                            NUMBER 13-08-00043-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ALEJANDRO SANTOS AND
MARTHA MONICA SANTOS,                                                     Appellants,

                                           v.

MADELYN HOLZMAN, M.D., INDIVIDUALLY
AND D/B/A UROLOGIC SPECIALISTS
ASSOCIATES, P.A.,                                                           Appellee.


                   On appeal from the 275th District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
             Memorandum Opinion by Chief Justice Valdez

      In this medical malpractice case, appellants, Alejandro Santos and Martha Monica

Santos, appeal a summary judgment granted in favor of appellee, Madelyn Holzman, M.D,

individually and d/b/a Urologic Specialists Associates, P.A. By five issues, which can be

properly characterized as two, the Santoses contend that the trial court erred by: (1)
granting Dr. Holzman’s motion for summary judgment based on limitations and denying the

Santoses’ motion for new trial; and (2) restricting the duration and location of Holzman’s

second deposition.1 We reverse and remand.

                                               I. BACKGROUND

        On March 11, 1998, Dr. Roger Vitko performed a vasectomy on Alejandro.2 Soon

after the procedure, Alejandro’s wife became pregnant, and she eventually gave birth on

December 1, 1998. On January 28, 1999, Alejandro, concerned about the success of his

vasectomy, went to see Dr. Holzman, a board certified urologist. Based upon her palpation

of the clips placed in Alejandro’s scrotum, Dr. Holzman concluded that Alejandro was more

than likely not fertile. Alejandro submitted to a test to determine his post-vasectomy sperm

count, and on March 1, 1999, a nurse from Dr. Holzman’s office telephoned him and told

him that the test revealed that he was not fertile. Sometime between January 5 and

January 10, 2001, Martha began to believe that she was pregnant with her second post-

vasectomy child. On January 29, 2001, Martha’s doctor confirmed that she was pregnant.

On August 9, 2001, the Santoses added Dr. Holzman as a party to an existing lawsuit

against various healthcare providers by filing “Plaintiffs’ Fourth Amended Petition.”

        On May 8, 2003, the Santoses took Dr. Holzman’s deposition. At the time of the

deposition, the suit against Dr. Holzman was severed and transferred to a different court

and the severance/transfer order was on appeal to this Court. Santos v. Holzman, No. 13-


        1
            On appeal, the Santoses contend that: (1) the trial court erred by granting sum m ary judgm ent based
on lim itations in favor of Dr. Holzm an; (2) the trial court erred by granting Dr. Holzm an’s original m otion for
sum m ary judgm ent, a m otion that had previously been am ended and superceded; (3) the trial court erred by
granting sum m ary judgm ent without providing the Santoses proper notice of the sum m ary judgm ent hearing
and without consideration of the Santoses’ response; (4) the trial court erred by overruling their m otion for new
trial; and (5) the trial court abused its discretion in restricting a second deposition of Dr. Holzm an to thirty
m inutes and to Nueces County. W e will address together the Santoses’ first four issues, challenging the trial
court’s granting of Dr. Holzm an’s m otion for sum m ary judgm ent.

        2
         Originally, this dispute involved num erous parties, including Dr. Vitko; however, all parties, other than
Dr. Holzm an, have settled their claim s.
                                                        2
02-662-CV, 2005 WL 167309, at *4 (Tex. App.–Corpus Christi Jan. 27, 2005, pet. denied)

(mem. op.) (reversing the severance and transfer orders). On April 5, 2007, the Santoses

sought to depose Dr. Holzman for a second time. Dr. Holzman filed a motion to quash her

second deposition, and although the trial court did not quash Dr. Holzman’s deposition, on

May 8, 2007, the court signed a protective order limiting her deposition to thirty minutes

and requiring that it be taken in Nueces County or conducted by phone. On May 30, 2007,

the Santoses filed a motion to reconsider the trial court’s May 8, 2007 order.

       On May 22, 2007, Dr. Holzman filed “Defendant Madelyn Holzman, M.D.’s Motion

for Summary Judgment Based on Limitations.” On May 29, 2007, the trial court set her

motion for summary judgment to be heard by submission on June 27, 2007. On June 14,

2007, the trial court conducted a hearing on the Santoses’ motion for referral to alternative

dispute resolution; the court granted the motion and ordered the submission date on Dr.

Holzman’s motion for summary judgment reset to August 2, 2007. On July 27, 2007, the

Santoses filed a response to Dr. Holzman’s traditional motion for summary judgment based

on limitations. On August 2, 2007, the trial court reset the hearing for August 7, 2007. The

August 7, 2007 hearing was passed by the parties to August 16, 2007. The August 16,

2007 hearing was continued but not reset.

       On October 9, 2007, Dr. Holzman filed a document entitled “Defendant’s Amended

Motion for Summary Judgment.” On October 17, 2007 the trial court entered an order

granting summary judgment based on limitations in favor of Dr. Holzman. The Santoses

filed a motion for new trial that was later overruled by operation of law. See TEX . R. CIV.

P. 329b(c). This appeal ensued.

                      II. SUMMARY JUDGMENT BASED ON LIMITATIONS

       In their first issue, the Santoses contend that the trial court erred by granting

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summary judgment based on limitations in favor of Dr. Holzman and in denying their

motion for new trial. Specifically, the Santoses contend that the trial court erred by: (1)

granting Dr. Holzman’s original motion for summary judgment, a motion that had

subsequently been amended and superceded; and (2) granting summary judgment without

providing the Santoses proper notice of the summary judgment hearing and without

consideration of the Santoses’ response.

A.    Standard of Review

      The right to summary judgment exists only in compliance with Texas Rule of Civil

Procedure 166a. Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex.

App.–Dallas 2004, pet. denied). The movant must comply with all the requirements of the

rule, and proper notice to the non-movant of the date of submission of a summary

judgment is a prerequisite to summary judgment. See id. Because summary judgment is

a harsh remedy, reviewing courts strictly construe summary judgment in procedural and

substantive matters against the movant. Id.

B.    Amended Motion for Summary Judgment

      An amended motion for summary judgment supercedes and supplants the previous

motion, which may no longer be considered. See TEX . R. CIV. P. 65; Retzlaff v. Tex. Dep’t

of Criminal Justice, 135 S.W.3d 731, 737-38 (Tex. App.–Houston [1st Dist.] 2003, no pet.);

State v. Seventeen Thousand and No/100 Dollars U.S. Currency, 809 S.W.2d 637, 639

(Tex. App.–Corpus Christi 1991, no writ). Therefore, the Santoses contend that Dr.

Holzman’s original motion for summary judgment was superceded on October 9, 2007,

when she filed a motion entitled “Defendant’s Amended Motion for Summary Judgment.”

Dr. Holzman argues that the October 9 document was not an amended motion for

summary judgment, and was instead a mistitled reply to the Santoses’ response to her

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original motion for summary judgment.

       When justice requires, we must treat an improperly designated pleading as if it had

been properly designated. See TEX . R. CIV . P. 71. Therefore, we look to the substance

of a pleading or motion, not its title, to determine its effect. See Surgitek v. Abel, 997

S.W.2d 598, 601 (Tex. 1999); Sossi v. Willette & Guerra, LLP, 139 S.W.3d 85, 89 (Tex.

App.–Corpus Christi 2004, no pet.). Although Dr. Holzman’s October 9 document offers

some reply to the Santoses’ response, it is an entirely rewritten pleading that restates the

statute of limitations affirmative defense and asserts the additional affirmative defense of

res judicata. Because the substance of Dr. Holzman’s October 9 document accurately

reflects the title of the motion, we conclude that Dr. Holzman’s October 9, 2007 motion was

an amended motion for summary judgment and thus, her original motion for summary

judgment was superceded. See TEX . R. CIV. P. 65, 71; Retzlaff, 135 S.W.3d at 737;

Seventeen Thousand and No/100 Dollars U.S. Currency, 809 S.W.2d at 639.

C.     Analysis of the Trial Court’s Order Granting Summary Judgment

       The trial court’s order granting summary judgment states: “[T]he Court considered

the Defendant’s Motion for Summary Judgment based on Limitations, and the Court, after

considering the same, is of the opinion that the Motion should be and is herein granted.”

The Santoses argue that because the trial court limited its consideration to and granted the

“Defendant’s Motion for Summary Judgment based on Limitations”—a phrase which

mirrors the title of Holzman’s original motion for summary judgment—the trial court

erroneously granted summary judgment on Dr. Holzman’s original motion for summary

judgment, a “dead” motion. When reviewing orders that are silent as to what the trial court

considered or that recite that the trial court reviewed the pleadings and evidence before it,

we presume that the trial court considered all relevant motions properly before it. See

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Retzlaff, 135 S.W.3d at 737-38. However, in the present case, the trial court’s order states

that it only considered a document bearing the title of Dr. Holzman’s original motion for

summary judgment. Therefore, because the trial court expressly granted a “dead” motion,

we conclude that summary judgment was erroneous. See id.

       Even assuming, arguendo, that the trial court granted Dr. Holzman’s amended

motion for summary judgment, the trial court erred in granting summary judgment by failing

to give the Santoses notice of the submission date of the amended motion for summary

judgment.

       Due process requires “notice reasonably calculated, under the circumstances, to

apprise interested parties of the pendency of the action and afford them an opportunity to

present their objections.” Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988). Under

rule 166a(c) of the Texas Rules of Civil Procedure, a non-movant is afforded twenty-one

days’ notice before a summary judgment hearing or date of submission. See TEX . R. CIV.

P. 166a(c); see also Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 332 (Tex.

App.–Corpus Christi 2003, pet. denied). The Texas Supreme Court has held that a trial

court must give notice of the submission date for a motion for summary judgment, because

this date determines the date the non-movant’s response is due. Martin v. Martin, Martin

& Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998); Aguirre, 111 S.W.3d at 332. Failure

to give notice of the submission date is not jurisdictional and therefore can be rendered

harmless when the trial court considers the non-movant’s response. See Martin, 989

S.W.2d at 359 (holding that error was harmless where, after granting summary judgment,

the trial court considered the non-movant’s response and reconfirmed its ruling).

       As noted, on October 9, 2007, Dr. Holzman filed a document entitled “Defendant’s

Amended Motion for Summary Judgment,” and on October 17, 2007, the trial court entered

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an order granting summary judgment in favor of Dr. Holzman. Neither party contends that

the Santoses received notice of the submission date of the amended motion. The trial

court erred by failing to give the Santoses notice of the submission date of the amended

motion for summary judgment. See id. Moreover, although the trial court could have

considered the Santoses’ response to Dr. Holzman’s original motion for summary judgment

when it considered her amended motion for summary judgment, the Santoses contend that

the trial court did not consider their response, and as such, they were harmed.

       The Santoses contend that because the trial court’s order states, “[T]he Court

considered the Defendant’s Motion for Summary Judgment based on Limitations, and the

Court, after considering same, is of the opinion that the Motion should be and is herein

granted,” the trial court expressly limited itself to the consideration of only the “Defendant’s

Motion for Summary Judgment based on Limitations.” Generally, we presume that the trial

court considered all relevant motions properly before it if the order is (1) silent as to what

the trial court considered, or (2) recites that the trial court reviewed the pleadings and

evidence before it. See Retzlaff, 135 S.W.3d at 737-38; Milam v. Nat’l Ins. Crime Bureau,

989 S.W.2d 126, 129 (Tex. App.–San Antonio 1999, no pet.). However, here, the trial

court’s order expressly set out what the trial court considered. Even assuming that the trial

court granted summary judgment on the amended motion, the language of the order

makes it clear that only one document, the amended motion, was considered. Had the

order provided, as orders in cases where we have applied the presumption, that the trial

court considered all pleadings and evidence of the parties, or similar language, we could

presume that the trial court considered the Santoses’ response to Dr. Holzman’s original,

superceded motion for summary judgment. See Retzlaff, 135 S.W.3d at 737-38 (“The

judgment indicates that the trial court considered ‘the argument and pleadings of the

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parties filed herein.’ We take this statement to mean that the court considered all

pleadings filed prior to the date of the judgment . . . .”); Milam, 989 S.W.2d at 129 (noting

that where the summary judgment order stated that the trial court reviewed the pleadings

and evidence before reaching its decision, the appellate court could presume that the trial

court considered the nonmovant’s response to the original summary judgment motion).

Because the language of the order granting summary judgment expressly forecloses the

presumption that the Santoses’ response to Dr. Holzman’s original motion was considered,

the Santoses were unable to provide a response.

       In light of the foregoing, the Santoses’ first issue is sustained.

                                  III. SECOND DEPOSITION

       In their second issue, the Santoses contend that the trial court abused its discretion

by restricting a second deposition of Dr. Holzman to thirty minutes and requiring that the

deposition take place in Nueces County. Dr. Holzman argues that we cannot consider the

trial court’s protective order because the Santoses did not reference this order in their

motion for new trial or their notice of appeal.

       A civil appeal is perfected when the notice of appeal is filed. See TEX . R. APP. P.

26.1. The notice of appeal must specify the date of the judgment or order appealed from.

See id. 25.1(d)(2). The Santoses’ notice of appeal expressly states that they appeal only

the trial court order entered on October 17, 2007. The Santoses urge that because the trial

court’s order granting summary judgment specifically states that “[a]ll relief requested in

this case and not expressly granted is denied,” they have perfected their challenge to the

trial court’s May 8, 2007 protective order. We disagree.

       The Santoses filed a motion to reconsider the trial court’s protective order on May

30, 2007. The Santoses urge that the motion to reconsider “was overruled when the Final

                                              8
Judgment was entered which denied all requested relief,” and, therefore, by stating the

date of the October 17, 2007 order granting Dr. Holzman’s motion for summary judgment,

the Santoses perfected their complaint as to the granting of the protective order. To

support this assertion, the Santoses rely on Perry v. Cohen. 272 S.W.3d 585, 587 (Tex.

2008). Perry involves an appeal from a dismissal with prejudice due to the plaintiff’s failure

to file an amended petition that complied with an order granting the defendant’s special

exceptions. Id. at 586. In Perry, although the plaintiffs did not specifically challenge the

special exceptions order in their notice of appeal or in the issues in their appellate brief, the

court found that the plaintiffs properly challenged the special exceptions order by

challenging its merits in the body of their appellate brief. Id. at 587-88. The court

reasoned that the plaintiffs could challenge the special exceptions order, despite their

failure to identify the order in the notice of appeal, because the final judgment, a dismissal

order, essentially subsumed the special exceptions order, and the final judgment was

identified in the notice of appeal. Id. at 587-88.

       The present case is distinguishable from Perry. In Perry the trial court granted

dismissal for failing to comply with an order granting special exceptions. See id. Here, the

trial court granted summary judgment based on limitations and was in no way related to

the protective order the Santoses request we review. Because Perry is distinguishable and

appellants have failed to cite authority supporting their proposition, we do not conclude that

the trial court’s protective order was subsumed by the order granting summary judgment.

Accordingly, the Santoses have failed to perfect their appeal from the protective order.

See TEX . R. APP. P. 25.1(d)(2); see also Law Offices of Lin & Assocs. v. Ho, No. 14-01-

01265-CV, 2002 WL 31319191, at *2 (Tex. App.–Houston [14th Dist.] Oct. 17, 2002, pet.

denied) (mem. op., not designated for publication) (holding that appellant failed to preserve

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review of a protective order where she failed to request that the trial court rule or object to

the trial court’s failure to rule on her motion to reconsider a protective order). The

Santoses’ second issue is overruled.

                                       IV. CONCLUSION

       We reverse the trial court’s order granting summary judgment and remand the case

to the trial court for further proceedings consistent with this opinion.




                                                   ROGELIO VALDEZ
                                                   Chief Justice


Delivered and filed the
18th day of February, 2010.




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