Anthony B. Mena v. Dr. Paul Lenz

Citation: Not availableDocket: 13-10-00035-CV

Court: Court of Appeals of Texas; June 16, 2011; Texas; State Appellate Court

Original Court Document: View Document

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The Court of Appeals for the Thirteenth District of Texas reviewed Anthony B. Mena's appeal against Dr. Paul Lenz regarding a summary judgment favoring Dr. Lenz. Mena raised three main issues: (1) the claim that section 16.064 of the Texas Civil Practices and Remedies Code tolls the statute of limitations, which Dr. Lenz did not adequately counter; (2) the argument that section 74.251(a) should be harmonized with 28 U.S.C. 1367(d); and (3) the assertion that section 74.251(a) violates the Texas Constitution's Open Courts doctrine as applied to him. The court affirmed the trial court's decision, noting that Mena had previously filed a federal lawsuit, which was dismissed, and subsequently filed his state malpractice claim outside the mandated limitations period. The trial court found that section 74.251(a) does not permit tolling under section 16.064, leading to the summary judgment in favor of Dr. Lenz. The court confirmed that the review of a summary judgment is conducted de novo, requiring the movant to demonstrate there are no genuine material facts in dispute, favoring the non-movant in evidence interpretation.

The trial court previously granted summary judgment in favor of Dr. Lenz, citing Mena's lack of due diligence in serving him with citation. However, upon finding that Mena raised a factual issue regarding his diligence, the appellate court reversed this judgment. For a defendant to successfully claim summary judgment based on an expired statute of limitations, they must establish this defense conclusively, negating any tolling doctrines asserted by the plaintiff. Under Texas law, specifically Section 74.251(a), health care liability claims must be filed within two years of the breach or completion of treatment. Furthermore, Section 74.002(a) indicates that Chapter 74 prevails in conflicts with other laws. Section 16.064(a) provides that the statute of limitations is suspended during the period between the initial filing in a trial court and a subsequent filing in another court, contingent upon the first court lacking jurisdiction and the second filing occurring within 60 days of the dismissal. Mena contends that he met all statutory requirements by initiating his lawsuit in federal court within the two-year limit. However, the court disagrees, asserting that even if a federal court dismisses a case for lack of jurisdiction, the plaintiff must refile in state court within the statute of limitations or demonstrate applicable tolling. The court referenced a case where tolling was successfully claimed when the plaintiff refiled within the stipulated timeframe after a federal dismissal.

In Ruiz v. Austin Independent School District, the court ruled that plaintiffs' defamation claim was barred by the statute of limitations because they filed their second lawsuit in state court 79 days after a federal court dismissed their first case. This ruling emphasized that the tolling provision under section 16.064 did not apply in this instance. Similarly, in Martinez v. City of Brownsville, the plaintiff had 60 days to file a claim under the Texas Tort Claims Act after the federal court dismissal, which was deemed timely. 

Mena's state claim was untimely, as he did not file it within the two-year statute of limitations, despite filing a related claim in federal court within the same timeframe. Mena argued that section 16.064 tolled the limitations period under section 74.251(a) for 60 days, making his state claim timely. However, Dr. Lenz contended that section 74.251(a) has an absolute limitations period that cannot be extended by section 16.064. 

The San Antonio Court of Appeals in Kimbrell v. Molinet determined that section 74.251(a)'s limitations period cannot be tolled due to its express phrasing of "notwithstanding any other law," indicating legislative intent for it to take precedence over conflicting laws. This conclusion was affirmed by the Texas Supreme Court, which reinforced that chapter 74 governs health care liability claims and controls in the event of conflicting statutes.

Section 74.251(a) establishes an absolute statute of limitations for health care liability claims, overriding any conflicting laws. It is interpreted to mean that any law affecting its timing is subordinate, as supported by case law. Specifically, the court concluded that section 74.251(a) applies to Mena's claims despite arguments regarding section 16.064, which Mena erroneously claimed tolled the limitations period. The court clarified that its previous ruling did not address the tolling issue, thus the law of the case doctrine does not apply. Mena's claim was filed beyond the two-year limit, and Dr. Lenz successfully negated Mena's tolling argument, warranting summary judgment in his favor. Additionally, Mena's assertion that federal law preempts state statute limitations and his claim of a violation of the Texas Constitution's Open Courts Doctrine were not properly preserved for appeal due to procedural rules.

The non-movant is required to explicitly present any issues that would negate the movant's entitlement to summary judgment through a written answer or response to the trial court. Failure to do so means those arguments cannot be raised on appeal. In this case, Mena did not submit a written response asserting 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. Consequently, those arguments are not considered on appeal. A litigant must raise challenges related to the Open Courts Doctrine in the trial court, and it is established that summary judgment motions rely solely on the grounds presented at that level. If a party opposing a summary judgment wishes to assert an affirmative defense, they must provide sufficient evidence to raise a factual issue regarding each element of the defense; otherwise, the defense is waived. Preemption is categorized as an affirmative defense, which must be pleaded and proved to avoid summary judgment. Mena's second and third issues are overruled, and the judgment is affirmed.