Billy Ray McDaniels v. Bernhard T. Mittemeyer, M.D., C. Coleman Brown, M.D., University Medical Center Board of Directors, David Allison, CEO, James P. Courtney, CEO, and Carol Cloud, RN

NO. 07-03-0234-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH , 2004
______________________________

BILLY RAY MCDANIELS,

Appellant

v.

BERNHARD T. MITTEMEYER, M.D., C. COLEMAN BROWN,
M.D., and UNIVERSITY MEDICAL CENTER BOARD OF DIRECTORS,
DAVID ALLISON, JAMES P. COURTNEY, AND CAROL CLOUD,

Appellees
_________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-520,136; HON. ANDREW KUPPER, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

Billy Ray McDaniels appeals from final summary judgments decreeing that he take

nothing, in his medical malpractice suit, against Bernhard T. Mittemeyer, M.D., and the

University Medical Center Board of Directors David Allison, James P. Courtney, and Carol

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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. T E X . G O V ’T
C O D E A N N . §75.002 (a)(1) (V erno n Supp . 2004).
Cloud, R.N. (collectively referred to as UMC).2 His sole issue concerns whether the trial

court properly granted summary judgment on the basis of limitations. We affirm the

judgment of the trial court.

Background 3

The record before us reveals that McDaniels, an inmate in the Institutional Division

of the Department of Criminal Justice, underwent surgery on May 16, 2000, for the removal

of a tumor on his kidney. The procedure, done at the University Medical Center, was

performed by doctors Mittemeyer and Brown. And, rather than simply remove the tumor,

the two surgeons purportedly removed his entire kidney and adrenal gland without his prior

consent. This allegedly constituted medical malpractice.

McDaniels sent to Mittemeyer, Brown, and UMC notice of his claim on or by May 13,

2002. Subsequently, according to McDaniels, suit was filed on August 12, 2002. After

joining issue, UMC and Mittemeyer moved (in separate motions) for summary judgment,

contending that the litigation was not commenced within the applicable statute of

limitations. The trial court granted the motions and denied McDaniels recovery.

Statute of Limitations

It is well settled that an individual has two years to file suit alleging a chose-in-action

sounding in medical malpractice. Chilkewitz v. Hyson, 22 S.W.3d 825, 829-30 (Tex. 1999).

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In addition to the parties we named, McD aniels also sue d C. C olem an B rown , M.D. How ever,
citation was never serve d up on h im, as determ ined by the trial court. Nor d id Bro wn file an answer.
Furthermore, nothing of record indicates that McDa niels continued to attempt or expected to obtain service
upon Brown. Under these circumstances, and since McDaniels was denied recovery against all other
defendants, we treat the failure to serve Brown as a non-suit and deem the sum ma ry judg me nts fina l. See
Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 , 232 (Tex. 1962) (so holding under like
circums tances).

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We de scribe the facts and background of the case in a light most favorable to McD aniels.

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The period commences on the date the breach or tort occurred or from the date the

medical or health care treatment underlying the claim was completed. Id. And, it is

absolute, meaning that any delay in the discovery of the purported misfeasance does not

postpone the date on which the two year period begins to run. Id. However, if timely notice

of the claim is afforded the defendants, the two years is extended by 75 days. TEX . REV .

CIV . STAT. ANN . art. 4590i §4.01(c) (Vernon Supp. 2003).

Here, it is undisputed that the breach, act or treatment complained of happened on

May 16, 2000. Assuming notice of the claim was timely afforded UMC and Mittemeyer,

limitations began to run on May 17, 2000, and expired two years and 75 days later, i.e. July

30, 2002. McDaniels, however, did not file suit until August 12, 2002, or approximately 13

days after the period had lapsed.4 Thus, suit was untimely as a matter of law.

To the extent that McDaniels also avers that summary judgment could not be

awarded to Mittemeyer on grounds not expressed in his motion, we note the following. In

his motion, Mittemeyer stated that he “joins in the Motion for Summary Judgment filed by”

UMC. So too did he expressly “adopt[] all briefing and facts set out in” the same motion.

Furthermore, in UMC’s motion, the movants expressly alleged that “Plaintiff’s claim [was],

as a matter of law, barred by the statute of limitations contained in Tex. Rev. Civ. Stat.

Ann., Art. 4590i, §10.01.” While the better practice may have been to expressly urge

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Though McDaniels suggests that Saturdays, Sundays and holidays are excluded from the
calculation, he cites us to no authority suppo rting tha t proposition . Indee d, such a mo de o f calcu lating
deadlines goes unmentioned in those provisions of the Texas Government Code addressing the computation
of time. See T E X . G O V ’T C O D E A N N . § 311.014 (Vernon 1998). Nor could one even say that Rule 4 of the
Texas Rules of C ivil Proc edu re au thorize s the exclusion of we eke nds and holida ys. See T E X . R. C IV . P. 4
(stating that Saturdays, Sundays, and legal holidays shall not be counted for any purpose in any time period
of “five days or less” in these rules). Thus, we reject McDaniels’ mode of calculating the relevant time period.

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limitations as a ground for summary judgment, by joining in the motion of UMC and by

adopting its briefing and factual allegations, Mittemeyer effectively incorporated into his own

motion the ground that suit was barred by limitations. See Chapman v. King Ranch, Inc.,

41 S.W.3d 693, 699-700 (Tex. App.–Corpus Christi 2001), rev’d on other grounds, 118

S.W.3d 742 (Tex. 2003) (stating that grounds for summary judgment appearing in one

defendant’s motion may be adopted and incorporated by reference into another defendant’s

motion).

For the reasons stated above, we overrule McDaniels’ issue and affirm the final

summary judgments.

Brian Quinn
Justice

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