author:
RICK STRANGE, Justice.
      JIM R. WRIGHT, Chief Justice,

text:
    Stephen KEMP and Elliot Kemp, Appellants, v. Paul JENSEN; John Saringer; and Wagstaff, Alvis, Stubbeman, Seamster & Longacre, L.L.P., Appellees.
    No. 11-09-00052-CV.
    Court of Appeals of Texas, Eastland.
    Dec. 2, 2010.

      Doug Perrin, J. Mark Perrin, The Per-rin Law Firm, Dallas, for appellants.
    Roy B. Longacre, Wagstaff, Alvis, Stub-beman, Seamster & Longacre, L.L.P., Abilene, Jacquelyn Chandler, Shawn Phelan, Dena K. Greenwood, Thompson Coe Cousins & Irons, Dallas, for appellees.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

Stephen and Elliot Kemp filed a motion for rehearing, which is denied. We withdraw our opinion and judgment dated September 16, 2010, and substitute our opinion and judgment dated December 2, 2010.

This is a legal malpractice suit. Stephen and Elliot Kemp sued Paul Jensen; John Saringer; and Wagstaff, Alvis, Stub-beman, Seamster & Longacre, L.L.P. (collectively the attorneys), alleging causes of action for negligence and breach of fiduciary duty. The trial court granted the attorneys’ traditional summary judgment motions and entered a take-nothing judgment. We affirm.

I. Background Facts

Stephen and Elliot Kemp own real property in Coleman County that is subject to mineral leases. Elliot assigned to Stephen any claims that he had for damages to this property, and Stephen retained Jensen to represent him in a surface damage dispute. On February 11, 2000, Jensen filed suit against several oil companies, including Subsurface Exploration Company, a California company. Subsurface Exploration (Cal) did not file an answer. Jensen withdrew as Stephen’s counsel on June 21, 2001, and Saringer and the Wagstaff firm assumed his representation.

Saringer filed a motion for default judgment against Subsurface Exploration (Cal) on May 21, 2003, and obtained an interlocutory default judgment for $246,700. Subsurface Exploration (Cal) contacted Sar-inger and told him that the wrong entity had been sued. It filed a motion for new trial, and the trial court set aside the default judgment on June 19, 2003. Sar-inger filed an amended petition on July 18, 2003, against Jimmy Gassiot, individually and d/b/a Subsurface Exploration. Gassiot asserted limitations, and when the case was tried, the trial court instructed the jury not to assess any damages caused by Gassiot prior to July 16, 2001. The jury found that Gassiot was not negligent. The Kemps then filed this malpractice action. The attorneys responded with traditional motions for summary judgment predicated upon the jury’s no-negligence finding. The trial court granted their motions, and this appeal followed.

II. Issues

The Kemps challenge the trial court’s judgment with two issues. First, they contend that the underlying jury verdict did not foreclose this legal malpractice claim. Second, they argue that there are unresolved questions of material fact.

III. Discussion

A. Standard, of Review.

The attorneys filed traditional motions for summary judgment. We review those motions with a well-settled, multifaceted standard of review. Questions of law are reviewed de novo. St. Paul Ins. Co. v. Tex. Dep’t of Transp., 999 S.W.2d 881 (Tex.App.-Austin 1999, pet. denied). 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, 755 (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).

B. Did the Attorneys Negate Proximate Cause as a Matter of Law?

The Kemps asserted negligence causes of action against each defendant. This requires proof of a legal duty, a breach of that duty, that the breach proximately caused the Kemps’ injuries, and damages occurred. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex.2004). When a legal malpractice action arises from prior litigation, the plaintiff must prove that, “but for” the attorney’s breach of duty, it would have prevailed in the underlying case to establish proximate cause. Rangel v. Lapin, 177 S.W.3d 17, 24 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). It is not sufficient to show that the case could have been handled differently. The plaintiffs burden is to produce evidence explaining the legal significance of the attorney’s failure and the impact this had on the underlying action. Cantu v. Horany, 195 S.W.3d 867, 873 (Tex.App.Dallas 2006, no pet.). Normally, a plaintiff must offer expert testimony to discharge this burden. See Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex.App.-Austin 2002, pet. denied).

The attorneys do not dispute that they owed a duty to the Kemps but argue that, regardless of whether they violated that duty, the Kemps cannot show that they suffered any harm because the jury found that Gassiot was not negligent. The Kemps respond that the jury did not find that there was no negligence; it found that there was no negligence within the limitations period.

The jury charge in the underlying case read:

Did the negligence, if any, of those named below proximately cause damage to the Kemp property?
Answer “Yes” or “No”
Answer:
Jimmy Gassiot and his company, Subsurface Exploration No
Do not assess damages, if any, caused by Jimmy Gassiot that occurred prior to July 16, 2001.

The trial court’s instruction to not “assess” pre-July 16, 2001 damages is the source of much of the conflict in this case. As worded, this is a damage instruction. The Kemps, however, argue that it limited the jury’s consideration to post-July 16, 2001 activities when determining whether Jimmy Gassiot was negligent.

The parties have cited no rules specific to the interpretation of jury charges, and we have found none ourselves. Therefore, we will apply the traditional rules for interpreting documents. Whether the trial court intended to limit the jury’s consideration to post-July 16, 2001 activities we need not consider. See Alford v. Krum, 671 S.W.2d 870 (Tex.1984) (the question is not what the parties meant to say, but the meaning of what they did say). We will give the words used by the trial court their ordinary meaning unless the charge shows that they were meant in a technical or different sense. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990).

The trial court did not instruct the jury to “consider” only post-July 16, 2001 activities when determining negligence but, after the negligence question, instructed them to “assess” no damages for prior activities. Assess is defined in part as: “[T]o determine the rate or amount of (as a tax), to impose (as a tax) according to an established rate, to make an official valuation of (property) for the purposes of taxation.” Merriam-Webster’s Collegiate Dictionary 74 (11th ed.2004). This question should have been included on the damages page, but because it limited the jury’s quantification of damages and not their negligence determination, a consideration of the charge alone does not allow us to conclude that the jury’s no-negligence finding means less than what it says.

The Kemps also challenge the effect of the jury’s negligence with parole evidence. The import of the Kemps’ position is that we should not consider the jury verdict determinative because it is tainted by the attorneys’ negligence, which prevented the jury from receiving and considering all of the evidence, and that, but for this negligence, a different verdict would have been obtained. To establish that evidence was excluded, Stephen Kemp testified by affidavit that the trial court disallowed any evidence of damages occurring prior to July 16, 2001, and that this precluded virtually all of his surface damage evidence. The Kemps also filed an affidavit signed by Saringer. He confirmed the trial court’s ruling that limitations barred some claims against Gassiot, and his affidavit can be read to affirm that evidence of pre-July 2001 activities was excluded. Neither witness, however, described any of the excluded evidence or described any of the evidence that was admitted but the jury was prevented from considering because of the trial court’s charge. Because there is no transcript from the underlying trial, we are left only to speculate what the jury would have heard or considered if Gassiot rather than Subsurface Exploration (Cal) had been sued originally.

Beyond this, the Kemps offered no evidence explaining the significance of the excluded evidence or why its exclusion altered the outcome. In Cantu, 195 S.W.3d 867, the plaintiffs brought a legal malpractice claim complaining of their former attorney’s handling of a medical malpractice lawsuit. The trial court granted the attorney’s motion for summary judgment. The Dallas court affirmed and noted that plaintiffs offered expert testimony that counsel breached his standard of care by not suing all of the responsible medical and nursing providers and that the legal expert also testified that more likely than not a suit against these parties would have been successful. Plaintiffs did not, however, produce any medical expert testimony corroborating this contention. The Dallas court held that, without this, the plaintiffs failed to raise a fact question on whether they would have prevailed in a medical malpractice lawsuit. Id. at 874. The Kemps’ summary judgment response suffers from the same failure.

The Kemps offered a legal expert, Robin M. Green. The majority of his affidavit addressed whether the attorneys breached them duty of care, but Green did testify that the attorneys’ negligence kept the Kemps from recovering against Gassi-ot “because the damages had actually occurred for the most part during the 1990s.” However, he acknowledged that he had not seen the trial transcript, that he understood the trial court had excluded damage evidence based upon limitations, and that he needed to review the transcript to confirm his understanding. Based upon this, it is impossible to determine from Green’s affidavit if he definitively knew what specific evidence was excluded. His lack of knowledge makes any testimony on proximate cause legally insufficient. See Ryland, Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (affidavits based upon the affiant’s belief or understanding of the facts are not proper summary judgment evidence).

Even if we were to consider Green’s affidavit, it is clear that he is operating on the assumption that the exclusion of evidence altered the jury’s verdict. Logically, one can infer that having damage evidence excluded is prejudicial to a plaintiffs case. But, saying that there was other evidence the jury could have considered is not synonymous with saying that this additional evidence would, more likely than not, have led to a different result. Surface damage suits can be complicated, and mere evidence of damage — even significant damage — is no guarantee of a verdict. See, e.g., Primrose Operating Co. v. Semi, 161 S.W.3d 258 (Tex.App.-Eastland 2005, pet. denied) (reversing jury verdict for $2,110,000 because evidence of remediation costs was not evidence of diminution in fair market value). Consequently, Green’s assumption of harm is no evidence of proximate cause.

The Kemps next note that Saringer testified in his affidavit that, if “Kemp [had] been permitted to submit evidence of the conduct of Valera Oil and Subsurface Exploration that occurred prior to July 2001, Mr. Kemp would have had a much better opportunity of obtaining a favorable jury verdict with damages in excess of $150,000.00.” Without some basis for this statement and some explanation of why Valera’s conduct would have supported a verdict against Gassiot, it is nothing more than a conclusion and, thus, no evidence. Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999). Moreover, testimony that the excluded evidence would have provided a better opportunity to prevail is insufficient to create a fact question because it addresses the wrong burden of proof. For example, if the Kemps had a five percent chance of a favorable result without the excluded evidence and a twenty-five percent chance with it, then its admission would have provided them a much better opportunity of obtaining a favorable verdict. However, the Kemps’ burden was to offer evidence that more likely than not a favorable verdict would have been achieved. Saringer’s affidavit does not satisfy this obligation.

The trial court was presented with a jury finding of no negligence. Regardless of whether this is considered only a finding of no negligence within the limitations period, it was still evidence that the attorneys’ negligence was not the proximate cause of the Kemps’ damages. To overcome this, the Kemps effectively collaterally challenged it, and they produced evidence that the attorneys breached their duty and evidence that this breach resulted in the exclusion of damage evidence in the underlying trial. But the Kemps did not show what evidence was excluded, did not explain the significance of this excluded evidence or its impact on the trial, and did not produce testimony that but for its exclusion the jury would have returned a different verdict. The trial court had no reason to disregard the jury verdict and, therefore, did not err when it granted the attorneys’ motions for summary judgment and dismissed the Kemps’ negligence causes of action.

C. Breach of Fiduciary Duty.

The Kemps also sued Jensen for breach of fiduciary duty, contending that his failure to disclose to them or Saringer that he had sued the wrong entity was a breach of duty. Jensen successfully moved for summary judgment on this claim, contending that the Kemps were attempting to improperly fracture a negligence cause of action. The Kemps argue that the trial court erred because it had no evidence upon which to decide this question and that Jensen had a fiduciary duty to render a full and fair disclosure of material facts, citing Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988).

A professional negligence claim arises when an attorney provides improper representation. Newton v. Meade, 143 S.W.3d 571, 574 (Tex.App.-Dallas 2004, no pet.). This can happen by giving an erroneous legal opinion or advice; by delaying or failing to handle a matter entrusted to the attorney’s care; or by not using ordinary care in preparing, managing, and prosecuting a case. Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex.App.-Dallas 2007, pet. denied). Conversely, a breach of fiduciary duty involves the attorney’s integrity and fidelity and focuses on whether counsel obtained an improper benefit from representing the client. Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex.App.-Dallas 2004, no pet.). An attorney breaches his fiduciary duty when he benefits improperly from the attorney-client relationship by, among other things, subordinating his client’s interest to his own, retaining the client’s funds, engaging in self-dealing, improperly using client confidences, failing to disclose conflicts of interest, or making misrepresentations to achieve these ends. Goffney v. Robson, 56 S.W.3d 186, 193 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

Professional negligence claims cannot be converted into fraud, breach of contract, breach of fiduciary duty, or violations of the DTPA. Murphy, 241 S.W.3d at 693, 698-99 (allegations that attorneys failed to properly advise, inform, and communicate with clients about their case are claims of professional negligence). Texas courts have consistently held that the failure to disclose significant information about a client’s case is professional negligence and not a breach of fiduciary duty. See, e.g., Murphy v. Mullin, Hoard & Brown, L.L.P., 168 S.W.3d 288, 290 (Tex.App.-Dallas 2005, no pet.) (the failure to timely inform clients of defects in documents was claim for professional negligence and not breach of fiduciary duty because there was no claim that attorneys received an improper benefit from the representation); Aiken v. Hancock, 115 S.W.3d 26, 29 (Tex.App.-San Antonio 2003, pet. denied) (allegations that lawyer falsely represented he was prepared to try case, failed to reveal he was not prepared to try case, falsely represented expert witness was prepared to testify, and failed to reveal expert witness was not fully prepared to testify did not allege self-dealing, deception, or express misrepresentations in the lawyer’s representation to support separate cause of action for breach of fiduciary duty); Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex.App.-Fort Worth 2002, pet. denied) (claim that lawyer misled clients into believing case ready for trial stated claim for legal malpractice, not breach of fiduciary duty). But cf. Latham v. Castillo, 972 S.W.2d 66, 69-70 (Tex.1998) (allegation that attorney affirmatively misrepresented to clients that he had filed and was actively prosecuting them claim was distinct from professional negligence cause of action because of allegation of deceptive conduct).

The Kemps’ allegations share some similarities with those raised in Latham because of the contention that Jensen engaged in deceptive conduct by withholding information. However, there are no allegations that Jensen received an improper benefit. Instead, the Kemps assert the type of misconduct — not communicating significant information about their case— that courts have consistently found constitutes an allegation of professional negligence. Jensen’s obligation to keep his clients informed is an integral component of his duty as a professional. A violation of that duty is a claim for professional negligence. Absent an allegation that Jensen received an improper benefit or other similar contention, it is not a claim for breach of fiduciary duty. The trial court did not err by granting Jensen’s motion for summary judgment on the Kemps’ breach of fiduciary duty claim. Because of this, the trial court also did not err by granting summary judgment on the Kemps’ claim that Saringer was negligent for not advising them that they had a potential DTPA claim against Jensen.

IV. Conclusion

Issues One and Two are overruled. The judgment of the trial court is affirmed.

JIM R. WRIGHT, Chief Justice,

dissenting.

Because the burden of proof in the context of these traditional motions for summary judgment has been improperly placed upon Stephen and Elliot Kemp, I would grant the motion for rehearing, reverse the summary judgments of the trial court, and remand the case for trial.

The trial court did not grant no-evidence motions for summary judgment; it granted traditional motions for summary judgment. We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). A trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In order for a defendant to be entitled to summary judgment, it must either disprove an element of each cause of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Once the movant establishes a right to summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth, 589 S.W.2d 671, 678-79 (Tex.1979).

When reviewing a traditional summary judgment, the appellate court considers all the evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548^49 (Tex.1985). The appellate court “must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented” and may not ignore “undisputed evidence in the record that cannot be disregarded.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007). An appellate court must consider all the evidence in the light most favorable to the nonmovant and determine whether the movant proved that there were no genuine issues of material fact and that the movant was entitled to judgment as a matter of law. Nixon, 690 S.W.2d 546. In so doing, we must indulge all reasonable inferences in favor of the nonmovant. Id.

Unlike those cases that involve a traditional motion for summary judgment, in a no-evidence summary judgment context, the movant does not bear the burden of establishing each element of his claim or defense. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (TexApp.-Dallas 2000, no pet.). The nonmovant assumes the burden to present enough evidence to raise a genuine issue of material fact showing that he is entitled to a trial. Id. A trial court must grant a motion for no-evidence summary judgment unless the nonmovant produces more than a scintilla of evidence that raises a genuine issue of material fact on the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills, 12 S.W.3d at 832-33. An appellate court must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. at 833.

The majority discusses the failure of the Kemps to present any evidence of “the significance of the excluded evidence or why its exclusion altered the outcome” of the underlying case. It also discusses the Kemps’ failure to “explain the significance of this excluded evidence or its impact on the trial, and ... produce testimony that but for its exclusion the jury would have returned a different verdict.” In its discussion of those failures, the majority cites Cantu v. Horany, 195 S.W.3d 867 (Tex.App.-Dallas 2006, no pet.). Cantu was a no-evidence summary judgment and is in-apposite here.

Because this case is one in which we are reviewing rulings on traditional motions for summary judgment, as opposed to no-evidence motions for summary judgment, the Kemps as nonmovants had no burden to come forward with any evidence unless and until the movants, appellees, either conclusively proved any defenses they might have had or conclusively disproved an element of each of the Kemps’ causes of action. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). It is only after the movant has produced evidence that entitles it to summary judgment that the burden shifts to the nonmovant to present evidence that creates a fact issue. Id. Before they may ultimately recover on their negligence claims, the Kemps will have the burden to prove the existence of a legal duty, a breach of that duty, proximate causation, and damages. They may or may not be able to do that, but I do not believe that they are required to do so in a traditional summary judgment context.

To the contrary, it was incumbent upon appellees, as movants, to conclusively disprove at least one of the elements of the Kemps’ negligence cause of action.- Appel-lees focused on the proximate cause element of the Kemps’ cause of action. At trial, the Kemps would be required to prove that appellees acts or omissions were a substantial factor in bringing about an injury that would not have occurred otherwise. Hall v. Stephenson, 919 S.W.2d 454, 456 (Tex.App.-Fort Worth 1996, writ denied). Conversely, in the context of these traditional motions for summary judgment, appellees are required to prove that no acts or omissions of appel-lees were a substantial factor in bringing about the injury that would not have occurred otherwise. Appellees attempted to make that proof by relying upon the jury verdict. As the Kemps argue, the jury verdict does little, if anything, more than show that the Kemps lost. This proof was not such that appellees met their burden to conclusively disprove an element of the Kemps’ negligence cause of action.

Furthermore, as earlier stated, under the standard of review in traditional summary judgments, we are to consider all evidence in the light most favorable to the Kemps as nonmovants. We are also to indulge all reasonable inferences in their favor. The jury instruction limiting damages to those that occurred prior to July 16, 2001, should not have been placed within the negligence issue. Almost all of the damages in the case against Subsurface Exploration, the ultimate defendant in the underlying lawsuit, occurred prior to that date. Because it was placed within the negligence issue, the jury verdict could mean that Subsurface Exploration was never negligent. However, I believe that it is also reasonable to infer that the jury could have found that Subsurface was negligent, but the time constraints imposed in the damage instruction prevented the jury from finding that Subsurface was negligent. Because we are to indulge that reasonable inference in favor of the Kemps, I would therefore hold, for this additional reason, that appellees did not conclusively disprove an element of the negligence cause of action. The Kemps were not required to come forward with any evidence in response to the traditional motions for summary judgment.

In their motion for rehearing, the Kemps draw our attention to that portion of their original petition in which they allege that appellee Saringer was negligent for failing to preserve their claims against Jensen under the Deceptive Trade Practices Act and for failing to advise them of their claims against Jensen. This negligence allegation was not addressed in ap-pellees’ motions for summary judgment, and the trial court should not have granted summary judgment on that cause of action.

I would hold that the trial court erred when it granted the traditional motions for summary judgment on the negligence cause of action.

The trial court also granted appellees’ traditional motions for summary judgment upon the Kemps’ breach of fiduciary duty claims. As stated before, unless and until appellees, as movants, conclusively negated an element of this cause of action, the Kemps were under no obligation to come forward with any evidence in response to the motion. I agree that a breach of fiduciary duty claim involves an attorney’s integrity and fidelity, and the focus in such claims is upon whether the attorney obtained an improper benefit from representing the client. Gibson v. Ellis, 126 S.W.3d 324, 330 (TexApp.-Dallas 2004, no pet.). I believe that the majority correctly says that an attorney breaches his fiduciary duty when he benefits improperly from the attorney-client relationship by, among other things, subordinating his client’s interest to his own, retaining the client’s funds, engaging in self-dealing, improperly using client confidences, failing to disclose conflicts of interest, or making representations to achieve those ends. Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

I also agree that a professional negligence claim, as opposed to a breach of fiduciary duty claim, arises when an attorney provides improper representation by giving erroneous legal opinions or advice; by delaying or failing to handle a matter entrusted to him; or by not using ordinary care in preparing, managing, or prosecuting a case. Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex.App.-Dallas 2007, pet. denied). The Kemps alleged those types of claims in the negligence cause of action in their petition.

However, the Kemps did not allege those types of claims in their breach of fiduciary duty cause of action. In their breach of fiduciary duty claims, the Kemps alleged that Jensen failed to disclose the true reason for withdrawing from the case. Also, the Kemps sought recovery of damages against Jensen under the Deceptive Trade Practices Act. Perhaps the Kemps could have been more specific in their claims against Jensen in this portion of their petition. However, unless the petition affirmatively demonstrates that no cause of action exists or that recovery is barred, the trial court must give the plaintiff an opportunity to amend before it grants a motion to dismiss or a motion for summary judgment. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 54-55 (Tex.2003); Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 805 (Tex.1989).

In the Kemps’ negligence cause of action, they allege improper representation for failing to sue the right entity and the resultant effects of that. In the breach of fiduciary duty claim, the Kemps complain of Jensen’s failure to disclose that information. The difference in the two claims is the difference between negligent conduct and deceptive conduct. “To recast this claim as one for legal malpractice is to ignore this distinction.” Latham v. Castillo, 972 S.W.2d 66, 69 (Tex.1998). Therefore, there is no fracturing of a negligence claim. I would grant the motion for rehearing on the breach of fiduciary duty claim against Jensen and remand to the trial court for it to consider whether the Kemps should be required to amend this portion of their petition and, if so, to allow them an opportunity to amend.

For all of the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: TRACY CHRISTOPHER, Justice.

license: Public Domain

text:
    UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellant, v. Vicki M. KING, Appellee.
    No. 14-10-00282.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 7, 2010.
    Rehearing Overruled Jan. 6, 2011.

      Bridget Lynn McKinley, Austin, for appellant.
    Bradley Landon Leger, Houston, for ap-pellee.
    Panel consists of Justices SEYMORE, BOYCE, and CHRISTOPHER.
   OPINION

TRACY CHRISTOPHER, Justice.

In this health care liability case, the University of Texas M.D. Anderson Cancer (“M.D. Anderson”) appeals the denial of its assertions of immunity. Because the plaintiffs pleadings are deficient, the trial court erred in denying M.D. Anderson’s plea to the jurisdiction. The plaintiffs claim that her injuries were caused by the improper use of a hospital bed contains insufficient facts to demonstrate the presence or absence of jurisdiction; we therefore remand that claim to the trial court to allow the plaintiff an opportunity to amend. We dismiss with prejudice the remainder of plaintiffs claims because her pleadings affirmatively demonstrate the absence of jurisdiction. Finally, we conclude that the trial court did not abuse its discretion in determining that there had been inadequate time for discovery; thus, we affirm the denial of M.D. Anderson’s no-evidence motion for summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

While undergoing chemotherapy at M.D. Anderson on May 10, 2007, Vicki King sustained a broken arm and a torn rotator cuff. Two years later, she filed this health care liability claim. M.D. Anderson responded with a plea to the jurisdiction asserting that King failed to allege facts constituting a waiver of M.D. Anderson’s sovereign immunity. The plea was not set immediately for hearing. In the meantime, the trial court issued a docket control order specifying that King was to designate her expert witnesses by February 2, 2010, and that the parties were to com-píete discovery and amend pleadings not later than April 16, 2010.

On February 10, 2010, M.D. Anderson filed a supplemental plea to the jurisdiction in which it pointed out that King had designated no expert witness to opine that her injuries were caused by the use of tangible personal property, and the deadline for King to designate additional experts had passed. At the same time, M.D. Anderson filed a no-evidence motion for summary judgment. One month later, King filed an amended petition and M.D. Anderson filed a second supplemental plea to the jurisdiction asserting that King’s latest pleading added only sham allegations in an attempt to wrongfully confer jurisdiction. Both the supplemented plea to the jurisdiction and the summary-judgment motion were scheduled for a hearing to take place on March 26, 2010. King failed to timely respond to the summary-judgment motion and filed no response at all to the plea to the jurisdiction.

At the hearing, King’s -counsel requested a continuance, asserted that discovery was ongoing, and argued that there had been inadequate time to complete discovery. The trial court did not continue the hearing, but instead denied both M.D. Anderson’s plea to the jurisdiction and its summary-judgment motion, stating, “If I can look at the evidence, I got to wait until the discovery period is over.” M.D. Anderson brings this interlocutory appeal to challenge those rulings. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008).

II. Issues Presented

In its first issue, M.D. Anderson contends that the trial court erred in denying its plea to the jurisdiction and no-evidence motion for summary judgment as to (a) King’s claims based upon alleged errors in medical judgment, and (b) her claims that are not based on allegations that her injuries were caused by the use of tangible personal property. In its third issue, M.D. Anderson asserts that it is entitled to summary judgment because King failed to present evidence that a paid M.D. Anderson employee proximately caused her injuries by negligently using tangible personal property or negligently furnishing defective tangible personal property. M.D. Anderson argues in its second issue that because King failed to produce such evidence, the trial court erred in denying M.D. Anderson’s plea to the jurisdiction as well as its no-evidence motion for summary judgment.

III. Analysis

King asserted in her pleadings that, upon information and belief, M.D. Anderson is “an instrumentality of the State of Texas” — i.e., a governmental entity. Such entities are entitled to immunity from suit for personal injuries unless immunity has been waived, and the claimant bears the burden to plead facts demonstrating a waiver of immunity. County of Cameron v. Brown, 80 S.W.3d 549, 554-55 (Tex.2002). Here, King asserted that the trial court could properly exercise jurisdiction because immunity had been waived under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005) (waiving immunity from suit to the extent of liability for personal injury or death caused by a governmental employee’s negligent use of a motor-driven vehicle or motor-driven equipment; the condition or use of real property; or the condition or use of tangible personal property). Specifically, King asserted that immunity was waived as to her claims because they involved personal injuries caused by a condition or use of tangible personal property. See id. § 101.021(2). Thus, no other basis for waiver of immunity is at issue.

In both its plea to the jurisdiction and its summary-judgment motion, M.D. Anderson argued that (a) King did not properly plead that her injuries were caused by the condition or use of tangible personal property, and (b) no evidence supports any such allegation. In its plea to the jurisdiction, however, M.D. Anderson addressed King’s alleged pleading deficiencies in greater detail, while it asserted its evidentiary challenge with greater specificity in its summary-judgment motion. For clarity, we have followed the same structure.

A. Plea to the Jurisdiction

We review de novo a trial court’s ruling on a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). When the sufficiency of the pleadings is challenged, the trial court, by construing the pleadings liberally and looking to the pleader’s intent, determines if the facts alleged affirmatively demonstrate its jurisdiction to hear the case. See id. If the pleadings contain insufficient factual allegations to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable jurisdictional defects, then the plaintiff must be afforded the opportunity to amend. Id. at 226-27. Claims that are incurably defective or affirmatively negate the existence of jurisdiction may be dismissed without allowing the plaintiff an opportunity to amend. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007); Miranda, 133 S.W.3d at 227.

Just as the parties have done, we separately address King’s various factual allegations.

1. Specific Allegations of Failure to Act

M.D. Anderson first points out that the following allegations in King’s live pleading are not based on any recognized waiver of immunity under the Texas Tort Claims Act:

Specifically, M.D. Anderson by and through its actual and ostensible agents, employees, vice principals, and borrowed servants, failed to use the ordinary care and diligence that reasonable and prudent health care providers would have employed under the same or similar circumstances and was negligent by, among other acts and omissions, the following:
a. Failing to develop, employ, monitor and follow appropriate policies and procedures with regard to the assessment, treatment, management and oversight of patients such as Plaintiff;
b. Failing to assure the competence of medical staff;
e.Failing to monitor and oversee the quality of treatment rendered by medical staff members to Plaintiff; d. Failing to properly investigate, inspect and adequately monitor the credentials of each of the physicians and nurses who rendered services to Plaintiff;
e. Failing to develop, employ and monitor policies and procedures for the nursing staff to utilize the chain of command;
f. Failure by the nurses employed by M.D. Anderson to initiate the chain of command to prevent exacerbation of Plaintiffs injuries;
g. Failure by the nurses employed by M.D. Anderson to assure the Plaintiff was lying flat in bed in a supine position prior to moving Plaintiff;
h. Failure by the nurses employed by M.D. Anderson to assure Plaintiffs body was aligned prior to moving Plaintiff;
i. Failure by the nurses employed by M.D. Anderson to use care when moving Plaintiff;
j. Failure by the nurses employed by M.D. Anderson to use a draw sheet and/or pad underneath Plaintiff when moving Plaintiff; and
k. Failure by the nurses employed by M.D. Anderson to move Plaintiff without causing a right humerus fracture and rotator cuff tear.

M.D. Anderson is correct: these allegations are not based upon the negligent use of tangible personal property. There is no waiver of immunity under the “tangible personal property” provision of the Texas Tort Claims Act for injuries proximately caused by the negligent (1) exercise of medical judgment, (2) use or misuse of information, (3) failure to act or to use property, (4) failure to supervise, (5) failure to investigate, (6) failure to monitor, or (7) failure to recognize or address the risk of falling. Moreover, these allegations are incurably defective; King cannot cure them by pleading more detailed facts to support her assertion that her injuries were caused by acts or omissions such as those listed above. See Ko-seoglu, 233 S.W.3d at 840. Consequently, no purpose would be served by remanding these claims to the trial court. See Thomas v. Long, 207 S.W.3d 334, 338 (Tex.2006). With respect to these claims, then, we sustain M.D. Anderson’s first issue, reverse the trial court’s denial of the plea to the jurisdiction, and dismiss these claims with prejudice.

2. Alleged Use or Misuse of Medication

King’s remaining allegations are as follows:

During the course of her chemotherapy treatment, M.D. Anderson’s staff ... positioned Ms. King in a hospital bed and administered medication that unnecessarily put Ms. King to sleep. While she was rendered unconscious by M.D. Anderson’s medication, M.D. Anderson’s staff improperly used Ms. King’s hospital bed and as a result Ms. King was dropped or her arm was pulled and jerked with such force as to cause a right humerus fracture and rotator cuff tear.
At the time of Ms. King’s injury, ... M.D. Anderson’s medical staff was negligent in misusing the medication that unnecessarily rendered Ms. King unconscious as well as the hospital bed in which Ms. King was sleeping.... M.D. Anderson’s staff had a duty to exercise ordinary care and use Ms. King’s medication and her hospital [sic] reasonably and prudently. M.D. Anderson breached this duty by using medication that unnecessarily rendered Ms. King unconscious thereby leaving her defenseless, and using Ms. King’s hospital bed in such a way as to put such stress on Ms. King’s right arm as to cause a bone fracture and tear in Ms. King’s rotator cuff.
M.D. Anderson’s use and misuse of Ms. King’s medication and hospital bed was a proximate cause of Ms. King’s fractured right arm and torn rotator cuff.

Although these allegations refer to the use or misuse of medication and a hospital bed, immunity is not waived in every personal-injury case involving tangible personal property. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 588, 588 (Tex.2001). Specifically, immunity is not waived if use of such property merely furnished the condition that made the injury possible. Arnold, v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 279 S.W.3d 464, 467-68 (Tex.App.-Dallas 2009, no pet.). Rather, use of tangible personal property must actually have caused the injury. Miller, 51 S.W.3d at 588.

Here, M.D. Anderson has not waived immunity from suit as to King’s allegations that M.D. Anderson’s employees administered medication that unnecessarily put her to sleep or rendered her unconscious. Even under the most liberal reading of King’s pleading, the alleged use or misuse of medication merely furnished the condition — King’s state of sleep or unconsciousness — that made the injury possible. To the extent that King’s claims are based on these allegations, the trial court erred in failing to dismiss them with prejudice. We therefore sustain M.D. Anderson’s first issue in part, reverse the trial court’s denial of the plea to the jurisdiction as to the “medication” allegations, and dismiss them with prejudice.

3. Allegedly Improper Use of Hospital Bed

The only possible remaining basis for King’s claims is found in the following allegations:

M.D. Anderson’s staff ... positioned Ms. King in a hospital bed and ... improperly used Ms. King’s hospital bed and as a result Ms. King was dropped or her arm was pulled and jerked with such force as to cause a right humerus fracture and rotator cuff tear.
M.D. Anderson’s medical staff was negligent in misusing ... the hospital bed in which Ms. King was sleeping.... M.D. Anderson’s staff had a duty to exercise ordinary care and use Ms. King’s ... hospital [sic] reasonably and prudently. M.D. Anderson breached this duty by ... using Ms. King’s hospital bed in such a way as to put such stress on Ms. King’s right arm as to cause a bone fracture and tear in Ms. King’s rotator cuff.
M.D. Anderson’s use and misuse of Ms. King’s ... hospital bed was a proximate cause of Ms. King’s fractured right arm and torn rotator cuff.

In certain narrow circumstances, immunity has been held to be waived for claims of personal injury caused by the condition or use of a hospital bed. Compare Overton Mem. Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex.1975) (per curiam) (government-owned hospital was not entitled to immunity from the claims of a patient injured by falling from a bed that was negligently provided without guard rails) with Gainesville Mem’l Hosp. v. Tomlinson, 48 S.W.3d 511, 513-14 (Tex.App.-Fort Worth 2001, pet. denied) (no waiver of immunity for patient’s claim that she fell when a hospital misused a bed by allowing her to sit on it without adequate supervision); see also San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246-47 (Tex.2004) (explaining that in Overton, the hospital “actually put the patient in the bed as part of his treatment”); Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 584 (Tex.2005) (explaining that Overton’s precedential value is limited to situations in which “an integral safety component is entirely lacking rather than merely inadequate”). King’s allegations, however, contain insufficient facts to affirmatively demonstrate the trial court’s jurisdiction or to affirmatively demonstrate incurable jurisdictional defects. Regardless of how liberally one interprets her pleadings, it is impossible to tell whether King contends that she fell and was injured because M.D. Anderson’s staff placed her as part of her treatment in a hospital bed lacking an integral safety component, see Overton, or whether she contends she was injured because M.D. Anderson personnel were negligent in moving or positioning her. See Salinas v. City of Brownsville, No. 13-08-00146-CV, 2010 WL 672885, at *5 (Tex.App.-Corpus Christi Feb. 25, 2010, no pet.) (holding no waiver of immunity for injuries sustained when the plaintiff fell from a washing machine on which emergency medical technicians had placed her for evaluation). She therefore is entitled to the opportunity to amend her pleadings. See Miranda, 133 S.W.3d at 226-27.

We sustain M.D. Anderson’s first issue as it pertains to King’s allegations that she was injured by the use or misuse of a hospital bed, and we remand such claim to the trial court so that King may amend her pleading to address the factual deficiency identified above.

B. Motion for Summary Judgment

King argues that we do not have interlocutory appellate jurisdiction to review the trial court’s denial of summary judgment because M.D. Anderson affirmatively invoked the trial court’s jurisdiction to request judgment on the merits of King’s claims. This argument, however, is not supported by the record, which instead shows that M.D. Anderson moved for summary judgment on the grounds that there is no evidence of the elements necessary to establish waiver of immunity. Specifically, M.D. Anderson asserted there was no evidence that (1) any of its employees were negligent (2) in the use of tangible personal property (3) that proximately caused King’s injuries. Thus, for the purposes of determining whether the ruling on the motion is subject to an interlocutory appeal, the motion was, in substance, a plea to the jurisdiction. See Thomas v. Long, 207 S.W.3d 334, 339 (Tex.2006).

A party may move for no-evidence summary judgment only “[ajfter adequate time for discovery.” Tex.R. Civ. P. 166a(i). According to the comment to Rule 166a(i), “[a] discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a ... [no-evidence motion for summary judgment] would be permitted after the period but not before.” Tex.R. Civ. P. 166a(i) cmt.; McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex.App.Houston [14th Dist.] 2008, no pet.). , This comment was expressly intended “to inform the construction and application of the rule.” Tex.R. Civ. P. 166a(i) cmt. Thus, under the comment’s plain language, a trial court may choose not to entertain a no-evidence motion for summary judgment filed before the discovery deadline in the docket control order. Cf. McInnis, 261 S.W.3d at 200-01 (characterizing a trial court’s consideration of a no-evidence motion for summary judgment before the end of the discovery period as “an exception to the ordinary rule”); see also Tex.R. Civ. P. 166a(g) (authorizing a trial court to deny a motion for summary judgment if there has been inadequate time for discovery).

In challenging the trial court’s conclusion that there had been inadequate time for discovery, M.D. Anderson urges us to presume that King investigated her case at least three times: once before filing suit, once before filing her expert report pursuant to section 74.351 of the Civil Practice and Remedies Code, and once again before she finalized her designation of expert witnesses. M.D. Anderson reasons that based on these presumptions, this court “is within its discretion to conclude that [King] had investigated her claims and there had been adequate time for discovery.” But the determination of whether there has been adequate time for discovei-y lies within the trial court’s discretion, not this court’s discretion. See McInnis, 261 S.W.3d at 201. We merely review the trial court’s determination, considering factors such as (1) the nature of the case, (2) the nature of the evidence necessary to controvert the motion, (3) the length of time the case was active, (4) the amount of time the motion was on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery that already had taken place, and (7) whether the discovery deadlines in place were specific or vague. Id.

With regard to these factors, M.D. Anderson points out that at the time it filed its no-evidence motion for summary judgment, King’s health care liability claims had been on file for nine-and-one-half months. We note, however, that discovery in a health care liability case is limited before the plaintiff serves the defendants with expert reports, and M.D. Anderson moved for summary judgment five-and-one-half months after King served her expert report and four-and-one-half months after challenges to the expert report were resolved. We further note that the docket control order contained a specific discovery deadline, and 51 days remained in the discovery period when M.D. Anderson moved for summary judgment. M.D. Anderson cites no evidence that it requested a shorter discovery period. The summary-judgment motion was heard thirty days after it was filed, and at the time the trial court denied the motion, three weeks remained in the discovery period.

M.D. Anderson argues that further discovery would be pointless because King allowed the expert-designation deadline to expire without designating an expert to testify that her injuries were caused by an M.D. Anderson employee’s negligent use of tangible personal property This argument is based on M.D. Anderson’s assumption that because the deadline to designate expert witnesses has passed, King is barred as a matter of law from amending her expert designation or supplementing the report of her currently-designated expert. Such assumptions are incorrect. See Tex.R. Civ. P. 193.6(b) (a party may make an untimely amendment or supplementation of a discovery response if it establishes that there was good cause for the delay or that the delay will not unfairly surprise or unfairly prejudice the other parties); Tex.R. Civ. P. 193.6(c) (even if the delay is not excused by good cause, lack of unfair surprise or prejudice, the trial court may grant a continuance to allow the parties to conduct discovery regarding information presented by the untimely discovery response).

On this record, we conclude that the trial court did not abuse its discretion in determining that there had been inadequate time for discovery. We therefore overrule M.D. Anderson’s second and third issues as they pertain to the alleged absence of evidence to establish waiver of immunity.

IV. Conclusion

We affirm the trial court’s denial of M.D. Anderson’s no-evidence motion for summary judgment; reverse its denial of the plea to the jurisdiction; dismiss King’s claims that her injuries were caused by any M.D. Anderson’s employee’s failure to act, exercise of medical judgment, or use or misuse of medication; and remand the case to give King the opportunity to plead sufficient facts to allow the trial court to determine whether King’s assertions concerning a hospital bed adequately allege that her injuries were caused by the use of tangible personal property.

      . "Sovereign immunity” and "governmental immunity” are sometimes treated as interchangeable terms. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 n. 1 (Tex.2006) (op. on reh’g). Sovereign immunity is available to the state and its agencies, and governmental immunity is available to political subdivisions. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004).

      . King filed an untimely response to the summary-judgment motion four days before the hearing. Because there is no basis in the record to conclude that the trial court granted leave to file a late response, we presume that the trial court did not consider it. Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 612 (Tex.App.-Houston [14th Dist.] 2009, pet. denied).

      . Arnold, v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 279 S.W.3d 464, 469 (Tex.App.-Dallas 2009, no pet.) (explaining that allegations of harm caused by overly-large implants were allegations of an error in medical judgment, not an allegation of the negligent use of tangible personal property).

      . Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 176 (Tex.1994) (concluding that immunity is not waived for harm resulting from errors or lapses in medical documentation or failure to follow recommendations).

      . Kertville v. Clark, 923 S.W.2d 582, 584 (Tex.1996) (holding that failure to administer an injectable drug is a non-use of tangible property and does not fall under the waiver provisions of the Texas Tort Claims Act); Univ. of Tex. Med. Branch v. Thompson, 2006 WL 1675401, *3-4 (Tex.App.-Houston [14th Dist.] June 20, 2006, no pet.) (mem.op.) (finding no waiver of immunity for failure to make timely use of medical diagnostic tools).

      . Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex.2003) (holding that immunity was not waived for bus driver's alleged failure to supervise the public); see also Univ. of Tex. Health Sci. Ctr. v. Schroeder, 190 S.W.3d 102 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (holding that immunity is not waived for injury or death caused by negligent supervision).

      . Arnold, 279 S.W.3d at 468-69 (holding that immunity is not waived for failure “to make the proper pre-surgery investigation’’).

      . Somervell County Healthcare Auth. v. Sanders, 169 S.W.3d 724, 728 (Tex.App.-Waco 2006, no pet.) (explaining that failure to monitor is not a claim involving the condition or use of tangible personal property).

      . Id. at 727-28 (concluding that immunity is not waived for failure to recognize or address the risk of falling).

      . M.D. Anderson argues that because King amended her pleadings before the trial court denied the summary-judgment motion and plea to the jurisdiction, she is not entitled to remand to amend her pleadings. We disagree. See Koseoglu, 233 S.W.3d at 839-40 (explaining that after a court decides a jurisdictional plea is meritorious, a claimant is entitled to a reasonable opportunity to amend if the pleading deficiency is curable).

      . M.D. Anderson additionally moved for summary judgment based on the absence of allegations or evidence that King’s injuries were caused by its employees' negligent use of a motor-driven vehicle or motor-driven equipment, or by the condition or use of real property. The absence of such allegations and evidence, however, is undisputed.

      . See Tex. Civ. Prac. & Rem.Code §§ 74.35l(s), 74.352.

      . King’s designated expert, Dr. Mark Koch, did not attribute her injuries to the use of tangible personal property. He instead opined only that the type of injuries Ms. King sustained are usually caused by "a fall onto an outstretched arm,” and "may have occurred as a result of a fall out of bed landing head-first with her arm overhead or may have occurred by being hoisted up in bed while unconscious.”


author: CHARLES KREGER, Justice.

text:
    HEALTHSOUTH OF HOUSTON, INC. d/b/a HealthSouth Rehabilitation Hospital of North Houston, Appellant, v. Wilma V. PARKS, Individually and as the Independent Executrix of the Estate of Frank S. Parks, Appellee.
    No. 09-10-00317-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 29, 2010.
    Decided Dec. 9, 2010.

      Wesley Nagorny III, Juliet K. Stipeche, Nagorny & Stipeche, P.C., Houston, for Appellant.
    Kent J. Lisenby, Chuck Axmacher, The Lisenby Law Firm, P.C., Fort Worth, for Appellee.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

Appellee Wilma V. Parks, individually and as the independent executrix of the Estate of Frank S. Parks, deceased, sued appellant HealthSouth of Houston, Inc. d/b/a HealthSouth Rehabilitation Hospital of North Houston (“HealthSouth”) for alleged medical malpractice. HealthSouth objected to the adequacy of Parks’s expert report and subsequently filed a motion to dismiss based on the objections. At the time of the hearing on the objections to the report, Parks was still within the 120-day window in which to serve a sufficient expert report as provided by section 74.351. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West.Supp.2010). The trial court overruled the objections and later denied HealthSouth’s motion to dismiss. HealthSouth then filed this interlocutory appeal. See id. § 51.014(a)(9) (West 2008). We reverse and remand to the trial court.

BACKGROUND

Appellee Wilma Parks brought a health care liability claim against HealthSouth wherein she alleged that her husband, Frank Parks, was admitted to Health-South on January 5, 2009, for rehabilitation of injuries he received in a motor vehicle accident. She further alleged that on the day of admission, HealthSouth’s nurses left Mr. Parks alone and unsecured.During such time, he fell and received serious injuries to his face and head, and he later died on February 12, 2009. Parks contends that HealthSouth’s negligence “was a proximate cause of the injuries and damages suffered by Frank Parks and his resulting death,” and Parks sought damages under the Texas Wrongful Death Act and Texas Survival Statute.

Pursuant to section 74.351 of the Texas Civil Practice and Remedies Code, Parks timely served a purported expert report from Cynthia Stinson, Ph.D., APRN-BC. Stinson’s report implicates as deficient the care HealthSouth’s nursing staff provided to Mr. Parks. Stinson’s report notes that “[Mr. Parks] scored a 50 on the Morse Fall risk assessment!,] which indicated he needed ‘strict fall precautions.’ ” Stinson opines,

It is my opinion that nurses at Health-South Rehabilitation Hospital of North Houston did not meet the Standard of Care for Mr. Frank Parks based on the following standards from the Nurse Practice Act for the state-.of Texas:
1. Rule 217.11 D. Nursing Interventions: Nurses must accurately and completely report and document— client’s status (including signs and symptoms), nursing care rendered, physician orders, administration of medications, and treatments, and contact with other health care team members.
2. Rule 217.11 M. Nursing Interventions: Institute appropriate nursing interventions that might be required to stabilize a client’s condition and/or prevent complications.
3.Rule 217.11 P. Collaboration: Collaborate with the client, members of the health team, and when appropriate the client’s significant other.
According to documentation by Dr[.] Agana “actual events of the fall are not known from the Nursing notes.” Documentation does not indicate that nurses took any precautions to prevent the fall. On the Safety Risk for Fall Plan of Care the “Yellow Action/Interventions” are checked. However!,] there is no documentation to what exact precautions were taken if any to prevent Mr. Parks’ fall based on this' Plan of Care.
This was an older man who sustained traumatic injuries from a MVA two weeks - before the fall- in the Rehabilitation Center. According to the consultation at Conroe Regional Center he had some altered mental status. Past history also indicates that he had atrial fibrillation, diabetes, wore glasses, and had difficulty hearing. He also had been experiencing “a great deal of pain.” On Pre-admission Screening the HGB on 12/29/08 was 8.8 and HCT was 25.8 (indicating anemia). All of these conditions contribute to the NANDA nursing diagnosis Risk for Falls. Prudent nurses caring for Mr. Parks at Healthsouth Rehabilitation should have been aware of this and taken necessary precautions to prevent falls and prevent injury.
Due to the Pre-assessment and Interdisciplinary assessment nurses were aware that Mr. Parks was at high risk for falls and should have taken precautions to prevent falls. Although the Interdisciplinary Plan of Care indicates that Mr. Parks should have had a chair alarm and bed alarm, there is no indication these were in place when patient fell. There is no indication in the documentation that nurses did any intervention to prevent the fall. These interventions would have included the following but not limited to: bed alarms, placement of patients close to nurses’ station, encouraging family members to stay with patient, and low bed. Documentation on Daily Flowsheet/Treatment Record indicates that there was no bed alarm, chair alarm, or restraint in use at time of the fall to Mr. Parks.
Mr. Parks was found lying “in fresh bright blood face down” at 0030 1/5/09 indicating he was not being observed to determine the exact time of the fall. There is no indication from nursing documentation at 0030 that nurses did any type of assessment to determine the extent of injuries even though the patient was bleeding, had a cut above the right eye, and was disoriented. There is no indication nurses notified the physician of the extremely low blood pressure patient exhibited when found on floor (105/63). Nor was his blood sugar tested to determine if he was hypoglycemic. There was no indication of any type of neurological assessment to determine injury to the head or elsewhere in nursing documentation. Nor was there any type of assessment to determine if patient had any fractures. The nurses did not institute interventions to prevent complications. There is no indication from documentation or from Dr. Agana that nurses informed the physician of the extent of injuries to Mr. Parks due to the scanty documentation by nurses and lack of assessment by Dr. Agana before transfer to the acute facility.
Not only were nurses negligent in care of Mr. Parks before the fall but they were also negligent in care of Mr. Parks after the fall. It is my opinion that nurses at Healthsouth Rehabilitation Hospital of North Houston did not meet the Standard of Care for this patient.

HealthSouth timely objected to the sufficiency of the expert report. The trial court held a hearing on HealthSouth’s objections. At the time of the hearing, Parks was still within the 120-day window for providing the initial expert report as required by statute. At the hearing, the trial court overruled HealthSouth’s objections, finding Stinson’s report sufficient. More than 120 days after Parks filed her original petition, HealthSouth moved to dismiss the case challenging Stinson’s qualifications and the sufficiency of her expert report. HealthSouth argued that because Stinson’s report lacked an opinion on causation, the report was not only deficient, but amounted to no report. The trial court again found Stinson’s report sufficient and denied HealthSouth’s motion to dismiss.

In a single issue, HealthSouth contends that the trial court abused its discretion by denying its motion to dismiss because Parks failed to produce an expert report that complied with the requirements of section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351.

STANDARD OF REVIEW

We review a trial court’s decision regarding the adequacy of an expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.2001). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court also abuses its discretion if it fails to analyze or correctly apply the law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

PERTINENT LAW AND APPLICATION

Adequacy of the Expert Report

A plaintiff who asserts a health care liability claim must provide each defendant physician and health care provider with an expert report no later than the 120th day after filing suit. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). A health care institution is included within the definition of “health care provider.” Id. § 74.001(a)(12)(A)(vii) (West 2005). The statute defines an expert report as:

[A] written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding 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.

Id. § 74.351(r)(6) (West Supp.2010). The statute further sets forth the qualifications of expert witnesses on causation in health care liability claims and provides as follows, in pertinent part:

[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.

Id. § 74.403(a) (West 2005). From this provision it follows that a nurse is not statutorily qualified to provide an expert report on the issue of causation in a health care liability claim. Baptist Hosps. of Se. Tex. v. Sebile, No. 09-09-00333-CV, 2010 WL 364323, at *3 (Tex.App.-Beaumont Jan. 28, 2010, pet. denied) (mem.op.) (op. on reh’g); Hopkins County Hosp. Dist. v. Ray, No. 06-08-00129-CV, 2009 WL 454338, at *3 (Tex.App.-Texarkana Feb. 24, 2009, no pet.) (mem.op.).

Expert reports serve two purposes: (1) to “inform the defendant of the specific conduct [the claimant] has called into question” and (2) to “provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 879. The report must be authored by a qualified expert, as defined by subsection (r)(5), and contain the expert’s opinion with regard to the standard of care, the manner in which the health care provider failed to meet that standard, and the causal relationship between that failure and the plaintiffs injury. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)-(6).

A defendant may file a motion challenging the sufficiency of the expert report not later than the 21st day after the date the report was served. Id. § 74.351(a). The trial court “shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).” Id. § 74.351C). To constitute a good-faith effort to provide a fair summary of an expert’s opinions, an expert report must discuss the standard of care, breach, and causation. Palacios, 46 S.W.3d at 875. When determining whether the report represents a good-faith effort, the trial court’s inquiry is limited to the four corners of the report. Id. at 878. If the claimant fails to serve the report within 120 days, the trial court must grant the affected party’s motion to dismiss the claim, and the failure to do so is subject to interlocutory appeal. Ogletree v. Matthews, 262 S.W.3d 316, 317 (Tex.2007).

In Jernigan v. Langley, the Texas Supreme Court considered the sufficiency of expert reports when one report did not reference the physician at all and the other report only mentioned the physician in this single sentence: “ ‘At 4:30 p.m. [John Langley’s] case was discussed with Dr. Jernigan and at 4:50 p.m. a lactulose enema was ordered.’ ” 195 S.W.3d 91, 93 (Tex.2006). The Court held that the claimant’s expert reports failed to comply with the statutory requirements because

[e]ven if we assume that the reports address the standard of care with respect to each doctor, ... neither report addresses how Dr. Jemigan breached the standard or how his unstated breach of duty caused John’s death with sufficient specificity for the trial court, and Jernigan, to determine that the allegations against Jernigan had any merit.

Id. at 94.

However, in Morris v. Umberson, the trial court denied the defendant-doctor’s motion to dismiss based on the sufficiency of the expert report, but found the expert report deficient as to causation and granted the claimant a thirty-day extension to cure the deficiency. 312 S.W.3d 763, 764 (Tex.App.-Houston [1st Dist.] 2009, pet. denied). On appeal, the defendant-doctor challenged the trial court’s order and argued that the expert report “ ‘completely omits any intelligent discussion of causation and, necessarily, is tantamount to serving no report at all,’ ” and further argued that the trial court did not have discretion to grant the claimant a thirty-day extension to cure. Id. at 767. The court held that the expert report implicated the defendant-doctor and specifically named him, discussed the standard of care, explained how the doctor’s actions breached the standard, and addressed causation. Id. at 770. The court further held that because the report implicated the defendant-doctor, the report did not equate to “no report.” Id. The court addressed the issue as one in which the defendant-doctor “is essentially asking us to label as ‘no report’ a timely served expert report that expressly implicates [the defendant-doctor], but which he asserts is deficient and woefully inadequate as if it is ‘no report.’ This we cannot do.” Id. The court held that the trial court did not err in granting a thirty-day extension to cure a timely served, but deficient expert report. Id. at 770-71.

Here, because Stinson is undisputedly a nurse rather than a physician, she is not qualified under section 74.403 to offer an opinion as to causation. See Tex. Civ. Prac. & Rem.Code Ann. § 74.403. Additionally, the report fails to address the causal relationship between the alleged negligence of HealthSouth’s nurses and Parks’s death. Thus, we find the report is deficient and the trial court abused its discretion in applying the law to this report.

Thirty-Day Extension

Having concluded the trial court erred, we must now address the relief to which HealthSouth is entitled. Health-South asks this court to reverse the trial court’s order and render judgment dismissing Parks’s claims. Parks responds by requesting this court,to remand the cause to the trial court to consider granting a thirty-day extension. HealthSouth argues that Stinson’s expert report is not merely deficient, but is not curable and as such, Parks is not entitled to a thirty-day extension. We disagree.

Section 74.351(c) provides that if the claimant serves a purported report timely, but the trial court finds elements of the report are deficient, then the court may grant a single, thirty-day extension to the claimant to cure that deficiency. Tex. Civ. Prac. & RermCode Ann. § 74.351(c); see also Ogletree, 262 S.W.3d at 319. If the appellate court finds the report deficient, the statute permits the appellate court to remand the case to the trial court to consider a thirty-day extension to allow the plaintiff an opportunity to cure the deficiency. See Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex.2008); see also Pangburn v. Anderson, No. 09-09-00169-CV, 2009 WL 4852211, at *7 (Tex.App.Beaumont Dec. 17, 2009, no pet.) (holding expert reports were deficient as to three different defendants and remanding the cause to the trial court to consider granting a thirty-day extension of time to cure the deficiencies); Johnson v. Willens, 286 S.W.3d 560, 565-66 (Tex.App.-Beaumont 2009, pet. filed) (holding that expert report was deficient because it merely stated the expert’s conclusions and concluding that claimant was entitled to have the trial court consider whether he should receive an extension under section 74.351(c)); Christus Health Se. Tex. v. Broussard, 267 S.W.3d 531, 536-37 (Tex.App.-Beaumont 2008, no pet.) (holding that expert report was deficient when expert failed to established qualifications to issue opinion as to standard of care and hospital administrative decisions and remanding cause to trial court to consider thirty-day extension to cure); Craig v. Dearbonne, 259 S.W.3d 308, 313 (Tex.App.-Beaumont 2008, no pet.) (holding expert report deficient as to causation and remanding cause to trial court to consider whether to grant a thirty-day extension to cure); but see Gingrich v. Scarborough, No. 09-09-00211-CV, 2010 WL 1711067, at *4-5 (Tex.App.-Beaumont Apr. 29, 2010, no pet.) (mem.op.) (holding that expert report that did not adequately address causation constituted “no report at all” with respect to some defendants).

The Texas Supreme Court has discussed this issue, but- has not directly resolved it. In Ogletree, the Court appeared to divide the universe of possible reports into two categories: deficient and absent reports. Ogletree, 262 S.W.3d at 320. In that case, the claimants timely filed multiple expert reports in support of their claims against a hospital and a physician. Id. at 317. One of the expert reports was authored by a radiologist, the others by nurses. Id. The radiologist’s report concerned the physician’s care of the patient, while the nurses’ reports primarily concerned the care provided by the hospital’s nursing staff. Id. at 317-18. The physician timely objected to the reports, arguing that neither the radiologist nor the nurses were qualified to render an opinion on a urologist’s standard of care. Id. at 318. He further argued that the radiologist failéd to produce his curriculum vitae as required by the statute. Id. The trial court denied his motion and granted the plaintiffs a thirty-day extension to cure the deficiencies. Id. The physician-defendant argued before the Texas Supreme Court that “as a radiologist, Dr. Karsh may not opine on an urologist’s standard of care and, therefore, no report was served that met the statutory definition of an ‘expert report.’ ” Id. at 319. The physician further argued that since no report was served, the trial court had no discretion to grant a thirty-day extension. Id. In interpreting section 74.351, the Court explained that “the Legislature recognized that not all initial timely served reports would satisfy each of the statutory criteria[,]” which is why the Legislature amended the statute to “explicitly give trial courts discretion to grant a thirty day extension so that parties may, where possible, cure deficient reports.” Id. at 320. Thus, “a deficient report differs from an absent report.” Id.

In his concurring opinion, Justice Willett observed that “the Court’s classification of all purported expert reports as either absent or deficient may prove inapposite in rare cases — where the claimed ‘report’ is actually no such thing — and inadvertently expand the availability of the thirty-day extension provided by section 74.351(c) beyond what the Legislature intended.” Ogletree, 262 S.W.3d at 322 (Willett, J., concurring). He therefore argued the need for a third category for “a document so utterly lacking that, no matter how charitably viewed, it simply cannot be deemed an ‘expert report’ at all, even a deficient one.” Id. at 323.

In In re Watkins, Justice Willett conceded that this issue was not squarely before the Court, but again discussed the no report versus deficient report issue in his concurrence. 279 S.W.3d 633, 636-40 (Tex.2009) (Willett, J., concurring). In Watkins, the expert report consisted of a one-page narrative of the treatment the patient received. Id. at 638. The trial court determined that the issue was “not even close” and found the report was merely a narrative and did not constitute an expert report, and then granted an extension for the claimant to cure. Id. Justice Willett described the issue as “whether there can be interlocutory review of a denied dismissal motion when there is no report as opposed to (and note this locution) ‘a report that implicated a provider’s conduct but was somehow deficient.’ ” Id. at 638 (footnote omitted). Justice Willett noted that in Watkins, the claimant’s report implicated “nobody’s conduct” and “ ‘is no more a report than a doctor-signed prescription or Christmas card would be.’ ” Id. (footnote omitted). Justice Willett continued:

I concede that courts, this one included, cannot decree with micrometer-like precision when something falls from deficient to so-deficient-it’s-absent. Each case has its own distinct facts, but judges are not incapable of applying indistinct lines, or at minimum prescribing the outer ones. One bright-line marker seems beyond reasonable objection: when a “report” contains none of the statutorily prescribed contents. There must exist an agreed outer fringe, and the superficial document in this case lies beyond it.

Id. at 639.

A majority of the Texas Supreme Court has not yet embraced Justice Willett’s analysis. Until a majority of the Court so holds, such a determination by this court would constitute a modification of Ogle-tree’s absent or deficient expert report classification, which is beyond our authority. See Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (“It is not the function of a court of appeals to abrogate or modify established [Supreme Court] precedent.”); Scoresby v. Santillan, 287 S.W.3d 319, 324 (Tex.App.-Fort Worth 2009, pet. granted) (concluding that a determination that a timely filed expert report is tantamount to no report at all and thus ineligible for a section 74.351(c) extension would “constitute a modification” of current supreme court precedent).

Further, the Texas Supreme Court in Gardner v. U.S. Imaging, Inc., made note that a claimant can cure an expert report on remand when the trial court found the expert report deficient because it was authored by an unqualified expert. 274 S.W.3d 669, 671 n. 2 (Tex.2008). In In re Buster, the Court found that the trial court did not abuse its discretion in granting a thirty-day extension for the claimant to cure its expert report that had been found deficient as to causation because it was written by a nurse. 275 S.W.3d 475, 476-77 (Tex.2008). The Court further held that “a claimant may cure a deficiency by serving a report from a new expert[.]” Id. at 477. Moreover, the statute does not prohibit a claimant from changing experts midstream. Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex.2008).

Here, the trial court erroneously found Stinson’s expert report sufficient. Had the trial coui’t found Stinson’s report insufficient at the initial hearing on the report, Parks was still within the 120-day window provided by the statute and could have timely filed a new expert report that complied with the statute. Parks did not submit further expert reports because the trial court found her report sufficient.

Having concluded Stinson’s report was deficient as to the issue of causation and further that Stinson is unqualified to render an opinion on causation, we find the trial court abused its discretion in finding the expert report sufficient, and we remand the cause for the trial court to consider whether to grant Parks a thirty-day extension to cure such deficiencies.

REVERSED AND REMANDED.

      . We need not address appellants’ remaining arguments listed as sub-parts of this issue, as they would not result in greater relief. See Tex.R.App. P. 47.1.

      . Contra Alexander v. Terrell, No. 09-07-198 CV, 2007 WL 2683536, at *1, *4 (Tex.App.Beaumont Sept. 13, 2007, no pet.) (mem.op.) (opinion issued prior to the Texas Supreme Court's decision in Ogletree, holding expert report inadequate as to wrongful death claim and dismissing action).


author: JOHN S. ANDERSON, Justice.

text:
    In re D.G. & C.G., Relators.
    No. 14-10-00754-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 9, 2010.

      Elizabeth Jameossanaie, Houston, for relators.
    Gregory Rincon, Pearland, for real party in interest.
    Panel consists of Justices ANDERSON, SEYMORE, and BROWN.
   OPINION

JOHN S. ANDERSON, Justice.

On August 11, 2010, relators, D.G. and C.G., filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex.RApp. P. 52. In the petition, relators ask this Court to compel the Honorable Annette Kuntz, presiding judge of the 245th Distinct Court of Harris County, to set aside her March 15, 2010 order granting standing to real party in interest, Hector Cantu, to adopt. We conditionally grant the petition.

BACKGROUND

E.R.G. was born in 2001 during the marriage of her mother, Sophia, to Emilio Huante. Sophia and Huante’s marriage was declared void in March 2002 because Huante had an existing marriage to another person that had not been dissolved by legal action or terminated by the death of the other spouse at the time of his marriage to Sophia. Huante’s parental rights to E.R.G. were terminated. Sophia was named E.R.G.’s managing conservator and relators, who are Sophia’s parents and E.R.G.’s grandparents, were named pos-sessory conservators.

Sophia married Hector in January 2003, when E.R.G. was sixteen months old. One child was born of the marriage between Sophia and Hector. Sophia and Hector separated in August 2007, and divorced in April 2009.

Hector filed an original petition for adoption on October 12, 2009, and a first amended original petition on March 2, 2010, alleging standing under Sections 102.005(5) and 162.001(b)(4) of the Texas Family Code. On November 6, 2009, Sophia filed a plea in abatement, special exceptions, original answer, motion to dismiss, motion for sanctions, and request for attorney’s fees. Similarly, on November 10, 2009, relators filed a plea in abatement, special exceptions, original answer, motion to dismiss, motion for sanctions, and request for attorney’s fees. Relators and Sophia have not consented to Hector’s adoption of E.R.G.

On March 8, 2010, the trial court held a hearing on the issue of standing. At the end of the hearing, the tidal court stated that it found there was substantial contact with the child and denied the motions to dismiss as related to section 102.005. The trial court also found there was actual care, possession, and control of the child and denied the motions to dismiss as related to section 162.001. The court further denied the pleas in abatement.

On March 15, 2010, the trial court signed the order granting Hector standing to adopt and denying the pleas in abatement, special exceptions, motions to dismiss, motions for sanctions, and requests for attorney’s fees. In the order, the trial court found: (1) Hector has standing to file this original suit requesting adoption of E.R.G. under sections 102.005 and 162.001, (2) Hector is an adult who had substantial past contact with the child sufficient to warrant standing under section 102.005(5), and (3) Hector is an adult who may petition to adopt the child as a person having had actual care, possession, and control of E.R.G. for a period of one year preceding the adoption under section 162.001(b)(4).

On May 5, 2010, relators filed a first amended motion for reconsideration and rehearing of their motion to dismiss, which the trial court denied on May 17, 2010. In this original proceeding, relators request that we compel the trial court to set aside the March 15, 2010 order granting Hector standing to adopt.

STANDARD OF REVIEW

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and there is no adequate remedy by appeal. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex.2010) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex.2010) (orig. proceeding) (per cu-riam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding).

Standing is implicit in the concept of subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Standing is a question of law reviewed de novo. Id.

Analysis

Relators contend that Hector has not shown that he has standing under either section 102.005(5) or section 162.001(b)(4). Section 102.005, entitled “Standing to Request Termination and Adoption,” provides the following, in relevant part:

An original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by:
(5) another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so.

Tex. Fam.Code Ann. § 102.005(5).

Relators argue that Hector did not meet the “substantial past contact” standard under section 102.005(5). What constitutes “substantial past contact” is not statutorily defined. In the Interest of C.M.C., 192 S.W.3d 866, 871 (Tex.App.-Texarkana 2006, no pet.). “Substantial” is generally defined as “ ‘of ample or considerable amount quantity, size, etc.’ ” Id. at 872 (quoting Random House Dictionary of the English Language 1897 (2nd ed.1987)). “Substantial past contact” does not require control over the child. Rodarte v. Cox, 828 S.W.2d 65, 70 (Tex.App.-Tyler 1991, writ denied). Relators contend that substantial past contact should be limited to “recent” contact. However, we need not address this assertion, because, as explained below, Hector must meet requirements as a person who may petition to adopt set forth in section 162.001(b)(4), which he has failed do.

Section 162.001, entitled “Who May Adopt and be Adopted,” states the following, in relevant part:

(a) Subject to the requirements for standing to sue in Chapter 102, an adult may petition to adopt a child who may be adopted.
(b) A child residing in this state may be adopted if:
(4) the child is at least two years old, the parenLchild relationship has been terminated with respect to one parent, and the person seeking the adoption is the child’s former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of one year preceding the adoption.

Tex. Fam.Code Ann. § 162.001(a), (b)(4).

Relators argue that standing does not exist under section 162.001(b)(4) because Hector was not a managing conservator and he did not have “actual care, control, and possession” of the child for one year prior to the filing of his petition to adopt. Relators admit that there were occasions where Hector was with the child after the separation; however, they contend such access or possession was minimal and did not reach the level of actual care, possession, and control. We agree.

It is not disputed that Hector has not been a managing conservator. Therefore, as applicable here, section 162.001(b)(4) requires that Hector to have had “actual care, possession, and control of the child for a period of one year preceding the adoption.” Id. § 162.001(b)(4). While “actual care, possession, and control” has not been addressed with regard to section 162.001(b)(4), this phrase has been addressed with regard to standing to file an original suit affecting the parent-child relationship under Section 102.003(a)(9) of the Family Code. See, e.g., In re K.K.C., 292 S.W.3d 788, 792-93 (Tex.App.-Beaumont 2009, orig. proceeding) (addressing “actual care, control, and possession” in section 102.003(a)(9)); In re Kelso, 266 S.W.3d 586, 590-91 (Tex.App.-Fort Worth 2008, orig. proceeding) (same); Coons-Andersen v. Andersen, 104 S.W.3d 630, 634 (Tex.App.-Dallas 2003, no pet.) (same). “Control” means more than the control implicit in having care and possession of the child. In re K.K.C., 292 S.W.3d at 792.

Hector testified that he interacted with E.R.G. more than 30 times between the time of the separation in August 2007 until the end of 2009. He continued to pick up E.R.G. from daycare with his son in 2008. Hector took E.R.G. to church in 2008, without Sophia being present. Hector had E.R.G. for 12 hours in April 2008, at his college graduation. The last time Hector had possession of E.R.G. without Sophia’s presence was during the summer of 2008. E.R.G. has not stayed overnight with Hector since the separation. This is not sufficient to establish that Hector had actual care, possession, and control of E.R.G. for a period of one year preceding the adoption. See Coons-Andersen, 104 S.W.3d at 634 (holding that occasional visitation or possession of a child is not actual care, control, and possession); see also In re Kelso, 266 S.W.3d at 590-91 (holding, because evidence did not show that relator voluntarily relinquished permanent care, control, and possession of child to real parties in interest for six months preceding their filing suit, they did not meet burden of proving standing to bring original suit seeking managing conservator-ship). Therefore, the trial court abused its discretion in finding that Hector had actual care, possession, and control over E.R.G. for a period of one year preceding the adoption under section 162.001(b)(4).

We further conclude, because relators challenge the trial court’s jurisdiction over this matter, mandamus is appropriate. Cf. In re Smith, 262 S.W.3d 463, 467 (Tex.App.-Beaumont 2008, orig. proceeding [mand. denied]) (granting mandamus relief to compel trial court to set aside its order naming real party in interest joint managing conservator because she had no standing to file petition in suit affecting parent-child relationship and its subsequent temporary orders); In re Mata, 212 S.W.3d 597, 604 (Tex.App.-Austin 2006, orig. proceeding) (holding, because temporary orders are not subject to interlocutory appeal under Family Code and because there is need to resolve issues related to child custody quickly, courts have held that mandamus is appropriate vehicle to challenge lack of jurisdiction in child custody matters.).

Conclusion

We conclude that the trial court abused its discretion by granting Hector’s petition for standing to adopt. Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to vacate its March 15, 2010 order. The writ will issue only if the trial court fails to act in accordance with this opinion. The stay imposed by this court’s order on August 16, 2010, is lifted.

      . See Tex. Fam.Code Ann. § 102.005(5) (West Supp.2009); Tex. Fam.Code Ann. § 162.001(b)(4) (West Supp.2009).

      . As an initial matter, Hector contends that laches bars mandamus relief because, although the trial court signed the standing order on March 15, 2010, relators waited until August 2010, to file their petition for writ of mandamus in this court. Although mandamus is not an equitable remedy, its issuance is controlled largely by equitable principles. In re Int’l Profit Assocs., Inc., 21A S.W.3d 672, 676 (Tex.2009) (orig. proceeding) (per curiam). A delay in the filing of a petition for writ of mandamus may waive the right to mandamus unless the relator can justify the delay. Id. Between the time the trial court signed the standing order and the relators filed their petition for writ of mandamus in this court, they filed a motion requesting that the trial court reconsider its order. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding) (per curiam) ("A party's right to mandamus relief generally requires a predicate request for some action and a refusal of that request.”). Therefore, the record does not reflect that relators unjustifiably delayed the filing of their petition in this court.

      . In his response to relators’ petition for writ of mandamus, Hector now argues that section 162.001(b)(3) is applicable. See Tex. Fam. Code Ann. § 162.001(b)(3). Hector did not plead, and the trial court did not find, that he is an adult who may adopt E.R.G. pursuant to section 162.001(b)(3). Instead, in his first amended petition original petition for adoption, Hector specifically pleaded that he has standing to adopt E.R.G. based on sections 102.005(5) and 162.001(b)(4). At the hearing, all arguments by the parties focused on either section 102.005(5) or section 162.001(b)(4). The trial court specifically found that Hector “is an adult who may petition to adopt the child made the basis of this suit as a person having had actual care, possession, and control of the child for a period of one year preceding the adoption, as established by § 162.001(b)(4) of the Texas Family Code.” Therefore, we do not consider Hector's section 162.001(b)(3) argument.

      . See Tex. Fam.Code Ann. § 102.003(a)(9) (West Supp.2009).