in Re: Ricky Lamar Young

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-07-00073-CV ______________________________ IN RE: RICKY LAMAR YOUNG Original Mandamus Proceeding Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Ricky Lamar Young, who is currently incarcerated in federal prison, has filed a pro se petition for writ of mandamus which appears to name the Honorable Terry D. Bailey, presiding judge of the Panola County Court at Law, as respondent. Young claims he had filed, on or about April 9, 2005, a motion complying with the Interstate Agreement on Detainers Act requesting that the charges pending against him in the Panola County Court at Law be set for trial within 180 days. See Tex. Code Crim. Proc. Ann. art. 51.14 (Vernon 2006). According to Young, he also filed, on or about October 16, 2005, a motion to dismiss the pending charges under the Interstate Agreement on Detainers Act. See Tex. Code Crim. Proc. Ann. art 51.14, Art. III. Young's petition for writ of mandamus asks this Court to direct the trial court to rule on his pending motions. In our disposition of Young's petition, it is not necessary for us to review whether Young's motion complied with the Interstate Agreement on Detainers Act or whether the trial court clearly abused its discretion in failing to perform a ministerial act. In its response to Young's petition, the real party in interest--the Panola County District Attorney--has submitted an order dismissing the underlying charges against Young. In light of the trial court's dismissal, we dismiss Young's petition for writ of mandamus as moot. Josh R. Morriss, III Chief Justice Date Submitted: June 26, 2007 Date Decided: June 27, 2007 center; margin-left: 0.5in; margin-right: 0.5in">RUSSELL M. DAVIS, Appellant V. AHIA SHABAAZ & P. BARRON, R.N., Appellees On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 03C1868-202 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Russell M. Davis, an inmate at the Telford Unit within the Texas Department of Criminal Justice—Institutional Division (TDCJ-ID), suffered a broken ankle August 4, 2003. On November 24, 2003, Davis filed suit against Ahia Shabaaz (the Director of Clinical Services for the TDCJ) and P. Barron, R.N. (the nurse who allegedly treated Davis following his injury) for alleged medical malpractice in the treatment of his injuries. On June 16, 2004, the defendants filed a motion to dismiss Davis' lawsuit, contending dismissal was required because Davis had failed to file a medical expert report within 120 days of filing his lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2004–2005) (claimant in healthcare liability case must file expert report within 120 days after commencement of suit). Two days later, the trial court granted the defendants' motion. However, on July 14, 2004, the trial court signed a document that appears to be a form scheduling order. The scheduling order set forth specific dates for trial, pretrial, and final conference. The order also set final deadlines for the adding of parties, amendment of pleadings, designating expert and fact witnesses, filing summary judgment motions, and the completion of discovery and mediation. The court's order did not reference, nor did it explicitly withdraw, the prior order of dismissal. Davis filed his notice of appeal with the trial court August 25, 2004. On appeal, Davis contends the trial court's July 14 scheduling order acted to withdraw the court's previous order of dismissal. We disagree. The scheduling order did not discuss, reference, or otherwise directly (or impliedly) withdraw the trial court's prior order of dismissal. While it is true that a trial court generally retains plenary jurisdiction to reconsider any dispositive motion for thirty days from the date of judgment, see Tex. R. Civ. P. 329b(d), nothing in the record before us indicates the trial court intended to "vacate, modify, correct, or reform" its prior judgment of dismissal merely by signing a scheduling order for the case. Furthermore, we believe that, for an order of dismissal to be withdrawn, corrected, or modified, the trial court must have taken some affirmative step that clearly indicates the court's intent to effect a change of its prior disposition. Such changes are commonly effected by entering either a new judgment, a new order that formally withdraws the prior order of dismissal, or granting a new trial. A scheduling order as envisioned by the Texas Rules of Civil Procedure is used in connection with a pretrial conference and to establish discovery control plans. See Tex. R. Civ. P. 166(c), 190.4. Since this scheduling order contains no language setting aside, modifying, or even acknowledging the order of dismissal, we conclude that it was unnecessarily issued as a routine order to control pretrial matters and had no legal effect as to the dismissal order. Accordingly, we overrule Davis' sole point of error. Moreover, the trial court properly dismissed Davis' lawsuit pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code. That law provides: If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that: (1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2004–2005) (emphasis added). Davis' suit is for damages resulting from alleged medical malpractice. Davis did not file a medical expert report within 120 days from the date on which he filed his plaintiff's original petition, nor did he seek an extension of time to file the report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (Vernon Supp. 2004–2005). Because Davis did not file the required expert report, the trial court correctly dismissed Davis' lawsuit. See Jones v. Ark-La-Tex, 141 S.W.3d 790, 793 (Tex. App.—Texarkana 2004, no pet.) (trial court does not err by dismissing suit with prejudice when plaintiff fails to file required expert report). For the reasons stated, we affirm the trial court's judgment. Jack Carter Justice Date Submitted: March 31, 2005 Date Decided: April 6, 2005