Former Judge John Coselli | Recent Appeals from the 125th District Court

Recent Appeals from cases in Judge Coselli's Court

In re Noble and Slack Associates (Tex.App.- Houston [1st Dist.] Aug. 29, 2008)
(order compelling arbitrations, mandamus denied)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Taft, Jennings and Bland
01-08-00620-CV        In Re Noble And Slack Associates, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli

Travelers Indemnity Co. v. Texas Municipal League (Tex.App.- Houston [1st Dist.] July 17, 2008)(Keyes)
(arbitration case s) (no express agreement to arbitrate, motion to compel arbitration denied)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-08-00062-CV        Travelers Indemnity Company v. Texas Municipal League Joint Self-Insurance Fund,
for itself and as Subrogee of the City of Bunker Hill Village
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli

Ambulatory Infusion Therapy Specialists, Inc. v. North American Administrators, Inc. (Tex.App.- Houston [1st
Dist.] Juy 10, 2008)(Keyes) (health care coverage law, breach of contract, ERISA preemption, summary
judgment based on limitations)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
01-06-00756-CV        Ambulatory Infusion Therapy Specialists, Inc. v. North American Administrators, Inc.
d/b/a North American Health Plans and Osmose, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli

Hofstatter v. General Interior Construction, Inc. (Tex.App.- Houston [14th Dist.] July 3, 2008)(Hedges)
(cases with dissents and/or concurrences)(accelerated appeal, special appearance denied, personal
jurisdiction, individual liability of corporate officer based on Texas Trust Fund Act )
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Anderson and Frost
14-07-00270-CV Dan Kelly and Laura Hofstatter v. General Interior Construction, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: John A. Coselli
Dissenting Opinion by Justice Frost

Karen McCright v. Rodriguez (Tex.App.- Houston [1st Dist.] June 26, 2008)(Jennings)
(real estate law, property dispute, foreclosure, deed)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Chief Justice Radack, Justices Jennings and Bland)
01-07-00480-CV        Karen McCright v. Josh Rodriguez and Emmett Sterling Huff
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli

Brocail v. Detroit Tigers, Inc. (Tex.App.- Houston [14th Dist.] Apr. 3, 2008)(Guzman)
(baseball injury, Labor-Management Relations Act)
AFFIRMED: Opinion by Justice Guzman
14-06-00557-CV Douglas K. Brocail v. Detroit Tigers, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: John A. Coselli

Exxon Mobil Corp. v. Hines (Tex.App. - Houston [14th Dist.] Feb. 26, 2008)(Hedges)
(employment law, age discrimination, defamation)
AFFIRMED AS MODIFIED: Opinion by Chief Justice Hedges
Before Price, Chief Justice Hedges, Justice Seymore
14-06-00745-CV Exxon Mobil Corporation v. Dwight Hines and Shannon Everett
Appeal from 125th District Court of Harris County (Judge John Coselli)

Vanderbeek v. San Jacinto Methodist Hospital (Tex.App- Houston [14th Dist.] Jan 31, 2008)(Frost)
(workplace injury, premises owner liability)
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Frost and Guzman
14-06-00783-CV Gary Vanderbeek v. San Jacinto Methodist Hospital
Appeal from 125th District Court of Harris County (Judge John A Coselli)

Walters v. Cleveland Regional Med. Ctr. (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Hanks)
(HCLC,medical malpractice, limitations defense, discovery of injury, sponge left in body)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-06-01068-CV Tangie Walters v. Cleveland Regional Medical Center, et al
Appeal from 125th District Court of Harris County (Judge John Coselli)

Wilson v. Aames Capital Corp. (Tex.App.- Houston [14th Dist.] Oct. 23, 2007)(Edelman)
(real estate law, judicial foreclosure, home)
AFFIRMED: Opinion by Justice Edelman
Before Justices Brock Yates, Edelman and Seymore
14-06-00524-CV Vera F. Wilson v. Aames Capital Corporation
Appeal from 125th District Court of Harris County (Hon. John A. Coselli)

Page v. Hulse (Tex.App.- Houston [14th Dist.] Jul. 26, 2007)(Hedges)(breach of lease)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Edelman and Seymore
14-06-00731-CV Temple B. Page v. Maureen Lorraine Hulse
Appeal from 125th District Court of Harris County (Judge John A. Coselli)

Sondock v. HCAD (Tex.App.- Houston [14th Dist.] May 31, 2007)(Hedges)
(property tax, HCAD appeal, unequal assessment )
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00676-CV Deborah S. Sondock, as the Property Owners and the Property Owners v. Harris County
Appraisal District
Appeal from 125th District Court of Harris County (Hon. John A. Coselli)

Liu v CiCi Enterprises LP (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Guzman)
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Anderson, Hudson and Guzman
14-05-00827-CV        Frank M. K. Liu and Edward R. Perry, Jr., Individually and on Behalf of IV Pizza, LLC
v. CiCi Enterprises, LP, Successor by Conversion to CiCi Enterprises, Inc.
Appeal from 125th District Court of Harris County (Judge John A. Coselli)

Dissent in Nabelek v. District Attorney (Tex.App.- Houston [14th Dist.] Nov. 30, 2006)(Dissenting opinion on
rehearing by Frost) (taking issue with majority's frivolous suit finding)
DISSENTING: Justice Frost
Before Justices Anderson, Hudson and Frost
14-03-00965-CV Ivo Nabelek v. District Attorney of Harris County, Texas
Appeal from 125th District Court of Harris County (Hon. John Coselli)
Even if the statute of limitations barred the claims Nabelek asserts in his petition, this would not mean
Nabelek's claims have no arguable basis in law, unless Nabelek's petition asserted facts showing as a
matter of law these claims are time-barred. Nabelek's petition does not assert such facts. The majority's
analysis on this point is ill-reasoned.
This court should grant rehearing, reverse the trial court's order dismissing Nabelek's claims as frivolous
under section 14.003(a)(2) of the Texas Civil Practice and Remedies Code, and remand for further
proceedings.

HIGHLIGHTED OPINION(S):

Med-Mal Reform in Action: Sponge left in patient's body, but medical malpractice suit
dismissed
Walters v. Cleveland Regional Med. Ctr. (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Hanks)(HCLC,
limitations defense, discovery of injury, sponge left in body)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-06-01068-CV Tangie Walters v. Cleveland Regional Medical Center, et al
Appeal from 125th District Court of Harris County (Judge John Coselli)

O P I N I O N

Tangie Walters, appellant, appeals the trial court’s grant of Cleveland Regional Medical Center and Shirley
Kiefer’s (collectively “Cleveland”) and Keith Spooner, M.D.’s motions for summary judgment. Walters
argues that she alleged and offered evidence that the medical malpractice statute of limitations cut off her
claim before she knew or reasonably should have known of her injury, in contravention of the open courts
guarantee of the Texas Constitution. Tex. Const. art. I, § 13. She also asserts that Cleveland and Spooner
failed to establish conclusively that there was no genuine issue of material fact that she should have
discovered her injury and filed suit within the limitations period. We affirm.

Background

On December 1, 1995, Keith Spooner, M.D. delivered Tangie Walters’s fourth child at Cleveland Regional
Medical Center. The same day, Spooner performed a bilateral tubal ligation on Walters. Walters was taken
to the recovery room in stable condition, and all surgical sponges were accounted for according to the
sponge count performed by nurse Shirley Kiefer. After the surgery, Walters began suffering chronic
abdominal pain, which progressively worsened over the next 10 years. The pain was more intense during
her menstrual cycle, with bowel movements, and during certain physical activities. She also suffered
various ailments during this time, including bladder infections, frequent urination, vaginal bleeding, lymph
node infections, sinus problems, pneumonia-like symptoms, insomnia, and fatigue. Beginning in March
1998, more than two years after the surgery, she was treated by primary care physicians, who performed
blood and urine tests, and prescribed antibiotics, antidepressants, and sleep medications.

In April 2005, almost 10 years after the surgery, Walters went to Mary Garnepudi, M.D., a gynecologist.
While performing a routine exam, Garnepudi noticed something unusual and decided to perform a
laparoscopy, which revealed a bulky uterus, multiple pelvic adhesions, and pelvic congestion. Garnepudi
referred Walters to Tracy Pipkin, M.D. Due to Walters’s continued pain, Pipkin conducted an exploratory
laparotomy and hysterectomy. Pipkin noticed a mass connected to the small bowel and brought in another
surgeon for an intraopertive consultation. The mass was removed and was determined to be a surgical
sponge encapsulated in fibrous tissue. Pipkin told Walters that the sponge had been there for awhile
because “a lot of stuff” had grown around it.

Walters testified that she believes that her physical problems—the weakening of her immune system and
her subsequent surgeries, including the hysterectomy— resulted from the retained sponge. She brought a
medical negligence suit against Spooner and Cleveland Regional Medical Center on August 23, 2005, and
later amended her petition to include Kiefer as a defendant. All defendants filed traditional motions for
summary judgment, asserting that Walters’s claims were barred by the two-year statute of limitations
applicable to medical malpractice claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (Vernon
2005). Walters responded by asserting that the statute of limitations violated her open courts guarantee
under the Texas Constitution. Tex. Const. art. I, § 13. The trial court granted both motions for summary
judgment against Walters. Walters now appeals

Open Courts Guarantee

In two issues, Walters argues that the open courts guarantee saves her claim from being barred by the two-
year medical malpractice statute of limitations. In her first issue, Walters claims that she alleged and offered
some evidence that the application of the two-year limitations period cut off her claim before she knew or
should have known of its existence, in contravention of the open courts guarantee. In her second issue,
Walters asserts that Cleveland and Spooner failed to establish conclusively that there was no genuine
issue of material fact that she should have discovered the nature of her injury and claim within two years of
her tubal ligation.

Standard of Review

We review the granting of summary judgment de novo. See Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). When a defendant moves for traditional summary judgment, it
must either (1) disprove at least one element of the plaintiff’s cause of action or (2) plead and conclusively
establish each essential element of its affirmative defense, thereby defeating the plaintiff’s cause of action.
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). The court takes as true evidence favorable to the non-
movant when deciding whether there is a disputed, material fact issue precluding summary judgment, Nixon
v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985), and all doubts about the existence of a
genuine issue of a material fact are resolved against the movant. Cate, 790 S.W.2d at 562. If the movant’s
summary judgment motion and proof facially establish its right to judgment as a matter of law, the burden
shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A summary judgment must be
affirmed if any of the theories advanced by the movant is meritorious. Harwell v. State Farm Mut. Auto. Ins.
Co., 896 S.W.2d 170, 173 (Tex. 1995).

Analysis

In her first issue, Walters argues that she alleged and offered some evidence that application of the two-
year statute of limitations cut off her claim before she knew or should have known of its existence. Walters
is essentially arguing that she met her burden of establishing an open courts violation that would allow her
to file her claim beyond the applicable statute of limitations.

“[N]o health care liability claim may be commenced unless the action is filed within two years from the
occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of
the claim or the hospitalization for which the claim is made is completed.” Tex. Civ. Prac. & Rem. Code Ann.
§ 74.251(a). Former Article 4590i, Section 10.01 of the Texas Revised Civil Statutes

See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, repealedby 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).

was the predecessor to Subsection 74.251. Because the two-year limitations period described in
Subsection 74.251(a) is substantially the same as that described in former Section 10.01, we rely on
precedent concerning Section 10.01 in interpreting Subsection 74.251(a). Kallam v. Boyd, 232 S.W.3d 774,
776 n.1 (Tex. 2007) (recognizing that Subsection 74.251 is the current version of Section 10.01).

The two-year limitations period of Section 10.01 is absolute. See Diaz v. Westphal, 941 S.W.2d 96, 98
(Tex. 1997). However, a plaintiff can save his claim barred by Section 10.01 if he can show that the claim
was cut short in violation of the open courts guarantee of the Texas Constitution.

“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have
remedy by due course of law.” Tex. Const. art. I, § 13.

See, e.g., Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985) (holding that the limitations period of Section
10.01violated the plaintiff’s open courts guarantee). The open courts guarantee is based on the principle
that “the Legislature has no power to make a remedy by due course of law contingent on an impossible
condition.” Morrison v. Chan, 699 S.W.2d 205, 207 (Tex. 1985). For a litigant to establish that the
limitations period of 4590i violated his open courts guarantee, the litigant must:

first show a cognizable, common-law claim that article 4590i’s limitations provision restricts. Then, the
litigant must show the restriction is unreasonable or arbitrary when balanced against the statute’s purpose
and basis. The limitations provision in article 4590i section 10.01 does not violate the open courts
guarantee if the plaintiff had a reasonable opportunity to discover the alleged wrong and bring suit before
the limitations period expired.

Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001) (citations omitted). Thus, the plaintiff has a burden to raise
a fact issue demonstrating that he did not have a reasonable opportunity to discover the alleged wrong
before the limitations period expired so that the open courts guarantee applies. Id. at 846–47.

The interpretation of “reasonable opportunity to discover the alleged wrong” is the source of the parties’
disagreement. Walters argues that this phrase requires an inquiry of whether the plaintiff knew-or-should-
have-known of her injury during the limitations period, whereas Cleveland and Spooner contend that the
provision applies only if it was impossible-or-exceedingly-difficult for the plaintiff to have discovered the
injury during this period. This divergence is understandable given that the language used in applying the
open courts guarantee to the two-year statute of limitations of Section 10.01 has been inconsistent. See O’
Reilly v. Wiseman, 107 S.W.3d 699, 702 (Tex. App.—Austin 2003, pet. denied) (“Language in appellate
opinions has made it confusing for both lower courts and litigants to know with certainty when the open-
courts provision applies so as to invalidate the limitation period.”). However, we agree with the Fort Worth
court of appeals, which recognized the test as being whether the plaintiff had a reasonable opportunity to
discover the injury and file suit. Boyd v. Kallam, 152 S.W.3d 670, 678–81 (Tex. App.—Fort Worth 2004),
pet. denied improvidently granted, 232 S.W.3d 774 (Tex. 2007). Any other variations of the test carry the
same meaning. See id. at 678. A recent Texas Supreme Court decision is instructive on this issue. In Yancy
v. United Surgical Partners Intern., Inc., the Texas Supreme Court gave the following description of the
open courts guarantee: This guarantee differs from tolling provisions. Unlike the discovery rule, which
defers accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have
known of the facts giving rise to the claim, the open courts provision merely gives litigants a reasonable
time to discover their injuries and file suit. Because the open courts guarantee does not toll limitations,
courts must determine what constitutes a reasonable time for a claimant to discover her injuries and file suit.
236 S.W.3d 778, 784 (Tex. 2007) (emphasis added) (citations omitted). It is clear that courts are to decide
what constitutes a reasonable time or opportunity for the plaintiff to discover his injury and file suit.
Therefore, Walters had the burden of establishing a fact issue that she did not have reasonable time to
discover her injuries and file suit before the limitations period expired.

In her response to the defendants’ motions for summary judgment, Walters specifically pleaded an open
courts guarantee violation. Walters attached evidence showing that she had no medical training and that
the operative report showed that all sponges were accounted for following her tubal ligation. She also
directed the trial court to evidence in the defendants’ motions for summary judgment, which showed that
she had received post-surgical treatment from several doctors, none of whom determined that a retained
sponge was the source of her ailments. Walters, arguing that she should not be held to a higher standard
than the doctors who treated her, cited Del Rio v. Jinkins, which commented on the effects a doctor’s
misdiagnosis of the source of a plaintiff’s pain may have on the plaintiff’s ability to discover his injury. 730 S.
W.2d 125, 128 n.1 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.) (“[W]e believe that limitations cannot
bar a plaintiff who reasonably attempts to learn the cause of his injury but is prevented from doing so
through no fault of his own.”). Walters also supplemented her response by pointing out that, in his
deposition, Spooner was asked whether he agreed that Walters could have and should have known that
her condition was related to her tubal ligation, to which he answered he did not.

The fact that Walters had no medical training does not show that she could not have reasonably
discovered her injury within the two-year limitations window; pain itself can be an indicator of injury. See id.
(“The cases interpreting article 4590i, section 10.01 . . . seem to equate feelings of pain with discovery of
the injury.”). Furthermore, Walters presented no evidence that she saw the medical records that reflected
the sponge count. As for Spooner’s statement that he does not agree that Walters could have and should
have known that her condition was related to her tubal ligation, we agree with Cleveland that such
testimony was taken out of the context of Spooner’s answer; Spooner disagreed with the statement
because he was not in a position to comment on Walters’s condition, having not evaluated her. Finally,
Walters directed the trial court to her medical records which show a variety of diagnoses from several
physicians. However, the records reveal that her first doctor’s visit was on March 16, 1998—more than two
years after her December 1, 1995 tubal ligation. Thus, the evidence referred to by Walters does not show
that she relied on any doctor’s misdiagnosis in the two years following her surgery. We hold that Walters
failed to establish a fact issue that she did not have a reasonable opportunity to discover her injuries and
file suit before the limitations period expired, and, thus, did not meet her burden of establishing the
applicability of the open courts guarantee. See Yancy, 236 S.W.3d at 784.

Walters’s first issue is overruled. Because Walters’s first issue is dispositive of her appeal, we need not
discuss her second issue.

Conclusion

We affirm the trial court’s grant of Cleveland’s and Spooner’s motions for summary judgment.

                                         George C. Hanks, Jr.

                                         Justice

Panel consists of Justices Taft, Hanks, Higley.

THE INCUMBENT IN HIS OWN WORDS	THE CHALLENGER IN HIS OWN WORDS
John Coselli, Republican Over 30 combined years of experience as attorney and State District Court Judge. Twice elected by Harris County voters as Judge. Voted by attorneys “qualified” and “well qualified” in Houston Bar Polls since 1999. Twice elected by Texas Judges to serve as President of the Texas Association of District Judges.	Kyle Carter, Democrat I am a graduate of Strake Jesuit College Preparatory, The University of Texas, and South Texas College of Law. I have vast trial and appellate experience, and served as General Counsel to two state Legislative Committees. I believe that judges should follow the law, be honest, fair, and reasonable.
WHEN SHOULD A JUDGE RECUSE?	WHEN SHOULD A JUDGE RECUSE?
I follow the laws in Texas without regard to my personal views. A judge should recuse himself or herself from a case when the law requires recusal. Generally, the law requires recusal when the judge’s impartiality might be questioned. The law proscribes rules and procedures for the evaluation of the need or appropriateness of recusal.	Judges should recuse themselves when there is the appearance of bias or impropriety involved by virtue of that particular judge’s involvement in a case. Texas law recognizes several situations in which a judge should recuse themselves, however, beyond that, judges should openly strive to do everything in their power to avoid the appearance of impropriety and maintain public confidence.
Source: LWV Voters Guide: Question to candidate	Source: L eague of Women Voters Guide: Candidate Q&A
More on the incumbent from the Harris County GOP judicial re-election web site: Keep our Judges dot com	More on this candidate form the Harris County Democratice Party judicial campaign web site: Judges for All dot com