Petroleum Wholesale, Inc. v. Shabana Enterprises, Inc. and Hussian Varsha ( 2001 )

NO. 07-00-0356-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 26, 2001

______________________________



PETROLEUM WHOLESALE, INC., APPELLANT

V.

SHABANA ENTERPRISES, INC. AND VARSHA HUSSAIN, APPELLEES



_________________________________

FROM THE 133RD DISTRICT COURT OF HARRIS COUNTY;

NO. 97-44520; HONORABLE LAMAR MCCORKLE, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ORDER DIRECTING FILING OF REPORTER'S RECORD

Appellant Petroleum Wholesale, Inc. perfected its appeal from a judgment in favor of appellees Shabana Enterprises, Inc. and Varsha Hussain in their cause of action for breach of contract and conversion of personal property. The clerk's record and first supplemental clerk's record were filed on September 21, 2000, and September 26, 2000, respectively. After an extension of time was granted to Ms. Amanda Smothers, the reporter's record was due to be filed by December 1, 2000. The reporter's record was not filed. By letter dated January 12, 2001, this Court notified Ms. Smothers that the record was past due and instructed her to provide a current status report regarding the reporter's record within ten days of January 12, 2001. Ms. Smothers did not respond and the reporter's record remains outstanding.

We direct Ms. Amanda Smothers, official court reporter for the 133^rd District Court of Harris County, to transcribe and file with the Clerk of this Court a reporter's record of the two-day trial that commenced on December 8, 1999. The record shall include all argument, evidence, and exhibits presented to the trial court in this cause. We further direct Ms. Smothers to file the complete reporter's record on or before Wednesday, February 28, 2001.

It is so ordered.

Per Curiam

Do not publish.

Sideris, 8 S.W.3d 672, 674-75 (Tex. App.--Amarillo 1999, no pet.). We refer the parties to that case for a description of the standard.

Health care liability claims must be brought within two years from the occurrence of the tort or from the date the medical treatment that is the subject of the claim is completed. Tex. Civ. Prac. & Rem. Code Ann. §74.251(a) (Vernon 2005). The limitations period is measured by one of three dates: 1) the occurrence of the tort, 2) the last date of the relevant course of treatment, or 3) the last date of the relevant hospitalization. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). ⁽⁴⁾ If the date of the alleged tort is ascertainable, the limitations period begins on that date, not on whichever of the three dates happens to be most favorable to the plaintiff. Id. As a result of the statute, the discovery rule is no longer applicable in medical care liability claims. ⁽⁵⁾ Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997). Therefore, at the latest, the statute of limitations would have started to run on the date of last treatment, which was October 5, 1999.

Borth relies on section 74.251(b) of the Civil Practice and Remedies Code as authority that she actually had ten years to bring her claim. That subsection provides:

A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.

Tex. Civ. Prac. & Rem. Code Ann. §74.251(b) (Vernon 2005). A statute of limitations bars enforcement of a right while a statute of repose takes the right away altogether. Johnson v. City of Fort Worth, 774 S.W.2d 653, 654 n.1 (Tex. 1989); Aguilar v. Trujillo, 162 S.W.3d 839, 853 (Tex. App.--El Paso 2005, pet. denied); Cadle Co. v Wilson, 136 S.W.3d 345, 350 (Tex. App.--Austin 2004, no pet.). The period set out in a statute of repose is independent of the claim's accrual or discovery and may cut off a right even before it accrues. Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003). It sets an outer limit beyond which no action can be maintained. Id. Thus, if the discovery rule applied (as it does not here) or there is a legal basis for tolling the period of limitations, the ten-year statute of repose would serve as an outer limit after which no cause of action could be brought.

Borth contends that the fraudulent concealment of Saadeh should toll the statute of limitations. When the plaintiff resists summary judgment by asserting fraudulent concealment, the burden is on the plaintiff to raise a fact issue on each element of fraudulent concealment. American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994); Malone v. Sewell, 168 S.W.3d 243, 252 (Tex. App.--Fort Worth 2005, pet. denied). The elements of fraudulent concealment are 1) existence of an underlying tort, 2) the defendant's knowledge of the tort, 3) the defendant's use of deception to conceal the tort, and 4) the plaintiff's reasonable reliance on the deception. Malone v. Sewell, 168 S.W.3d at 252. Borth's evidence in support of her response to the motion for summary judgment is her own affidavit. ⁽⁶⁾ She does not attempt therein to address each element of fraudulent concealment and the allegations in her response do not constitute proof of the same. See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (holding that pleadings are not competent summary judgment evidence even if sworn or verified); American Petrofina, Inc. v. Allen, 887 S.W.2d at 830 (holding that a mere pleading or response to a summary judgment motion does not satisfy the burden of coming forward with sufficient evidence to prevent summary judgment). Consequently, fraudulent concealment does not suspend the limitations period based on the record before us.

Finally, Borth raised an issue that the statute of limitations violates the open courts provision of the Texas Constitution. ⁽⁷⁾ To establish the same, she is required to show 1) that she has a cognizable common-law cause of action, and 2) that restriction of the claim is unreasonable or arbitrary when balanced against the statute's purpose. Shah v. Moss, 67 S.W.3d at 842; Diaz v. Westphal, 941 S.W.2d at 100. Borth also has the burden of raising a fact issue demonstrating she did not have a reasonable opportunity to discover any alleged wrongs before the limitations period expired. Shah v. Moss, 67 S.W.3d at 846-47. Borth's affidavit in support of her response to the motion for summary judgment does not raise a fact issue that she did not have a reasonable opportunity to discover Saadeh's alleged negligence. Further, she waited one year and eleven months after allegedly discovering Saadeh's negligence with respect to one of her medical problems before bringing suit. A plaintiff may not obtain relief under the open courts provision if she does not use due diligence and sue within a reasonable time after learning of the alleged wrong. Shah v. Moss, 67 S.W.3d at 847. We find that she waited an unreasonable time to file suit after discovering her injury. See id. (holding that, as a matter of law, 17 months was an unreasonable time to wait to bring suit).

Because the two-year statute of limitations is applicable to Borth's causes of action, the trial court did not err in granting summary judgment to Saadeh. Accordingly, the summary judgment is affirmed.

John T. Boyd

Senior 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 2005).

2. Borth raises other issues related to Saadeh's negligence, whether a witness lied in his affidavit, and whether she has a valid lawsuit against Dr. John Kelleher. These issues are not material to whether the statute of limitations bars her claims against Saadeh except to the extent that Borth must prove an underlying tort to prove fraudulent concealment.

3. Borth avers that she called Saadeh's office on November 4, 2004, and again on November 8, 2004, speaking to Michael Gaylor both times. However, she was informed by Gaylor that Saadeh would not treat her as a patient.

4. The three dates discussed in Shah were based on article 4590i §10.01of the Revised Civil Statutes, which is in relevant part the same as the current version of the statute at section 74.251 of the Civil Practice and Remedies Code.

5. Borth claims she "discovered" Saadeh's negligence on December 10, 2002, when she was finally diagnosed with Ehler's-Danlos Syndrome. She does not specifically address when she "discovered" the other medical problems which she claims Saadeh failed to diagnose or treat.

6. While Borth refers to testimony from a hearing, we do not have a reporter's record of that hearing. Borth sought to obtain a free reporter's record on the basis she was indigent and that request was denied.

7. The open courts provision protects a person from legislative acts that cut off a person's right to sue before there is a reasonable opportunity to discover the wrong and bring suit. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).