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Tarrant v. Scott

Court of Appeals of Texas, Fifth District, Dallas

January 15, 2020


          On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-12792

          Before Justices Myers, Carlyle, and Evans



         Appellants Alan Tarrant, Kristi Tarrant, and Bethany Kendrick asserted negligence and products liability claims against physician Stephen Courtney and three medical-related entities[1](collectively, appellees). Appellees filed separate motions for summary judgment based on the statute of limitations, which the trial court granted. In a single issue on appeal, appellants contend the trial court erred by granting summary judgment because they raised fact issues regarding their "limitations defense" of fraudulent concealment.

         We affirm in this memorandum opinion. Tex.R.App.P. 47.4.


         Dr. Courtney is an orthopedic surgeon. He owns an interest in Baylor Frisco, a physician-owned hospital where he performs surgery; a fifty-percent share of Eminent Spine, an orthopedic device manufacturer; and an entity[2] that contracts with MCM, which provides neuromonitoring services to patients undergoing orthopedic surgery. Mr. Tarrant and Ms. Kendrick are former patients of Dr. Courtney.[3]

         Dr. Courtney performed back surgery on Mr. Tarrant on October 29, 2010, December 13, 2010, and June 6, 2011, and on Ms. Kendrick on May 12, 2014. Those surgeries took place at Baylor Frisco and involved products and services of Eminent Spine and MCM. Both patients continued experiencing back pain and subsequently underwent additional surgery by other physicians within about a year after Dr. Courtney's surgeries.

         On September 28, 2016, appellants filed this lawsuit, contending Dr. Courtney performed both patients' surgeries improperly and, without their knowledge, used inappropriate products and services in order to increase his profits. Specifically, they asserted Dr. Courtney negligently implanted Eminent Spine's "Python" orthopedic "fusion device" during their surgeries and arranged for "completely unnecessary" neuromonitoring by MCM. The petition also stated "[t]o the extent that any defendant pleads the defense of statute of limitations, Plaintiffs assert the equitable doctrine of fraudulent concealment" because "Defendants fraudulent[ly] concealed from Plaintiffs their wrongdoing and Plaintiffs did not discover the wrongdoing or could not have discovered the wrongdoing with reasonable diligence until after the statute of limitations asserted by Defendants."[4]

         Appellees each filed separate traditional motions for summary judgment as to each patient, asserting that the applicable limitations period is, at most, two years and seventy-five days[5] and the fraudulent concealment doctrine does not apply. Thus, they contended, the Tarrants' claims were barred no later than August 20, 2013, and Ms. Kendrick's claims were barred by July 26, 2016. Following a hearing, the trial court allowed additional summary judgment briefing by both sides on the question of whether "the duty to disclose ceases to exist when the relationship ends." The trial court then signed separate orders granting each summary judgment motion without stating the basis for its rulings.

         The trial court's summary judgment

         We review the trial court's summary judgment de novo. Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007); Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 418 (Tex. App.-Dallas 2012, no pet.). When reviewing a traditional summary judgment granted in the defendant's favor, we determine whether the defendant conclusively disproved at least one element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Beesley, 358 S.W.3d at 418. The traditional summary judgment movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). In deciding whether a disputed material fact issue exists precluding summary judgment, we must take evidence favorable to the non-movant as true and indulge every reasonable inference and resolve any doubts in favor of the non-movant. Sysco Food Servs., 890 S.W.2d at 800. When the trial court's order granting summary judgment does not specify the basis for the ruling, we will affirm the summary judgment if any of the theories presented to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

         "Fraudulent concealment is the name given to the equitable doctrine that a defendant who conceals his wrongful conduct, either by failing to disclose it when under a duty to disclose or by lying about his conduct, is estopped to assert the statute of limitations." Arabian Shield Dev. Co. v. Hunt, 808 S.W.2d 577, 584 (Tex. App.-Dallas 1991, writ denied). The doctrine will estop a defendant from relying on an established limitations defense only until the fraud was discovered or could have been discovered with reasonable diligence. Valdez v. Hollenbeck, 465 S.W.3d 217, 230 (Tex. 2015). The plaintiff has the burden to put forth proof to support the fraudulent concealment allegation. Arabian Shield, 808 S.W.2d at 584. The plaintiff must show (1) existence of the underlying tort, (2) the defendant's knowledge of the tort, (3) the defendant's use of deception to conceal the tort, and (4) the plaintiff's reasonable reliance on the deception. Id.

         "Passive silence is enough to sustain a fraudulent concealment defense only if there is a duty of disclosure." AT&T Corp. v. Rylander, 2 S.W.3d 546, 556 (Tex. App.-Austin 1999, pet. denied); accord Santanna Nat. Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 890 (Tex. App.-Austin 1997, pet. denied). "Texas courts have held that although the physician-patient relationship gives rise to a fiduciary relationship, and thus the duty to make certain disclosures, the doctor's duty ends when the physician-patient relationship ends." Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 754 (Tex. App.-Fort Worth 1998, pet. denied); accord Willingham v. Schlichtemeier, 864 S.W.2d 179, 182 (Tex. App.-Eastland 1993, writ denied); Thames v. Dennison, 821 S.W.2d 380, 384 (Tex. App.-Austin 1991, writ denied); Quinn v. Nat'l Med. Enters., Inc., No. 05-98-01403-CV, 2001 WL 767562, at *6 (Tex. App.-Dallas ...

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