benny-p-phillips-md-v-dale-bramlett-individually-and-as-independent ( 2007 )

NO. 07-05-0456-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

APRIL 30, 2007 ______________________________

BENNY P. PHILLIPS, M.D., APPELLANT

V.

DALE BRAMLETT, INDIVIDUALLY, AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF VICKI BRAMLETT, DECEASED; SHANE FULLER AND MICHAEL FULLER, APPELLEES _________________________________

FROM THE 237^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-522,183; HONORABLE SAM MEDINA, JUDGE _______________________________

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

OPINION ON ORDER OF REMITTITUR

Appellees, Shane Fuller and Michael Fuller have filled a remittitur of $220,000 each, as suggested in our opinion of March 19, 2007. Accordingly, that portion of the trial court judgment providing that Shane Fuller collect from Benny P. Phillips, M.D. for future pecuniary loss in the principal amount of $250,000 is reformed to provide that Shane Fuller recover from Benny P. Phillips, M.D. the principal amount of $30,000 for future pecuniary loss. That portion of the trial court judgment providing that Michael Fuller collect from Benny P. Phillips, M.D. for future pecuniary loss in the principal amount of $250,000 is reformed to provide that Michael Fuller recover from Benny P. Phillips, M.D. the principal amount of $30,000 for future pecuniary loss. That portion of the trial court judgment providing prejudgment interest is reformed to provide for prejudgment interest on the principal amount $2,921,000 through October 3, 2005, of $545,146.62. After an offset of prejudgment interest for a written settlement offer of $6,630 the total prejudgment interest is $538,516.62.

The trial court judgment is affirmed as reformed herein and is reversed and rendered on the issue of gross negligence, as reflected in our opinion of March 19, 2007.

Mackey K. Hancock

Justice

Consistent with his dissent to the Court's opinion in this case of March 19, 2007, Campbell, J., dissents without opinion.

Reavis, S.J., concurring.

1. Don H. Reavis, Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

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Statute of Limitations

It is well settled that an individual has two years to file suit alleging a chose-in-action sounding in medical malpractice. Chilkewitz v. Hyson, 22 S.W.3d 825, 829-30 (Tex. 1999). The period commences on the date the breach or tort occurred or from the date the medical or health care treatment underlying the claim was completed. Id. And, it is absolute, meaning that any delay in the discovery of the purported misfeasance does not postpone the date on which the two year period begins to run. Id. However, if timely notice of the claim is afforded the defendants, the two years is extended by 75 days. Tex. Rev. Civ. Stat. Ann. art. 4590i §4.01(c) (Vernon Supp. 2003).

Here, it is undisputed that the breach, act or treatment complained of happened on May 16, 2000. Assuming notice of the claim was timely afforded UMC and Mittemeyer, limitations began to run on May 17, 2000, and expired two years and 75 days later, i.e. July 30, 2002. McDaniels, however, did not file suit until August 12, 2002, or approximately 13 days after the period had lapsed. ⁽⁴⁾ Thus, suit was untimely as a matter of law.

To the extent that McDaniels also avers that summary judgment could not be awarded to Mittemeyer on grounds not expressed in his motion, we note the following. In his motion, Mittemeyer stated that he "joins in the Motion for Summary Judgment filed by" UMC. So too did he expressly "adopt[] all briefing and facts set out in" the same motion. Furthermore, in UMC's motion, the movants expressly alleged that "Plaintiff's claim [was], as a matter of law, barred by the statute of limitations contained in Tex. Rev. Civ. Stat. Ann., Art. 4590i, §10.01." While the better practice may have been to expressly urge limitations as a ground for summary judgment, by joining in the motion of UMC and by adopting its briefing and factual allegations, Mittemeyer effectively incorporated into his own motion the ground that suit was barred by limitations. See Chapman v. King Ranch, Inc., 41 S.W.3d 693, 699-700 (Tex. App.-Corpus Christi 2001), rev'd on other grounds, 118 S.W.3d 742 (Tex. 2003) (stating that grounds for summary judgment appearing in one defendant's motion may be adopted and incorporated by reference into another defendant's motion).

For the reasons stated above, we overrule McDaniels' issue and affirm the final summary judgments.

Brian Quinn

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).

2.

In addition to the parties we named, McDaniels also sued C. Coleman Brown, M.D. However, citation was never served upon him, as determined by the trial court. Nor did Brown file an answer. Furthermore, nothing of record indicates that McDaniels continued to attempt or expected to obtain service upon Brown. Under these circumstances, and since McDaniels was denied recovery against all other defendants, we treat the failure to serve Brown as a non-suit and deem the summary judgments final. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962) (so holding under like circumstances).

3.

We describe the facts and background of the case in a light most favorable to McDaniels.

4.

Though McDaniels suggests that Saturdays, Sundays and holidays are excluded from the calculation, he cites us to no authority supporting that proposition. Indeed, such a mode of calculating deadlines goes unmentioned in those provisions of the Texas Government Code addressing the computation of time. See Tex. Gov't Code Ann. § 311.014 (Vernon 1998). Nor could one even say that Rule 4 of the Texas Rules of Civil Procedure authorizes the exclusion of weekends and holidays. See Tex. R. Civ. P. 4 (stating that Saturdays, Sundays, and legal holidays shall not be counted for any purpose in any time period of "five days or less" in these rules). Thus, we reject McDaniels' mode of calculating the relevant time period.