Anthony B. Mena v. Dr. Paul Lenz

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

Court: Court of Appeals of Texas; March 17, 2011; Texas; State Appellate Court

Original Court Document: View Document

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Anthony B. Mena appeals the summary judgment granted to Dr. Paul Lenz by the 445th District Court of Cameron County, Texas. Mena raises three issues: (1) the trial court erred by not recognizing that section 16.064 of the Texas Civil Practice and Remedies Code tolls the statute of limitations, which Dr. Lenz failed to negate; (2) section 74.251(a) should 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 him. 

Mena initially filed a section 1983 lawsuit against Dr. Lenz in federal court on March 24, 2005, which included a state-law medical malpractice claim. The federal court dismissed the section 1983 claim due to the statute of limitations and subsequently dismissed the entire case without prejudice on May 17, 2007. Mena filed a health care liability lawsuit against Dr. Lenz in state court the next day, alleging inadequate medical treatment for an arm injury sustained during his incarceration from April to October 2003. 

Dr. Lenz moved for summary judgment on June 30, 2009, asserting that Mena's claim was barred by the statute of limitations under section 74.251(a). Although Mena acknowledged that he filed his state claim outside the limitations period, he argued that his prior federal filing should toll the statute. The trial court granted Dr. Lenz's motion on October 5, 2009, concluding that section 16.064 is not an exception to the limitations under section 74.251(a). The appeal followed. 

The court reviews summary judgment motions de novo, verifying that no genuine material fact issues exist and that the moving party is entitled to judgment as a matter of law. The burden is on the defendant to prove the defense of expired statute of limitations conclusively.

The defendant must effectively disprove any tolling doctrines claimed by the plaintiff in the trial court, as outlined in Diaz, 941 S.W.2d at 98. Under Section 74.251(a) of the Texas Civil Practice and Remedies Code, a health care liability claim must be filed within two years of the occurrence of the alleged breach or the completion of related medical treatment. Section 74.002(a) establishes that in cases of conflict between Chapter 74 and other laws, Chapter 74 prevails. Section 16.064(a) provides that the statute of limitations is suspended during the interval between the initial filing in a trial court and a subsequent filing in a different court, contingent on certain conditions, including the timely commencement of the second action within 60 days after a dismissal due to lack of jurisdiction. However, this does not apply if the initial filing was made with intentional disregard for proper jurisdiction. In the case of Mena, he asserts that he met the statute of limitations by filing his lawsuit in federal court. However, it is established that if a federal court dismisses a case for lack of jurisdiction, the plaintiff must either refile in state court within the limitations period or demonstrate the applicability of a tolling provision. Cases like Vale v. Ryan illustrate that failing to file within the limitations period after a federal dismissal results in the statute of limitations barring the claims, even if tolling is invoked. Similar rulings in Youngblood Group v. Lufkin and Ruiz v. Austin Independent School District reinforce the necessity of adhering to the 60-day refiling requirement post-dismissal.

Mena failed to file his state claim within the two-year statute of limitations, making it untimely despite filing in federal court within the same timeframe. Mena argued that section 16.064 should toll the limitations period for sixty days, asserting his state claim was timely as it was filed one day post-dismissal of his federal claim. Dr. Lenz contended that section 74.251(a) has an absolute statute of limitations that section 16.064 cannot circumvent. The San Antonio Court of Appeals in Kimbrell v. Molinet previously ruled that section 74.251(a) cannot be tolled, emphasizing the Legislature's intent expressed in the phrase "notwithstanding any other law," which designates section 74.251(a) as the controlling statute over conflicting laws. The Texas Supreme Court affirmed this view, asserting that chapter 74 supersedes any conflicting provisions concerning health care liability claims. Consequently, it was concluded that section 74.251(a) governs Mena's claim, and section 16.064 does not toll the relevant statute of limitations.

Kimbrell v. Dr. Lenz (288 S.W.3d 468) and Chilkewitz v. Hyson (22 S.W.3d 825) clarify that Texas's former statute of limitations for health care liability claims mandates that such claims must be filed within two years of the occurrence. This statute takes precedence over conflicting laws. Mena's health care liability claim was filed beyond this two-year period, and Dr. Lenz successfully negated Mena's argument that section 16.064 tolls the statute of limitations. Consequently, Dr. Lenz demonstrated a valid statute of limitations defense, warranting summary judgment in his favor.

Mena's additional arguments included claims that section 1367(d) of the U.S. Code allows for a minimum 30-day window to re-file state claims dismissed in federal court, potentially preempting section 74.251(a)’s limitations. He also contended that section 74.251(a) violates the Texas Constitution’s Open Courts Doctrine. However, under Texas Rule of Civil Procedure 166a(c), issues not explicitly presented to the trial court cannot be raised on appeal. Mena failed to provide a written response asserting these arguments in the trial court, thus rendering them unconsiderable on appeal. The court reaffirmed that a party must raise any challenges or affirmative defenses in the trial court to preserve them for appellate review, as emphasized in multiple precedents.

An affirmative defense serves to establish an independent basis for not allowing recovery, functioning as a defense of avoidance, with preemption categorized as such. The court overruled Mena’s second and third issues and affirmed the previous ruling. Notably, the trial court had initially granted summary judgment in favor of Dr. Lenz due to Mena's lack of due diligence in serving him with citation. However, upon finding that Mena raised a factual issue regarding this diligence, the appellate court reversed the summary judgment. Mena incorrectly asserted that the court had previously ruled section 16.064(a) suspended the limitations period of section 74.251(a), contending that this ruling constituted the law of the case. The court clarified that the earlier decision focused solely on whether Mena's counsel exercised due diligence, not on the tolling of the statute of limitations. Therefore, the law of the case doctrine does not apply, as it allows for reconsideration of issues on appeal based on discretion and the case's circumstances. Lastly, to avoid the two-year statute of limitations for state health care liability claims, a party must file in state court within the designated timeframe, even when also asserting a federal claim.