Texas Judiciary Online - HTML Opinion

In=20 addition to the affidavit and deposition testimony of Christian C. = Rice,=20 Jr., the president of Pasadena prior to its dissolution, in which = Rice=20 stated that Pasadena did not know of Michael=3Ds claims,=20 Pasadena attached to its motion for summary judgment a = ARisk=20 Management Summary,@ = a list of=20 all persons thought to have potential claims against Southmore = and/or its=20 constituent partners. Neither Michael nor his parents are=20 listed. Although the Risk = Management=20 Summary was apparently created for the sale of Southmore Medical = Center,=20 and was compiled over six months prior to Pasadena=3Ds dissolution, Gomez = fails to=20 rebut Pasadena=3Ds contention that it = did not=20 consider Michael a potential claimant, much less a known claimant, = before=20 its dissolution. Moreover, contrary to Gomez=3Ds assertion, the fact = that the=20 Risk Management Summary encompassed Aevery known claim of = every=20 known incident of everything that anybody even thought could = possibly=20 happen@ further buttresses=20 Pasadena=3Ds argument that = Michael was not=20 a known claimant for the purposes of Article = 6.04(A)(2). =20 Furthermore, in stark contrast to the situation in = Martin,^{^[7]}=20 Gomez provides no evidence, circumstantial or otherwise, to rebut=20 Pasadena=3Ds=20 contention that neither Pasadena nor Southmore knew of = Michael=3Ds claims=20 prior to Pasadena=3Ds=20 dissolution. Gomez made no showing that he ever made a claim = against=20 Pasadena before its dissolution, much less that Pasadena or = Southmore knew=20 about any potential claim that he would later make. In fact, = Gomez=3Ds only=20 argument concerning=20 appellees=3D knowledge of=20 Michael=3Ds claim is grounded = in their=20 possession of the medical records pertaining to Rose and the birth = of=20 Michael. Whatever the import of appellees=3D possession of these = medical=20 records, being a known potential claimant is not sufficient = to=20 trigger the notice requirements of Article 6.04(A)(2).^{^[8]} = Martin, 930 S.W.2d at 722 n.7 (noting that Article 6.04 = does not=20 mention Apotential@ claimants, and = finding no=20 support in Texas jurisprudence for the proposition that a = dissolving=20 corporation must notify Apotential@ = claimants).

Accordingly,=20 there is no genuine issue of material fact regarding whether = Michael was a=20 known claimant of Pasadena prior to its dissolution. We = therefore=20 overrule Gomez=3Ds final=20 issue.

Conclusion

Having addressed = and=20 overruled each of Gomez=3Ds issues, we affirm = the trial=20 court=3Ds = judgment.

/s/ =20 Wanda McKee Fowler

Justice

Judgment=20 rendered and Opinion filed January 17, 2008.

Panel=20 consists of Justices Yates, Fowler, and Guzman.

^{^[1]} On September 9, 2005, Gomez = non-suited=20 Touchstone Health Care Management, Inc. without=20 prejudice.

^{^[2]} Gomez=3Ds claims against = Hernon,=20 Devine, and Meyer remain at the trial court level, and are not the = subject=20 of this appeal.

^{^[3]} Specifically, Gomez contends that = AArticle 7.12 is unconstitutional when = applied to=20 minors because it denies them their rights to due process and = equal=20 protection under Article I, Sections 13 and 19 of the Texas=20 Constitution.@ However, wholly absent from=20 Gomez=3Ds brief is any explanation, argument, or = analysis=20 regarding equal protection or Article I, section 19 of the Texas=20 Constitution. Therefore, Gomez has waived these arguments = for=20 failure to adequately brief the issues, and we need not consider = them=20 here. Tex. R. App. = P.=20 38.1(h); see Vickery v. Vickery, 999 S.W.2d 342, = 352B53 (Tex. 1999) (concluding that = appellant waived=20 issues on appeal for failure to support her assertions with = explanation or=20 argument); San Saba Energy, L.P. v. Crawford, 171 S.W.3d = 323, 338=20 (Tex. App.CHouston [14th Dist.] 2005, no=20 pet.).

^{^[4]} Gomez also argues that this=20 Court=3Ds application of Article 7.12 will = further allow=20 Ahealthcare corporations to dissolve = after=20 negligently injuring minor patients and dispense with all assets = that=20 could have been subject to the minor=3Ds claim before the minor reaches=20 majority[.]@ But, Article 6.08 of the Texas Business = Corporation Act provides a mechanism by which the court can order = the=20 revocation of dissolution of a corporation upon a finding of = actual or=20 constructive fraud. See Tex.=20 Bus. Corp. Act=20 art. 6.08. This provision = allows the=20 court to prevent healthcare corporations from taking fraudulent=20 actions.

^{^[5]} The Medical Liability Act, Texas = Revised=20 Civil Statutes, Article 4590i, _ 10.01, governs this case because it was = filed=20 before September 1, 2003. See Mills v. Pate, 225 = S.W.3d 277,=20 284 (Tex. App.BBEl Paso 2006, no pet.). Effective = September=20 1, 2003, the Legislature repealed the Medical Liability Act and = replaced=20 it with Chapter 74 of the Civil Practices and Remedies Code. = Id. at=20 n.2.

^{^[6]} Appellant argues that this result = is=20 inconsistent with the holding of the Texas Supreme Court in = Bala v.=20 Maxwell. In that case, the Court held that the phrase=20 Anotwithstanding any other = law,@ included in section 10.01, = unequivocally=20 expressed the legislature=3Ds intent that the provisions of section = 10.01=20 govern when its time limitation provisions conflict with another = law.=20 Bala, 909 S.W.2d at 892B93. However, the Court later = clarified that=20 the language Aany other law@ is triggered only when the statute or = rule at=20 issue purports to either commence, toll, or extend limitations. = See=20 Chilkewitz v. Hyson, 22 S.W.3d 825, 830 (Tex. 1999). To = the=20 extent that Article 7.12 is a survival statute, and not a statute = of=20 limitations, its application is unaffected by the Anotwithstanding any other = law@ language of section = 10.01.

^{^[7]} In Martin, the appellant = similarly=20 argued that there was a fact issue as to whether his son was a=20 Aknown claimant@ of Texas Women=3Ds Hospital (ATWH@) for the purposes of Article 6.04. = Martin,=20 930 S.W.2d at 721. However, in that case, there was=20 circumstantial evidence that TWH knew of the son=3Ds claim, even though a lawsuit had not = been filed=20 within the three-year period following TWH=3Ds dissolution: (1) TWH=3Ds insurance company increased = TWH=3Ds policy limits, at TWH=3Ds request, from $300,000 to $750,000 = twenty days=20 after the son=3Ds birth; (2) TWH=3Ds insurance company backdated that = increase to=20 take effect on the very day of the son=3Ds birth; and (3) TWH sold its assets = nearly nine=20 months later for $750,000, the exact amount of the increased = insurance=20 limits. Id. at 721B22. The court of appeals held that = this=20 evidence created a fact issue about whether the son was a = Aknown claimant@ of TWH. Id. at 721. = Granting the=20 appellant all reasonable inferences from the facts, the court = concluded=20 that the evidence suggested (1) TWH moved quickly after the=20 son=3Ds birth to increase its policy limits, = and=20 backdate them to the date of his birth, because they knew a = significant=20 claim would be made; and (2) the $750,000 figure was selected = because the=20 shareholders were willing to sell TWH=3Ds assets for that amount, as they later = did, and=20 wanted assurance that at least that much of the proceeds would be=20 protected from medical malpractice plaintiffs, including the son. = Id.=20 at 722. Here, Gomez offers no such circumstantial = evidence=20 suggesting that appellees knew that any claim would be made by=20 Michael. Moreover, Gomez has failed to cite, and we have not = found,=20 any Texas cases that support his contention that a healthcare=20 corporation=3Ds mere possession of medical records, = without=20 more, can give rise to a fact issue sufficient to defeat summary = judgment=20 on whether a party is a Aknown claimant@ of that corporation, for the purposes = of Article=20 6.04(A)(2).

^{^[8]} In fact, five of the eight = justices sitting=20 en banc to hear the Martin case agreed that being a = known=20 potential claimant is insufficient to trigger the notice = requirements of=20 Article 6.04(A)(2). Id. at 722, 724. The three = remaining=20 justices agreed with the majority that the case should be reversed = due to=20 TWH=3Ds failure to satisfy its burden on = summary=20 judgment. Id. at 723. The majority and dissenting = opinions in=20 Martin stated that if the statutory phrase Aknown claimant against the = corporation@ really means Aknown potential claimant against the = corporation,@ almost any former medical patient would = be=20 entitled to notice of corporate dissolution. Id. at 722=20 = n.7.