CHRISTIAN CARE CENTERS FOUNDATION INC AND CHRISTIAN CARE CENTERS INC CHRISTIAN CARE HOME HEALTH HOSPICE v. PATRICIA OVERTURF GOOCH AND LADENA SCHOOLCRAFT INDIVIDUALLY AND AS HEIRS OF VIOLET RUSHING DECEASED (2011)

MEMORANDUM OPINION

Opinion By Justice Murphy

Christian Care Centers, Foundation, Inc. (CCCF) and Christian Care Centers, Inc. d/b/a Christian Care Home Health & Hospice (CCHH) filed this interlocutory appeal from an order denying their motion to dismiss the health care liability claims of Patricia Overturf Gooch and Ladena Schoolcraft, individually and as heirs of Violet Rushing, deceased (collectively, Heirs).   The only issue raised on appeal is the failure of the Heirs “to produce expert reports as to [CCCF and CCHH].” The Heirs had amended their petition to dismiss both CCCF and CCHH prior to the trial court's ruling on the motion to dismiss.   Accordingly, we conclude the trial court did not abuse its discretion in denying the motion.   We affirm the trial court's order.

The Heirs filed suit against CCCF and CCHH following the death of their mother, Violet Rushing, who had been a resident of a nursing home facility owned and operated by Christian Care Centers, Inc. in Mesquite, Texas.   The Heirs alleged Ms. Rushing died as a result of injuries received at Christian Care Centers, Inc.'s nursing home facility.   They served expert reports pursuant to chapter 74 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West 2011).   CCCF and CCHH filed a motion to dismiss, arguing as their primary objection to the reports that the experts failed to address the conduct of CCCF and CCHH.

The Heirs acknowledged at the hearing on the motion to dismiss that CCCF should not be in the lawsuit and they would “nonsuit” CCCF. CCCF and CCHH also clarified that “Christian Care Center” was the name of the nursing home where Ms. Rushing resided and that the nursing home was owned by Christian Care Centers, Inc. The trial court did not rule on the motion to dismiss but instead gave the Heirs thirty days to “clean up the parties” and amend the reports to clarify the entities involved.   The Heirs thereafter filed a second amended petition on June 2, 2010, naming only Christian Care Centers, Inc. d/b/a Christian Care Center as a defendant.   Following a July 8, 2010 hearing on CCCF and CCHH's supplemental motion to dismiss, the trial court signed an order on October 6, denying the “motion to dismiss.”

When the Heirs amended their petition to omit CCCF as a party and to change the name of the nursing home to Christian Care Centers, Inc. d/b/a Christian Car Centers, they voluntarily dismissed their claims against the CCCF and CCHH. See Johnson v. Coca–Cola Co., 727 S.W.2d 756, 758 (Tex.App.—Dallas 1987, writ ref'd n.r.e.) (amended pleading omitting party is voluntary dismissal);  see also Tex.R. Civ. P. 65 (amended pleading supersedes previous pleadings).   CCCF and CCHH were no longer parties to the Heirs' health-care liability suit at the time the trial court ruled on the motion to dismiss.   Additionally, neither CCCF nor CCHH complains on appeal that the expert reports are inadequate as to Christian Care Centers, Inc. d/b/a Christian Care Centers.   The trial court therefore did not abuse its discretion when it denied the motion to dismiss.

We overrule CCCF and CCHH's sole issue and affirm the trial court's order.

100933F.AP05

MARY MURPHY JUSTICE