Some Appeals from Cases in Judge Coselli's Court
Sheppard v. Travelers Lloyds of Texas Ins. Co. (Tex.App.- Houston [14th Dist.] Oct. 15, 2009)(Boyce)
(summary judgment for insurer on breach of contract and violations of the Texas Insurance Code claims
affirmed)(breach of contract and statutory insurance code claim denial cause of action time-barred, accrual
date, contractual shortening of limitations period)
AFFIRMED: Opinion by Justice Boyce
Before Justices Anderson and Boyce
14-08-00248-CV Anthony Sheppard v. Travelers Lloyds of Texas Insurance Company
Appeal from 125th District Court of Harris County
Trial Court Judge: John A. Coselli
Samson v. Manley (Tex.App.- Houston [14th Dist.] Oct. 6, 2009)(Anderson)
(client' suit against his lawyer and opposing counsel, summary judgment on multiple causes of action
affirmed, underlying suit: workers compensation suit)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Guzman and Boyce
14-07-01085-CV Fred Samson v. James Manley and Don Jackson
Appeal from 125th District Court of Harris County
Trial Court Judge: John A. Coselli
Vice v. Kasprzak (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Keyes)
(interlocutory appeal, defamation suit)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
Before Justices Jennings, Keyes and Higley
01-08-00168-CV Patricia Vice and Kathie Slotter v. Daniel J. Kasprzak, Patricia C. Kasprzak and Katherine
D. Kasprzak
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st Dist] Aug. 20, 2009)(Bland)
(work site injury, premises vs. direct liability, right to control issue as predicate for liability for worker's injury,
jury instructions)
AFFIRM TC JUDGMENT: Opinion by Justice Jane Bland
Before Justices Jennings, Hanks and Bland
01-07-01106-CV Kenneth W. Moss and Michelle Moss v. Waste Management National Services, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Dissent by Justice Jennings in Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st
Dist] Aug. 20, 2009)(Jennings) See --> other Houston appellate cases with dissent (or concurring opinion)
McShaffry v. Amegy Bank N.A. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Suppl. op. by Bland)
(settlement reached after opinion issued, majority does not withdraw opinion, Justice Sharp would)
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Taft, Bland and Sharp
01-08-00493-CV Mark S. McShaffry v. Amegy Bank National Association
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
McShaffry v. Amegy Bank N.A. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Bland)
(promissory note suit, extinguishment by guarantor)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Justices Taft, Bland and Sharp
01-08-00493-CV Mark S. McShaffry v. Amegy Bank National Association
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Somers v. Crane (Tex.App.- Houston [1st Dist.] Mar. 26, 2009)(Jennings)
(shareholder derivative suit, breach of fiduciary duty, standing)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Bland
01-07-00754-CV Raymond Somers, Derivatively on behalf of EGL, Inc., and Vivian Golombuski and
Platinum PVA Fund, on behalf of themselves and all others similarly situated. v. James R. Crane, Milton
Carroll, James C. Flagg, Frank J. Hevrdejs, Paul W. Hobby, Michael K. Jhin, Neil E. Kelley, Sherman
Wolff, Centerbridge Partners, L.P., The Woodbridge Company Limited and nominal defendant EGL,
Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Somers v. Crane (Tex.App.- Houston [1st Dist.] Mar. 26, 2009)(Jennings)
(plea to the jurisdiction on the ground that Somers lacked standing to sue derivatively, special exceptions,
motion to dismiss)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Bland
01-08-00119-CV Raymond Somers, derivatively on behalf of EGL, Inc. v. James R. Crane, et al
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Starflight 50, LLC v. HCAD (Tex.App.- Houston [1st Dist.] Mar. 26, 2009)(Bland)
(ad valorem tax protest, interstate allocation, temporary relocation)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland
01-08-00234-CV Starflight 50, LLC v. Harris County Appraisal District and Harris County Appraisal Review
Board
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Dissenting Opinion by Justice Jennings
In re Noble and Slack Associates (Tex.App.- Houston [1st Dist.] Aug. 29, 2008)
(order compelling arbitrations, mandamus denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Taft, Jennings and Bland
01-08-00620-CV In Re Noble And Slack Associates, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Travelers Indemnity Co. v. Texas Municipal League (Tex.App.- Houston [1st Dist.] July 17, 2008)(Keyes)
(arbitration cases) (no express agreement to arbitrate, motion to compel arbitration denied)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-08-00062-CV Travelers Indemnity Company v. Texas Municipal League Joint Self-Insurance Fund,
for itself and as Subrogee of the City of Bunker Hill Village
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Ambulatory Infusion Therapy Specialists, Inc. v. North American Administrators, Inc. (Tex.App.- Houston [1st
Dist.] July 10, 2008)(Keyes) (medical coverage law, health care coverage, claim denial, ERISA preemption,
breach of contract, promissory estoppel, summary judgment based on limitations, accrual of cause of
action)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
01-06-00756-CV Ambulatory Infusion Therapy Specialists, Inc. v. North American Administrators, Inc. d/b/a
North American Health Plans and Osmose, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Hofstatter v. General Interior Construction, Inc. (Tex.App.- Houston [14th Dist.] July 3, 2008)(Hedges)
(cases with dissents and/or concurrences)(accelerated appeal, special appearance denied, personal
jurisdiction, individual liability of corporate officer based on Texas Trust Fund Act )
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Anderson and Frost
14-07-00270-CV Dan Kelly and Laura Hofstatter v. General Interior Construction, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: John A. Coselli
Dissenting Opinion by Justice Frost
Karen McCright v. Rodriguez (Tex.App.- Houston [1st Dist.] June 26, 2008)(Jennings)
(real estate law, property dispute, foreclosure, deed)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Chief Justice Radack, Justices Jennings and Bland)
01-07-00480-CV Karen McCright v. Josh Rodriguez and Emmett Sterling Huff
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli
Brocail v. Detroit Tigers, Inc. (Tex.App.- Houston [14th Dist.] Apr. 3, 2008)(Guzman)
(baseball injury, Labor-Management Relations Act)
AFFIRMED: Opinion by Justice Guzman
14-06-00557-CV Douglas K. Brocail v. Detroit Tigers, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: John A. Coselli
Exxon Mobil Corp. v. Hines (Tex.App. - Houston [14th Dist.] Feb. 26, 2008)(Hedges)
(employment law, age discrimination, defamation)
AFFIRMED AS MODIFIED: Opinion by Chief Justice Hedges
Before Price, Chief Justice Hedges, Justice Seymore
14-06-00745-CV Exxon Mobil Corporation v. Dwight Hines and Shannon Everett
Appeal from 125th District Court of Harris County (Judge John Coselli)
Vanderbeek v. San Jacinto Methodist Hospital (Tex.App- Houston [14th Dist.] Jan 31, 2008)(Frost)
(workplace injury, premises owner liability)
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Frost and Guzman
14-06-00783-CV Gary Vanderbeek v. San Jacinto Methodist Hospital
Appeal from 125th District Court of Harris County (Judge John A Coselli)
Walters v. Cleveland Regional Med. Ctr. (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Hanks)
(HCLC,medical malpractice, limitations defense, discovery of injury, sponge left in body, res ipsa loquitur)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-06-01068-CV Tangie Walters v. Cleveland Regional Medical Center, et al
Appeal from 125th District Court of Harris County (Judge John Coselli)
Wilson v. Aames Capital Corp. (Tex.App.- Houston [14th Dist.] Oct. 23, 2007)(Edelman)
(real estate law, judicial foreclosure, home)
AFFIRMED: Opinion by Justice Edelman
Before Justices Brock Yates, Edelman and Seymore
14-06-00524-CV Vera F. Wilson v. Aames Capital Corporation
Appeal from 125th District Court of Harris County (Hon. John A. Coselli)
Page v. Hulse (Tex.App.- Houston [14th Dist.] Jul. 26, 2007)(Hedges)(breach of lease)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Edelman and Seymore
14-06-00731-CV Temple B. Page v. Maureen Lorraine Hulse
Appeal from 125th District Court of Harris County (Judge John A. Coselli)
Sondock v. HCAD (Tex.App.- Houston [14th Dist.] May 31, 2007)(Hedges)
(property tax, HCAD appeal, unequal assessment)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00676-CV Deborah S. Sondock, as the Property Owners and the Property Owners v. Harris County
Appraisal District
Appeal from 125th District Court of Harris County (Hon. John A. Coselli)
Liu v CiCi Enterprises LP (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Opinion by Justice Guzman) (venue,
motion to transfer venue)
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Anderson, Hudson and Guzman
14-05-00827-CV Frank M. K. Liu and Edward R. Perry, Jr., Individually and on Behalf of IV Pizza, LLC v.
CiCi Enterprises, LP, Successor by Conversion to CiCi Enterprises, Inc.
Appeal from 125th District Court of Harris County (Judge John A. Coselli)
Dissent in Nabelek v. District Attorney (Tex.App.- Houston [14th Dist.] Nov. 30, 2006)(Dissenting opinion on
rehearing by Frost) (taking issue with majority's frivolous suit finding)
DISSENTING: Justice Frost
Before Justices Anderson, Hudson and Frost
14-03-00965-CV Ivo Nabelek v. District Attorney of Harris County, Texas
Appeal from 125th District Court of Harris County (Hon. John Coselli)
Even if the statute of limitations barred the claims Nabelek asserts in his petition, this would not mean
Nabelek's claims have no arguable basis in law, unless Nabelek's petition asserted facts showing as a
matter of law these claims are time-barred. Nabelek's petition does not assert such facts. The majority's
analysis on this point is ill-reasoned.
This court should grant rehearing, reverse the trial court's order dismissing Nabelek's claims as frivolous
under section 14.003(a)(2) of the Texas Civil Practice and Remedies Code, and remand for further
proceedings.
HIGHLIGHTED OPINION(S):
Med-Mal Reform in Action: Sponge left in patient's body, but medical malpractice suit
dismissed
Walters v. Cleveland Regional Med. Ctr. (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Hanks)
(HCLC, limitations defense, discovery of injury, sponge left in body)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-06-01068-CV Tangie Walters v. Cleveland Regional Medical Center, et al
Appeal from 125th District Court of Harris County (Judge John Coselli)
O P I N I O N
Tangie Walters, appellant, appeals the trial court’s grant of Cleveland Regional Medical Center and Shirley Kiefer’s
(collectively “Cleveland”) and Keith Spooner, M.D.’s motions for summary judgment. Walters argues that she alleged and
offered evidence that the medical malpractice statute of limitations cut off her claim before she knew or reasonably should
have known of her injury, in contravention of the open courts guarantee of the Texas Constitution. Tex. Const. art. I, § 13. She
also asserts that Cleveland and Spooner failed to establish conclusively that there was no genuine issue of material fact
that she should have discovered her injury and filed suit within the limitations period. We affirm.
Background
On December 1, 1995, Keith Spooner, M.D. delivered Tangie Walters’s fourth child at Cleveland Regional Medical Center.
The same day, Spooner performed a bilateral tubal ligation on Walters. Walters was taken to the recovery room in stable
condition, and all surgical sponges were accounted for according to the sponge count performed by nurse Shirley Kiefer.
After the surgery, Walters began suffering chronic abdominal pain, which progressively worsened over the next 10 years.
The pain was more intense during her menstrual cycle, with bowel movements, and during certain physical activities. She
also suffered various ailments during this time, including bladder infections, frequent urination, vaginal bleeding, lymph
node infections, sinus problems, pneumonia-like symptoms, insomnia, and fatigue. Beginning in March 1998, more than
two years after the surgery, she was treated by primary care physicians, who performed blood and urine tests, and
prescribed antibiotics, antidepressants, and sleep medications.
In April 2005, almost 10 years after the surgery, Walters went to Mary Garnepudi, M.D., a gynecologist. While performing a
routine exam, Garnepudi noticed something unusual and decided to perform a laparoscopy, which revealed a bulky uterus,
multiple pelvic adhesions, and pelvic congestion. Garnepudi referred Walters to Tracy Pipkin, M.D. Due to Walters’s
continued pain, Pipkin conducted an exploratory laparotomy and hysterectomy. Pipkin noticed a mass connected to the
small bowel and brought in another surgeon for an intraopertive consultation. The mass was removed and was determined
to be a surgical sponge encapsulated in fibrous tissue. Pipkin told Walters that the sponge had been there for awhile
because “a lot of stuff” had grown around it.
Walters testified that she believes that her physical problems—the weakening of her immune system and her subsequent
surgeries, including the hysterectomy— resulted from the retained sponge. She brought a medical negligence suit against
Spooner and Cleveland Regional Medical Center on August 23, 2005, and later amended her petition to include Kiefer as a
defendant. All defendants filed traditional motions for summary judgment, asserting that Walters’s claims were barred by
the two-year statute of limitations applicable to medical malpractice claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251
(a) (Vernon 2005). Walters responded by asserting that the statute of limitations violated her open courts guarantee under
the Texas Constitution. Tex. Const. art. I, § 13. The trial court granted both motions for summary judgment against Walters.
Walters now appeals
Open Courts Guarantee
In two issues, Walters argues that the open courts guarantee saves her claim from being barred by the two-year medical
malpractice statute of limitations. In her first issue, Walters claims that she alleged and offered some evidence that the
application of the two-year limitations period cut off her claim before she knew or should have known of its existence, in
contravention of the open courts guarantee. In her second issue, Walters asserts that Cleveland and Spooner failed to
establish conclusively that there was no genuine issue of material fact that she should have discovered the nature of her
injury and claim within two years of her tubal ligation.
Standard of Review
We review the granting of summary judgment de novo. See Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). When a defendant moves for traditional summary judgment, it must either (1) disprove at least one
element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of its affirmative
defense, thereby defeating the plaintiff’s cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). The court takes
as true evidence favorable to the non-movant when deciding whether there is a disputed, material fact issue precluding
summary judgment, Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985), and all doubts about the existence of
a genuine issue of a material fact are resolved against the movant. Cate, 790 S.W.2d at 562. If the movant’s summary
judgment motion and proof facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to
raise a material fact issue sufficient to defeat summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678 (Tex. 1979). A summary judgment must be affirmed if any of the theories advanced by the movant is meritorious.
Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).
Analysis
In her first issue, Walters argues that she alleged and offered some evidence that application of the two-year statute of
limitations cut off her claim before she knew or should have known of its existence. Walters is essentially arguing that she
met her burden of establishing an open courts violation that would allow her to file her claim beyond the applicable statute of
limitations.
“[N]o 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.” Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a). Former Article 4590i, Section 10.01 of
the Texas Revised Civil Statutes
See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, repealedby Act of June 2, 2003, 78th
Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 864, 884 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.251).
was the predecessor to Subsection 74.251. Because the two-year limitations period described in Subsection 74.251(a) is
substantially the same as that described in former Section 10.01, we rely on precedent concerning Section 10.01 in
interpreting Subsection 74.251(a). Kallam v. Boyd, 232 S.W.3d 774, 776 n.1 (Tex. 2007) (recognizing that Subsection 74.251
is the current version of Section 10.01).
The two-year limitations period of Section 10.01 is absolute. See Diaz v. Westphal, 941 S.W.2d 96, 98 (Tex. 1997). However,
a plaintiff can save his claim barred by Section 10.01 if he can show that the claim was cut short in violation of the open
courts guarantee of the Texas Constitution.
“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have
remedy by due course of law.” Tex. Const. art. I, § 13.
See, e.g., Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985) (holding that the limitations period of Section 10.01violated the
plaintiff’s open courts guarantee). The open courts guarantee is based on the principle that “the Legislature has no power to
make a remedy by due course of law contingent on an impossible condition.” Morrison v. Chan, 699 S.W.2d 205, 207 (Tex.
1985). For a litigant to establish that the limitations period of 4590i violated his open courts guarantee, the litigant must:
first show a cognizable, common-law claim that article 4590i’s limitations provision restricts. Then, the litigant must show
the restriction is unreasonable or arbitrary when balanced against the statute’s purpose and basis. The limitations provision
in article 4590i section 10.01 does not violate the open courts guarantee if the plaintiff had a reasonable opportunity to
discover the alleged wrong and bring suit before the limitations period expired.
Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001) (citations omitted). Thus, the plaintiff has a burden to raise a fact issue
demonstrating that he did not have a reasonable opportunity to discover the alleged wrong before the limitations period
expired so that the open courts guarantee applies. Id. at 846–47.
The interpretation of “reasonable opportunity to discover the alleged wrong” is the source of the parties’ disagreement.
Walters argues that this phrase requires an inquiry of whether the plaintiff knew-or-should-have-known of her injury during
the limitations period, whereas Cleveland and Spooner contend that the provision applies only if it was impossible-or-
exceedingly-difficult for the plaintiff to have discovered the injury during this period. This divergence is understandable given
that the language used in applying the open courts guarantee to the two-year statute of limitations of Section 10.01 has been
inconsistent. See O’Reilly v. Wiseman, 107 S.W.3d 699, 702 (Tex. App.—Austin 2003, pet. denied) (“Language in appellate
opinions has made it confusing for both lower courts and litigants to know with certainty when the open-courts provision
applies so as to invalidate the limitation period.”). However, we agree with the Fort Worth court of appeals, which recognized
the test as being whether the plaintiff had a reasonable opportunity to discover the injury and file suit. Boyd v. Kallam, 152 S.
W.3d 670, 678–81 (Tex. App.—Fort Worth 2004), pet. denied improvidently granted, 232 S.W.3d 774 (Tex. 2007). Any other
variations of the test carry the same meaning. See id. at 678. A recent Texas Supreme Court decision is instructive on this
issue. In Yancy v. United Surgical Partners Intern., Inc., the Texas Supreme Court gave the following description of the open
courts guarantee: This guarantee differs from tolling provisions. Unlike the discovery rule, which defers accrual of a cause of
action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the claim, the
open courts provision merely gives litigants a reasonable time to discover their injuries and file suit. Because the open
courts guarantee does not toll limitations, courts must determine what constitutes a reasonable time for a claimant to
discover her injuries and file suit.236 S.W.3d 778, 784 (Tex. 2007) (emphasis added) (citations omitted). It is clear that
courts are to decide what constitutes a reasonable time or opportunity for the plaintiff to discover his injury and file suit.
Therefore, Walters had the burden of establishing a fact issue that she did not have reasonable time to discover her injuries
and file suit before the limitations period expired.
In her response to the defendants’ motions for summary judgment, Walters specifically pleaded an open courts guarantee
violation. Walters attached evidence showing that she had no medical training and that the operative report showed that all
sponges were accounted for following her tubal ligation. She also directed the trial court to evidence in the defendants’
motions for summary judgment, which showed that she had received post-surgical treatment from several doctors, none of
whom determined that a retained sponge was the source of her ailments. Walters, arguing that she should not be held to a
higher standard than the doctors who treated her, cited Del Rio v. Jinkins, which commented on the effects a doctor’s
misdiagnosis of the source of a plaintiff’s pain may have on the plaintiff’s ability to discover his injury. 730 S.W.2d 125, 128 n.
1 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.) (“[W]e believe that limitations cannot bar a plaintiff who reasonably
attempts to learn the cause of his injury but is prevented from doing so through no fault of his own.”). Walters also
supplemented her response by pointing out that, in his deposition, Spooner was asked whether he agreed that Walters
could have and should have known that her condition was related to her tubal ligation, to which he answered he did not.
The fact that Walters had no medical training does not show that she could not have reasonably discovered her injury within
the two-year limitations window; pain itself can be an indicator of injury. See id. (“The cases interpreting article 4590i, section
10.01 . . . seem to equate feelings of pain with discovery of the injury.”). Furthermore, Walters presented no evidence that
she saw the medical records that reflected the sponge count. As for Spooner’s statement that he does not agree that
Walters could have and should have known that her condition was related to her tubal ligation, we agree with Cleveland that
such testimony was taken out of the context of Spooner’s answer; Spooner disagreed with the statement because he was
not in a position to comment on Walters’s condition, having not evaluated her. Finally, Walters directed the trial court to her
medical records which show a variety of diagnoses from several physicians. However, the records reveal that her first doctor’
s visit was on March 16, 1998—more than two years after her December 1, 1995 tubal ligation. Thus, the evidence referred
to by Walters does not show that she relied on any doctor’s misdiagnosis in the two years following her surgery. We hold
that Walters failed to establish a fact issue that she did not have a reasonable opportunity to discover her injuries and file
suit before the limitations period expired, and, thus, did not meet her burden of establishing the applicability of the open
courts guarantee. See Yancy, 236 S.W.3d at 784.
Walters’s first issue is overruled. Because Walters’s first issue is dispositive of her appeal, we need not discuss her
second issue.
Conclusion
We affirm the trial court’s grant of Cleveland’s and Spooner’s motions for summary judgment.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Hanks, Higley.
| Hon. John Coselli [Former] Judge of the 125th District Court in Harris County, Texas Houston Courts & Cases |
| Republican Incumbent John Coselli vs. Democratic challenger Kyle Carter Jim Wrotenberry (link to campaign website) was the other candidate in the Democratic primary. Also see Harris County Democrats' candidate web page. |
The Houston Chronicle did not agree and
endorsed Carter, but published ad for the
incumbent.
endorsed Carter, but published ad for the
incumbent.
Billboards and big posters for name recognition.
A photo with family is on his website
A photo with family is on his website
For contact Information including telephone numbers and address for this Judge Coselli,
go to ---> official web page for the 125th District Court of Harris County (Honorable Kyle Carter)
2008 Judicial Elections: Coselli vs. Carter : Carter Defeats Coselli
|
2008 ELECTION OUTCOME: REP John Coselli 531,586 Votes - 48.31%
DEM Kyle Carter 568,845 Votes - 51.69% See all Harris County Election Results
DEM Kyle Carter 568,845 Votes - 51.69% See all Harris County Election Results
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