Opinion
No. 05-04-01845-CV
Opinion filed October 28, 2005.
On Appeal from the 191st Judicial, District Court, Dallas County, Texas Trial Court Cause No. 03-02458-J.
Affirm.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
Salvador Carranza appeals the take-nothing summary judgment in his dental malpractice case against Nasir Ahmad, D.D.S. In one issue, Carranza complains that, because Ahmad had notice and knowledge of the suit, the trial court erred in granting the motion for summary judgment on the grounds that the statute of limitations had run. The facts are known to the parties so we do not recite them in any detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We affirm.
This case was brought under article 4590i of the Texas Revised Civil Statutes, the Medical Liability and Insurance Improvement Act (MLIIA), which contains, in section 10.01, a two-year statute of limitations on health care liability claims. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (repealed 2003). Without identifying the date of commencement of the statute of limitations, calculating the time expired, or referring to the record, Carranza admits that suit against Ahmad was filed one day after the expiration of the statute of limitations.
See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2039, 2052, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex.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 (Vernon 2005) Carranza filed this lawsuit before the repeal of article 4590i. Therefore this case is governed by the provisions of article 4590i in effect at that time.
In his sole issue, Carranza asserts that because Ahmad was aware of the possibility of suit and had made himself available for depositions, strict enforcement of the statute of limitations would not "serve the ends of justice." In support of his issue, Carranza cites a number of cases which he argues stand for the proposition that a plaintiff may file suit outside of the limitations period and proceed with the suit as long as the defendant is "cognizant of the facts, and was not misled or placed at a disadvantage in obtaining relevant facts to defend the suit." See Continental Southern Lines, Inc. v. Hiland, 528 S.W.2d 828, 831 (Tex. 1975); see also Walls v. Travis County, 958 S.W.2d 944 (Tex.App.-Austin 1998, pet. denied); Palmer v. Enserch, 728 S.W.2d 431 (Tex.App.-Austin 1987, writ ref'd n.r.e.); Castro v. Harris County, 663 S.W.2d 502 (Tex.App.-Houston [1st Dist.] 1983, writ dism'd); Barnett v. Houston Natural Gas Co., 617 S.W.2d 305 (Tex.Civ.App.-El Paso 1981, writ ref'd n.r.e.). However, these cases, cited by Carranza, were not brought under the MLIIA and involved factual scenarios in which the plaintiffs timely filed the original petition but named the wrong entity and later corrected the error after the limitations period had expired. These cases are not authority for the proposition that Carranza should be allowed to go forward with his suit for dental malpractice even though the original petition was filed beyond the expiration of the statute of limitations.
Instead, this case is controlled by Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997), wherein the supreme court stated that, "We have repeatedly held that section 10.01 establishes an absolute two-year statute of limitations for health care liability claims. . . ." Accordingly, we resolve Carranza's sole issue against him.
We affirm the trial court's judgment.