Anthony B. Mena v. Dr. Paul Lenz ( 2011 )

NUMBER 13-10-00035-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ANTHONY B. MENA, Appellant,
v.
DR. PAUL LENZ, Appellee.
On appeal from the 445th District Court
of Cameron County, Texas.
OPINION ON REHEARING
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Opinion on Rehearing by Chief Justice Valdez
After considering appellant, Anthony B. Mena‟s, motion for rehearing, we deny
the motion; however, we withdraw our opinion and judgment of March 17, 2011, and
substitute the following.
Mena challenges the trial court‟s summary judgment in favor of appellee, Dr.
Paul Lenz, M.D. By three issues, Mena contends that the trial court erred in granting
summary judgment because: (1) section 16.064 of the Texas Civil Practices and
Remedies Code tolls the statute of limitations, and Dr. Lenz failed to negate tolling; (2)
section 74.251(a) of the Texas Civil Practices and Remedies Code “must be
harmonized with 28 U.S.C. § 1367(d)”; and (3) section 74.251(a) “violates the Texas
Constitution‟s Open Courts doctrine as applied to Mena.” We affirm.
I. BACKGROUND
On March 24, 2005, Mena filed a section 1983 lawsuit against Dr. Lenz in the
United States District Court for the Southern District of Texas. See generally 42 U.S.C.
§ 1983. Mena then added “a state-law medical malpractice claim under [s]ection 74 of
the Texas Civil Practice and Remedies Code.” The federal court dismissed Mena‟s
section 1983 cause of action and then on May 17, 2007, as recognized by Mena in his
original petition, the federal court dismissed Mena‟s section 74.251(a) claim for want of
jurisdiction. One day later, on May 18, 2007, Mena filed his health care liability lawsuit
against Dr. Lenz in state court.
In his petition, Mena claimed that he sustained an injury to his arm when he was
arrested on April 30, 2003. According to Mena, while he was incarcerated from April 30,
2003 until October 2003, he did not receive adequate and timely medical treatment for
the injury to his arm, which led to permanent damage. Mena alleged that Dr. Lenz, as
the director of the jail during that time period, failed to perform his duties within the
proper standard of care.
On June 30, 2009, Dr. Lenz filed a traditional motion for summary judgment
claiming that Mena‟s cause of action was barred by the statute of limitations pursuant to
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section 74.251(a) of the Texas Civil Practice and Remedies Code.1 See TEX. CIV. PRAC.
& REM. CODE ANN. § 74.251(a) (West 2005). In his response, Mena did not dispute that
he filed his case in state court outside of 74.251(a)‟s limitations period; however, he
argued that he did timely file his cause of action in federal court and the statute of
limitations should be tolled pursuant to section 16.064 of the Texas Civil Practice and
Remedies Code. See id. § 16.064 (West 2008).
The trial court granted Dr. Lenz‟s traditional motion for summary judgment on
October 5, 2009, on the basis that section “74.251(a) . . . does not list [section]
16.064 . . . as an exception to the 2 year limitation.” This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review the granting of a traditional motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100
S.W.3d 645, 646 (Tex. App.—Corpus Christi 2003, no pet.). In a traditional motion for
summary judgment, the movant has the burden to establish that no genuine issue of
material fact exists and that he is entitled to judgment as a matter of law. Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing TEX. R. CIV. P. 166a(c));
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). “[W]e
take as true all evidence favorable to the non[-]movant, and we indulge every
reasonable inference and resolve any doubts in the non[-]movant's favor.” Valence
Operating Co., 164 S.W.3d at 661.
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We note that the trial court had previously granted summary judgment in favor of Dr. Lenz on
the basis that Mena had failed to exercise due diligence in serving him with citation. After concluding that
Mena raised a fact issue regarding his due diligence in serving Dr. Lenz, this Court reversed the trial
court‟s summary judgment. See Mena v. Lenz, No. 13-08-00137-CV, 2009 Tex. App. LEXIS 1585, at *16
(Tex. App.—Corpus Christi Mar. 5, 2009, no pet.) (mem. op.) (“Mena I”).
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A defendant seeking summary judgment on the basis that the statute of
limitations has expired must establish the defense as a matter of law. Shah v. Moss, 67
S.W.3d 836, 849 (Tex. 2001); Diaz v. Westphal, 941 S.W.2d 96, 97-98 (Tex. 1997). “To
satisfy this burden, the defendant must conclusively negate any relevant tolling
doctrines the plaintiff asserted in the trial court.” Diaz, 941 S.W.2d at 98.
Section 74.251(a), entitled “Statute of Limitations on Health Care Liability
Claims,” states:
Notwithstanding any other law and subject to Subsection (b), no health
care liability claim may be commenced unless the action is filed within two
years from the occurrence of the breach or tort or from the date the
medical or health care treatment that is the subject of the claim or the
hospitalization for which the claim is made is completed . . . .
TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a). “Additionally, section 74.002(a) contains
a general conflict-of-law provision that states „[i]n the event of a conflict between
[chapter 74] and another law, including a rule of procedure or evidence or court rule,
[chapter 74] controls to the extent of the conflict.‟” Molinet v. Kimbrell, 54 Tex. Sup. J.
491, No. 09-0544, 2011 Tex. LEXIS 68, at *8 (Tex. Jan. 21, 2011) (citing TEX. CIV.
PRAC. & REM. CODE ANN § 74.002(a) (West 2005)). Section 16.064(a) states:
(a) The period between the date of filing an action in a trial court and
the date of a second filing of the same action in a different court
suspends the running of the applicable statute of limitations for the
period if:
(1) because of lack of jurisdiction in the trial court where the
action was first filed, the action is dismissed or the
judgment is set aside or annulled in a direct proceeding;
and
(2) not later than the 60th day after the date the dismissal or
other disposition becomes final, the action is
commenced in a court of proper jurisdiction.
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(b) This section does not apply if the adverse party has shown in
abatement that the first filing was made with intentional disregard of
proper jurisdiction.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.064.
II. COMPLIANCE WITH SECTION 74.251(A)
By a sub-issue to his first issue, Mena asserts, without citation to authority, that
“all statutory prerequisites are met” because he “commenced” his lawsuit within the two-
year statute of limitations by filing his suit in federal court. Therefore, Mena argues that
Dr. Lenz “failed to conclusively establish limitations.” We disagree.
When a federal court dismisses a cause of action due to lack of jurisdiction, the
plaintiff must still file his lawsuit in state court within the limitations period or show that a
tolling provision applies. Vale v. Ryan, 809 S.W.2d 324, 327 (Tex. App.—Austin 1991,
no writ) (explaining that when the federal court dismissed the plaintiff‟s claims, the
plaintiff who later filed her claims of false arrest, false imprisonment, and malicious
prosecution in state court outside the applicable limitations period proved that a tolling
statute applied); see Youngblood Group v. Lufkin Fed. Sav. & Loan Ass'n, 932 F. Supp.
859, 871 (E.D. Tex. 1996) (declining to exercise supplemental jurisdiction over the
plaintiff‟s DTPA and breach of contract state claims and concluding that the statute of
limitations will be considered tolled pursuant to section 16.064 between the date of filing
in federal court and the date of refiling in state court, provided refiling is accomplished
within sixty days of federal court dismissal) (citing TEX. CIV. PRAC. & REM. CODE ANN. §
16.064); see also Ruiz v. Austin Indep. Sch. Dist., No. 03-02-00798-CV, 2004 Tex. App.
LEXIS 4725, at *12 (Tex. App.—Austin May 27, 2004, no pet.) (mem. op.) (stating that
the plaintiffs filed their second lawsuit in state court seventy-nine days after a federal
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court dismissed their first lawsuit; therefore, the plaintiffs‟ defamation cause of action
was barred by the statute of limitations, even with the benefit of section 16.064‟s tolling
provision); Martinez v. City of Brownsville, No. 13-00-00425-CV, 2001 Tex. App. LEXIS
6131, at *11 (Tex. App.—Corpus Christi Aug. 31, 2001, pet. denied) (mem. op.) (setting
out that the plaintiff had sixty days after the federal court dismissed his case to file his
Texas Tort Claims Act claim in state court because the statute of limitations had been
tolled pursuant to section 16.064). It is undisputed that Mena failed to file his claim in
state court within the two-year statute of limitations. Therefore, even though Mena filed
his claim in federal court within the two-year statute of limitations, Mena‟s state claim
was untimely, unless a tolling provision applied. See Vale, 809 S.W.2d at 327; see also
Youngblood Group, 932 F. Supp. at 871; Ruiz, 2004 Tex. App. LEXIS 4725, at *12 ;
Martinez, 2001 Tex. App. LEXIS 6131, at *11. We overrule Mena‟s first sub-issue.
III. TOLLING THE STATUTE OF LIMITATIONS
By his first issue, Mena argues that section 16.064 tolls section 74.251(a)‟s
limitations period for sixty days. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.064,
74.251(a). Mena further argues that his state claim was timely because he filed it one
day after the federal court dismissed his cause of action. Dr. Lenz responds that
section 74.251(a) has an absolute statute of limitations that cannot be circumvented by
section 16.064‟s tolling provision.
No other court has specifically determined whether section 16.064‟s tolling
provision applies to section 74.251(a)‟s statute of limitations. However, the San Antonio
Court of Appeals in Kimbrell v. Molinet addressed whether 33.004(e) tolled 74.251(a)‟s
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statute of limitations. 288 S.W.3d 464, 466-67 (Tex. App.—San Antonio 2009), aff’d,
2011 Tex. LEXIS 68, at *24. Section 33.004(e) states:
If a person is designated under this section as a responsible third party, a
claimant is not barred by limitations from seeking to join that person, even
though such joinder would otherwise be barred by limitations, if the
claimant seeks to join that person not later than 60 days after that person
is designated as a responsible third party.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(e) (West 2008). The San Antonio Court of
Appeals concluded that section 74.251(a)‟s statute of limitations could not be tolled
because it imposes an absolute two-year limitations period on health care liability
claims. Kimbrell, 288 S.W.3d at 468. The court reasoned that “74.051(a)‟s use of the
phrase „notwithstanding any other law‟ . . . unequivocally expresses the Legislature‟s
intent for section 74.251 to govern when its limitations period conflicts with other laws.”
Id. at 467. The court reversed the trial court‟s denial of the defendants‟ motion for
summary judgment and rendered judgment dismissing the plaintiff‟s claims against the
defendants. Id. at 468.
The Texas Supreme Court affirmed the court of appeals judgment. Molinet, 2011
Tex. LEXIS 68, at *24. In its majority opinion, the Texas Supreme Court stated:
[C]hapter 74‟s language reflects legislative intent for section 74.251(a) to
be the controlling statute . . . . First, section 74.251(a) explicitly states that
“notwithstanding any other law” a health care liability claim must be
commenced within two years after “the occurrence of the breach or tort or
from the date the medical or health care treatment that is the subject of
the claim or the hospitalization for which the claim is made is completed.”
Second, section 74.002(a) provides “in the event of a conflict between
[chapter 74] and another law, including a rule of procedure or evidence or
court rule, [chapter 74] controls to the extent of the conflict.”
Id. at **13-14 (internal citations omitted); see TEX. CIV. PRAC. & REM. CODE ANN. §
74.002.
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By stating “notwithstanding any other law,” section 74.251(a) unequivocally
reflects that the legislature intended the statute of limitations to be absolute. See
Kimbrell, 288 S.W.3d at 467; see also Timmons v. Univ. Med. Ctr., 2011 Tex. App.
LEXIS 463, at *9 (Tex. App.—Amarillo Jan. 21, 2011, no pet. h.) (“[W]e understand „any
other law‟ to mean any other law that impacts the timing or operation of section
74.251.”). Furthermore, section 74.002 states that chapter 74 controls if another law
conflicts with it. See Molinet, 2011 Tex. LEXIS 68, at *16 (concluding that both section
74.251(a) and section 74.002 “evidence clear legislative intent that the two year statute
of limitations in section 74.251(a) applies [to the plaintiff‟s claims against the
defendants] notwithstanding section 33.004(e)”). Accordingly, we conclude that section
74.251(a) controls and section 16.064 does not toll the statute of limitations in Mena‟s
health care liability claim.2 See id. at *24. Kimbrell, 288 S.W.3d at 468; see also
Chilkewitz v. Hyson, 22 S.W.3d 825, 829-30 (Tex. 1999) (stating that section 10.01‟s—
the former statute of limitations applying to health care liability claims—language
“[n]otwithstanding any other law, no health care liability claim may be commenced
unless the action is filed within two years from the occurrence of the breach or tort . . .”
2
In two sentences in his brief, without citation to authority, Mena claims that this Court has
already “determined that section 16.064(a) suspended the limitations period of section 74.251(a)” and
that ruling is the law of the case. See TEX. R. APP. P. 38.1(i). However, the issue in Mena I was “whether
the summary judgment evidence show[ed] conclusively that Mena‟s counsel failed to exercise due
diligence in serving Dr. Lenz with citation.” 2009 Tex. App. LEXIS 1585, at *10. This Court concluded
that “Mena raised a fact issue as to diligence, and Dr. Lenz failed to meet his burden to conclusively show
that Mena‟s counsel‟s efforts were insufficient.” Id. at *16. We did not decide whether section 16.064
tolls 74.251(a)‟s statute of limitations. Therefore, we disagree with Mena that the law of the case doctrine
applies. See Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003) (“The 'law of the case'
doctrine is defined as that principle under which questions of law decided on appeal to a court of last
resort will govern the case throughout its subsequent stages.”); see also Pisharodi v. Barrash, No. 13-05-
744-CV, 2007 Tex. App. LEXIS 7583, at *7 (Tex. App.—Corpus Christi Sept. 20, 2007, no pet.) (mem.
op.) (“A decision rendered on an issue before an appellate court does not absolutely bar reconsideration
of the same issue on a second appeal. Application of the doctrine lies within the discretion of the court,
depending on the particular circumstances surrounding that case.”).
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showed that “the legislature unequivocally expressed its intent that, when the time
limitations of section 10.01 conflict with another law, section 10.01 governs”) (internal
quotations omitted).
It is undisputed that Mena filed his health care liability claim in state court outside
74.251(a)‟s two-year limitations period. Moreover, Dr. Lenz conclusively negated
Mena‟s assertion that section 16.064 tolls the statute of limitation in a health care
liability claim. See Diaz, 941 S.W.2d at 98. Therefore, because no tolling provision
applied, Dr. Lenz established his statute of limitations defense and his entitlement to
summary judgment as a matter of law. See Sw. Elec. Power Co., 73 S.W.3d at 215;
Diaz, 941 S.W.2d at 98. We overrule Mena‟s first issue.3
IV. PRESERVATION
By his second issue, Mena alleges that his claim was timely filed because
section 1367(d) of the United States Code “provides for a minimum of thirty days in
which to re-file pendant state law claims dismissed in federal court”—or, in other words,
section 1367(d) preempts section 74.251(a)‟s statute of limitations. By his third issue,
Mena asserts that section 74.251(a) violates the Texas Constitution‟s Open Courts
Doctrine.
Rule 166a(c) of the Texas Rules of Civil Procedure provides that “[i]ssues not
expressly presented to the trial court by written motion, answer or other response shall
not be considered on appeal as grounds for [reversing summary judgment].” TEX. R.
CIV. P. 166a(c). Therefore, “[t]he non-movant must expressly present to the trial court,
3
We note that in order to avoid the running of the two-year statute of limitations, a party claiming
a state health care liability cause of action should file his claim in state court within the prescribed time,
even if the party also has a federal claim.
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by written answer or response, any issues defeating the movant's entitlement.” -
McConnell v. Southside Independent School Dist., 858 S.W.2d 337, 343 (Tex. 1993);
Shih v. Tamisiea, 306 S.W.3d 939, 944 (Tex. App.—Dallas 2010, no pet.); see Clear
Creek Basin Auth., 589 S.W.2d at 678 (“[T]he non-movant may not urge on appeal as
reason for reversal of the summary judgment any and every new ground that he can
think of, nor can he resurrect grounds that he abandoned at the hearing.”).
Here, Mena did not present to the trial court any written answer or response
stating that section 1367(d) of the United States Code preempts section 74.251(a) or
that section 74.251(a) violates the Open Courts Doctrine. Therefore, we may not
consider these grounds on appeal. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d at
222 (“A litigant must raise an open-courts challenge in the trial court.”); McConnell, 858
S.W.2d at 343 (explaining that summary judgment motions and responses, or answers
to those motions, must stand or fall on the grounds expressly presented to the trial
court); Clear Creek Basin Auth., 589 S.W.2d at 678; TrueStar Petroleum Corp. v. Eagle
Oil & Gas Co., 323 S.W.3d 316, 321 (Tex. App.—Dallas 2010, no pet.) (refusing to
review non-movant‟s grounds for avoiding movant‟s summary judgment that had not
been presented to the trial court); Shih, 306 S.W.3d at 944 (“[E]xcept to attack the legal
sufficiency of the movant's grounds for summary judgment, the nonmovant must
expressly present to the trial court in a written answer or response to the motion any
reason for avoiding the movant's entitlement to summary judgment.”); see also Mills v.
Warner Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005) (per curiam) (stating that federal
preemption is generally an affirmative defense to suit); Brownlee v. Brownlee, 665
S.W.2d 111, 112 (Tex. 1984) (“If the party opposing a summary judgment relies on an
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affirmative defense, he must come forward with summary judgment evidence sufficient
to raise an issue of fact on each element of the defense to avoid summary judgment.”);
Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.—Houston
[1st Dist.] 2005, pet. denied) (providing that an affirmative defense that is not pleaded or
proved and on which findings are not obtained is waived) (citing Tex. R. Civ. P. 94
(setting out that affirmative defenses must be pled); In re C. M., 996 S.W.2d 269, 270
(Tex. App.—Houston [1st Dist.] 1999, no pet.) (explaining that an affirmative defense
seeks to establish an independent reason that the party should not recover and is
therefore a defense of avoidance)); Harrill v. A.J.'s Wrecker Serv., Inc., 27 S.W.3d 191,
194 (Tex. App.—Dallas 2000, pet. dism'd w.o.j) ("Preemption is an affirmative
defense."). We overrule Mena‟s second and third issues.
V. CONCLUSION
We affirm.
_________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
16th day of June, 2011.
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