UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-10204
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CHRISTINA MAE ROMAINE
f/k/a CHRISTINA MAE MUNDY,
Plaintiff-Appellant,
versus
CHARTER MEDICAL CORPORATION
and CHARTER-PROVO SCHOOL, INC.,
d/b/a PROVO CANYON SCHOOL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
(4:95-CV-542-A)
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April 30, 1997
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Appellant Romaine sued Charter Medical Corporation and
Charter-Provo School, Inc. d/b/a Provo Canyon School in June, 1995,
for claims arising from her treatment there between June, 1988 and
June, 1989. The case was removed to federal court, and the
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
district court dismissed because the Texas two-year statute of
limitations had run. In so doing, the court rejected Romaine’s
assertion that limitations has been tolled by one or more of the
following events: (1) her legal disability by reason of unsound
mind, Texas Civ. P. and Rem. Code § 16.001; (2) the applicability
of the discovery rule; and (3) fraudulent concealment or duress
perpetrated by defendants. The court also overruled Romaine’s
contention that application of the Texas two-year statute to her
claims is a violation of the Open Courts provision of the Texas
Constitution. On motion for reconsideration, the court refused to
consider two affidavits offered by Romaine, considered one
additional affidavit and then determined that the motion and new
affidavit failed to raise a genuine issue of material fact.
Romaine timely appealed.
In general, we endorse the district court’s reasons for
enforcing the statute of limitations defense. Contrary to
Romaine’s view, she bore the burden under Texas law to present
evidence creating a genuine issue of fact as to all elements of at
least one of her tolling theories. See Weaver v. Witt, 561 S.W.2d
792, 794 n.2 (Tex. 1977). She failed to carry that burden.
First, Texas law is not so elastic as to permit a finding
that Romaine was of “unsound mind” throughout the period from 1989
to 1995 when she finally filed suit. The tolling provision is
designed to protect persons without access to the courts and those
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who are unable to participate in, control, or understand the
progression and disposition of their lawsuit. Ruiz v. Conoco, 868
S.W.2d 752, 755 (Tex. 1993). See also, Helton v. Clements, 832
F.2d 332 (5th Cir. 1987). While Romaine’s mental problems have
interfered with her personal life and occasionally required
hospitalization, evidence shows that she was able to discontinue
her medication during pregnancy, that she consulted with counsel in
her divorce proceedings and that she sought counsel more than a
year before filing suit against Charter.
Second, the discovery rule is not convincingly raised by
Romaine, because her affidavit testimony does not explain why she
was unable with the exercise of due diligence to discover the
nature of her injuries allegedly caused by the school until within
two years of filing suit. Her inconsistent, unclear statements do
not raise a genuine issue of material fact on this issue. Moreno
v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).
Third, the duress and fraudulent concealment grounds for
tolling the statute of limitations are unavailing. Romaine does
not explain how Charter could have exercised duress against her for
the six years after she left the school. Further, fraudulent
concealment only applies where a defendant is under a duty to make
disclosure but fraudulently conceals the existence of a cause of
action from the party to whom it belongs. Borderlon v. Peck, 661
S.W.2d 907, 908 (Tex. 1993). Under Texas law, a doctor’s duty to
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make disclosures to his patient ends with the termination of the
physician-patient relationship. Thames v. Dennizan, 821 S.W.2d
380, 384 (Tex. Ct. App. 1991). In the absence of evidence to the
contrary, Charter’s obligation to disclose and ability to coerce
effectively ended with the end of Romaine’s hospitalization in
1989.
Fourth, the claim based on the Texas Constitutional
provision guaranteeing “open courts” is meritless, as the Texas
limitations doctrines assure a reasonable opportunity of access to
the courts. Rose v. Doctors Hospital, 801 S.W.2d 841, 843 (Tex.
1990); Nelson v. Drusen, 678 S.W.2d 918, 923 (Tex. 1984).
Finally, the district court did not abuse its discretion
either in refusing to consider Romaine’s and her doctor’s
supplemental affidavits filed with her motion for rehearing or in
denying the motion. Lavespere v. Niagra Machine & Tool Works,
Inc., 919 F.2d 167, 173-74 (5th Cir. 1990), cert. denied, 114 S.Ct.
171 (1993).
AFFIRMED.
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