorney’s fees. MHW argues in its third issue on appeal that the trial court erred when it denied MHW’s recovery of attorney’s fees for its claims against Masgas. The parties in this suit sought relief under the Declaratory Judgments Act. The trial court was authorized to award “costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008). The trial court found that the Andersons were the owners of the disputed working interests and that Masgas was to take nothing against the Andersons. The trial court further found that MHW was not entitled to any requested relief. The trial court did not err when it awarded attorney’s fees to the Andersons and when it denied Masgas’s and MHW’s claims for attorney’s fees. We overrule both Masgas’s and MHW’s third issues on appeal.

In its fourth issue on appeal, Masgas argues that the trial court correctly denied MHW’s claim against Masgas. We held that MHW assigned all of its interests to the Andersons and that the trial court was correct in finding that the Andersons are the owners of the disputed interests. Because we agree that the Andersons are the owners of the disputed working interests, we need not reach this issue on appeal. Tex.R.App. P. 47.1. We have considered all issues on appeal, and all are overruled.

The judgment of the trial court is affirmed.

      . The record reflects that the parties used “Choate # B6” and "Choate # 6” to refer to the same well.

      . Tex Civ. Prac. & Rbm.Code Ann. §§ 37.001-.011 (Vernon 2008).


author: PER CURIAM.

text:
    Leobardo ALONZO, Appellant v. FEDERAL INSURANCE COMPANY, Appellee.
    No. 05-10-00157-CV.
    Court of Appeals of Texas, Dallas.
    April 1, 2010.
    Leobardo Alonzo, Dallas, TX, pro se.
    Before Justices MOSELEY, BRIDGES, and FILLMORE.
   OPINION PER CURIAM

PER CURIAM.

On February 10, 2010 appellant filed a notice of appeal in this case. On February 18, 2010, we notified appellant that the $175 filing fee was due and that if appellant failed to pay the fee within ten days, the appeal would be dismissed. By separate letter on February 18, 2010, we notified appellant the docketing statement was due and that if appellant failed to file the docketing statement within ten days, the appeal would be dismissed. To date, appellant has not paid the filing fee, filed the docketing statement, or communicated with the Court regarding these matters.

Accordingly, we DISMISS this appeal. See Tex.R.App. P. 5, 42.3(c).