author: Opinion By Justice LANG-MIERS.

text:
    Ladan BAKHTARI, M.D., Appellant, v. ESTATE OF Paul Brent DUMAS, Cynthia Dumas, Individually, and as Representative for the Estate of Paul Brent Dumas, and as Next Friend of Madeline Dumas, and Kristin Dumas, Appellees.
    No. 05-09-00200-CV.
    Court of Appeals of Texas, Dallas.
    June 29, 2010.

      Bryan D. Pollard, Dallas, TX, for Appellant.
    Eric D. Fein, Eric D. Fein, P.C. & Associates, Vickie S. Brandt, Dallas, TX, for Appellees.
    Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By Justice LANG-MIERS.

In this interlocutory appeal, appellant Ladan Bakhtari, M.D. appeals from an order denying her motion to dismiss health care liability claims brought against her by appellees. We affirm the trial court’s order.

BACKGROUND

Paul Brent Dumas was Bakhtari’s patient before he committed suicide by overdosing on a mixture of drugs in October 2003. In their original petition filed November 29, 2005, appellees alleged that Bakhtari negligently prescribed the drug “Restoril/Temazepam” to Dumas “without proper evaluation, follow-up or precautions” and that this alleged negligence proximately caused Dumas’s injury and death.

On March 28, 2006, 119 days after their original petition was filed, appellees served Bakhtari with reports prepared by Charles A. Kessler, M.D., and James O’Donnell, Pharm. D. Due to “an inadvertent clerical error,” however, appellees did not serve Kessler’s and O’Donnell’s curricula vitae (CVs) with their reports, as required by section 74.351(a) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). Sixteen days later, on April 13, 2006, Bakhtari filed a motion to dismiss raising objections to the sufficiency of the reports, including that the reports were not accompanied by the required CVs. On May 11, 2006, the parties entered into a written “Rule 11 Agreement,” in which Bakhtari agreed (1) not to oppose appel-lees’ motion for leave to supplement the reports with the missing CVs, and (2) to withdraw her motion to dismiss based on the missing CVs; and appellees agreed to allow 21 days from the date the trial court signed the order granting the unopposed motion for leave for Bakhtari “to object to the qualifications of the experts based upon their curriculum vitae.” The order granting the unopposed motion for leave was signed by the trial court on May 18, 2006. As a result, Bakhtari’s deadline to file and serve any objection was June 8, 2006. See id.

After appellees supplemented their reports with the experts’ CVs on May 18, 2006, they did not serve any new or supplemental reports on Bakhtari. On October 81, 2008, Bakhtari filed “Supplemental Briefing” in support of her objections to appellees’ reports. Appellees filed a response to Bakhtari’s objections to the sufficiency of the reports in which, in addition to responding to the merits of Bakhtari’s objections, appellees argued that Bakhtari “waived her objections to the expert reports” because she did not supplement her initial objections, or set a hearing on her objections, within 21 days of the date ap-pellees supplemented their reports with the experts’ CVs. After a hearing, the trial court issued an order denying Ba-khtari’s motion to dismiss without specifying the basis for its ruling.

Issues on Appeal

In multiple issues, Bakhtari argues that Kessler and O’Donnell are not qualified to render expert opinions in this case, and that their reports do not meet the requirements of chapter 74 of the civil practice and remedies code because they do not provide a fair summary of the experts’ opinions on the applicable standards of care, breach, or causation. In response, appellees argue that Bakhtari waived all of her objections to the reports. Alternatively, appellees argue that Kessler and O’Donnell are qualified to render expert opinions in this case, and that their reports are sufficient to meet the requirements of chapter 74.

Applicable Law

Chapter 74 Expert Reports and Objections

Chapter 74 of the civil practice and remedies code requires a claimant pursuing a health care liability claim to serve one or more expert reports on each party no later than 120 days after the original petition is filed. Tex. Civ. Pi?ac. & Rem.Code Ann. § 74.351(a). A report is sufficient to meet the requirements of chapter 74 if it represents “an objective good faith effort to comply with the definition of an expert report.” See id. § 75.351((). An “expert report” is defined 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). If a report is timely served, a defendant “whose conduct is implicated in the report must serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.” Id. § 74.351(a).

STANDARD OP REVIEW

We review a trial court’s decision on a motion to dismiss a health care liability claim under the expert report provisions of chapter 74 for an abuse of discretion. Cook v. Spears, 275 S.W.3d 577, 580 (Tex.App.-Dallas 2008, no pet.). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Id. A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court might have decided it. Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas 2007, pet. denied). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Id.

Analysis op Waiver Arguments

Because appellees argue on appeal, as they did below, that Bakhtari waived all of her objections to the reports, we address that threshold issue first. See Troeger v. Myklebust, 274 S.W.3d 104, 108 (Tex.App.Houston [1st Dist.] 2008, pet. denied) (“As a threshold issue [] we must determine whether [the defendant’s] challenges to the expert report have been waived.”); see also Williams v. Mora, 264 S.W.3d 888, 890 (Tex.App.-Waco 2008, no pet.) (addressing waiver argument first).

Can this Court consider the issue of waiver?

Bakhtari contends that this Court cannot consider appellees’ waiver argument for two reasons: (1) the trial court’s comments at the dismissal hearing demonstrate that it denied Bakhtari’s motion to dismiss based on the merits of her objections to the reports, not on the basis that she waived her objections, and (2) appel-lees did not file a notice of cross-appeal. We disagree.

First, a trial court’s comments during a hearing do not constitute written findings and conclusions, and do not limit the grounds upon which an order can be upheld on appeal. See Larry F. Smith, Inc. v. Weber Co., 110 S.W.3d 611, 615 (Tex.App.-Dallas 2003, pet. denied). Second, appellees do not seek to alter the trial court’s order; it is Bakhtari who seeks to alter it. Consequently, appellees were not required to file a notice of cross-appeal. See Tex.R.App. P. 25.1(c) (party who seeks to alter trial court’s judgment or order must file notice of appeal); see also Desai v. Garcia, 09-06-00332-CV, 2006 WL 3627008, at *2 (Tex.App.-Beaumont Dec. 14, 2006, no pet.) (mem. op.). As a result, we reject Bakhtari’s argument that we cannot consider the threshold issue of whether she waived her objections to the reports.

Did Bakhtari waive her objections?

Appellees argue that all of Bakhtari’s objections are waived because “no objections were filed or set for hearing” before her 21-day deadline under section 74.351(a) expired. In response, Bakhtari argues that none of her objections were waived for multiple reasons. We disagree with both sides and conclude that some of Bakhtari’s objections were timely and not waived and some were untimely and were waived.

Appellees contend that Bakhtari filed “no objections” to the reports before her deadline under section 74.351(a) expired. But as appellees acknowledge in their statement of facts, and as the record demonstrates, Bakhtari did file objections to the sufficiency of the reports before her 21-day deadline expired. More specifically, in the motion to dismiss and initial objections that Bakhtari filed sixteen days after the reports were served, she specifically argued that Kessler is not qualified to offer an expert opinion in this case because Kessler does not practice medicine in the same community as Bakhtari, and his report does not demonstrate that he practices in a community similar to the community in which Bakhtari practices. Bakhtari also argued in her initial objections that Kessler’s report is substantively deficient because it is conclusory with respect to the causal relationship between Bakhtari’s alleged breach of the standard of care and Dumas’s injuries and death.

Bakhtari argued in her “supplemental briefing” that Kessler is not qualified to render an expert opinion in this case because he is “an internal medicine practitioner, not a forensic pathologist.” She also argued that Kessler’s report is speculative and conclusory with respect to his opinions about the applicable standard of care and how that standard was allegedly breached by Bakhtari. Bakhtari apparently contends that we should consider all of her objections, without regard to when they were raised. We disagree.

First, with respect to her qualification objections, Bakhtari argues that in Baylor University Medical Center v. Rosa, 240 S.W.3d 565 (Tex.App.-Dallas 2007, pet. denied), this Court “reason[ed] that objections to qualifications have different deadlines than the deadline set out in [s]ection 74.351(a) for objections to the sufficiency of a report.” We disagree. In Rosa we merely noted that the 21-day deadline for objecting to the sufficiency of an expert report is contained in section 74.351(a), while the 21-day deadline for objecting to an expert’s qualifications to opine on the standard of care in a suit against a health care provider is contained in section 74.402(f). Id. at 568 (citing Tex. Civ. Prac. & Rem.Code Ann. § 74.402(f)).

Next, Bakhtari also apparently contends that objections to an expert’s qualifications to provide an expert report under chapter 74 do not need to be asserted within 21 days because an objection that an expert is unqualified is tantamount to an objection that the plaintiff failed “to serve an ‘expert report’ at all.” This argument, however, was recently considered and rejected by our sister court in Beckwith v. White, 285 S.W.3d 56 (Tex.App.-Houston [1st Dist.] 2009, no pet.). In Beckwith, the plaintiff timely served the defendant physician with two expert reports. Six months later, the defendant objected to the sufficiency of one of the reports on the ground that the expert was not a physician and was therefore not qualified to render an expert opinion. In response to the plaintiffs argument that the objection was waived, the defendant argued that the objection “does not go to the sufficiency of the report; rather, that [the expert’s] status as a non-physician is per se fatal to whether [the plaintiff] satisfied her initial burden to serve an expert report.” Id. at 63. In other words, the defendant argued that because the expert was not a physician, “his report is the legal equivalent of ‘no report’ under section 74.351.” Id. at 62. Our sister court rejected that argument and held that the defendant was required to object to the expert’s qualifications within 21 days of receiving the expert’s CV. Id. at 63. We agree with the reasoning and holding in Beckwith.

Alternatively, Bakhtari also apparently contends that because she raised “initial challenges” to the expert reports in her motion to dismiss filed sixteen days after the expert reports were served, we must address all of her objections. More specifically, she generally argues on appeal that “a considerable amount of time can pass after a defendant receives expert reports before that defendant moves to dismiss without that defendant waiving her right to dismiss.” To support this general contention, Bakhtari relies upon two distinguishable cases. The first case Bakhtari cites is Jernigan v. Langley, 111 S.W.3d 153 (Tex.2003). In that case, although the defendant physician “did not object to the plaintiffs expert reports as inadequate for over 600 days after they were filed,” the court rejected the plaintiffs argument that the defendant’s objections were waived. Id. at 155-56. But the Jernigan court construed the predecessor to chapter 74, which did not impose a deadline for a defendant to object to the sufficiency of an expert report. Id. at 156. The Jernigan court also specifically noted that the legislature had recently codified chapter 74 and added a deadline to object to the insufficiency of an expert report. Id. at 156 n. 1 (“Under the new law, a defendant health care provider has twenty-one days after being served with the expert report to object to the report’s insufficiency or ‘all objections are waived.’ ”).

The second case Bakhtari cites is this Court’s decision in Seifert v. Price, No. 05-08-00655-CV, 2008 WL 5341045 (Tex.App.-Dallas Dec. 23, 2008, pet. denied) (mem. op.). In Seifert, the plaintiffs expert report was due no later than May 18, 2005, but it was not served until August 2005. Although the defendants waited over two years before moving to dismiss, we concluded that the defendants did not waive their right to dismissal. But in Seifert, it was undisputed that no report was served until after the plaintiffs statutory deadline expired and the defendants’ motion to dismiss was based on belated service of the report. 2008 WL 5341045, at *1. Under section 74.351(b), when no expert report is served before the claimant’s 120-day deadline expires, dismissal is mandatory. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b). And unlike objections to an expert’s qualifications or to the sufficiency of a report, chapter 74 “contains no deadline to challenge the timeliness of an expert report.” Troeger, 274 S.W.3d at 107; see also Maris v. Hendricks, 262 S.W.3d 379, 384 (Tex.App.-Fort Worth 2008, pet. denied) (“section 74.351(a)’s twenty-one day objection deadline does not apply to an objection to an expert report based on belated service”).

In what it described as “a case of first impression,” our sister court in Waco recently addressed a similar scenario in Williams, another interlocutory appeal challenging the sufficiency of a report under chapter 74. In Williams, the defendant argued on appeal that the plaintiff’s report (1) was speculative, (2) was conclu-sory, (3) failed to identify how the defendant’s acts deviated from the applicable standard of care, and (4) failed to provide sufficient information on causation. But the plaintiff argued that the last three objections were waived “because these objections were made later than the 21st day after the date the expert report was served.” 264 S.W.3d at 890. Our sister court reviewed the record and noted that the defendant’s “initial and only timely objection to the expert report was that in two places, the expert’s use of ‘could have’ to describe the causal connection between the breach of the standard of care and the damages or injury to [the plaintiff] was speculative.” Id. at 891-91. And in construing the language of section 74.351(a), the court held “that the plain language of the statute means what it says: all objections to the sufficiency of the expert report not filed and served by the 21st day after the date the expert report is served are waived.” Id. at 891. Applying section 74.351(a), the court concluded that the defendant waived her last three objections— two of which were not raised within the time required and one of which was raised for the first time on appeal — and declined to address those objections on appeal. Id.

Based on the plain language of chapter 74, we agree with the Williams court that when a report and CV are timely served on a defendant physician, any objections to the expert’s qualifications, and any objections to the sufficiency of the report, must be raised by the defendant within 21 days after service of the report and CV. See Tex. Crv. Prac. & Rem.Code Ann. § 74.351(a). And applying chapter 74 to the facts in this case, Bakhtari’s deadline to raise objections to appellees’ experts’ qualifications and reports was June 8, 2006 — 21 days after the trial court granted appellees’ unopposed motion to supplement their experts’ reports with the required CVs. Consequently, Bakhtari waived the objections that were made for the first time after that date, and the trial court could not have properly granted Ba-khtari’s motion to dismiss based on her untimely objections. See generally Biggs, 237 S.W.3d at 916 (trial court does not have discretion in applying the law to the facts).

But to the extent appellees contend that Bakhtari waived her timely objections because she did not set a hearing on them on or before her statutory deadline to raise objections expired, we disagree. Section 74.351(a) only requires a defendant to “file and serve” objections within 21 days after receiving the report and CV. Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(a). Chapter 74 does not contain a deadline for setting a hearing on a defendant’s objections to the sufficiency of a report. As a result, in determining whether the trial court’s decision to deny Bakhtari’s motion to dismiss constitutes an abuse of discretion, we confine our analysis to whether the trial court could have reasonably rejected Bakhtari’s timely objections. See Williams, 264 S.W.3d at 891; Cf Rosa, 240 S.W.3d at 568-69 (considering motion to dismiss in which defendants “elaborated on the specific arguments” made in their timely objections to the expert reports).

Analysis of BakhtaRi’s Timely Objections to Kessler’s Qualifications and Report

We begin by analyzing Bakhtari’s timely objection to Kessler’s qualifications and her timely objection to the sufficiency of Kessler’s report because our conclusions about those objections are dispositive of this appeal.

Is Kessler qualified to render an expert opinion on the applicable standard of care in this case?

Bakhtari’s timely objection to Kessler’s qualifications, which she raises again on appeal, is that Kessler is not qualified to render an expert opinion on the standard of care in this case in light of the common-law “community-standard rule, or the locality rule.” In other words, Bakhtari argues that Kessler is not qualified because “he is a Virginia internal medicine practitioner, not a Texas internal medicine practitioner,” and because his report does not adequately describe why he is qualified to provide an expert opinion on “the standards acceptable to the medical communities of [the] Dallas or Collin County area, or of similar communities.” Relying solely on this Court’s decision in Hickson v. Martinez, 707 S.W.2d 919, 925 (Tex.App.-Dallas 1985), writ ref'd n.r.e., 716 S.W.2d 499 (Tex.1986) (per curiam), Bakhtari argues that “[u]nless a different standard is imposed by statute, expert testimony on the standards of care is admissible only if the expert can offer testimony on the standards of practice for the relevant or similar community.” Among other distinguishing factors, however, our decision in Hickson predated the enactment of the expert witness and report sections of chapter 74 and its predecessor statute. See generally Lee v. Mitchell, 28 S.W.3d 209, 212-15 (Tex.App.-Dallas 2000, pet. denied) (tracing legislative history of predecessor to chapter 74 and noting expert witness and report sections of that statute “were not added until 1989 and 1993, respectively, and were amended in 1995”). In other words, a different standard is now imposed by statute.

Under section 74.351(r)(5)(A), a person is qualified to provide an expert report about whether a physician departed from the accepted standards of medical care if the person is “qualified to testify under the requirements of Section 74.401.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(A). Section 74.401 requires that the person be a physician who:

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

Id. § 74.401(a). For purposes of section 74.401, “physician” is defined as a person who is “licensed to practice medicine in one or more states in the United States”; and “practicing medicine” includes, but is not limited to, “training residents or students at an accredited school of medicine.” Id. § 74.401(g)(1), (b). Section 74.401 further instructs that “in determining whether a witness is qualified on the basis of training or experience,” courts should consider “whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and (2) is actively practicing medicine in rendering medical care services relevant to the claim.” Id. § 74.401(c).

In short, chapter 74 does not require that a physician providing an expert opinion on the applicable standard of care in a suit against a physician be from the same community, or a similar community, as the defendant physician. See Springer v. Johnson, 280 S.W.3d 322, 326-31 (Tex.App.-Texarkana 2008, no pet.) (construing chapter 74 and rejecting argument that physician must be licensed in Texas to provide expert report on causation in suit against Texas physician or health care provider); cf. Cook, 275 S.W.3d at 582-84 (construing chapter 74 and rejecting argument that physician expert witnesses who practiced medicine in California and New Jersey were not qualified to opine on applicable standards of care in suit against physician assistant because “they did not state they are familiar with the standards of care applicable to a physician assistant practicing in Texas”); Lee, 23 S.W.3d at 215 (construing predecessor to chapter 74 and rejecting argument that physician must be licensed in Texas to provide expert report); see generally Peterson v. Shields, 652 S.W.2d 929, 930-31 (Tex.1983) (holding common-law locality rule no longer applies to informed-consent cases involving medical care or surgical procedures performed after effective date of 1977 Medical Liability and Insurance Improvement Act because that act replaced “common law locality rule with a ‘reasonable’ person rule”). Consequently, we cannot conclude that the trial court abused its discretion when it rejected Bakhtari’s timely objection to Kessler’s qualifications.

Is Kessler’s report conclusory as to causation?

Bakhtari’s timely objection to the sufficiency of Kessler’s report, which she raises again on appeal, is that Kessler’s report is conclusory with respect to causation. In particular, Bakhtari argues that Kessler’s report is deficient because it does not identify facts sufficient to explain how Ba-khtari’s alleged breach of the standard of care caused Dumas’s injury and death.

Causation Opinion Requirements Under Chapter 74

An expert report under chapter 74 must provide enough information to fulfill two purposes: it must inform the defendant of the specific conduct the plaintiff has called into question, and provide a basis for the trial judge to conclude that the claims have merit. Quinones v. Pin, 298 S.W.3d 806, 810 (TexApp.-Dallas 2009, no pet.). To satisfy the required element of causation under chapter 74, an expert report must include a fair summary of the expert’s opinion regarding the causal relationship between the breach of the standard of care and the injury, harm, or damages claimed. Id. at 814. But an expert report does not need to marshal all of the plaintiff’s proof; it may be informal and the information presented need not meet the same requirements as evidence offered in summary judgment proceedings or in a trial. See Godat v. Springs, No. 05-09-00791-CV, 2009 WL 2385569, at *3 (Tex.App.-Dallas Aug. 5, 2009, no pet.) (mem. op.).

Kessler’s Causation Opinion

With these standards in mind, we must decide whether Kessler’s report explains the basis of his conclusion that Ba-khtari’s conduct caused Dumas’s death, and links that opinion to the facts of this case. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam). We determine whether Kessler’s causation opinion is sufficient by considering it in the context of his entire report. See VHS San Antonio Partners LLC v. Garcia, No. 04-09-00297-CV, 2009 WL 3223178, at *3 (Tex.App.-San Antonio, Oct. 7, 2009, pet. denied) (mem. op.) (“[CJourts are entitled to read the causation section of an expert report in the context of the entire report.”) (citing Philipp v. McCreedy, 298 S.W.3d 682, 690-91 (Tex.App.-San Antonio 2009, no pet.)).

In his report, Kessler opines on all three required elements under chapter 74: standard of care, breach, and causation. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). First, in describing the applicable standard of care, Kessler explains that because the prescription drug Resto-ril/temazepam is known to worsen depression and to promote suicidal thinking in depressed patients, it should only be prescribed for up to one month at a time with no refills, and only to patients who are closely monitored by the prescribing physician. Next, with respect to Bakhtari’s alleged breach of the applicable standard of care, Kessler explains that Bakhtari breached that standard by (1) prescribing Restoril/temazepam to Dumas for thirty days with three refills without proper monitoring, when she knew from Dumas “that he was in a depressed state,” (2) failing to consult with, or refer Dumas to, a mental health specialist and/or psychiatrist, (3) failing to adequately warn Dumas about the potential dangers of taking Resto-ril/temazepam, and (4) prescribing Resto-ril/temazepam to Dumas in combination with other drugs she had prescribed to him. And finally, with respect to causation, Kessler’s report states:

The opinion rendered and contained in this case are all in terms of a reasonable medical probability.
It is my opinion, based on review of the medical records as well as my education, training and experience that the Resto-ril/temapazem prescribed for Paul Brent Dumas and dispensed by Walgreens, Co., on October 9, 2003 was a drug that induced Paul Brent Dumas’ death and caused the damages in this case.
It is my opinion that Dr. Bakhtari’ failed to meet and breached the standard of care as described above caused the injuries and damages suffered by Paul Brent Dumas and caused his death.

(Typographical errors and omissions in original.)

Appellees contend that Kessler’s report is not conclusory with respect to causation because “it incorporates all of the breaches described in detail” in the rest of the report. In contrast, Bakhtari argues that Kessler’s report does not identify facts sufficient to explain how Bakhtari’s alleged breach of the standard of care caused Dumas’s injury and death because Kessler “assumed ... the existence of ‘depression’ ” and does not explain how Bakhtari’s alleged breach of the standard of care “aggravated such a condition, impeded or prohibited its treatment, or otherwise affected the patient’s prognosis.” We disagree. In his report, Kessler essentially opines that Bakhtari breached the applicable standard of care because she knew Dumas was depressed and nevertheless prescribed Restoril/temazepam to Dumas for multiple months without adequate warnings and monitoring, and without consulting with, or referring Dumas to, a mental health specialist and/or psychiatrist. See generally Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex.2001) (expert report must include “specific information about what the defendant should have done differently”). Kessler also opines that these specific alleged failures caused Dumas’s death. We conclude that the trial court could have reasonably determined that Kessler adequately explained the basis for his conclusion and linked that conclusion to the facts. Wright, 79 S.W.3d at 52; see also Puempel v. Lopez, No. 05-07-00371, 2007 WL 3173405, at *3^ (Tex.App.-Dallas Oct. 31, 2007, no pet.) (mem. op.) (holding expert reports represented objective, good-faith effort to comply with chapter 74’s requirements as to one defendant because experts opined prescribing excessive dosages of prescription drug Phentermine over excessive duration of time was breach of standard of care and patient’s sudden death from arrhythmia was more likely than not a result of effects of Phenter-mine). As a result, we cannot conclude that the trial court abused its discretion when it rejected Bakhtari’s sole timely objection to the sufficiency of Kessler’s report. See generally Larson v. Downing, 197 S.W.3d 303, 305 (Tex.2006) (per cu-riam) (when appellate court reviews trial court rulings for abuse of discretion, “[cjlose calls must go to the trial court”).

Based on our conclusion that Kessler’s report is not impermissibly conclusory with respect to causation, and based on the facts that (1) Bakhtari waived any and all other objections to the sufficiency of the report, and (2) the report addresses the necessary elements of standard of care, breach, and causation, we also conclude that the trial court could have reasonably determined that Kessler’s report alone constituted an objective, good-faith effort to comply with the requirements of an expert report under chapter 74. See generally Quinones, 298 S.W.3d at 810 (“To constitute an objective, good-faith effort, the report must inform the defendant of the specific conduct the plaintiff has called into question, and the report must provide a basis for the trial judge to conclude the claims have merit.”). As a result, we do not address Bakhtari’s objections to O’Donnell’s qualifications and report because even if we concluded that O’Donnell is not qualified to opine in this case or that his report is substantively deficient as to any of the three required elements under chapter 74, our conclusion would not affect the disposition of this appeal. See Tex. R.App. P. 47.1 (opinion must address every issue raised an necessary to final disposition of appeal); see also Osonma v. Smith, No. 04-08-00841-CV, 2009 WL 1900404, at *3 n. 1 (Tex.App.-San Antonio July 1, 2009, pet. denied) (mem. op.) (“Because we hold that Dr. Krakower’s expert report was adequate, we need not consider whether the other expert’s] report ... was adequate.”); see generally Rosa, 240 S.W.3d at 572 (declining to address whether deposition excerpts from treating physician satisfied statutory requirements of an expert report because reports from two other experts represented objective, good-faith effort to comply with requirements of chapter 74). Additionally, appellees state in their appellees’ brief that “Dr. O’Donnell’s expert report was not offered for standard of care or causation pursuant to Chapter 74.”

Conclusion

We conclude that the trial court did not abuse its discretion when it rejected Ba-khtari’s timely objections to Kessler’s qualifications and report. As a result, we conclude that the trial court did not abuse its discretion when it denied Bakhtari’s motion to dismiss. We affirm the trial court’s order denying Bakhtari’s motion to dismiss.

      . Although section 74.351(a) does allow the parties to extend, by written agreement, a claimant's deadline for serving an expert report, it does not permit the parties or the trial court to extend a defendant's 21-day deadline to object to the sufficiency of an expert report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a); see also Desai v. Garcia, 09-06-00332-CV, 2006 WL 3627008, at *2 (Tex.App.-Beaumont Dec. 14, 2006, no pet.) (mem. op.) (“Section 74.351(a) does not provide a mechanism by which the trial court may grant the physician an extension of time to file objections to the sufficiency of the report.”). In this case, the parties' agreement concerning Bakhtari's deadline is in accord with section 74.351(a) and did not impermissibly extend Bakhtari's deadline. The parties essentially agreed to extend the deadline for serving the CV component of the reports to the date of the trial court's order granting the motion to supplement; and Bakhtari’s 21-day deadline under section 74.351(a) was triggered on the date the order was signed. See generally Pena v. Methodist Healthcare Sys. of San Antonio, Ltd., 220 S.W.3d 52, 54 (Tex.App.-San Antonio 2006, no pet.) (holding “twenty-one day period for a defendant health care provider to object to the sufficiency of an expert report is not triggered until the claimant has filed both the report and a curriculum vitae of each expert listed in the report, as required by section 74.351(a)”).

      . In their response, appellees stated that Ba-khtari "waited until January 30, 2009 to supplement her motion [to dismiss].” The appellate record, however, does not include a supplemental motion to dismiss filed on or around January 30, 2009. We assume appel-lees were referring to Bakhtari's supplemental briefing filed on October 31, 2008, which is also the date that Bakhtari's counsel indicated, during the hearing on her motion to dismiss, that she filed supplemental briefing.

      . More specifically, Bakhtari cites the following statement made by the trial court at the conclusion of the hearing on the motion to dismiss:
      I'm not thrilled, to be bluntly honest, with Dr. Kessler's report. I do think that there are some issues with it; however, in light of the fact that y'all have — I think it states what it needs to state. I think it's borderline in some way, but I do think that everything that needs to be there is there in a fashion, so I am going to deny this motion.

      . With respect to O'Donnell’s qualifications, Bakhtari argued in her initial objections that O’Donnell is not qualified to render an expert opinion in this case because he is not a physician. She also argued that O’Donnell’s report is substantively deficient because it does not describe the applicable standard of care, how that standard was allegedly breached, or the causal relationship between Bakhtari's alleged breach of the standard of care and Dumas’s injuries and death. For the reasons described later in this opinion, we do not reach the issue of O’Donnell’s qualifications or the sufficiency of his report. We note, however, that in a health care liability claim against a physician, a person is not qualified to provide an expert report on the standard of care, breach, or causation unless that person is a physician. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.35l(r)(5)(A) & (C), 74.401(a), 74.403(a).

      . Emphasis in original.

      . Bakhtari’s "no expert report” argument is the corollary to the "no expert report" argument raised by the defendant and rejected by the court in Ogletree v. Matthews, 262 S.W.3d 316 (Tex.2007). In Ogletree, the defendant hospital argued that it was not obligated to object to the appellees' expert reports within 21 days "because, in effect, no report had been served due to the absence of a physician’s opinion on causation.” Id. at 322. The supreme court rejected this argument and held that the hospital's objections were waived because they "are directed to the reports' sufficiency, and they could have been urged within the statutory twenty-one day period, as the statute clearly requires.” Id. (citing Tex. Civ. Prac. & Rem.Code Ann. § 74.351).

      . Emphasis in original.

      . With respect to his qualifications to provide an expert opinion in this case, Kessler’s report states:
      I am qualified to render opinions in this case because I am a licensed physician in the specialty field of internal medicine. I received my medical degree from Brown University School of Medicine in 1975, and completed my residency in internal medicine at Rush Presbyterian, St. Luke’s Medical Center in Chicago, Illinois in 1978. I am a board certified physician in the field of Internal Medicine. In addition to my work as a practicing physician at Sentara Norfolk General Hospital in Norfolk, Virginia[,] I have been an assistant professor, (voluntary faculty), of the Eastern Virginia Medical School, Norfolk, Virginia since 1995. My Curriculum Vitae is attached. I am qualified to render opinions in internal medicine because I practice in internal medicine which involves the same type of treatment as that delivered at the time this report is given. I have over twenty-nine (29) years of active clinical experience in internal medicine. I have knowledge of accepted standards of care for physicians, and I am qualified on the basis of my training and experience to offer expert opinions regarding those accepted standards of care for physicians in the field of internal medicine.
      As part of my training as an internal medicine specialist, I am required to know what drugs can be used to achieve definite outcomes that improve the patient's quality of life. I am also required to know how various drugs impact the patient, proper drug selections, the effects of over-dosage, how drugs may adversely affect the patient, and how combination of drugs may interact to cause inappropriate and/or harmful results in the patient.
      Although I am from Virginia, the standards of care for physicians are applicable in the community where the physician is located, and the standards in regards to this matter are the same for physicians in the United States. Moreover, the knowledge required to identify appropriate drug selection for patients, the interaction and combination of different drugs, and the adverse effects of over-dosage and harmful effects of certain combinations of drugs is universal to physicians who practice in the field of internal medicine regardless of which state the physician practices.

      . Specifically, with respect to the applicable standard of care, Kessler's report states:
      It is my opinion that Restoril/temazepam is dangerous drug that should be prescribed with caution and appropraite care. Resto-ril/temazepam is intended only for a short term use for no more than a term of a couple of weeks, and under no circumstances should Restoril/temazapam be prescribed in quantities to exceed a one-month supply. A prescription for Restoril/temaza-pam should not be given with re-fills or capable of being filled multiple times in short periods of time. Restoril/temazapam is a controlled substance as defined in Schedule III of the Texas Health and Safety Code. Restoril/temazapam has a known side effect to worsen depression and to promote suicidal thinking in patients who are in a depressed state.

      It is the standard of care for physicians to be careful in selection, prescription and monitoring of dangerous medications such as Restoril/temazepam. It is the standard of care for physicians treating patients at risk such as Paul Brent Dumas to carefully select, prescribe and monitor dangerous medications such as Restoril/temazepam. The standard of care prescribing Resto-ril/temazepam requires careful monitoring, attention to cautions, warnings, drug interactions major risk of Restoril/temazepam, a psychotropic drug, is that of suicide. In particular, Restoril/temazepam be prescribed for no more than a couple weeks with careful monitoring and follow-up assessment of the patient to determine the effectiveness of the treatment and to evaluate the patient for adverse and contra-indications. The standard of care for the physician requires that when medications are prescribed, particularly in the context of dangerous drugs such as Restoril/temapa-zepam, the physician must prescribe based upon contra-indications, adverse affects, warnings, and the dangers of drug combination. It is the standard of care for physicians that Restoril/temazepam should not be prescribed for long periods of time, and should not be prescribed in quantities greater than one-month supply. It is the standard of care for a physician that any selection or prescription of a dangerous drug such as Restoril/temazepam requires careful monitoring and timely patient assessment. It is the standard of care for a physician that Restoril/temazepam should not be prescribed as a re-fillable drug due to the requirements for the prescibing physician to carefully evaluate the patient. It is the standard of care for a physician to consult with a mental health specialist or psychiatrist or refer a patient with a mental health specialist when the patient presents with the indications presented by Paul Brent Dumas. It is the standard of care for physicians to carefully and frequently monitor patients, such as Paul Brent Dumas, when they present with depression and are prescribed a dangerous drug such as Resto-ril/temazepam which puts such patients at a greater risk for worsening depression and suicidal thoughts and tendencies.
      (Typographical errors and omissions in original.)

      . Specifically, with respect to the alleged breach of the applicable standard of care, Kessler's report states:
      It is my opinion that Dr. Bakhtari breached the standard of care for physicians when she failed to carefully monitor Paul Brent Dumas, and when she prescribed the dangerous drug, Restoril/temazepam in doses of 30 tablets each with three refills when the standard of care according to medical literature and common practice should be no more than the initial presciption for a couple of weeks with a follow-up physician consultation, and under no circumstances a prescription for more than a thirty (30) day supply and no re-fills. Dr. Bakhtari breached the standard of care when she knew from Paul Brent Dumas that he was in a depressed state and she prescribed the Restoril/temazepam in large, refillable dosages when the standard of care requires a small dosage with frequent monitoring. Dr. Bakhtari breached the standard of care when she failed to warn Paul Brent Dumas of the potential dangers of taking the pre-cription for Restoril/temazepam. Dr. Ba-khtari breached the standard of care when she failed to consult a mental health specialist and/or psychiatrist and failed to refer Paul Brent Dumas to a mental health specialist and/or psychiatrist for evaluation and treatment for his depressed state. Dr. Ba-khtari breached the standard of care when she chose inappropriate procedures and treatments for the care of Paul Brent Dumas. Dr. Bakhtari breached the standard of care when she failed to properly treat Paul Brent Dumas. It is my opinion that prescribing the Restoril/temazepam for 120 days without proper or professional on-going assessment and monitoring of Paul Brent Dumas' condition, including his mental and physical state was a breach of the standard of care for a physician. It is my opinion that Dr. Bakhtari also fell below the standard of care when she prescibed the Restoril/temazepam in combination with other drugs she had prescribed which were known by a competent physician to have contra-indications known dangers of drug interactions that would be harmful and increase the danger to Paul Brent Dumas.
      (Typographical errors and omissions in original.)

      . To support their argument, appellees cite the following cases in which appellate courts concluded that causation opinions were sufficient to meet the requirements of chapter 74: Mosely v. Mundine, 249 S.W.3d 775, 780-81 (Tex.App.-Dallas 2008, no pet.) (report explained medical basis for expert’s conclusion that doctor’s failure to identify a one-centimeter nodule on patient’s chest x-ray twenty-one months earlier resulted in tumor growth to six centimeters with undetermined metastasis and stated: "[t]his failure resulted in delayed diagnosis of lung cancer, required aggressive and invasive treatment and in all medical probability significant reduction in the life expectancy of Mrs. Mundine.”); Baylor College of Medicine v. Pokluda, 283 S.W.3d 110, 122-23 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (report explained how excessive pressure due to improper padding or placement of tourniquet during surgery caused nerve damage); Lakshmikanth v. Leal, No. 13-08-00389-CV, 2009 WL 140741, at *2 (Tex.App.Corpus Christi Jan. 22, 2009, pet. denied) (mem. op.) (report explained how doctor’s alleged negligence in failing to prescribe antibiotics caused onset of severe infection requiring amputation of patient's arm); Moore v. Sutherland, 107 S.W.3d 786, 790 (Tex.App.-Texarkana 2003, pet. denied) (report explained how failure to diagnose bile peritonitis caused patient’s death); Springer, 280 S.W.3d at 332 (report explained how failure to administer anticoagulation therapy caused patient’s stroke); Martinez v. Martinez, No. 13-05-00736-CV, 2007 WL 2325929, at *5-6 (Tex.App.-Corpus Christi Aug. 16, 2007, pet. denied) (mem. op.) (report explained how failure to treat patient's vaginitis cause pre-term labor resulting in delivery of nonviable fetus).

      . Citing generally to Providence Health Center v. Dowell, 262 S.W.3d 324 (Tex.2008), Ba-khtari also states that "medical malpractice cases alleging suicide caused by negligence present inherent problems with causation.”
      But Bakhtari does not explain what she means by "inherent problems,” nor does she otherwise explain the basis for her conclusory statement about medical malpractice cases alleging suicide.


source: Caselaw Access Project

author: JAMES T. WORTHEN, Chief Justice.

license: Public Domain

text:
    Dolores and Ronald BOWMAN, Appellants, v. BROOKSHIRE GROCERY COMPANY, Appellee.
    No. 12-09-00219-CV.
    Court of Appeals of Texas, Tyler.
    June 30, 2010.
    Rehearing Overruled July 30, 2010.

      Roger W. Anderson, for Appellants.
    Reid Wm. Martin, Marisa Schouten, for Appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Dolores Bowman and her husband, Ronald Bowman, appeal the trial court’s grant of Appellee Brookshire Grocery Company’s no evidence and traditional motions for summary judgment. In two issues, the Bowmans argue that the trial court erroneously granted the motions. We affirm.

Background

Dolores was grocery shopping at the Brookshire store in Bullard, Texas. As she exited the store, she tripped on a floor mat placed near the exit and fell. As a result of her fall, she shattered bones in her upper arm and shoulder.

The Bowmans brought a premises liability suit against Brookshire alleging that the use, condition, and manner of maintenance of the mat utilized by Brookshire constituted an unreasonably dangerous condition, the existence of which was known to Brookshire, or in the exercise of ordinary care should have been known to it. The Bowmans further maintained that this unreasonably dangerous condition resulted in a tripping hazard to Dolores and others similarly situated. The Bowmans also pleaded causes of action for negligence and gross negligence.

After an adequate time for discovery, Brookshire filed no evidence and traditional motions for summary judgment. In its no evidence motion, Brookshire contended that the Bowmans could present no evidence to support that (1) it had actual or constructive knowledge of some condition on the premises; (2) the condition caused an unreasonable risk of harm to Dolores; (3) it breached its duty of ordinary care by both failing to adequately warn Dolores of the condition and failing to make the condition reasonably safe; (4) Brookshire’s breach proximately caused Dolores’s injuries; (5) Brookshire owed Dolores a duty, (6) Brookshire breached any duty owed to Dolores, (7) any breach of duty by Brook-shire proximately caused Dolores’s injury, and (8) either the objective or subjective tests of gross negligence were satisfied.

The Bowmans filed a response to Brook-shire’s motions. As part of their response, the Bowmans incorporated Dolores’s, affidavit, in which she stated, “a ruffled edge of the mat caught my foot and caused me to fall.” The Bowmans further supported their response with the deposition testimony of Brookshire’s designated representative, Jerry Nick. Nick testified that the purpose of floor mats was to gather dirt and water so that these items were not tracked throughout the store. The Bow-mans further supported their response with “injury incident” reports documenting one hundred eighteen injuries involving similar floor mats in seventy-five other Brookshire stores in multiple states over a span of four years.

The deposition testimony given by Brookshire’s corporate representative, Tony Johnson, was also incorporated into the Bowmans’ response. Johnson’s testimony indicated that the Bullard store had been operating for five years and that there had been no previous injuries related to the store’s floor mats. Johnson’s testimony further indicated that once or twice a month, someone would tell him that a floor mat was not lying flush with the floor. According to Johnson, Brook-shire employees would respond to this information by remedying the situation immediately. Moreover, Seth Goodlet, the Brookshire courtesy clerk who was assisting Dolores at the time of the incident, testified in his deposition that he was trained to immediately place the mat flush with the floor when he observed this problem or a customer brought this type of problem to his attention.

Ultimately, the trial court granted both Brookshire’s no evidence and traditional motions for summary judgment. The Bowmans timely filed this appeal.

Standard of Review

Because the grant of a summary judgment is a question of law, we review the trial court’s summary judgment decision de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A no evidence motion for summary judgment must be granted if, after an adequate time for discovery, (1) the moving party asserts that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See Tex.R. Civ. P. 166(a)(1); Priddy v. Rawson, 282 S.W.3d 588, 593 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair minded people to differ in their conclusions. Id.

To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Priddy v. Rawson, 282 S.W.3d at 592. When reviewing a summary judgment, we “must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824-25 (Tex.2005). When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). When, as here, the trial court granted both the no evidence and traditional motions for summary judgment, we first review the grant of the no evidence summary judgment. Ridgway, 135 S.W.3d at 600.

Premises Liability

In their first issue, the Bowmans contend that they presented more than a scintilla of probative evidence to raise genuine issues of material fact on each of the grounds identified by Brookshire in its no evidence motion for summary judgment.

Applicable Law

Dolores was Brookshire’s invitee. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975) (invitee is person who enters premises with possessor’s express or implied knowledge and for parties’ mutual benefit). As such, Brookshire owed her a duty to exercise reasonable care to protect her from dangerous conditions in the store known or discoverable to it. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). The duty a premises owner owes to its invitees is not that of an insurer. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex.2007). In other words, the condition is not unreasonably dangerous simply because it is not foolproof. See id. at 163.

To recover damages in a premises liability case, a plaintiff must prove the following: (1) the owner/operator had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator’s failure to use reasonable care proximately caused the plaintiffs injuries. See Gonzalez, 968 S.W.2d at 936. An invitee’s suit against a store owner is a simple negligence action. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983). A store owner’s duty is to exercise reasonable care to protect against danger from a condition on the land or premises that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care could discover. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000). The crux of this duty depends on actual or constructive knowledge of a dangerous condition that a reasonable inspection would reveal. See id.

In premises liability cases, there is no single test for determining actual knowledge that a condition presents an unreasonable risk of harm. See Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.2008). Courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger presented by the condition. See id. Alternatively, constructive knowledge can be established by a showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection. See Daenen, 15 S.W.3d at 101.

Knowledge of Dangerous Condition of Floor Mat

In her affidavit filed in response to Brookshire’s no evidence motion, Dolores stated, “When I reached the floor mat in the entry/exit area of the store, a ruffled edge of the mat caught my foot and caused me to fall.” This “ruffled” floor mat is the Bowmans’ only allegation of an unreasonably dangerous condition.

Dangerous Condition

Before we consider whether the Bow-mans brought forth evidence that Brook-shire had knowledge of a dangerous condition, we must determine what, if anything, of record amounted to a dangerous condition. The Texas Supreme has held that a grocery store’s self-service display of loose grapes in a recessed bowl on a rimmed table standing on a nonskid floor and surrounded by mats and warning cones is not an unreasonably dangerous condition; rather, the grape on which the plaintiff slipped was the dangerous condition. See Taylor, 222 S.W.3d at 408 (citing H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 218-19 (Tex.1999)). Analogizing the facts of Taylor and Resendez to those in the instant case, we conclude that the floor mat itself does not amount to the condition that poses an unreasonable risk of harm. Rather, it is the condition of the floor mat, i.e., the “ruffled” edges, that created the unreasonable risk of harm. See id.

Actual Knowledge

The Bowmans contend that they raised summary judgment evidence supporting that Brookshire had actual knowledge that the floor mat posed an unreasonable risk of harm. Specifically, the Bowmans note that the summary judgment evidence contains one hundred eighteen “injury incident” reports at seventy-five other Brookshire stores in multiple states over a four year period and that these reports indicate that the injuries were caused by floor mats. Thus, the Bowmans argue that the store owner may be liable if the invitee can show the store owner was aware of a high risk that the dangerous condition would occur. See Crosby v. Minyard Food Stores, Inc., 122 S.W.3d 899, 901 (Tex.App.-Dallas 2003, no pet.) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983)).

In Crosby, the plaintiff submitted Min-yard incident reports indicating that several people had tripped and fallen on the floor mat at the entry of the grocery store in the weeks preceding her injury. Id. at 901. The Dallas court of appeals determined that this evidence was sufficient to allow the issue of Minyard’s negligence to be presented to the jury. Id. at 902. The Bowmans further cite Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970), in support of their contention that the absence of evidence of prior similar incidents is probative in a trip and fall case. Id. at 754.

In our review of these two cases, we notice an important detail present in each case that the Bowmans have overlooked. In Crosby, the incident occurred at the same store rather than at other stores in the Minyard Food Store chain. See Crosby, 122 S.W.3d at 901-02. Similarly, Seid-eneck did not involve a chain of stores. See Seideneck, 451 S.W.2d at 753-55. Through our research, we have found no case from our supreme court supporting the proposition that tripping over a floor mat or slipping on a floor in a different store of a retail chain constitutes actual knowledge of a condition creating an unreasonable risk of harm for other stores in that retail chain. We decline to so extend the concept of actual knowledge.

Here, the summary judgment evidence indicates that there had been no reported injuries regarding floor mats in Brook-shire’s Bullard store. Neither was there evidence that the floor mats in the Bullard store remained in a dangerous condition after such a condition was brought to the attention of the store by its employees. We conclude that a floor mat condition in another Brookshire store does not establish actual knowledge of a dangerous condition related to the floor mat in the Bul-lard store. Consequently, we hold that there is no evidence in the summary judgment record that the employees in the Brookshire store in Bullard had actual knowledge of a dangerous condition related to the floor mat.

Constructive Knowledge

Shifting our analysis to evidence supporting Brookshire’s constructive knowledge of a dangerous condition, we note that the Bowmans failed to provide any evidence that Brookshire knew of the mat’s “ruffled” edges and had failed to take action. Further, there is no evidence that the “ruffled edges” of the mat had existed long enough for Brookshire to have discovered it upon reasonable inspection. See, e.g., Taylor, 222 S.W.3d at 409 (no evidence that condition existed long enough for premises owner to have constructive notice). Indeed, in their brief, the Bowmans virtually concede that Brookshire did not have constructive notice when they state that “[t]he issue is not, as argued by defendant, whether the defendant knew of the specific bump or ruffle in the particular mat which caught the plaintiff’s foot and thereby triggered her fall.” Thus, we hold that there is no evidence in the summary judgment record supporting that Brookshire had constructive knowledge of the condition that caused Dolores’s injuries. See id.

Negligence and Gross Negligence

The Bowmans pleaded the theories of negligence and gross negligence in their petition. However, they failed to present any form of argument or cite any authority in their appellate brief to support these theories of recovery. We hold that the Bowmans have waived their arguments on these two theories of recovery by their failure to adequately brief them. See Tex. R.App. P. 38.1(i); Kang v. Hyundai Corp. (U.S.A.), 992 S.W.2d 499, 503 (Tex.App.Dallas 1999, no pet.).

Summation

Based on our review of the summary judgment evidence, we have held that the Bowmans failed to bring forth more than a scintilla of evidence in response to Brook-shire’s no evidence motion for summary judgment regarding the challenged element of knowledge of the dangerous condition. Furthermore, the Bowmans failed to adequately brief whether the trial court properly granted Brookshire’s no evidence motion for summary judgment with regard to their claims of negligence and gross negligence and have, therefore, waived any issue on appeal regarding those claims. Accordingly, we hold that the trial court did not err in granting Brookshire’s no evidence motion for summary judgment. The Bowmans’ first issue is overruled.

Disposition

Having overruled the Bowmans’ first issue, we affirm the trial court’s judgment.

      . Presumably, the Bowmans seek to harmonize the court's holding in Seideneck with the Dallas court of appeals' holding in Crosby that the presence of evidence of prior similar incidents is probative. See Crosby, 122 S.W.3d at 901.

      . Because our overruling of the Bowmans' first issue is dispositive of the matter, we need not address their second issue pertaining to the propriety of the trial court’s granting Brookshire’s traditional motion for summary judgment.


text:
    RONE ENGINEERING SERVICE, LTD., Appellant, v. Troy CULBERSON, Appellee.
    No. 05-09-00814-CV.
    Court of Appeals of Texas, Dallas.
    July 6, 2010.

      M. Brandon Waddell, Scott E. Hayes, Vincent Lopez Serafíno Jenevin, PC, Dallas, TX, for Appellant.
    Sammie M. Smith, Payma, Kuhnel & Smith, P.C., Dallas, TX, for Appellee.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By Justice LANG-MIERS.

This is a restricted appeal from a no-answer default judgment. We conclude that there is error on the face of the record. As a result, we vacate the trial court’s final default judgment and remand this case to the trial court for further proceedings.

Background

Alleging that he was injured as the result of a vehicle accident, appellee Troy Culberson filed a petition against multiple defendants including appellant Rone Engineering Service, Ltd., the other driver’s employer. In the style of the petition and throughout most of the body of the petition, Culberson identified the employer as “RONE ENGINEERING SERVICE, LTD.” But on page two of the petition, under the heading “PARTIES AND SERVICE,” Culberson stated: “Defendant, RONE ENGINEERS, LTD, is a business or partnership authorized to do business in the State of Texas which may be served with process of service [sic] by and through its registered agent, Richard K. Leigh, at 8908 Ambassador Row, Dallas, Texas 75247.”

Culberson sent his petition to the county-clerk’s office under a cover letter directing the' clerk to prepare a citation for “RONE ENGINEERS, LTD.” Citation was issued to “RONE ENGINEERS, LTD.,” and the private process server’s affidavit of service indicates that he personally delivered the citation and petition to the registered agent for “Rone Engineers, Ltd.” on December 28, 2006. On March 6, 2009, the trial court signed a final default judgment against “RONE ENGINEERING SERVICE, LTD.,” awarding Culber-son $28,494.87 in damages, along with court costs and interest. Appellant timely filed a notice of restricted appeal from the trial court’s final default judgment.

Applicable Law

A restricted appeal is a direct attack on the trial court’s judgment. General Electric Co. v. Falcon Ridge Apts., J.V., 811 S.W.2d 942, 943 (Tex.1991). A restricted appeal must (1) be brought within six months after the trial coúrt signs the judgment, (2) by a party to the suit, (3) who did not participate in the actual trial, and (4) the error complained of must be apparent on the face of the record. Tex. R.App. P. 26.1(c), 30; Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). The parties agree that this restricted appeal satisfies the first three requirements, and that the only issue for our determination is whether there is error apparent on the face of the record.

For a default judgment to withstand direct attack, strict compliance with the rules governing service of process must affirmatively appear on the face of the record. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam); Lytle v. Cunningham, 261 S.W.3d 837, 839-40 (Tex.App.-Dallas 2008, no pet.). If the record fails to show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, then the attempted service of process is invalid and of no effect. Lytle, 261 S.W.3d at 840. When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Id.; see generally Tex.R. Civ. P. 124.

Analysis

Appellant’s Argument

In a single issue, appellant argues that the default judgment must be reversed because there is error on the face of the record. We agree.

The return of service states that the citation and petition were served on Rone Engineers, Ltd. — but the default judgment was rendered against Rone Engineering Service, Ltd. As a result, this case is analogous to Hercules Concrete Pumping Service, Inc. v. Bencon Management & General Contracting Corp., 62 S.W.3d 308 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). In Hercules, the return of service stated that the citation and petition were served on “Hercules Concrete Pumping,” but a default judgment was rendered against “Hercules Concrete Pumping Service, Inc.” Hercules, 62 S.W.3d at 309-10. Our sister court reversed the default judgment because the record did not affirmatively demonstrate that the entity named in the default judgment was served with process:

The language of the return ... does [not] establish that the “Hercules Concrete Pumping” served was the defendant below, Hercules Concrete Pumping Service, Inc.
In this case, the word “Service,” a portion of the entity’s name, has been omitted from the return. It is common knowledge that related corporate entities often share a portion of the same name, but are, nonetheless, separate and distinct corporate entities. Thus, even though the return in this case shows service on “Hercules Concrete Pumping,” it does not show service on “Hercules Concrete Pumping Service, Inc.” It is entirely possible that there are several corporate entities whose name begins with the words “Hercules Concrete Pumping.” Because of the incomplete name of the corporate entity served, we believe the return is insufficient.

Id. at 310-11 (emphasis in original).

We agree with the analysis and conclusion in Hercules. In this ease, as in Hercules, the name of the defendant identified in the default judgment differs from the name of the defendant identified in the return of service: (1) the word “Engineering” appears in the name of the defendant in the judgment, while the word “Engineers” appears in the name of the defendant in the return; and (2) the word “Service” appears in the name of the defendant in the judgment, but is omitted from the name of the defendant in the return. As a result, we conclude that the record does not affirmatively demonstrate that the entity named in the default judgment — Rone Engineering Service, Ltd. — was served with process. See id.

Appellee’s Arguments

Culberson makes three arguments on appeal to support the default judgment. First, Culberson argues that the record demonstrates service of process was valid because “[t]he name of the Defendant did not vary between Plaintiffs’ Petition and the Citation issued; both identified Rone Engineers, Ltd.” We disagree. The problem in this case is that the name of the defendant identified in the default judgment is different from the name of the defendant identified on the return of service. The return of service “is not a trivial, formulaic document.” Primate Constr., 884 S.W.2d at 152. And “the law considers the omission of a meaningful word from [a defendant’s] name on the return of service to be more than a minute detail.” N.C. Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 722 (Tex.App.Austin 2003, pet. denied). In short, the fact that the petition and citation identified the employer defendant as Rone Engineers, Ltd. does not demonstrate that Rone Engineering Service, Ltd. was served with process before the default judgment was rendered against it. As a result, we reject Culberson’s first argument.

Second, and in the alternative, Cul-berson argues that the difference in the name of the defendant “amounted to nothing more than a misnomer.” To support his misnomer argument, Culberson does not cite to the record. Instead, he cites to and relies upon six documents appended to his appellee’s brief, which he claims demonstrate that Rone Engineering Service, Ltd. conducted business as Rone Engineers, Ltd. and “identified the same individual and address as agent for service of process on the company.” Regardless of what Culberson’s extraneous evidence demonstrates, however, we cannot consider it on appeal. Under Texas law, appellate courts cannot consider any extrinsic evidence in a restricted appeal. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.2004) (extrinsic evidence “cannot be considered in a restricted appeal”). Instead, the review is limited to the face of the record. See generally Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex.2006).

Confining our review to the face of the record, as we must, we conclude that this is not a case of misnomer. As our sister court explained in Union Pacific Corp. v. Legg, 49 S.W.3d 72 (Tex.App.-Austin 2001, no pet.), a misnomer occurs when the record demonstrates that the intended defendant is actually served with process but is misnamed in the petition or citation. Id. at 78. In this case, there is nothing in the record to demonstrate whether Rone Engineers, Ltd. or Rone Engineering Service, Ltd. was the intended defendant. And regardless of which entity was the intended defendant, the record does not demonstrate that the defendant named in the default judgment was served with process. As a result, the record does not support the default judgment. See, e.g., id. at 77-78 (record did not support default judgment against “Union Pacific Corporation” because return identified “Union Pacific Railroad” as entity served with process); Hercules, 62 S.W.3d at 310-11 (record did not support default judgment against “Hercules Concrete Pumping Service, Inc.” because return identified “Hercules Concrete Pumping” as entity served with process); Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958, 959 (Tex.Civ.App.-Texarkana 1975, no writ) (record did not support default judgment against “Brown-McKee, Inc.” because return of service identified “Brown-McKee Const. Co.” as entity served with process).

This case is distinguishable from the case that Culberson principally relies upon to support his misnomer argument: Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840 (1939), rev’g 97 S.W.2d 323 (Tex.Civ.App.-Beaumont 1936). Adams arose from Ed Adams’s worker’s compensation claim against his employer’s insurance carrier, Consolidated Underwriters. Adams initially filed a claim for compensation with the industrial accident board against his employer and Consolidated Underwriters. Adams was dissatisfied with the board’s final award against Consolidated Underwriters and filed a lawsuit in district court to set aside the award. In Adams’s original petition, he “made an error in the name of the compensation insurance carrier by inserting the word Casualty between the words Consolidated and Underwriters, and thereby named Consolidated Casualty Underwriters as defendant instead of Consolidated Underwriters, the correct corporate name of the insurance carrier.” 124 S.W.2d at 841. Citation was issued on the original petition and served on A.D. Robertson as the agent of Consolidated Casualty Underwriters, and Robertson filed an affidavit essentially stating that he was not the agent of Consolidated Casualty Underwriters. Id. After Robertson filed his affidavit, Adams amended his petition to correct the name of the defendant. Id. Citation was issued on the amended petition and served on Robertson as the agent for Consolidated Underwriters. Id. In response, Consolidated Underwriters filed a plea in abatement and contingent answer arguing that the trial court lacked jurisdiction to hear and decide the case because (1) Adams was required by statute to file suit within twenty days of the board’s final award, and (2) he did not file his amended petition naming Consolidated Underwriters as the defendant until almost two months after the board’s final award. 97 S.W.2d at 324. The trial court overruled the objection to its jurisdiction and rendered judgment in favor of Adams. Id.

Consolidated Underwriters appealed to the Beaumont Court of Civil Appeals arguing that the trial court lacked jurisdiction to hear and decide the case because the petition against Consolidated Underwriters was not filed within 20 days. Id. at 325. In a 2-1 decision, the Beaumont court agreed with Consolidated Underwriters and reversed the trial court’s judgment. Id. at 324-26. The supreme court reversed the Beaumont court’s decision and affirmed the trial court’s judgment because the record affirmatively demonstrated that Consolidated Underwriters was actually served with process. 124 S.W.2d at 842.

In short, Adams was not an appeal from a default judgment, and the record in that case affirmatively demonstrated that the defendant named in the judgment was actually served with process. Id. As a result, Adams does not support Culberson’s argument that service of process was valid in this case.

Culberson also argues that the facts of this case are “very similar” to the facts in Dezso v. Harwood, 926 S.W.2d 371 (Tex.App.-Austin 1996, writ denied). We disagree. In Dezso, the plaintiff, Paul Har-wood, intended to sue Judi’s Cupboard, Inc. and its owner. The business was owned by Elsie Dezso, but the petition identified the owner as Judi Dezso, and the citation was issued to “ ‘Dezso, Judi Individually and DBA Judi’s Cupboard DBA Judi’s Card & Gift Shop & DBA Christian Symbols.’ ” Id. at 372-73. The citation and petition were served on Elsie Dezso and a no-answer default judgment was rendered against “ ‘Judi Dezso, also known as Elsie Dezso, individually and doing business as Christian Symbols, Judi’s Cupboard and Judi’s Card and Gift Shop.’ ” Elsie Dezso appealed by writ of error and argued that the default judgment was improper because she was not named in the petition or citation. Id. at 373. In that case, the court essentially concluded that the record affirmatively demonstrated strict compliance with the rules governing service of process because Elsie Dezso— the defendant named in the default judgment — “did in fact receive service of process” and knew that she was the intended defendant:

Although the citation did not refer to Elsie Dezso by her correct name, her corporation and its business names were on the citation. Additionally, the original petition expressly pointed out all of Harwood’s complaints regarding his dealings with Elsie Dezso, her son, and the related businesses. Based on the allegations in the petition, Elsie Dezso knew that her daughter-in-law, Judi Dezso, was not in any way involved in the business dealings that formed the basis of Harwood’s lawsuit. The allegations also made clear that Elsie Dezso’s businesses, Judi’s Cupboard and Judi’s Card and Gift Shop, were involved in the transactions that were the subject of Harwood’s suit. Further, Elsie Dezso testified at a hearing on her motion to set aside the default judgment that “[sjince the store’s name is Judi, a lot of people will call me Judi because ... they think it is my name.” Based on these factors, Elsie Dezso should have logically concluded that Harwood intended to sue her and that he had simply misnamed her.

Id. at 374 (ellipsis and emphasis in original).

In short, the record in Dezso demonstrated that Elsie Dezso was served with process before the default judgment was rendered against her. In contrast, the record in this case does not demonstrate that Rone Engineering Service, Ltd. was served with process before the default judgment was rendered against it. As a result, we disagree that the facts in this case are similar to the facts in Dezso.

Finally, Culberson argues that because the trial court held two hearings on the motion for default judgment, this Court “must presume that the pleadings and the evidence supported the trial court’s judgment.” To the contrary, in the context of a restricted appeal from a no-answer default judgment, “we indulge no presumptions in favor of valid issuance, service, or return of service.” Lytle, 261 S.W.3d at 840. Instead, the record must affirmatively demonstrate strict compliance with the rules governing service of process. Id. The case Culberson relies upon, Garcia v. Arbor Green Owners Association, Inc., 838 S.W.2d 800 (Tex.App.Houston [1st Dist.] 1992, writ denied), is not on point. In Garcia, a post-answer default judgment was rendered against the plaintiff after she failed to appear for trial, and the issue on appeal by writ of error was whether she received notice of the trial setting. Id. at 801-02. In that case, the court explained, “When the rules do not impose a duty either on the parties or the court clerk to ensure that notice is affirmatively shown in the record, absence from the record of affirmative proof of notice does not establish error.” Id. at 803. The issue in this case is not whether the plaintiff received notice of a trial setting — the issue is whether the trial court had jurisdiction to render a default judgment against a defendant that did not file an answer or otherwise appear in the trial court. Under the circumstances of this case, in order for the trial court to have acquired jurisdiction over Rone Engineering Service, Ltd., strict compliance with the rules governing service of process must affirmatively appear on the face of the record. See Lytle, 261 S.W.3d at 840.

Conclusion

We conclude that the trial court did not acquire personal jurisdiction over Rone Engineering Service, Ltd. because the record does not affirmatively demonstrate that Rone Engineering Service, Ltd. was served with process. As a result, we vacate the final default judgment against Rone Engineering Service, Ltd. and remand this cause to the trial court for further proceedings.

      . On appeal, appellant identifies itself as “Rone Engineering Services, Ltd.” and states that it was misidentified in the style of the petition, and in the default judgment, as "Rone Engineering Service, Ltd.” But the omitted letter "s” from the third word in appellant's name is not the basis for its restricted appeal. And because the trial court identified appellant as "Rone Engineering Service, Ltd.” in its final default judgment, we refer to appellant as "Rone Engineering Service, Ltd.”

      . Although the petition identified the employer defendant as Rone Engineers, Ltd. in one place, it primarily identified the employer defendant as Rone Engineering Service, Ltd.

      . Because our review is limited to the face of the record, we also reject Culberson’s suggestion that service of process was valid under Texas Rule of Civil Procedure 28 because "two distinct business entities with similar names exist.” The record does not demonstrate that two distinct entities exist, or that either of those entities was doing business under an assumed name.

      . Writ of error appeals under former rule of appellate procedure 45 were replaced in 1997 with restricted appeals under rule 30. See Tex.R.App. P. 30 & cmt.


author: Opinion By Justice FRANCIS.

text:
    H. Erle RAWLINS III, Appellant, v. Susan Rawlins WEAVER, Administrator, Appellee.
    No. 05-09-00090-CV.
    Court of Appeals of Texas, Dallas.
    July 6, 2010.

      Eric D. Fein, Eric D. Fein, P.C. & Associates, Charles I. Kaplan, Dallas, TX, for Appellant.
    Michael A. Barragan, Michael A. Barra-gan, P.C., Dallas, TX, for Appellee.
    Before Justices BRIDGES, FRANCIS, and FILLMORE.
   OPINION

Opinion By Justice FRANCIS.

H. Erie Rawlins III (Brother) appeals the trial court’s order granting Susan Rawlins Weaver’s (Sister) application for the sale of real property and ordering two properties from the estate of Harry E. Rawlins Jr. (Father) be sold. In three issues, Brother claims the trial court abused its discretion in denying his motion for new trial, the evidence is legally and factually insufficient to support the trial court’s findings of fact, and the trial court’s conclusions of law are contrary to the law. We dismiss this appeal for want of jurisdiction.

Father died in May 1995, and Brother and Sister are his only surviving children. According to Father’s 1980 will and 1988 codicil, Brother was named independent executor and all Father’s property was to be divided in equal shares between Brother and Sister. At the time of his death, Father owned three properties outright and had a one-third ownership in three other properties. Father also owned working interests and royalty interests in four oil and gas leases.

One of the properties owned entirely by Father is a house on Congress Avenue in Dallas which was Father’s homestead. Another property owned solely by Father is a building on the historical town square commonly known as 113 Historic Town Square, in Lancaster, Texas.

In October 2006, Brother was removed as independent executor and five months later, Sister was appointed administrator. In August 2007, she filed an application for the sale of real property. After hearings on September 20, 2007, March 27, 2008, and October 15, 2008, the trial court granted the application and ordered the sale of the Congress Avenue property and the 113 Historic Town Square property. After the trial court made the requested findings of fact and conclusion of law, Brother filed this appeal.

Although neither Brother nor Sister address this Court’s jurisdiction over this cause, appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex.App.-Dallas 2009, no pet.) (op. on reh’g). If the record fails to show the propriety of appellate jurisdiction, we must dismiss the appeal. Id. Appellate courts have jurisdiction over final judgments and such interlocutory orders as the legislature deems appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.2001).

This Court has addressed previously the issue of whether an order authorizing the sale of real property is a final appealable order. In the Matter of the Estate of Bendtsen, 229 S.W.3d 845, 847 (Tex.App.-Dallas 2007, no pet.). In Bendtsen, the probate court granted the temporary administrator’s application to sell the decedent’s former residence. Id. Two purported beneficiaries appealed the order to this Court. Id. After considering the Texas Supreme Court’s standard for the appealability of probate code orders as well as the language of the probate code, we concluded the order granting an application for sale of real property and authorizing such sale is an “interlocutory probate court order that is non-appeal-able.” Id. at 848. When a party attempts to appeal a nonappealable interlocutory order, we have no jurisdiction except to declare the interlocutory nature of the order and to dismiss the appeal. See Lipshy Motorcars, Inc. v. Sovereign Assoc., Inc., 944 S.W.2d 68, 70 (Tex.App.-Dallas 1997, no writ).

We dismiss this appeal for want of jurisdiction.


author: PER CURIAM.

text:
    Melanie Denise McFATRIDGE, Appellant v. The STATE of Texas, Appellee.
    No. 10-08-00049-CR.
    Court of Appeals of Texas, Waco.
    July 7, 2010.

      Melanie Denise McFatridge, Blooming Grove, pro se.
    R. Lowell Thompson, Navarro County Crim. Dist. Atty., Corsicana, for Appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ABATEMENT ORDER

PER CURIAM.

Although this appeal has been pending since 2008 and Appellant Melanie Denise McFatridge was originally determined to not be indigent, McFatridge recently filed a subsequent motion for a free reporter’s record with the trial court. The court initially set the matter for hearing but later advised McFatridge that it would not hear the motion unless ordered to do so by this Court because it did not have jurisdiction due to the pendency of her appeal. We will abate the appeal for a hearing on McFatridge’s subsequent motion for a free reporter’s record.

In 2008, this Court affirmed the trial court’s ruling that McFatridge was not indigent for purposes of this appeal, and the Court of Criminal Appeals later affirmed our decision. See McFatridge v. State, 262 S.W.3d 907 (Tex.App.-Waeo 2008), affirmed, 309 S.W.3d 1 (Tex.Crim.App.2010). After the record and mandate were received from the Court of Criminal Appeals, the case was reinstated on this Court’s docket. The Clerk notified the parties that the appellate record was due within 30 days and that, within that time period, McFatridge must pay the clerk’s and reporter’s fees for preparation of these records or make payment arrangements. McFatridge responded by filing her subsequent motion for a free reporter’s record in the trial court.

An initial question may be raised as to the propriety of a subsequent indigence hearing in view of the trial court’s prior indigence decision which was affirmed by this Court and the Court of Criminal Appeals. However, in the opposite situation where a defendant was initially found indigent, the Court of Criminal Appeals observed, “There is always the possibility that appellant’s financial situation has changed and he is no longer indigent.” Snoke v. State, 780 S.W.2d 210, 214 (Tex.Crim.App.1989); accord Castillo v. State, 595 S.W.2d 552, 554 (Tex.Crim.App. [Panel Op.] 1980) (“a year has passed since the hearing was held on appellant’s motion for a free record and there is always the possibility that his employment situation and financial condition have improved”). The same reasoning applies to an appellant like McFatridge who is initially found to not be indigent.

McFatridge alleges in her subsequent motion for a free reporter’s record, “My current financial status has changed. I am almost destitute. My income now is much less that it was at the indigence hearing and my expenses are much greater.” She is entitled to a hearing to determine whether she is currently indigent. See Castillo, 595 S.W.2d at 554 (“If the trial court is placed on notice that there may have been such a change that would alter his indigent status, the trial court may hold a hearing to take such circumstances into consideration.”).

Therefore, we abate this cause to the trial court for a hearing on McFatridge’s subsequent motion for a free reporter’s record. If the court determines that McFatridge is indigent and entitled to the filing of the reporter’s record without prepayment or with only partial payment, then the court is also authorized to consider whether McFatridge is entitled to appointed counsel. See McFatridge, 309 S.W.3d at 5-6 (“Determining indigency for purposes of appointing counsel and indi-gency for purposes of obtaining a free record are discrete inquiries, but the factors to be considered are the same. A defendant can be found indigent for one purpose without being found indigent for the other.”).

The trial court shall: (1) conduct the hearing within twenty-one (21) days after the date of this Order; (2) prepare any necessary findings of fact and conclusions of law; and (3) sign a written order or orders consistent with the requirements of this Order.

The district clerk shall file a supplemental clerk’s record containing a copy of (1) the trial court’s findings of fact and conclusions of law and (2) the trial court’s order(s) with the Clerk of this Court within thirty-five (35) days after the date of this Order.

The court reporter shall file a supplemental reporter’s record of the indigence hearing within thirty-five (35) days after the date of this Order.

Regardless of how the trial court resolves McFatridge’s indigence claim and unless there is a second indigence appeal, the clerk’s and reporter’s records from the trial on the merits are due within 30 days after the trial court signs the order granting or denying McFatridge’s subsequent motion for a free reporter’s record.

Chief Justice GRAY does not join this order.