David Keeton and Peggy Sue Keeton v. Arnulfo T. Carrasco, M.D. and Gerald Q. Greenfield, M.D. and Gerald Q. Greenfield, M.D., P.A.

DISSENTING OPINION

No. 04-99-00582-CV

David KEETON and Peggy Sue Keeton,

Appellants

v.

Arnulfo T. CARRASCO, M.D., Gerald Q. Greenfield, M.D.,

and Gerald Q. Greenfield, M.D., PA.,

Appellees

From the 131st Judicial District Court, Bexar County, Texas

Trial Court No. 99-CI-10629, 99-CI-12426, 98-CI-14157

Honorable Carlos C. Cadena, Judge Presiding ⁽¹⁾

Opinion by: Phil Hardberger, Chief Justice

Dissenting Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 28, 2001

AFFIRMED

I respectfully dissent.

Carrasco

"A plaintiff's duty to use diligence continues from the date suit is filed until the date the defendant is served." Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 50 (Tex. App.-San Antonio 1999, pet. denied). A lack of diligence is established as a matter of law if no valid excuse for the lack of service is offered. Id. In the context of a summary judgment, the burden rests upon the movant to prove a lack of diligence. Id.

Here, Schorn's affidavit arguably establishes the exercise of diligence from September 30 - the date the first citation was issued - through December 14 - the date Schorn states he believed Carrasco's answer was due but not filed. ⁽²⁾ Schorn then states he caused a second citation to be issued on January 5, 1999, and this citation was served on Carrasco on February 2, 1999. However, Schorn provides no excuse for the delay between December 14, 1998 and January 5, 1999, the date the second citation was issued; nor does he explain the delay between January 5 and January 27, 1999, the date a third citation was issued or between January 27 and February 2, the date of service. Under these circumstances, the failure to exercise diligence is established as a matter of law. See id. at 51. Accordingly, I would affirm the summary judgment in favor of Carrasco.

Greenfield

Greenspan's only testimony concerning causation was as follows:

This breach of the relevant standard of care caused Mr. Keeton tremendous pain, allowed Mr. Keeton's post-operative infection to worsen, allowed Mr. Keeton's fingers to further deteriorate, and ultimately was a cause of the loss of his index finger.

Greenspan thus testified only as to cause in fact. Because his affidavit fails to raise a material issue of fact as to the foreseeability component of causation, I would affirm the summary judgment in Greenfield's favor. See Ortiz v. Santa Rosa Medical Center, 702 S.W.2d 701, 705 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.).

Conclusion

Because the trial court correctly granted summary judgment in favor of Carrasco and Greenfield, I would affirm the judgment.

Sarah B. Duncan, Justice

Publish

1. Visiting Judges Carlos C. Cadena and Peter Michael Curry signed the summary judgment orders.

2. In fact, if Carrasco had been served on October 23, 1998, his answer would have been due November 16, 1998. Tex. R. Civ. P. 99(b).