in Re: Stacy K. Boone, P.A. and Cardiologists of Lubbock, P.A.

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 14, 2006

NO. 07-05-0384-CV

IN RE STACY K. BOONE, P.A. AND

CARDIOLOGISTS OF LUBBOCK, P.A.

_______________________________

NO. 07-05-0425-CV

IN RE COVENANT MEDICAL GROUP, P.A.

_____________________________________

Before REAVIS and CAMPBELL, JJ. and BOYD, S.J. (1)

OPINION

Relators Stacy K. Boone, P.A. ("Boone") and Cardiologists of Lubbock, P.A.

("COL"), defendants in a medical malpractice case, seek a writ of mandamus directing

respondent the Honorable Sam Medina, judge of the 237 th District Court of Lubbock

County, to withdraw his order denying relators' motion to dismiss and further directing

respondent to grant relators' motion to dismiss, thereby dismissing the underlying case with

prejudice with an award of monetary sanctions. (2) In a separate original proceeding, relator

Covenant Medical Group, P.A. ("CMG") (3) seeks a writ of mandamus directing respondent

to grant CMG's motions to dismiss, thereby dismissing the underlying cause with prejudice

with an award of monetary sanctions. (4) Both of these original proceedings arise from the

same underlying case and the same expert report filed pursuant to former article 4590i, the

Medical Liability and Insurance Improvement Act. We deny both petitions.

Factual Background

On June 18, 2003, Nancy Stovall underwent surgery for a right inguinal hernia

performed by Elbert A. Thames, Jr., M.D., an employee of CMG, at Covenant Medical

Center in Lubbock, Texas. Stovall's health history included an aortic valve replacement

with a mechanical prosthesis in 1990, a coronary stent placement in 1999, and a

laparascopic cholecystectomy in 2002. Following the uneventful hernia repair surgery,

Stovall experienced chest pain and a cardiologist, Howard P. Hurd II, M.D., was consulted.

Boone is Hurd's physician assistant and also saw Stovall during her hospitalization. COL

employs both Boone and Hurd. Stovall remained in the hospital in order to regulate her

anti-coagulation medication which included Heparin and Coumadin. On June 21, Stovall

fell on her way to the bathroom. There was a drop in her blood count and blood pressure

and she was moved to the ICU under the care of Mark E. Pessa, M.D., an employee of

CMG. The next day, Stovall suffered from liver dysfunction and renal failure secondary to

hypotension. She later experienced multi-system failure and died on June 24, 2003.

Background of Underlying Lawsuit

On August 26, 2003, pursuant to article 4590i, the real parties in interest filed suit

against the healthcare providers that participated in her course of treatment that began on

June 18, 2003. In January 2004, plaintiffs provided their section 13.01(d) medical expert

report, authored by Howard S. Bush, M.D., a cardiologist. Among other aspects of her

treatment, the 13-page Bush report criticizes Stovall's post-operative anti-coagulation

therapy, which was administered by Dr. Hurd, Boone, COL, CMG, and others. (5)

Boone and COL's Motions to Dismiss

In February 2004, Boone and COL filed their objections to the sufficiency of the

Bush report and a motion to dismiss. In July 2004, Boone and COL renewed their

objections to the Bush report and filed additional motions to dismiss. The trial court denied

Boone and COL's motions to dismiss in August 2005, and Boone and COL seek

mandamus to reverse the trial court's denial of the motions.

CMG's Motion to Dismiss

As noted, Drs. Thames and Pessa are employees of CMG. Thames, Pessa and

CMG filed separate motions to dismiss based on the inadequacy of Dr. Bush's report under

article 4590i. In July 2005, the plaintiffs non-suited Dr. Pessa. In August 2005, the trial

court denied the motions to dismiss filed by Thames and CMG. CMG suggests, and the

real parties in interest do not dispute, that Thames also has been dismissed from the

underlying lawsuit. (6) CMG also seeks mandamus for the trial court's denial of its motion

to dismiss.

Requirements of 4590i Expert Report

This court has found mandamus relief available to correct a trial court's erroneous

failure to dismiss a claim brought under article 4590i that is not supported by an adequate

section 13.01 expert report. In re Windisch , 138 S.W.3d 507, 514 (Tex.App.-Amarillo

2004, orig. proceeding) (qualifications of expert not shown in report); In re Northwest Texas

Healthcare System, Inc. , 2005 WL 991365 , *3 (Tex.App.-Amarillo April 27, 2005, orig.

proceeding [mand. pending]) (reports inadequate because they either omit or do no more

than state the experts' mere conclusions about the elements required in an expert report).

Mandamus issues only to correct a clear abuse of discretion or the violation of a duty

imposed by law when there is no other adequate remedy by law. Walker v. Packer , 827

S.W.2d 833, 839 (Tex. 1992).

An expert report under section 13.01 does not need to marshal all of plaintiff's proof,

but the report must be written by an expert and provide a fair summary of that expert's

opinions regarding (1) the applicable standard of care, (2) the breach of that standard, and

(3) the causal relationship between the breach and the injury. T EX . R EV . C IV . S TAT . art.

4590i, §13.01(r)(6); Bowie Memorial Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002);

Chisholm v. Maron , 63 S.W.3d 903, 906 (Tex.App.-Amarillo 2001, no pet.). To constitute

the required "good faith effort," the report must provide enough information to fulfill two

purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called

into question, and (2) it must provide a basis for the trial court to conclude that the claims

have merit. American Transitional Care Ctrs. of Texas, Inc. v. Palacios , 46 S.W.3d 873,

879 (Tex. 2001). With regard to the causation element, the expert must explain the basis

of his statements to link his conclusions to the facts. Earle v. Ratliff , 998 S.W.2d 882, 890

(Tex. 1999). The report must, as to each defendant, provide a fair summary of the expert's

opinions concerning the applicable standard of care, the manner in which the care failed

to meet that standard, and the causal relationship between that failure and the claimed

injury. Palacios , 46 S.W.3d at 878 .

Petition of Boone and COL

In support of their contention that mandamus should issue to correct the trial court's

order denying their article 4590i, §13.01(e) motion, Boone and COL argue that Bush's

report (1) fails to state the standards of care applicable to a professional association and

a physician's assistant and fails to demonstrate that Bush is qualified to address the

standards of care applicable to those defendants; (2) fails to show a breach in the standard

of care by Boone and COL; and (3) fails to show a causal link between the care rendered

by Boone and COL and Stovall's injuries and death.

Qualifications of Dr. Bush

We first address Dr. Bush's qualifications to testify as to the standard of care

applicable to Boone and COL. The determination of his qualifications to provide an expert

report must be made on the basis of the contents of the report and his curriculum vitae.

Bowie , 79 S.W.3d at 52 ; Windisch , 138 S.W.3d at 511 . Those documents reflect that

Bush has been licensed to practice medicine in Texas since 1983 and in Florida since

1990. He is board certified in Cardiovascular Diseases, in Interventional Cardiology, and

in Internal Medicine. At the time of the report, Bush was engaged in active practice as the

chairman of the Department of Cardiology at Cleveland Clinic Florida. His report states

that he "devotes the majority of [his] time to operative and post operative care, and [he]

regularly see patients under the circumstances described in this report." It further states

he averages seeing over 75 patients per week in clinic, and performs over 800 procedures

(450 interventions and 350 diagnostic procedures) per year, and that he is "familiar with

the standards of care and regularly provide and supervise care in connection with the

treatment of patients situated like Nancy Everett Stovall in terms of physicians, physician's

assistants, nurses, and hospitals." As noted, Boone is a physician's assistant supervised (7)

by Dr. Hurd who, like Dr. Bush, is a cardiologist. Relators do not here contend Bush is

unqualified to render an expert opinion on the standard of care applicable to Dr. Hurd.

Bush's expert report and curriculum vitae contain information from which the trial court

could have concluded that Dr. Bush is competent to testify to the standard of care of a

physician's assistant in the same practice area. See Manor Care Health Services, Inc. v.

Ragan , 2006 WL 57355, *4 (Tex.App.-Houston [14 th Dist.] Jan. 12, 2006, no pet.); Hall v.

Huff , 957 S.W.2d 90, 100 (Tex.App.-Texarkana 1997, pet. denied) (both stating a

physician is not disqualified from offering an opinion regarding nursing care simply because

he is a physician and not a nurse by profession).

Boone and COL next question whether Bush is qualified to testify as to the standard

of care applicable to COL, a professional association. In response, real parties in interest

argue that no expert report was required as to COL because their initial pleadings asserted

COL's liability only on a respondeat superior theory. COL replies that real parties'

amended pleadings allege COL has liability apart from respondeat superior and the plain

language of 4590i requires an expert report for each health care provider against whom

a claim is asserted. Section 24 of the Professional Association Act provides: "The

association . . . shall be jointly and severally liable with the officer or employee furnishing

professional services for such professional errors, omissions, negligence, incompetence

or malfeasance on the part of such officer or employee when such officer or employee is

in the course of his employment for the association." T EX . R EV . C IV . S TAT . A NN . art. 1528f,

§ 24. There is no suggestion that Dr. Hurd or Boone was acting outside the course of

employment in their treatment of Stovall. If either of them was negligent, COL has the

liability prescribed by the Professional Association Act. Battaglia v. Alexander , 177 S.W.3d

893, 901-02 (Tex. 2005). We have concluded Dr. Bush is qualified to testify to the

standard of care applicable to Boone, and, as noted, relators do not here challenge his

qualifications to testify to that applicable to Dr. Hurd. Therefore, Dr. Bush is qualified to

testify as to the standard of care applicable to COL. Id. , T EX . R EV . C IV . S TAT . A NN . art.

1528f, § 24.

COL seems to suggest that regardless of whether Dr. Bush was qualified to testify

as to COL's vicarious liability, Dr. Bush is not qualified to testify as to COL's individual

liability and, thus, the Bush report is inadequate. We do not reach that issue because we

have concluded section 24 of the Professional Association Act imputes the alleged liability

of Dr. Hurd and Boone to COL and, therefore, dismissal of the case against COL is not

warranted based upon the qualifications of Dr. Bush.

Standard of Care

We turn to the question whether the Bush report adequately states the standard of

care applicable to Boone and COL. We conclude that it does.

Bush's report divides his discussion of the standard of care into two sections: the

first addressing the cardiologist Dr. Hurd, his physician's assistant Stacey K. Boone, their

practice group COL, the surgeons Dr. Thames and Dr. Pessa, and their practice group

CMG (denominated by Dr. Bush as the "physicians") and the second addressing the

hospital and its employees. The "physicians" section of the report begins: "The standard

of care for Howard P. Hurd, II, M.D., Cardiologists of Lubbock, P.A., Stacey K. Boone, P.A.,

Elbert A. Thames, Jr., M.D., Mark E. Pessa, M.D., and Covenant Medical Group, P.A.

(hereinafter "the Physicians") for pre-operative, operative, and post-operative anti-coagulation and anti-coagulation transition is well established." (emphasis in original).

There follows a detailed discussion of the standard of care with respect to post-operative

anti-coagulation therapy in patients with a mechanical valve prosthesis, as applicable to

Stovall.

Relators contend the report does not identify a standard of care for a physician's

assistant like Boone. They are correct that the report does not separately set forth a

standard of care applicable to Boone. But we must agree with the real parties in interest

that the report nonetheless states Dr. Bush's opinion concerning the standard of care

applicable to Boone. The report ascribes the same standard of care to Boone as to the

others included among the "physicians."

Relators elsewhere cite Taylor v. Christus Spohn Health System Corp. , 169 S.W.3d

241 (Tex.App.-Corpus Christi 2004, no pet.), which affirmed a trial court's dismissal of the

plaintiff's claims against six defendants based on the inadequacy of the expert report. The

proffered expert report ascribed negligent conduct to some, and sometimes all six,

defendants, without explaining the standard of care required of the individual defendants.

We do not find Taylor controlling here. The disparate defendants there included an

emergency room physician, a hospital, and a cardiology association which, the court noted,

"owed different duties to the deceased." Id . at 246.

All the individual defendants here were involved in the administration of Stovall's

post-operative anti-coagulation therapy. Bush's report states that the standard of care

applicable to all of them required, inter alia , (8) that they "recognize ongoing blood loss and

discontinue anti-coagulation in the presence of ongoing blood loss. Specifically, the

patient's labs revealed ongoing blood loss and a growing wound hematoma was

recognized. The standard of care required that the anti-coagulation be discontinued in light

of the patient's presentation." While relators may disagree with Bush's opinions

concerning the standard of care applicable to each of those individual defendants, the

report contains a fair summary of his opinions and adequately informs them of the specific

conduct called into question. Palacios , 46 S.W.3d at 879-80 . We conclude the report fairly

summarizes the standard of care applicable to Boone and COL. Id .; T EX . R EV . C IV . S TAT .

A NN . art. 4590i, §13.01.

Breach of the Standard of Care and Causation

Boone and COL argue the Bush report fails to show their breach of the standard of

care and fails to show a causal link between the care rendered by them and Stovall's

injuries. With regard to causation, the expert's report must contain information linking the

harm to the alleged breach in a manner that is not merely conclusory. Bowie , 79 S.W.2d

at 53. The report states, in part:

With regard to the manner in which the are [ sic ] rendered by the Physicians

failed to meet the standards, the initial decision to anti-coagulate the patient, the

dose of anti-coagulation that was used (Heparin and Coumadin), the decision to

keep the patient in the hospital beyond the initial 24 hours of observation, and the

failure to recognize and act appropriately on the falling hemoglobin in a post-operative patient with an expanding hematoma on anti-coagulation all represent

breaches of the standard of care. Further, the failure on the part of the Physicians

to insist that the anti-coagulation be discontinued after 24 hours with the wound

hematoma beginning and the hemoglobin falling represent additional breaches of

the standard of care. (9)

Here again, in this case, the report adequately informs Boone and the other

defendants of the specific conduct the plaintiffs call into question. That the report includes

Boone and COL with her supervising physician Dr. Hurd and the other physicians does not

render its discussion of the alleged breaches inadequate. We find also that the Bush

report links the harm to the breach (10) in a manner that is not merely conclusory. Bowie , 79

S.W.2d at 53. We conclude the Bush report constitutes a good faith effort to inform Boone

and COL of the specific conduct called into question and provides a basis for the trial court

to conclude that the claims against Boone and COL have merit. Palacios , 46 S.W.3d at

879 .

Covenant Medical Group

CMG also raises the broad issue of whether mandamus should issue to correct

respondent's order denying relief to CMG on its article 4590i, § 13.01 motion. Specifically,

CMG argues the Bush report (1) does not adequately establish a basis upon which Dr.

Bush is qualified to address the standards of care applicable to CMG's related surgeons

and does not adequately address the standard of care applicable to a professional group,

(2) does not adequately identify how its duty was breached, and (3) does not adequately

demonstrate how the allegedly negligent medical care of CMG caused injury or damage.

Qualifications

With respect to Bush's qualifications, CMG argues the report and attached

curriculum vitae may establish that Bush is a well-qualified cardiologist but "contains no

explanation as to how he is qualified to render opinions regarding the standard of care

applicable to a general surgeon." (11) In a review of the qualifications of one rendering a

section 13.01 report, the "issue is the specific subject matter and the expert's familiarity

with it." Hagedorn v. Tisdale , 73 S.W.3d 341, 350 (Tex.App.-Amarillo 2002, no pet.) (citing

Broders v. Heise , 924 S.W.2d 148, 153 (Tex. 1996)). Bush's report does not concern

Stovall's hernia surgery. The specific subject matter of the report is the management of

Stovall's post-operative anti-coagulation therapy and related care, particularly as it relates

to her history of aortic valve replacement. Bush's active medical practice encompasses

that subject matter. His report says he is familiar with the standard of care for physicians

"in relation to appropriate protocols for anti-coagulation and anti-coagulation transition " and

the statement is supported by the description of his practice, training and experience.

(emphasis in original). We conclude he is qualified to testify to the standard of care

applicable to the physicians, including the surgeons with respect to their participation in the

management of that post-operative therapy and care. See Windisch , 138 S.W.3d at 512

(some standards of care applicable to multiple schools of practice); Blan v. Ali , 7 S.W.3d

741 (Tex.App.-Houston [14 th Dist.] 1999, no pet.) (practical knowledge of what is usually

and customarily done by other practitioners under similar circumstances may qualify

witness to testify).

As with COL, our conclusion Bush is qualified to testify to the standard of care

applicable to Dr. Thames and Dr. Pessa in this context, mandates the conclusion the trial

court's denial of the motion to dismiss was not an abuse of discretion. T EX . R EV . C IV .

S TAT . A NN . art. 1528f, § 24; Battaglia , 177 S.W.3d at 901-02 .

Standard of Care - Breach - Causation

CMG contends Bush's report "says nothing about the standard of care applicable

to CMG. It simply lumps CMG in with other Defendant physicians, physician assistants and

professional entities.... [and] the Bush Report makes no effort to identify any particular duty

of care owed by CMG to this particular patient, how its duty, if any, was breached, and how

the alleged breach caused the decedent's injury." CMG also relies on Taylor , 169 S.W.3d

241 and cases cited therein. We disagree with CMG's contention. Just as with Boone and

COL, we find the report adequately addresses the standards applicable to the CMG

physicians who treated Stovall post-operatively, the manner in which Bush believes the

care fell below the standards and the resulting harm, and find that, in these circumstances,

the inclusion of the surgeons and the cardiology defendants in the same discussion of

those subjects did not render the report inadequate. (12) The trial court could have found the

report constitutes a good faith effort to inform CMG of the specific conduct called into

question and provides a basis for the trial court to conclude that the claims against CMG

have merit. Palacios , 46 S.W.3d at 879 .

Conclusion

Because we conclude the trial court did not abuse its discretion in denying the

motions to dismiss of Boone, COL, and CMG, Walker , 827 S.W.2d at 839 , we deny both

petitions for writ of mandamus.

James T. Campbell

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by

assignment.

2. This original proceeding has been assigned cause number 07-05-0384-CV.

3. The mandamus record indicates that CMG has been treated in the trial court as

a professional association. The record also shows that CMG recently filed amended

pleadings indicating that it actually is not a professional association but a non-profit

healthcare corporation. We have not considered, and this opinion does not address, the

effect of such a change in CMG's organizational form.

4. This separate proceeding has been assigned cause number 07-05-0425-CV. This

opinion considers and decides both cause number 07-05-0384-CV and cause number 07-05-0425-CV.

5. Plaintiffs, in their original petition, also sued Covenant Health System, Covenant

Health System d/b/a Covenant Medical Center, Sisters of St. Joseph of Orange, St. Joseph

Health System, Elbert A. Thames, Jr., M.D., Mark E. Pessa, M.D., and SWAT Surgical

Associates, L.L.P. The petitions before us challenge the adequacy of the expert report

only as to Boone, COL, and CMG.

6. The record before us does not include the order dismissing Dr. Thames from the

lawsuit, but we note that the Fifth Amended Original Petition does not include Dr. Thames

as a party defendant.

7. T EX . O CC . C ODE A NN . §§ 204.202, 204.204.

8. The report also discusses other requirements of the standard of care applicable

to the physicians, including a standard requiring the timely recognition of kidney failure and

a standard requiring performance of a serum creatinine (a measure of kidney function)

before administering I.V. contrast for an abdominal CT scan.

9. The report alleges other breaches, including inappropriate dosages of medication

and failure to recognize kidney failure.

10. The report states, in part: "With regard to the causal relationship between the

Physicians' failure to meet the standard of care and the injury, harm, and damages

suffered . . . it is uncontroverted that this patient's death was due to internal bleeding and

related complications (hemorrhagic shock and multi-system organ failure). The internal

bleeding and related complications directly resulted from the inappropriate use of anti-coagulants in the immediate post-operative period and the inadequate monitoring and

adjustment of the continued anti-coagulation. The failure on the part of the Physicians to

recognize a significant drop in the hemoglobin during the post-operative period while the

patient was receiving anti-coagulation medications allowed the patient to continue to bleed

which caused the hemorrhagic shock, multi-organ system failure and death."

11. We know Dr. Thames was the surgeon who performed the surgery for Ms.

Stovall's right inguinal hernia, however, we cannot determine Dr. Pessa's practice area

from the record before us.

12. The report further addressed a specific allegation against Dr. Thames, stating,

"Moreover, Dr. Thames ordered an I.V. rate of 50 cc/hour which represented a further

breach in the standard of care, because the I.V. rate was insufficient."

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NO. 07-10-00155-CV

IN THE COURT OF APPEALS

FOR THE

SEVENTH DISTRICT OF TEXAS

AT

AMARILLO

PANEL B

OCTOBER

15, 2010

VAN LEE BREWER, APPELLANT

v.

JASON SIMENTAL, ET AL, APPELLEES

FROM THE 278TH DISTRICT COURT OF WALKER

COUNTY;

NO. 23,325; HONORABLE KENNETH H. KEELING, JUDGE

Before QUINN,

C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Van Lee Brewer (Brewer),

appeals the granting of a summary judgment in favor of Jason Simental , Gordon Townsend, David Duke, Janet C. Taylor,

Lindsey Lewis, Robert Losack , John D. Seigle , and Carl Davis (collectively, “defendants”), and

the denial of a no-evidence summary judgment filed by Brewer against the

defendants. [1] We affirm.

Factual and Procedural Background

Brewer, an inmate within the Texas

Department of Criminal Justice - Institutional Division assigned, during all

applicable times, to the Wynne Unit in Huntsville, Texas, filed an action

pursuant to 42 U.S.C. § 1983 , [2]

alleging a violation of his civil rights.

Specifically, Brewer alleges that he had been the target of retaliatory

action by the defendants due to his attempting to exercise his rights of access

to the courts. Brewer’s lawsuit was

filed in forma pauperis . The defendants filed a motion to dismiss the

lawsuit pursuant to Chapter 14 of the Civil Practice and Remedies Code. See Tex.

Civ. Prac . & Code Ann. ch . 14 (Vernon 2002). [3] Ultimately, the trial court dismissed

Brewer’s cause of action because it found Brewer failed to comply with section

14.005 and Government Code section 501.008.

See Tex. Gov’t Code Ann. § 501.008 (Vernon 2004). Further, the trial court found the action to

be frivolous and malicious. See § 14.003(a )( 2).

On appeal, the Waco Court of Appeals

reversed the trial court’s decision and found that Brewer had, in fact, met the

administrative requirements of both Chapter 14 and section 501.008 of the

Government Code. Further, the appellate

court found that Brewer asserts two distinct claims by his action: 1) retaliation

for his exercise of his constitutional right of access to the courts, and 2)

conspiracy to retaliate for attempting to exercise his constitutional right of access

to the courts. See Brewer v. Simental , 268 S.W.3d 763, 770-71 ( Tex.App .—Waco

2008, no pet.). After analyzing the

conspiracy to retaliate claim, the Waco Court found that the trial court was

correct in dismissing that claim. See

id . at 774. However, as to the

claim that Brewer had been retaliated against because he attempted to exercise

his constitutional right of access to the courts, the Waco Court concluded that

Brewer had alleged enough facts from which retaliation might plausibly be

inferred. See id . at

773. The Waco Court remanded the case to

the trial court for further consideration in light of its opinion.

Subsequent to the remand, the

defendants filed a traditional motion for summary judgment. See Tex.

R. Civ. P. 166a(c). [4] They alleged three grounds to support the

granting of a summary judgment. First,

the defendants alleged that Brewer was not deprived of a constitutional right

and could not show a retaliatory adverse act.

Therefore, posited the defendants, Brewer’s 1983 action was not

cognizable by the court. Second, the

defendants alleged that they had not violated any of Brewer’s constitutional

rights and, therefore, the defendants were entitled to qualified immunity. Finally, the defendants alleged that Brewer

had been afforded minimal due process procedures at his disciplinary

hearing. Thus, his due process rights

were not violated in a manner contrary to 1983.

Brewer responded to the motion for summary judgment, [5]

and filed a cross-motion for summary judgment that appears to be a traditional

motion for summary judgment. [6] Before submitting his traditional motion for

summary judgment, Brewer filed a no-evidence motion for summary judgment,

pursuant to rule 166(a)( i ), contending that there was

no evidence to support one or more of the essential elements of the defendants’

affirmative defenses of sovereign immunity, official immunity, statute of

limitations, assumption of risk, estoppels, illegality, or contributory and

comparative negligence. Of importance

for this opinion is Brewer’s declaration in his no-evidence motion for summary

judgment that the defendants’ affirmative defense of qualified immunity would

be addressed within his traditional motion for summary judgment. Thus, the qualified immunity affirmative defense

was not a part of the no-evidence motion for summary judgment.

The trial court granted a final

summary judgment stating that Brewer had not raised a material question of fact

that his constitutional rights were violated by any of the defendants. Accordingly, the trial court found the

defendants were entitled to qualified immunity.

The trial court, therefore, dismissed all of Brewer’s claims with

prejudice. This appeal followed.

Brewer brings four issues before the

Court. First, Brewer contends that the

trial court erred in granting the defendants qualified immunity because the

trial court misapplied the law regarding Brewer’s failure to raise a material

issue of fact regarding violation of his constitutional rights. Second, Brewer contends that the trial court

erred in denying his cross-motion for summary judgment because the defendants

did not respond. Third, Brewer contends

that the trial court erred in denying his no-evidence motion for summary

judgment when the defendants failed to produce the required summary judgment

evidence. Finally, Brewer contends that

we should reconsider his conspiracy to retaliate cause of action.

Traditional Motions for Summary Judgment

Standard of Review

Appellate courts review the granting of a motion for

summary judgment de novo . See

Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661

(Tex. 2005). When, as here, both parties

file a motion for summary judgment with the trial court, and one is granted and

one is denied, the reviewing court determines all questions presented and

renders the judgment that should have been rendered by the trial court. HCBeck ,

Ltd., v. Rice , 284 S.W.3d 349, 352 (Tex. 2007). The movant in a traditional motion for summary judgment, filed

pursuant to rule 166a(c), has the burden of showing that no genuine issue of

material fact exists and that it is entitled to a summary judgment as a matter

of law. See Am.

Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997). The trial court must indulge every reasonable

inference in favor of the non- movant and resolve all

doubts in his favor. Id .

Qualified Immunity

The

trial court granted the defendants’ traditional motion for summary judgment on

the ground that Brewer had not raised a material question of fact that his

constitutional rights were violated by the defendants and, therefore, the

defendants were entitled to qualified immunity.

On appeal, Brewer asserts that his summary judgment proof demonstrates

the existence of a material fact issue about whether the conduct of the

defendants was in retaliation for Brewer’s attempt to exercise his

constitutional right of access to the courts.

It

is axiomatic that “[p] ublic officials acting within

the scope of their official duties are shielded from civil liability by the

qualified immunity doctrine.” Kipps

v. Caillier , 197 F.3d 765, 768 (5 th

Cir. 1999). Those governmental

officials are entitled to qualified immunity “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id .

(quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 , 102 S.Ct . 2727, 73 L.Ed.2d 396 (1982)). To demonstrate that defendants are not

entitled to claim qualified immunity, a plaintiff must satisfy a three-part

test set forth in Morris v. Dearborne , 181

F.3d 657, 665 (5 th Cir. 1999).

A court must determine, first, whether plaintiff alleges a deprivation

of a constitutional or statutory [7]

right; second, whether that right was clearly established at the time of the

alleged violation; and, finally, whether the record shows that a violation

occurred, or at least gives rise to a genuine issue of material fact as to

whether the defendant actually engaged in the conduct that violated the clearly

established right. Id .

at 665-66.

That

Brewer enjoys a constitutional right of access to the courts is beyond

doubt. See Bounds v. Smith ,

430 U.S. 817, 821 , 97 S.Ct . 1491, 52

L.Ed.2d 72 , (1977) . Further,

there is no question that Brewer may not be retaliated against because he

attempts to exercise his right of access to the courts by use of the law

library. See McDonald v.

Steward , 132 F.3d 225, 231 (5 th Cir.

1998).

However, the defendants contend that

Brewer must demonstrate that his access to the courts was, in fact, hindered by

their actions. To support this

proposition, the defendants refer this Court to the McDonald case cited

above. The gist of the argument by the

defendants is that, unless Brewer demonstrates something more than de minimis

retaliatory actions by the defendants, there is no constitutional

violation. This line of reasoning

concludes that if there is no constitutional violation, then there is no

cognizable 1983 action.

Brewer counters this argument by

alleging that this matter has previously been decided by the Waco Court in the

earlier Brewer decision. Therefore, we,

as a reviewing court, are bound by that decision. We will address both sets of contentions as

set out above.

In order to establish a cause of

action for retaliation, Brewer must establish: 1) a specific constitutional

right, 2) the defendants’ intent to retaliate against Brewer for his exercise

of that right, 3) a retaliatory adverse act, and 4) causation. See id . The issue boils down to whether or not there

are material fact issues as to the third element, a retaliatory adverse

act. In Lewis v. Casey , 518 U.S.

343, 351 , 116 S.Ct . 2174, 135 L.Ed.2d 606 (1996),

Justice Scalia, writing for the Court, in an access to the courts case

involving the State of Arizona said, “. . . the inmate therefore must go one

step further and demonstrate that the alleged shortcomings in the library or

legal assistance program hindered his efforts to pursue a legal claim.” The Supreme Court was addressing the issue of

whether actual injury was required to show a violation of the constitutional

requirement of access to the courts. See

id . The Court concluded that

actual injury was required by the prior case of Bounds v. Smith , 430

U.S.817, 821-25, 97 S.Ct . 1491, 52 L.Ed.2d 72 (1977). See Lewis , 518 U.S. at

351 . In explaining the holding in Lewis ,

Justice Scalia remarked, “[a] lthough Bounds

itself made no mention of an actual-injury requirement, it can hardly be

thought to have eliminated that constitutional prerequisite.” Lewis , 518 U.S. at 351 . The 5 th Circuit refers to this

requirement in its discussion of de minimis retaliatory actions, and has held that such an

act would not support a constitutional violation in the retaliation arena. See Morris v. Powell , 449 F.3d

682, 685-86 (5 th Cir. 2006, cert. denied) (retaliation for

exercising First Amendment right to use prison grievance procedure). The question then becomes did the defendants

have summary judgment proof that reduced Brewer’s claim of retaliation to de minimis status. Our reading of the record is that the only

summary judgment evidence on the point did, in fact, show that Brewer’s claim

was of the de minimis

variety.

Specifically, the defendants produced

the records of the law library as part of the summary judgment evidence. These records affirmatively show that, during

the month of September 2005, Brewer was afforded a total of 49.5 hours in the

law library. The records further reflect

that, during October 2005, Brewer was able to visit the law library for a total

of 40.5 hours. It must be remembered

that, according to Brewer’s allegations, the retaliatory acts occurred in

September and October 2005. The summary

judgment evidence also clearly demonstrates that the only active piece of

litigation that Brewer was able to claim to be working on was a petition for

review in Cause No. 05-0679, styled Van Lee Brewer v. Texas Dept. of Pub. Safety . Brewer has admitted that the petition for

review was due on October 14, 2005, and the records of the Texas Supreme Court,

produced as part of the summary judgment evidence, reflect that the petition

was filed on October 17, 2005. Nothing

in the summary judgment proof offered by Brewer indicates that there were any

further requirements for filing with the Texas Supreme Court. Further, nothing in the record establishes

nor does Brewer contend that the Texas Supreme Court refused to consider Brewer’s

petition as untimely filed.

In a factual scenario similar to the

one presented in the present case, the 5 th Circuit held, in Jones

v. Greninger , 188 F.3d 322, 326 (5 th

Cir. 1999), that restricting an inmate’s law library access to five hours per

week did not violate the inmate’s right of access to the courts. The Texas Supreme Court held, in a case

involving allegations of retaliation for exercising a First Amendment right to

complain about treatment by prison officials, that acts of de minimis retaliation do not satisfy the

retaliatory adverse act requirement of a retaliation claim. See Institutional Div. of the Tex.

Dep’t Crim. Justice v. Powell , 2010 Tex. LEXIS 480, at *6 ; 53 Tex. Sup. J.

953 (July 2, 2010).

Brewer counters this argument by

arguing that this issue was determined by the Waco Court’s decision in the

first Brewer case. See Brewer ,

268 S.W.3d at 770 -71 .

However, Brewer’s reliance on the previous decision by the Waco Court is

misplaced for two reasons. First, the

Waco case was decided under the provisions of Chapter 14 and the court’s

attention was directed at the pleadings of Brewer to see if he alleged a cause

of action that could withstand a challenge that it was frivolous. Therefore, the Waco Court was required to

accept the factual allegations of Brewer as true. Id . at 770. Second, Brewer has fixated his argument on

that portion of the opinion that states, “[t]he inmate must ‘allege a

chronology of event from which retaliation may plausibly be inferred.’” Id . at 771 (quoting Woods v Smith ,

60 F.3d 1161, 1166 (5 th Cir. 1995)).

However, this quoted portion of the opinion dealt with the second

element of a retaliation claim, “the defendant’s intent to retaliate.” Id .

All that the opinion says regarding the retaliatory adverse act is a

short recitation of facts as alleged by Brewer’s pleadings with a conclusory statement that, “Brewer’s petition adequately

pleads retaliatory adverse acts.” Id . at 773.

While the first Brewer opinion may be instructive in several aspects, it

is not the law of the case as to the issue of summary judgment, for that was

not the issue with which it dealt. Accordingly,

we do not find the opinion conclusive on the issues presented to this

Court. See Briscoe v. Goodmark Corp. , 102 S.W.3d 714, 716 (Tex. 2003)

(questions of law decided on appeal to the court of last resort will control

throughout the case).

Based upon our review of the summary

judgment evidence and application of the law regarding de minimis retaliation, we find that the

trial court was correct when it granted the summary judgment in favor of the

defendants. There was no violation of

Brewer’s constitutional rights. See

Lewis , 518 U.S. at 351 .

Therefore, the defendants were entitled to claim qualified

immunity. See Kipps ,

197 F.3d at 768 .

In reviewing Brewer’s traditional

motion for summary judgment, we first recognize that Brewer is representing

himself pro se and is not schooled in

the law. However, his main thesis for

our overruling the denial of his motion is centered around

his perception of the requirements of Federal Rule of Civil Procedure 56. See Fed.

R. Civ. P. 56. To the extent

Brewer is asking us to apply the Federal Rules of Procedure, we decline to do

so. Summary judgment practice in Texas

Courts is governed by rule 166(a) and not the Federal Rules. Further, because the defendants have shown

that they were entitled to qualified immunity, Brewer’s traditional motion for

summary judgment based upon the defendants’ alleged failure to respond must

fail. Accordingly, we overrule Brewer’s

second issue.

Having overruled Brewer’s first and

second issues, we must now turn our attention to his no-evidence motion for

summary judgment, and his request that we reconsider the Waco Court’s ruling

that his conspiracy claim lacked any arguable basis in the law. We will address the no-evidence motion first.

Brewer’s

No-Evidence Motion for Summary Judgment

Brewer’s next issue contends that the

trial court abused its discretion by not granting his no-evidence motion for

summary judgment. The summary judgment

in question addressed the affirmative defenses that the defendants pled, except

for qualified immunity. Since the trial

court did not grant a summary judgment based upon any of the affirmative

defenses Brewer referenced in the motion, the failure to grant a summary

judgment could not have been error. The

above consideration aside, when we review the entire record, as we must, there

is more than a scintilla of evidence to support the defendants’ affirmative

defenses. At the end of the day, we need

not reach this issue for it does not alter the disposition of the case.

Conspiracy to Retaliate Cause of

Action

In his final issue, Brewer asserts

that this Court has the authority to reconsider our sister court’s ruling that

Brewer’s conspiracy to retaliate claim had no arguable basis in law and was,

therefore, frivolous. Brewer , 268 S.W.3d at 774 .

While Brewer may be correct in his statement that we have the discretion

to revisit the conclusion of the Waco Court, [8]

we see no reason to do so. Brewer has

yet to provide the Court with any authority demonstrating that the Waco Court

was in error. Further, Brewer did not

seek review of the prior holding by the Texas Supreme Court. Accordingly, we decline the invitation to

revisit the issue and overrule his fourth issue.

Conclusion

Having overruled all of Brewer’s

issues that required a ruling, we affirm the judgment of the trial court.

Mackey

K. Hancock

Justice

[1] Pursuant to the Texas Supreme Court’s docket

equalization efforts, this case was transferred to

this Court from the 10 th District Court of Appeals. See Tex.

Gov’t Code

Ann. § 73.001 (V ernon 2005). That being so, we must decide this case “in

accordance with the precedent of the transferor court under the principles of stare

decisis ” if our decision otherwise would have been

inconsistent with the precedent of the transferor court. Tex.

R. App. P. 41.3; Phillips v. Phillips , 296 S.W.3d 656, 672 ( Tex.App .–El Paso 2009, pet. denied)

.

[2] Further reference to 42 U.S.C. § 1983 will be by

reference to “1983.”

[3] Further reference to the Texas Civil Practice &

Remedies Code will be by reference to “section” or “§ ___,” or “Chapter ____.”

[4] Further reference to the Texas Rules of Civil Procedure

will be by reference to “rule ___.”

[5] Brewer’s response was actually filed prior to the

defendants filling their motion for summary judgment. However, no one has objected to the response

on the grounds that it was not timely made and we will consider the response in

our opinion.

[6] The motion actually references Federal Rule of Civil

Procedure 56(c). However, the trial

court and the defendants treated Brewer’s motion as a no-evidence motion for

summary judgment and we will do likewise.

[7] While Morris does not expressly provide for

claims based upon violations of statutory rights, the facts of Morris

were addressing claimed violations of only constitutional rights. Id .

However, from Harlow , we are instructed that a claim for

violation of statutory rights is cognizable in a 1983 action. See Harlow , 457 U.S. at 818 .

[8] But see Tex.

R. App. P. 41.3; P hillips , 296 S.W.3d at 672 (under the

principle of stare decisis ,

a transferee court must apply the precedent of the transferor court).