Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 192nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-12792
Justices Myers, Carlyle, and Evans
L. CARLYLE JUSTICE
Alan Tarrant, Kristi Tarrant, and Bethany Kendrick asserted
negligence and products liability claims against physician
Stephen Courtney and three medical-related
entities(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
affirm in this memorandum opinion. Tex.R.App.P. 47.4.
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 that contracts
with MCM, which provides neuromonitoring services to patients
undergoing orthopedic surgery. Mr. Tarrant and Ms. Kendrick
are former patients of Dr. Courtney.
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
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."
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
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.
trial court's summary judgment
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.
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.
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