Estate of Magness ex rel. Magness v. Hauser

DISSENTING OPINION FROM DENIAL OF MOTION FOR REHEARING

MIRABAL, Justice,

dissenting.

I would grant plaintiffs’ motion for rehearing, and I would reverse and remand, in part.

I agree with the majority’s conclusion that plaintiffs’ cause of action against Dr. Hauser and Memorial Neurological Association accrued on July 28,1989, the date of the hanging. However, I disagree with the holding that the time for filing suit against defendants expired Friday, October 11, 1991. In my opinion, the statute of limitations expired on Saturday, October 12, 1991, resulting in a timely filing of plaintiffs’ suit on Monday, October 14,1991.

Our difference of opinion involves the effect of plaintiffs’ June 25, 1991, notice of claim letter on the calculation of the deadline for plaintiffs to file suit.1

Section 4.01(c) of the Medical Liability Act states that “[njotice given as provided in this Act shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice_” Tex. Rev.Civ.StatAnn. art. 4590i, § 4.01(c) (Vernon Pamph.1995) (emphasis added). Defendants agree that plaintiffs complied with the statutory notice provision, and admit the 4590i two-year limitations period was tolled by the June 25, 1991, notice of claim letter.

A timely notice of claim letter stops the running of the statute of limitations for the specified number of days, at the end of which the statute resumes running. Rowntree v. Hunsucker, 833 S.W.2d 103, 104-05, n. 2 (Tex.1992); Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162, 165-66 (Tex.App.—Houston [1st Dist.] 1983, no writ). In the present case, the statute of limitations stopped running on June 25, 1991, and was tolled for 75 days following June 25, i.e., through September 8, 1991.2 If plaintiffs had not sent the statutory notice letter, the deadline for filing suit would have been July 28, 1991, meaning, counting June 25, 1991, *9plaintiffs had 34 days left to file suit.3 Therefore, when the statute began running again on September 9, 1991, plaintiffs had 34 days in which to file suit, meaning the statute of limitations ran out on October 12, 1991. However, because October 12 was a Saturday, the deadline for filing suit was Monday, October 14, 1991. Tex.Civ.Prac. & Rem.Code Ann. § 16.072 (Vernon’s 1986); (Tex.R.Civ.P. 4).

Plaintiffs filed their suit on Monday, October 14, 1991, and therefore their action was timely filed. Accordingly, I would hold that the trial court erred in granting summary judgment on the whole case in favor of the defendants based on the running of the statute of limitations.

I would sustain point of error one, in part. For reasons explained below, I would overrule plaintiffs’ point of error one to the extent it complains of the summary judgment against one of the plaintiffs, Steven M. Magness.

In point of error three, plaintiffs assert that even though plaintiff Steven M. Magness did not join the suit as a plaintiff until May 5, 1992, the statute of limitations does not bar his claims.

On October 14, 1991, suit was filed by Clifford Magness (decedent’s husband), individually and on behalf of the estate, and Katherine Paulson (decedent’s adult daughter). The original petition did not assert a claim on behalf of Steven Magness (decedent’s adult son) for his individual damages. Steven did not file suit until he joined in plaintiffs’ First Amended Petition filed May 5,1992.

Plaintiffs point out that Steven’s claims in the amended petition did not allege a wholly new, distinct, or different transaction or occurrence, but rather his claims were based on the identical occurrence that the other plaintiffs had sued about. Accordingly, it is their position that the amended pleading “relates back” to the original filing and is not subject to a limitations bar, relying on Tex. Civ.Prac. & Rem.Code Ann. § 16.068 (Vernon 1986). I disagree.

Steven was a new party plaintiff, asserting a new claim for damages on his own behalf; his claim, first asserted more than six months after the statute of limitations had run, was clearly time barred. See Goode v. Shoukfeh, 863 S.W.2d 547, 550-51 (Tex.App.—Amarillo 1993, no writ); Bradley v. Etessam, 703 S.W.2d 237, 242 (Tex.App.—Dallas 1985, writ ref'd n.r.e.).

I would overrule point of error three.

I would affirm the judgment against plaintiff Steven Michael Magness, and I would reverse the remainder of the judgment and remand to the trial court.

. X note that the Texas Supreme Court has recently confirmed that survival and wrongful death claims based on allegations of medical negligence are subject to the time limitations of the Medical Liability Act, Tex.Rev.Civ.Stat.Ann. art. 4590i (Vernon Pamph.1995). Bala v. Maxwell, 909 S.W.2d 889, 890 (1995) (per curiam).

. This means the statute of limitations was actually tolled for 76 days: the date of the notice letter counts as one day, and the tolling contin*9ues for 75 days after the date of the notice letter, by the statute.

. Two years from the suicide attempt of July 28, 1989, is July 28, 1991, which falls on a Sunday. It could be argued that because the last day for filing suit would therefore have been Monday, July 29, 1991, plaintiffs would have had 35 days left to file suit, counting June 25 through July 29, 1991. However, for purposes of these calculations, I use the 34 day figure, counting June 25 through July 28, 1991.