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                                 MEMORANDUM OPINION

                                         No. 04-08-00379-CV

                          Patrick KIMBRELL, M.D. and John Horan, M.D.,
                                         Appellants

                                                  v.

                                         Jeremy MOLINET,
                                              Appellee

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2005-CI-14669
                          Honorable Joe Frazier Brown, Jr., Judge Presiding

Opinion by: Catherine Stone, Justice
Concurring Opinion by: Rebecca Simmons, Justice

Sitting:          Catherine Stone, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: December 31, 2008

REVERSED AND RENDERED, CAUSE REMANDED

           Patrick Kimbrell, M.D. and John Horan, M.D. appeal the trial court’s order denying their

motions for summary judgment. Jeremy Molinet amended his pleadings to join Kimbrell and Horan

as additional defendants after Marque Allen, D.P.M. designated them as responsible third parties.

Kimbrell and Horan contend the trial court erred in denying their motions because section 33.004(e)

of the Texas Civil Practice and Remedies Code (“Code”), which permits a plaintiff to join a person
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designated as a responsible third party as a defendant within sixty days of the designation, cannot

be used to circumvent the two-year limitations bar contained in section 74.251 of the Code. We

reverse the trial court’s order and render judgment that Molinet’s claims against Kimbrell and Horan

are dismissed. The cause is remanded for further proceedings.

                                          BACKGROUND

       In 2005, Molinet sued several parties, including his podiatrist, Dr. Marque Allen, for

damages. Molinet asserted personal injury and medical malpractice claims relating to an injury he

sustained to his Achilles tendon and the subsequent treatment of the injury. On August 24, 2007,

Allen designated Kimbrell and Horan as responsible third parties. On August 24, 2007, Molinet

amended his petition to join Kimbrell and Horan as additional parties.

       Kimbrell and Horan each moved for summary judgment and asserted Molinet’s claims

against them were barred by the two-year limitations period contained in section 74.251 of the Code.

Molinet responded that his claims were timely pursuant to section 33.004(e) of the Code. The trial

court denied the motions, and Kimbrell and Horan filed this interlocutory appeal pursuant to section

51.014(d) based on the parties’ agreement and the trial court’s finding that the order involves a

controlling question of law.

                                     STANDARD OF REVIEW

       We review a trial court’s summary judgment order concerning statutory construction de novo.

See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). To construe a statute,

we try to determine and give effect to the Legislature’s intent by examining the plain and common

meaning of the statute’s words. State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez,

82 S.W.3d 322, 327 (Tex. 2002); see also TEX . GOV ’T CODE ANN . § 312.003 (Vernon 2008); Am.


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Home Prods. Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000). We read the statute as a whole rather

than in isolated portions. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998). When the statute’s

text is clear and unambiguous, we interpret the statute according to its plain meaning. See City of

Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). We may consider extra-textual factors,

such as legislative history, only if a contrary intention is apparent from the context or a construction

would lead to an absurd result. See City of Rockwall, 246 S.W.3d at 625-26.

                                             DISCUSSION

        Kimbrell and Horan contend section 74.251 contains an absolute two-year limitations period.

Section 74.251 states:

                 Notwithstanding any other law and subject to Subsection (b), 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[.]


TEX . CIV . PRAC. & REM . CODE ANN . § 74.251 (Vernon 2008). Kimbrell and Horan assert that the

inclusion of the “notwithstanding any other law” phrase in section 74.251 provides clear and

unambiguous language of the Legislature’s intent that the limitations period would control over any

conflicting law. Kimbrell and Horan further assert that the sixty-day period to join a person

designated as a responsible third party pursuant to section 33.004(e) does not create an exception to

the two-year limitations period set forth in section 74.251.

        Molinet relies on the following language in section 33.004(e) of the Code:

                If a person is designated under this section as a responsible third party, a
        claimant is not barred by limitations from seeking to join that person, even though
        such joinder would otherwise be barred by limitations, if the claimant seeks to join


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       that person not later than 60 days after that person is designated as a responsible third
       party.
TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(e) (Vernon 2008). Molinet argues sections 74.251

and 33.004(e) can be construed together to give effect to both provisions. According to Molinet, the

two-year limitations period under section 74.251 does not apply to situations where a responsible

third party is designated and sought to be joined within sixty days; however, if no persons are

designated as responsible third parties, then the two-year limitations period of section 74.251

continues to apply.

       Both Chapter 74 and Chapter 33 of the Code include a conflicts of law provision to be used

in reconciling any potential conflicts with other provisions. See TEX . CIV . PRAC. & REM . CODE

ANN . § 33.017 (Vernon 2008); TEX . CIV . PRAC. & REM . CODE ANN . § 74.002 (Vernon 2008).

Section 74.002 of the Code provides that Chapter 74 will control to the extent there is any conflict

between it and another chapter. TEX . CIV . PRAC. & REM . CODE ANN . § 74.002 (Vernon 2008).

Similarly, section 33.017 of the Code states that the rights of the indemnified parties shall prevail

to the extent there is conflict between Chapter 33 and any other chapter. TEX . CIV . PRAC. & REM .

CODE ANN . § 33.017 (Vernon 2008). Because both chapters contain this language, the conflicts of

law provision does not aid us in determining the Legislature’s intent.

       Section 74.251’s use of the phrase “notwithstanding any other law” is instructive, however,

and unequivocally expresses the Legislature’s intent for section 74.251 to govern when its limitations

period conflicts with other laws. See Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995). In

Chilkewitz v. Hyson, M.D., P.A., 22 S.W.3d 825, 829 (Tex. 1999), the Texas Supreme Court held

that section 10.01, now section 74.251, forecloses the operation of any statute “that would otherwise

extend limitations.” Since section 33.004(e) is a statute that would extend limitations, section

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74.251 precludes giving it any effect. See id. As the court further noted in Chilkewitz, “[o]ther than

cases concerning the open courts provision of the Texas Constitution and the tolling provisions

expressly contained within the Medical Liability and Insurance Improvement Act itself, section 10.01

[now 74.251] imposes an absolute two-year statute of limitations on health care liability actions.”

Id. Stated differently, the “any other law” language is triggered “when the statute or rule at issue

purports to either commence, toll, or extend limitations.” Gomez v. Pasadena Health Care Mgmt.,

Inc., 246 S.W.3d 306, 316 (Tex. 2008). While the tolling provision of section 33.004(e) reflects

strong policy considerations of the Legislature to protect a plaintiff, “section 10.01 [now 74.251]

expressly makes the tolling statute inapplicable to health care liability claims, reflecting a considered

legislative judgment in favor of the prompt resolution of such claims.” Yancy v. United Surgical

Partners Int’l, Inc., 236 S.W.3d 778, 784 (Tex. 2007).

        Molinet cites this court’s decision in Pochucha v. Galbraith Engineering, 243 S.W.3d 138

(Tex. App.–San Antonio 2007, pet. granted), as authority for the proposition that only claims

specifically excluded by section 33.002(c) are excluded from the application of section 33.004(e).

Unlike chapter 16, which was being analyzed in Pochucha, section 74.251 contains clear and

unambiguous language that the two-year limitations period applies “[n]otwithstanding any other

law.” Therefore, Pochucha is clearly distinguishable from the instant case.

        Although both parties address the legislative history of section 74.251 in their briefs, we do

not resort to extra-textual factors when the statute is unambiguous. See City of Rockwall,

246 S.W.3d at 625-26; Tex. Dep’t of Protective and Regulatory Servs. v. Mega Child Care, Inc.,

145 S.W.3d 170,177 (Tex. 2004). In this case, the language of section 74.251 clearly provides an

absolute two-year statute of limitations period “notwithstanding any other law.” The concerns


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expressed in the concurring opinion are well founded; however, we are constrained to rule as we do.

As long noted by the Texas Supreme Court:

       Courts may take statutes as they find them. More than that, they should be willing
       to take them as they find them. They should search out carefully the intendment
       of a statute, giving full effect to all of its terms. But they must find its intent in its
       language, and not elsewhere.... They are not responsible for omission in legislation.

RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985)(quoting Simmons v.

Arnim, 110 Tex. 309, 324, 220 S.W. 66, 70 (Tex. 1920)).

                                             CONCLUSION

       Because the “notwithstanding any other law” language of section 74.251 imposes an absolute

two-year limitations period on health care liability claims, we hold the trial court erred in denying

the motions for summary judgment. We reverse the trial court’s order and render judgment

dismissing Molinet’s claims against Kimbrell and Horan. The cause is remanded for further

proceedings.



                                                Catherine Stone, Justice




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