Moiel v. Sandlin

• Decision Date: 21 September 1978
• Docket Number: No. 1328,1328
• Citation: 571 S.W.2d 567
• Parties: Richard H. MOIEL, M. D., Appellant, v. Joann SANDLIN et al., Appellees.
• Court: Texas Court of Appeals

Page 567

571 S.W.2d 567

Richard H. MOIEL, M. D., Appellant, v. Joann SANDLIN et al., Appellees.

No. 1328.

Court of Civil Appeals of Texas, Corpus Christi.

Sept. 21, 1978.

Michael A. Andrews, Brown, Stephens & Andrews, Houston, for appellant.

O. F. Jones, II, Victoria, for appellees.

OPINION

NYE, Chief Justice.

This is a suit by a doctor against an attorney and his client. Originally, JoAnn Sandlin and her husband, George B. Sandlin, filed a medical malpractice suit against Dr. Richard H. Moiel. The suit was later voluntarily dismissed. Thereafter, Dr. Moiel filed this present suit against Mr. and Mrs. Sandlin and their attorney, Edward Ganem, for filing the medical malpractice suit against him without just cause. The trial court granted the attorney and his clients' motion for summary judgment predicated on the sole ground that the doctor's pleadings "fails to state a cause of action" against them. The doctor perfected his appeal to this Court.

On July 14, 1972, Dr. Moiel performed lower back surgery on Mrs. Sandlin. In September 1973, Mrs. Sandlin again entered the hospital to have additional surgery performed by another doctor. In December of 1975, the Sandlins through their attorney. Edward Ganem, filed a medical malpractice suit against Dr. Moiel alleging that the doctor had negligently performed surgery on Mrs. Sandlin in 1972. The Sandlins alleged that they had not discovered the negligence of Dr. Moiel until a period of time shortly prior to the filing of the suit in 1975. Dr. Moiel answered and alleged that the Sandlins' cause of action was barred by the statute of limitations because their suit had been filed more than two years after the alleged negligent surgery had been performed. Subsequently, the Sandlins filed a motion for a voluntary nonsuit which was granted by the trial court.

In March of 1977, Dr. Moiel, filed this present suit against the Sandlins and their attorney, Edward Ganem. The doctor alleged that the original medical malpractice suit had been filed without just cause and that the suit was based upon: 1) malicious prosecution; 2) barratry; 3) abuse of process; and 4) negligence. Dr. Moiel prayed for: 1) $250,000 damages for personal humiliation, mental anguish, distress, and injury to his professional reputation; 2) $8,000 damages for the inconvenience and neglect to his professional practice occasioned by the medical malpractice suit; 3) $50,000 damages for the present and future increases in his professional liability insurance premiums; and 4) punitive damages of $250,000.

The Sandlins and their attorney filed a motion for summary judgment predicated on the ground that Dr. Moiel's petition failed to state a cause of action. Dr. Moiel filed a reply in opposition to the motion for summary judgment which was supported by an affidavit of Dr. Moiel's professional liability insurance agent. After a hearing, the trial court granted the summary judgment.

In considering Dr. Moiel's points of error, we will keep in mind the familiar rules of law governing our review of summary judgments under Rule 166-A, T.R.C.P. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952), and Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). Without reciting all of such familiar rules, we must point out that where the movant's motion challenges, in effect, the sufficiency of the non-movant's pleadings to raise a genuine issue of material fact which would constitute a cause of action, the operation of such a motion for summary judgment is closely analogous to a special exception challenging the sufficiency of the non-movant's pleadings as a matter of law. In such a case, the petition to which the motion is directed must be construed most liberally in favor of the pleader. Such a petition is entitled to the benefit of every reasonable inference which can properly be drawn in its favor. It must appear that the facts alleged by the non-movant established the absence of a right of action or of an insuperable barrier to a right of recovery. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). See Smart v. Carlton, 557 S.W.2d 553, 555 (Tex.Civ.App. Beaumont 1977, writ ref'd n. r. e.); Garza v. Perez, 443 S.W.2d 855 (Tex.Civ.App. Corpus Christi 1969, no writ).

Dr. Moiel brings forward three points of error generally contending that the trial court's granting of the motion for summary judgment was erroneous because he had pled valid causes of action on each of the various theories relied upon. In addition, Dr. Moiel generally argues that the defendant attorney had instituted the medical malpractice suit maliciously and without probable cause when he knew such suit was barred by the statute of limitations. Dr. Moiel's pleadings state that the medical malpractice suit was not filed against him until December 1975, which was more than two and one-half years after the original surgery was performed. He contends that he specifically pled that the Sandlins' cause of action was barred by the two-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (1958), and that shortly thereafter, the Sandlins, in response to such plea, filed a motion for a voluntary nonsuit.

Although the Sandlins' original medical malpractice petition and Dr. Moiel's subsequent motion for summary judgment are not before this Court, the Sandlins argue that they had alleged in their petition that Dr. Moiel's negligence had not been discovered until a period of time shortly prior to the filing of the original medical malpractice suit. The cause of action for negligence in such a case would not have been barred by limitations under the discovery doctrine announced in Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). Appellee attorney contends that the information concerning Mrs. Sandlin's cause of action was based, at least in part, on statements made by Mr. Sandlin to him. Apparently, Dr. Moiel's attorney thereafter took Mrs. Sandlin's deposition, and she testified under oath to the effect that she had actually discovered the alleged negligence of Dr. Moiel in September 1973 while she was hospitalized for the second operation. Thus, it was apparent that Mrs. Sandlin discovered the alleged negligent conduct more than two years before the time the medical malpractice suit was filed. This testimony, according to the appellee attorney, prompted Sandlins' attorney to then dismiss the medical malpractice suit.

As a general rule, the plea of limitation is an affirmative defense which must be pled specially in the trial court or it is waived. See e. g., McClenney v. McClenney, 3 Tex. 192 (Tex.1848); McDaniel v. Tucker,520 S.W.2d 543 (Tex.Civ.App. Corpus Christi 1975, no writ); Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App. Amarillo 1971, writ ref'd n. r. e.). The statutes of limitations do not affect the substantive rights of the parties but merely affect the remedy when its enforcement is sought. City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640 (1953); Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879 (1947). The defense of limitations is, of course, waivable, and the mere filing of a suit after the limitations period has expired, without more, does not warrant the conclusion that the suit was filed maliciously or without probable cause. An attorney may generally rely on good faith upon the facts his client relates. Unless lack of probable cause for a claim is obvious from the facts disclosed...