William Earl Cunningham (Tex.App.- Houston [1st Dist.] Apr. 23, 2009)(Sharp)(appeal of
dismissal)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Sharp
Before Justices Taft, Bland and Sharp
01-07-00948-CV William Earl Cunningham
Appeal from 122nd District Court of Galveston County
Trial Court Judge: Hon. John Ellisor
WILLIAM EARL CUNNINGHAM, Appellant.
No. 01-07-00948-CV.
Court of Appeals of Texas, First District.
Opinion issued April 23, 2009.
Panel consists of Justices TAFT, BLAND, and SHARP.
MEMORANDUM OPINION
JIM SHARP, Justice.
Appellant William Earl Cunningham filed suit on February 14, 2000, against individuals at The
University of Texas Medical Branch at Galveston, alleging that they operated on him on August 19,
1995, without consent. Stefan D. Trocme, M.D. answered and filed a motion for summary judgment
and motion for severance. The district court rendered a summary judgment that Cunningham take
nothing from Trocme and severed Cunningham's claim against Trocme. The clerk's record reflects
that service of citation by certified mail on both Kapoor Shalint, M.D. and James E. Pepperl, M.D. was
ineffective. The district court dismissed the case for want of prosecution on January 5, 2005, at which
time no remaining defendant had either been served or answered.
Cunningham filed a document entitled "Motion for Out of Time Rehearing" on March 24, 2005, in
which he claimed he did not receive notice of the district court's judgment of dismissal until March 21,
2005. This Court construed that document as a motion for new trial that requested relief pursuant to
Texas Rule of Civil Procedure 306a(4), (5). We abated the appeal and remanded the case to the
district court to hold a hearing, make findings of fact regarding when Cunningham received notice,
and to rule on the "Motion for Out of Time Rehearing." The district court found that Cunningham first
received notice of the judgment of dismissal March 21, 2005, granted Cunningham's motion for new
trial, and reinstated the case on the court's docket. On May 3, 2007, this Court dismissed the appeal
for want of jurisdiction. See Cunningham, No. 01-05-00423-CV (Tex. App.-Houston [1st Dist.] May 3,
2007, no pet.) (mem. op., not designated for publication).
The district court signed a final judgment on August 16, 2007: [1][now known as Tex. Civ. Practices
and Remedies Code Sec. 74.251(a)[2]] as a matter of law, and severed that case into cause number
00CV0156-A. Plaintiff initially sought to have the remaining Defendants served, but the citations were
returned unexecuted July 30, 2001 and Plaintiff did not pursue further service attempts until after May
2007.
The Court having reviewed Plaintiffs numerous filings responsive to the Show Cause Order Why Case
Should Not Be Dismissed signed on May 24, 2007, finds as follows:
• the statute of limitations to bring this lawsuit ran either on August 19, 1997 or 75 days later, if proper
notice of Plaintiff's claim had been given to Defendants; [3]];
• that plaintiff has failed to demonstrate that the statute of limitations was tolled for any time period to
excuse the late filing on February 14, 2000;
• that plaintiff has failed to establish that he was under any legal disability which would toll the statute
of limitations or otherwise excuse the late filing;
• the absence of any Texas statute or applicable case law recognizing incarceration or inmate status
as a legal disability to toll the statute of limitations on health care liability claims; and
• that in any event, plaintiff did not exercise due diligence in pursuing issuance and service of citation
on defendants through alternative or substituted means after the initial attempts to serve the
remaining defendants were returned unexecuted, thus warranting dismissal for want of prosecution.
It is therefore ORDERED that the above styled and numbered cause is DISMISSED. All costs of suit
are taxed to the Plaintiff.
Signed and entered on the 16th day of August, 2007.
/s/ John Ellison JUDGE PRESIDING
Cunningham filed multiple postjudgment documents, which the district court treated as a single motion
for new trial:
Whereas an Order Dismissing Cause was entered by the Court on August 16, 2007 and Plaintiff filed
Motions for New Trial on August 30, 2007, August 31, 2007, September 6, 2007, September 7, 2007,
and September 17, 2007; and Motions for Rehearing on August 31, 2007 and September 6, 2007;
and a Motion for Objection to the Court Order of Dismissal on September 6, 2007 and a Motion for
Contest on September 12, 2007; the Court having considered said Motions as a group to be
essentially one Motion for New Trial with numerous supplements and amendments is of the opinion
that Plaintiff's Motion for New Trial should be denied without the need for an evidentiary hearing.
It is therefore ORDERED that Plaintiff's Motion for New Trial is DENIED.
Signed and entered on the 3rd day of October, 2007.
/s/ John Ellison JUDGE PRESIDING
In his December 31, 2007 brief, appellant states the following:
Statute of limitation
[4]; and Nelson __vs__ Krusen; 678 S.W.2d 918 (Sup 1984)[5]; Personal Injuries general occural of
cause of actions and inactions_____ [6]; 16.001[7]; pursuant to Ver's. Tex. C. Ann.; Government
Code; 531.001[8]; Texas Commission for the blind; Sutton __vs__ United Airlines, Inc.; 527 U.S. 471,
482; 119 S. U. Ct. 2139, 2146 (1999)[9]_____ [10]; 16.022[11]; Pursuant to Ver's. Tex. C. Ann.;
Denison __vs__ TDCJ-ID; 2003 WL 21254862 (App 12 Dist 2003)[12] mentally Ill_____ [13]; 16.022
[14]; 16.001[15]; pursuant to Kayla Stater __vs__ National Medical Enterprises; 962 S.W.2w 228-236
(App. Tex Fort Worth 1998)[16]; Ver's. Tex. C. Ann.; Civ. P. Rem. Code; 74.251[17]_____ [18]; 16.002
[19]; 16.003[20]; 16.022[21]; pursuant to Rodrigues __vs__ Taylor; 238 F.3d 188, 197 (2d Cir. 2001)
[22]">_____
6). The limitations period for medical negligence claims is measured from one of the three dates;
1).The occurrence of the breach or tort_____
2).The last date of the relevant course of treatment_____
3).The last date of the relevant hospitalization_____ [23]
. . . .
Argument
1).Request to appeal the Honorable John Ellison; judge for the 122nd Judicial District Court of
Galveston, County Texas; dismissal of cause number 00CV0156; on date 10/03/07; [24]; Physicians
must register with the County District Court to practice medicine in the State of Texas____ [25]; 4510
[26]; B.A._____ [27]; refusing to serve UTMB; John Sealy Hospital officials and physicians with
summons_____ [28]; and article 4510[29] ;B.A.; registration of physicians of physicians in County
District Court; State of Texas_____
6).Argument is based on the 122nd Judicial District Court of Galveston, County Texas, officials clearly
refusing to serve registered UTMB; John Sealy; physicians; appellans; Et Al.; with the summon of
State of Texas tort claim lawsuit filed against them for medical malpractice; maltreatment_____
Conclusion
Request
that the 122nd Judicial district court Galveston; County Texas; Honorable Latonia D. Wilson; and
subordinates clerks; Et. Al; service 1appellens; Et. Al; UTMB; Physicians; with summons; And request
$500,00000 in physical damages For lost limb of the right eyeball____
We construe Cunningham's brief to raise two issues: (1) the two-year statute of limitations was tolled
by his disabilities and (2) the district court and district clerk refused to issue citation to individuals
named in Cunningham's petition. Cunningham cites neither to facts nor law that supports either issue.
First, the applicable statute of limitations provides, "Except as herein provided, this subchapter
applies to all persons regardless of minority or other legal disability." Former Revised Statutes article
4510i, section 10.01, supra note 1. Cunningham cites no authority for the proposition that his claimed
disabilities or incarceration tolled the running of the statute.
Second, there is no factual basis for Cunningham's claim that the district clerk and clerk have refused
to issue citation. The clerk's record contains correspondence from the district clerk to Cunningham,
stating, "If you want our office to issue a citation to the defendant to inform him of this case, you need
to provide our office with the defendant [sic] address."
The district clerk issued citation for James E. Pepperl with an address at UTMB, which the sheriff
returned with the notation that Pepperl had moved to Rochester, Minnesota. When this information
was forwarded to Cunningham, he responded to the district clerk as follows: "Is no such listing in the
American Country Dictionary, There is a Rochester N.Y. Population 231,636, but there is no
Rochester, Minn. Listed in the dictionary."[30]
On appeal, Cunningham argues that the district court and clerk had an obligation to serve citation
based on the physician-registration information on file with the district clerk pursuant to former
Revised Statutes article 4498. See supra note 24. That statute was repealed in 1981. Id. Even if the
statute had not been repealed, nothing in former Revised Statutes article 4498 imposed a duty on a
trial-court clerk to locate an individual being sued.
We overrule both of Cunningham's issues.
We affirm the judgment of dismissal.
[1] Sec. 10.01. Notwithstanding any other law, no 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; provided that, minors under the age of 12 years shall have until their 14th
birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this
subchapter applies to all persons regardless of minority or other legal disability.
Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2039, 2052 (former
Revised Statutes article 4590i, section 10.01), repealed by Act of June 2, 2003, 78th Leg., R.S., ch.
204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
[2] Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (Vernon 2005) (statute of limitations on health care
liability claims).
[3] Id.
[4] Zacharie v. U.S. Natural Res., Inc., 94 S.W.3d 748 (Tex. App.-San Antonio 2002, no pet.).
[5] Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984).
[6] Tex. Civ. Prac. & Rem. Code Ann. § 16.022 (Vernon 2002) (effect of disability).
[7] Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (Vernon 2002) (effect of disability).
[8] Tex. Gov't Code Ann. § 531.001 (Vernon 2004) (definitions for Health and Human Services
Commission subtitle).
[9] Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999).
[10] Supra note 7.
[11] Supra note 6.
[12] Denson v. Tex. Dep't of Criminal Justice Institutional Div., No. 12-02-00099-CV (Tex. App.-Tyler,
May 30, 2003, no pet.) (mem. op.).
[13] Tex. Civ. Prac. & Rem. Code Ann. § 16.002 (Vernon 2002) (one-year limitations period).
[14] Supra note 6.
[15] Supra note 7.
[16] Slater v. Nat'l Med. Enters., Inc., 962 S.W.2d 228 (Tex. App.-Fort Worth 1998, pet. denied).
[17] Tex. Civ. Prac. & Rem. Code Ann. § 74.251 (Vernon 2005) (statute of limitations on health care
liability claims).
[18] Supra note 7.
[19] Supra note 13.
[20] Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon Supp. 2008) (two-year limitations period).
[21] Supra note 6.
[22] Rodriguez v. Taylor, 238 F.3d 188, 197 (2d Cir. 2001).
[23] Gilbert v. Bartel, 144 S.W.3d 136 (Tex. App.-Fort Worth 2004, pet. denied).
[24] Article 4498. It shall be unlawful for any one to practice medicine, in any of its branches, upon
human beings within the limits of this State who has not registered in the District Clerk's office of every
County in which he may reside, and in each and every County in which he may maintain an office or
may designate a place for meeting, advising with, treating in any manner, or prescribing for patients,
the certificate evidencing his right to practice medicine, as issued to him by the Texas State Board of
Medical Examiners, together with his age, post office address, place of birth, name of medical college
from which he graduated, and date of graduation, subscribed and verified by oath, when, if wilfully
false, shall subject the affiant to conviction and punishment for false swearing, as provided by law.
The fact of such oath and record shall be endorsed by the District Clerk upon the certificate. The
holder of every such certificate must have the same recorded upon each change of residence to
another county, as well as in each and every County in which he may maintain an office, or in which
he may designate a place for meeting, advising with, treating in any manner or prescribing for
patients; and the absence of such record in any place where such record is hereby required shall be
prima facie evidence of the want of possession of such certificate.
Act approved Apr. 13, 1931, 42d Leg., R.S., ch. 49, § 2, 1931 Tex. Gen. Laws 74, 75, repealed by Act
of July 28, 1981, 67th Leg., 1st C.S., ch. 1, § 6(a), 1981 Tex. Gen. Laws 1, 36. The current laws
regulating the registration of physicians do not require registration with the district clerk. See Tex.
Occ. Code Ann. §§ 156.001-.002 (Vernon Supp. 2008), §§ 156.003-.009 (Vernon 2004).
[25] Supra note 24.
[26] Article 4510.
Any person shall be regarded as practicing medicine within the meaning of this law:
(1) Who shall publically profess to be a physician or surgeon and shall diagnosis, treat, or offer to
treat, any disease or disorder, mental or physical, or any physical deformity or injury, by any system
or method, or to effect cures thereof; (2) or who shall diagnosis, treat or offer to treat any disease or
disorder, mental or physical or any physical deformity or injury by any system or method and or to
effect cures thereof and charge therefor, directly or indirectly, money or other compensation;
provided, however, that the provisions of this Article shall be construed with and in view of Article 740,
Penal Code of Texas, and Article 4504, Revised Civil Statutes of Texas as contained in this Act.
Act of May 19, 1953, 53d Leg., R.S., ch. 426, § 10, 1953 Tex. Gen. Laws 1029, 1036, repealed by Act
of July 28, 1981, 67th Leg., 1st C.S., ch. 1, § 6(a), 1981 Tex. Gen. Laws 1, 36.
[27] Supra note 24.
[28] Supra note 24.
[29] Supra note 26.
[30] There is, in fact, a Rochester, Minnesota. See Merriam-Webster's Geographical Dictionary 996
(3d ed. 1997).