Molinet v. Kimbrell

Decision Date21 January 2011
Docket NumberNo. 09–0544.,09–0544.
Citation54 Tex. Sup. Ct. J. 491,356 S.W.3d 407
PartiesJeremy MOLINET, Petitioner, v. Patrick KIMBRELL, M.D. and John Horan, M.D., Respondents.
CourtTexas Supreme Court


Michelle Mei–Hsue Cheng, Bill Whitehurst, Eugene W. Brees II, Whitehurst Harkness Brees Cheng & Imhoff, PC., Austin, TX, Jon Todd Powell, The Powell Law Firm, Brant Steven Mittler, Attorney at Law, San Antonio, TX, for Jeremy Molinet.

Rosemary L. Hollan, Hollan Law Firm, P.C., San Antonio, TX, Diana L. Faust, R. Brent Cooper, Devon J. Signh, Cooper & Scully, P.C., Dallas, TX, for Patrick Kimbrell, M.D.

Carl Dawson, Ryan & Dawson, Houston, TX, David M. Adkisson, Begum & Tijerina, L.L.C., San Antonio, TX, for other interested party Marque Allen D.P.M.Richard John Kasson, Gonzales, Chiscano, Angulo & Kasson, PC, San Antonio, TX, for other interested party Sports Medicine Associates of San Antonio.Diana L. Faust, Cooper & Scully, P.C., Dallas, TX, Brett B. Rowe, Evans & Rowe, P.C., San Antonio, San Antonio, TX, for John Horan, M.D.D. Michael Wallach, Wallach & Andrews P.C., Fort Worth TX, for Amicus Curiae Texas Alliance for Patient Access.Rosemarie Kanusky, Fulbright & Jaworski L.L.P., San Antonio TX, for Amicus Curiae Biomet, Inc., EBI Medical Systems, L.P., EBI Medical Systems, Inc., LVB.

Justice JOHNSON delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice WAINWRIGHT, Justice GREEN, Justice WILLETT, and Justice GUZMAN joined.

In this case we consider a statutory conflict regarding whether limitations bars Jeremy Molinet's health care liability claims against two doctors he sued after they had been designated as responsible third parties pursuant to Texas Civil Practice and Remedies Code section 33.004. See Tex. Civ. Prac. & Rem.Code § 33.004.1 Molinet joined the doctors as defendants within sixty days after they were designated as responsible third parties but more than two years after they last treated him. Section 33.004(e) provides that if a defendant designates a responsible third party the claimant may, within sixty days, join the designated party “even though such joinder would otherwise be barred by limitations.” Id. However, section 74.251(a) provides a two-year limitations period for health care liability claims that applies [n]otwithstanding any other law,” and section 74.002(a) provides that chapter 74 controls in the event its provisions conflict with other law. See id. §§ 74.251(a), 74.002(a).

We hold that section 74.251(a) prevails and Molinet's claims against the doctors are barred by its two-year limitations period.

I. Background

On July 15, 2004, Jeremy Molinet injured his Achilles tendon. On July 18, 2004, Dr. John Horan surgically repaired the tendon, after which Molinet re-injured it. Dr. Marque Allen performed a second operation later that year. Dr. Patrick Kimbrell, a wound treatment specialist, treated Molinet for several weeks beginning in early November 2004.

In September 2005, Molinet filed suit against several parties seeking damages related to his injury and medical treatment. He sued Dr. Allen and various health care providers, but did not sue either Dr. Horan or Dr. Kimbrell. In both May and September 2006, Molinet amended his pleadings and added additional healthcare providers as defendants but still did not sue Dr. Horan or Dr. Kimbrell. On August 1, 2007, more than two-and-a-half years after either Dr. Horan or Dr. Kimbrell last treated Molinet, Dr. Allen moved to designate them as responsible third parties pursuant to section 33.004(a). The trial court granted Dr. Allen's motion on August 21, 2007. On August 24, 2007, Molinet amended his pleadings to join Drs. Horan and Kimbrell as defendants. See id. § 33.004(e). The doctors moved for summary judgment on the basis that Molinet's claims against them were barred by the two-year statute of limitations in section 74.251(a).

The trial court denied the motion for summary judgment. Pursuant to agreement of the parties, the court authorized an interlocutory appeal. See id. § 51.014(d) (permitting a trial court to issue a written order for interlocutory appeal in a civil action if the parties agree to the order and agree that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation).

The court of appeals reversed the trial court's order and rendered judgment dismissing Molinet's claims against Drs. Horan and Kimbrell. 288 S.W.3d 464, 468. The court of appeals held that section 74.251(a) contains an absolute two-year limitations period and trumps the contradictory language in section 33.004(e). Id. at 467–68.

In this Court, Molinet argues that sections 74.251(a) and 33.004(e) do not truly conflict and both can be given effect. Alternatively, he argues that even if the statutes conflict, the language of section 33.004(e) controls and provides an exception to the two-year limitations period in section 74.251(a).

Drs. Horan and Kimbrell contest our jurisdiction to review the court of appeals' judgment because this is an interlocutory appeal. Alternatively, they urge that the court of appeals correctly resolved the issue.

We conclude that we have jurisdiction to clarify the issue and that section 74.251(a) controls. Thus, we affirm the court of appeals' judgment.

II. Jurisdiction

This Court has jurisdiction over interlocutory appeals if the justices of the court of appeals disagree on a material question of law or if the court of appeals' decision conflicts with a prior decision of this Court or another court of appeals. Tex. Gov't Code § 22.225(c); In re H.V., 252 S.W.3d 319, 324 (Tex.2008). Decisions conflict “when there is inconsistency in the [ ] respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.” Tex. Gov't Code § 22.225(e).

In Moreno v. Palomino–Hernandez, 269 S.W.3d 236 (Tex.App.-El Paso 2008, pet. denied), the El Paso Court of Appeals considered a health care liability suit in which Dr. Palomino–Hernandez was designated as a responsible third party and then named as a defendant by the plaintiffs. The underlying facts of the case are not entirely clear in the opinion, but Dr. Palomino–Hernandez had been named as a defendant and served with an expert report in a case filed in August 2003. Id. at 237–38. The plaintiffs nonsuited that case and in April 2005, filed the suit out of which the appeal arose, apparently based on the same injuries as the 2003 suit. Id. at 238. They did not name Dr. Palomino–Hernandez as a defendant. Id. The trial court entered a scheduling order in January 2006 that stated the deadline for joining additional parties had passed. On January 30, 2006, a defendant filed a motion for leave to designate Dr. Palomino–Hernandez as a responsible third party, and the trial court granted the motion on February 22. Id. On March 21, the plaintiff filed an amended petition naming Dr. Palamino–Hernandez as a defendant. Id. Dr. Palamino–Hernandez filed a motion to dismiss, urging that the plaintiffs neither timely joined him nor timely served an expert report. Id. The trial court granted the motion to dismiss. Id.

The court of appeals held that an expert report had been timely served. Id. at 242. It also held that the trial court abused its discretion by allowing the defendant to designate a responsible third party and yet refusing to allow the plaintiffs' timely joinder of that party pursuant to section 33.004(e). Id. at 243. Although the court of appeals did not directly address the relationship between section 33.004(e) and section 74.251(a), it indicated that section 33.004(e) effectively provided an unqualified sixty-day period for joinder of a responsible third party beginning with the date the third party was designated. See id. at 243 & n. 6.

The ostensible effect of Moreno and the court of appeals' decision in this case are not in accord regarding whether section 33.004(e) effectively establishes a new sixty-day window in which a plaintiff can sue a defendant even if the limitations period in section 74.251(a) has run. We have jurisdiction to clarify the issue “to remove unnecessary uncertainty in the law.” Tex. Gov't Code § 22.225(e). We need not address Molinet's argument that the concurrence in the court of appeals was sufficient to give this Court jurisdiction.

III. Analysis
A. Standard of Review

We review issues of statutory construction de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). Our primary objective in construing statutes is to give effect to the Legislature's intent. Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009). The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.2008).

B. The Statutory Provisions

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 § 33.004(e). However, section 74.251 provides:

(a) 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....

(b) A claimant must bring a health care liability claim not later than 10...

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