                             NUMBER 13-09-00425-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

MARY MOROLES,                                                                Appellant,

                                            v.

DOCTOR’S HOSPITAL AT RENAISSANCE, LTD.,                                       Appellee.


               On appeal from the County Court at Law No. 2
                        of Hidalgo County, Texas.


                          MEMORANDUM OPINION
             Before Justices Rodriguez, Garza, and Benavides
                 Memorandum Opinion by Justice Garza
       Appellant, Mary Moroles, appeals from a summary judgment granted in favor of

appellee, Doctor’s Hospital at Renaissance, Ltd. (“Doctor’s Hospital”). In granting Doctor’s

Hospital’s summary judgment motion, the trial court concluded that Moroles failed to file

her lawsuit within the two-year statute of limitations prescribed by chapter 74 of the civil

practice and remedies code. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.251(a) (Vernon

2005). By two issues, Moroles argues that the trial court erred in granting the summary

judgment motion and denying her motion for reconsideration because: (1) a fact question

exists as to the date triggering the statute of limitations period, and therefore, summary

judgment is precluded; and (2) the open courts provision of the Texas Constitution permits
her lawsuit. See TEX . CONST . art. I, § 13. We affirm.

                                               I. BACKGROUND

        Moroles’s underlying claims arise from an incident where she slipped and fell on a

grape in an H.E. Butt Grocery Company (“H.E.B.”) store, which caused her kneecap to

shatter in five places. Moroles was treated by Francis M. Sweeney, M.D. at Doctor’s

Hospital. Dr. Sweeney first operated on Moroles’s knee on July 8, 2004. In order to

reunite the broken bones in Moroles’s kneecap, Dr. Sweeney inserted several pins in the

kneecap. However, Moroles’s kneecap did not heal, and a second surgery was performed

on September 1, 2005. During the second surgery, some of the pins were removed from

Moroles’s kneecap. Dr. Sweeney ordered that the removed pins be cultured because it

was suspected that Moroles’s knee failed to heal because of a fungal infection inside the

surgical wound. The cultures were completed on September 13, 2005, and the results

revealed that the removed pins were covered with Aspergillus flavus, a fungus.1 Moroles

was subsequently referred to an infectious disease specialist for further treatment.

        On August 17, 2007, Moroles filed her first amended petition asserting premises

liability claims against H.E.B. and health care liability claims against Dr. Sweeney and

Doctor’s Hospital.2 In response, Doctor’s Hospital filed an answer, traditional and no-

evidence motions for summary judgment, and a motion to dismiss. In particular, Doctor’s

Hospital’s traditional summary judgment motion argued that Moroles failed to timely file her

health care liability claims against Doctor’s Hospital. See TEX . CIV. PRAC . & REM . CODE

ANN . § 74.251(a). Specifically, Doctor’s Hospital contended that: (1) Moroles failed to

comply with the two-year statute of limitations period governing health care liability claims

by filing suit more than three years after the triggering event—the alleged infection

        1
          On appeal, Moroles asserts that “[t]he species of m old cultured from inside her knee is one that is
associated with soil, decaying vegetation, and water-dam aged m aterials, not a hum an infection.” Aspergillus
flavus, a fungus, “is a plant, anim al, and hum an pathogen that produces the carcinogen, aflatoxin.”
Aspergillus flavus.org: Aspergillus flavus and aflatoxin, http://www.aspergillusflavus.org/index.htm l (last visited
Jan. 7, 2010). Aflatoxins “are toxic and carcinogenic m etabolites” that m ay cause “acute hepatitis,
im m unosuppression, and heptocellular carcinom a.” Id.
        2
            H.E.B. and Dr. Sweeney are not parties to this appeal.

                                                         2
occurring during the July 8, 2004 surgery, see id.; and (2) the open courts provision of the

Texas Constitution did not toll the statute of limitations in this case because Moroles

discovered the infection within two years of the triggering event (ten months prior to the

expiration of the limitations period) and because Moroles waited more than twenty-three

months from the alleged discovery of the infection to file suit. See TEX . CONST . art. 1, § 13.

       Moroles responded by arguing that the two-year statute of limitations began to run

at the time she discovered the infection—September 14, 2005. She further argued that

Doctor’s Hospital cannot hold her, a layperson without medical training, to a higher

standard than doctors in discovering hidden damage and loss. Moroles contended that,

because the two-year statute of limitations began to run on September 14, 2005, her suit

against Doctor’s Hospital on August 17, 2007, filed less than two years after allegedly

discovering the infection, was timely. Moroles supported her arguments with citations to

case law interpreting the open courts provision of the Texas Constitution. See Kallam v.

Boyd, 232 S.W.3d 774, 775-76 (Tex. 2007) (per curiam); see also Nelson v. Krusen, 678

S.W.2d 918, 920-24 (Tex. 1984); Walters v. Cleveland Reg’l Med. Ctr., 264 S.W.3d 154,

157-59 (Tex. App.–Houston [1st Dist.] 2007, pet. granted).

       The trial court granted Doctor’s Hospital’s traditional summary judgment motion on

May 19, 2008, noting that “Defendant’s First Amended Motion for Summary Judgment is

granted for the Plaintiff’s failure to file her lawsuit against the Defendant within the two (2)

year statute of limitations . . . .” Shortly thereafter, Moroles filed a motion to reconsider the

trial court’s granting of Doctor’s Hospital’s summary judgment motion. In this motion,

Moroles reasserted the arguments made in her response to Doctor’s Hospital’s summary

judgment motion and further argued that the open courts provision of the Texas

Constitution tolled the limitations period because her injury was not discoverable when the

July 8, 2004 surgery was conducted and, by using the July 8, 2004 surgery date for

limitations purposes, the trial court endorsed “a remedy by due course of law contingent

on an impossibility” (i.e., concluding that she should have filed suit before the infection was


                                               3
discovered). See id. After a hearing, the trial court denied Moroles’s motion to reconsider

on June 3, 2009. After a severance order was entered, this appeal ensued.

                      II. STANDARD OF REVIEW      AND   APPLICABLE LAW

A.     Motion to Reconsider

       The standard of review for a motion to reconsider a prior summary judgment is

whether the trial court abused its discretion. See Macy v. Waste Mgmt., Inc., 294 S.W.3d

638, 651 (Tex. App.–Houston [1st Dist.] 2009, no pet.); see also Shanley v. First Horizon

Home Loan Corp., Nos. 14-07-01023-CV, 14-08-00060-CV, 2009 Tex. App. LEXIS 9301,

at *6 (Tex. App.–Houston [14th Dist.] Dec. 8, 2009, no pet h.) (mem. op.). A trial judge

abuses his discretion only when he makes a decision that is unreasonable or arbitrary, or

without reference to any guiding rules or principles. See Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

B.     Summary Judgment for Defendant Based on Limitations

       We review a trial court’s granting of a traditional motion for summary judgment

under a de novo standard of review. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814,

816 n.7 (Tex. 2005) (citing Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290

n.137 (Tex. 2004)); see also Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.–Corpus

Christi 2003, no pet.). To prevail on a summary judgment motion, a moving party must

establish that no genuine issue of material fact exists and judgment should be granted as

a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In deciding whether there

is a genuine issue of material fact, we resolve any doubt against the movant, view the

evidence in a light most favorable to the non-movant, and take as true evidence favorable

to the non-movant. Id.; see Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.

1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)).

       The statute of limitations is an affirmative defense. See TEX . R. CIV. P. 94; see also

Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). A defendant moving

for summary judgment on a statute of limitations affirmative defense must conclusively


                                              4
prove the elements of the defense. Shah, 67 S.W.3d at 842; see Garza v. Exel Logistics,

Inc., 161 S.W.3d 473, 475 n.10 (Tex. 2005) (“[A] defendant moving for summary judgment

on an affirmative defense must prove each element of its defense as a matter of law,

leaving no issues of material fact.”). Thus, the defendant must (1) conclusively prove when

the cause of action accrued, and (2) negate the discovery rule, if it applies and has been

pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue

of material fact about when the plaintiff discovered, or in the exercise of reasonable

diligence should have discovered, the nature of her injury. KPMG Peat Marwick v.

Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); see Montes v.

Villarreal, 281 S.W.3d 552, 555 (Tex. App.–El Paso 2008, pet. filed). If the movant

establishes that the statute of limitations bars the action, the non-movant must then adduce

summary judgment evidence raising a fact issue in avoidance of the statute of limitations.

See KPMG Peat Marwick, 988 S.W.2d at 748; Walker v. Harris, 924 S.W.2d 375, 377

(Tex. 1996); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

(Tex. 1979) (holding that when a movant establishes a right to summary judgment, the

burden shifts to the non-movant to raise a fact issue precluding judgment); Zale Corp. v.

Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975).

C.     The Law in Question

       Section 74.251(a) of the civil practice and remedies code provides as follows:

       [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; 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
       section applies to all persons regardless of minority or other legal disability.

TEX . CIV. PRAC . & REM . CODE ANN . § 74.251(a).

                                        III. ANALYSIS

A.     The Date Triggering the Running of the Statute of Limitations

       By her first issue, Moroles argues that summary judgment is precluded because

there is a fact question regarding the date triggering the limitations period. Specifically,

                                              5
Moroles contends that: (1) the infection was not ascertainable until she received the

results of the fungal culture on September 14, 2005; (2) she received ongoing treatment,

which tolled the limitations period; and (3) the discovery rule tolled the limitations period

because the infection was undiscoverable until September 14, 2005. Doctor’s Hospital

asserts that: (1) Moroles was required to file suit within two years from the ascertainable

date of the alleged negligence, July 8, 2004; and (2) neither section 74.251(a) of the civil

practice and remedies code nor Texas case law have provided that the two-year limitations

period may be tolled. See id.

       1.     The Governing Limitations Period

       The two-year limitations period imposed by section 74.251 of the civil practice and

remedies code is measured from one of three dates: (1) the occurrence of the breach or

tort; (2) the date that the relevant course of treatment was completed; or (3) the last date

of the relevant hospitalization. Id.; see Shah, 67 S.W.3d at 842-43; Kimball v. Brothers,

741 S.W.2d 370, 372 (Tex. 1987). A medical malpractice claimant may not choose from

among the measurement that most favors her case. Shah, 67 S.W.3d at 841. If the date

of the breach or tort is ascertainable, limitations began to run on that date, and inquiries

into the second and third categories are not necessary. See Shah, 67 S.W.3d at 841

(citing Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999)).

       2.     Whether the Date of the Alleged Negligence is Ascertainable

       First, we must determine whether the date of the alleged negligence is

ascertainable. See Shah, 67 S.W.3d at 841; see also Winston v. Peterek, 132 S.W.3d

204, 207 (Tex. App.–Houston [14th Dist.] 2004, pet. denied). If the defendant committed

the alleged tort on an ascertainable date, whether the plaintiff established a course of

treatment is immaterial because limitations begins to run on the ascertainable date. See

Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998); see also Shah, 67 S.W.3d at 841. If

the date the health care provider’s alleged negligence took place can be ascertained, then

there are no doubts to resolve, and we must measure limitations from that date. Husain,

964 S.W.2d at 919.

                                             6
        Moroles contends that the precise date of the alleged negligence is not

ascertainable. We disagree. Here, the date of Dr. Sweeney's and, in turn, Doctor's

Hospital's alleged negligence is readily ascertainable. Dr. Sweeney operated on Moroles’s

knee on July 8, 2004. During this surgery, pins were inserted in Moroles’s knee. Later, on

September 14, 2005, lab tests revealed that the pins inserted in Moroles’s knee were

covered with fungi, and Moroles filed suit against Doctor’s Hospital on August 17, 2007.

Moroles offered deposition testimony that it was her belief that she acquired the infection

during the July 8, 2004 surgery because her knee never fused after the surgery as a result

of the infection.3

        Because the date in which the alleged negligence occurred is ascertainable, and

because Moroles did not file suit until more than three years after that date, Moroles’s

negligence claim is barred. See Chambers v. Conaway, 883 S.W.2d 156, 159 (Tex. 1993)

(holding that when a claim accrues is a question of law, not one of fact); Moreno v. Sterling

Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) (noting that, for purposes of the application

of limitations statutes, a cause of action generally accrues when the wrongful act effects

an injury, regardless of when the plaintiff learned of the injury); Mills v. Pate, 225 S.W.3d

277, 285 (Tex. App.–El Paso 2006, no pet.); see also Rodriguez v. Mem’l Med. Ctr., No.

13-06-162-CV, 2007 Tex. App. LEXIS 9159, at *7 (Tex. App.–Corpus Christi Nov. 20,

2007, no pet.) (mem. op.) (concluding that the date of the surgery when a sponge was left

in plaintiff’s body was ascertainable, and appellant’s suit was time-barred because it was

filed approximately twenty-seven months after the surgery); Streich v. Pallares, No. 13-02-

698-CV, 2005 Tex. App. LEXIS 5224, at **5-6 (Tex. App.–Corpus Christi July 7, 2005, no

pet.) (mem. op.) (holding that appellant’s medical liability claim was time-barred even

though appellant was unaware of the alleged malpractice until two months after it occurred

        3
           In her deposition testim ony, Moroles testified that, except for her trial attorney, no one else had
inform ed her that she acquired the fungal infection from the July 8, 2004 procedure conducted at Doctor’s
Hospital. However, this testim ony is belied by her own pleadings and the affidavit of W illiam R. Martin, M.D.,
which was attached to her response to one of Doctor’s Hospital’s m otions for sum m ary judgm ent. In his
affidavit, Dr. Martin accuses Sweeney and Doctor’s Hospital of negligence in failing to m aintain a sterile
surgical field for the July 8, 2004 surgery and that the cause of Moroles’s aspergillus infection was the July
8, 2004 surgery.

                                                       7
and did not file suit until more than twenty-eights months after the alleged malpractice).4

        Based on the foregoing, we conclude that Doctor’s Hospital conclusively established

that the statute of limitations bars Moroles’s action and is entitled to judgment as a matter

of law. See TEX . R. CIV. P. 166a(c); see also KPMG Peat Marwick, 988 S.W.2d at 748.

B.      The Open Courts Provision of the Texas Constitution

        In her second issue, Moroles argues that the open courts provision of the Texas

Constitution tolls the limitations period in a health care liability claim so long as a claimant

exercises due diligence in bringing suit within a reasonable time after discovering her claim.

Moroles again argues that she has received ongoing treatment regarding the knee injury

from doctors at Doctor’s Hospital; therefore, the date of the original surgery is not

conclusive for purposes of calculating the limitations period. Doctor’s Hospital contends

that the open courts provision does not toll the limitations period if a claimant discovers the

injury within the applicable two-year limitations period. Doctor’s Hospital also asserts that

Moroles did not exercise due diligence in bringing suit within a reasonable time after

discovering the infection.

        1.       Applicable Law

        The Texas Constitution guarantees that persons bringing common-law claims will

not unreasonably or arbitrarily be denied access to the courts. TEX . CONST . art. I, § 13 (“All

courts shall be open, and every person for an injury done him, in his lands, goods, person


        4
           Moroles’s argum ent that she received ongoing treatm ent which tolled the lim itations period is
im m aterial because the exact date of the alleged tort is ascertainable. Shah v. Moss, 67 S.W .3d 836, 841
(Tex. 2001); see also Earle v. Ratliff, 998 S.W .2d 882, 886 (Tex. 1999).

          Further, with respect to Moroles’s argum ent that the discovery rule applies, she does not cite any
authority that specifically holds that the rule applies in a situation such as this, nor does she show why
Morrison v. Chan is not controlling precedent. See 699 S.W .2d 205, 208 (Tex. 1985) (“W e hold that the
Legislature’s intent in passing Art. 4590i, § 10.01 [the predecessor to section 74.251 of the civil practice and
rem edies code], was to abolish the discovery rule in cases governed by the Medical Liability Act.”). W e
conclude that Moroles’s discovery rule argum ent has been waived due to inadequate briefing. See T EX . R.
A PP . P. 38.1(i). W e note also that Moroles did not raise the discovery rule argum ent in her response to
Doctor’s Hospital’s traditional m otion for sum m ary judgm ent. See T EX . R. C IV . P. 166a(c) (“Issues not
expressly presented to the trial court by written m otion, answer or other response shall not be considered on
appeal as grounds for reversal.”); see also Teter v. Comm’n for Lawyer Discipline, 261 S.W .3d 796, 798-99
(Tex. App.–Dallas 2008, no pet.) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W .2d 337, 341, 343
(Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589 S.W .2d 671, 677 (Tex. 1979)). W hile Moroles
did argue in her m otion for reconsideration that the “open courts requires the discovery rule,” we interpret this
contention to pertain to the open courts provision of the Texas Constitution, which we discuss below.

                                                        8
or reputation, shall have remedy by due course of law.”); see Shah, 67 S.W.3d at 841

(citing Earle, 998 S.W.2d at 889; Jennings, 917 S.W.2d at 793). The Shah court noted

that “a statute that unreasonably or arbitrarily abridges a person’s right to obtain redress

for injuries another person’s harmful act causes is an unconstitutional due-course-of-law

violation.” Shah, 67 S.W.3d at 842 (citing Earle, 998 S.W.2d at 889; Jennings, 917 S.W.2d

at 793). Thus, the open courts provision of the Texas Constitution protects a person from

legislative acts that truncate a person’s right to sue before there is a reasonable

opportunity to discover the wrong and subsequently bring suit. Id. (citing Neagle v. Nelson,

685 S.W.2d 11, 12 (Tex. 1985)). Moreover, “the Legislature cannot abrogate the right to

bring a well-established common-law claim without showing that the statute’s objectives

and purposes outweigh denying the constitutionally guaranteed right of redress.” Id. (citing

Weiner v. Wasson, 900 S.W.2d 316, 318 (Tex. 1995); Sax v. Votteler, 648 S.W.2d 661,

665-66 (Tex. 1983)).

       However, unlike the discovery rule, which a defendant must negate once the plaintiff

has pleaded it, a plaintiff asserting that the open courts provision defeats limitations bears

the burden of raising a fact issue. Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d

778, 782 (Tex. 2007) (citing Brown v. Shores, 77 S.W.3d 884, 888-89 (Tex. App.–Houston

[14th Dist.] 2002, no pet.) (Brister, C.J., concurring)). The Yancy court stated the following

with respect to the open courts provision and the tolling of the limitations period:

       Instead, Yancy’s claim is based on the open courts guarantee, which is
       premised on the notion 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). 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, HECI Exploration Co. v. Neel, 982
       S.W.2d 881, 886 (Tex. 1997), the open courts provision merely gives litigants
       a reasonable time to discover their injuries and file suit, Hall v. Dow Corning
       Co., 114 F.3d 73, 77 (5th Cir. 1997) (applying Texas law). 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. Hall, 114 F.3d at 77.

236 S.W.3d at 784 (concluding that a plaintiff’s health care liability claims were time-barred

when she found out about her condition on May 3, 2000, and retained a lawyer—on or

                                              9
about December 10, 2001—well within the limitations period, yet did not file suit against

the relevant health care provider until September 2, 2003) (emphasis added). If the

plaintiff fails to bring the claim within a reasonable time, then there will be no violation of

the open courts provision. Id. at 785. This rule is in place to prevent claims from existing

indefinitely. See Rankin v. Methodist Healthcare Sys. of San Antonio, Ltd., 261 S.W.3d

93, 103 (Tex. App.–San Antonio 2008, pet. granted).

       2.      Discussion

       “To establish a right to redress under the open courts provision, a litigant must show

(1) that [s]he has a cognizable common-law cause of action, and (2) that restriction of the

claim is unreasonable or arbitrary when balanced against the statute’s purpose.” Diaz, 941

S.W.2d at 100. Once the plaintiff establishes a prima facie violation, she must show she

used due diligence in bringing the suit within a reasonable time after learning about the

alleged wrong. See Pech v. Estate of Tavarez, 112 S.W.3d 282, 285 (Tex. App.–Corpus

Christi 2003, no pet.) (citing Shah, 67 S.W.3d at 847; Nelson, 678 S.W.2d at 921-22;

DeRuy v. Garza, 995 S.W.2d 748, 752 (Tex. App.–San Antonio 1999, no pet.)); see also

Shah, 67 S.W.3d at 847 (“A plaintiff may not obtain relief under the open courts provision

if he does not use due diligence and sue within a reasonable time after learning about the

alleged wrong.”). “The reasonable time is given in order to allow a claimant to investigate,

prepare[,] and file suit after discovering her injury.” Pech, 112 S.W.3d at 285-86 (citing

Gagnier v. Wichelhaus, 17 S.W.3d 739, 745 (Tex. App.–Houston [1st Dist.] 2000, pet.

denied); DeRuy, 995 S.W.2d at 752).

       There is no clear authority as to what a “reasonable time” is within which to file a

health care liability claim after discovering an injury, especially when the suit is filed outside

the limitations period. See Gagnier, 17 S.W.3d at 745. “Whether a plaintiff has used the

degree of diligence required is ordinarily a question of fact to be determined by the trier of

fact; however, it may be ‘determined as a matter of law when the evidence construed most

favorably for the claimant, admits no other conclusion.’” Pech, 112 S.W.3d at 286 (quoting

Neagle, 685 S.W.2d at 14 (Kilgarlin, J., concurring) and citing DeRuy, 995 S.W.2d at 752-

                                               10
53). Several Texas courts have addressed this precise issue, yet no court has definitively

determined how much elapsed time constitutes a “reasonable time.” Compare Gagnier,

17 S.W.3d at 745 (holding that a ten month delay in filing suit was not per se unreasonable

when defendants delayed in providing plaintiff with medical records and plaintiff was

recovering, consulting with an attorney, and investigating her claim), and DeRuy, 995

S.W.2d at 753 (holding that approximately a one-year delay in filing suit was not per se

unreasonable when plaintiff was recuperating for three months, consulted an attorney six

months later, and filed suit three months later), with Shah, 67 S.W.3d at 847 (holding a

seventeen-month delay in filing suit was unreasonable as a matter of law when plaintiff

offered no explanation for the delay), and Hall, 114 F.3d at 77 (applying Texas law to find

a fifteen-month delay in bringing suit unreasonable under the open courts provision), and

Erickson v. Heim-Hall, 172 S.W.3d 664, 666 (Tex. App.–San Antonio 2005, no pet.) (“We

hold that the nineteen[-]month delay between the October 2001 discovery of the

misdiagnosis and the filing of the underlying lawsuit in May of 2003 was unreasonable as

a matter of law.”), and Pech, 112 S.W.3d at 287 (concluding that a fourteen-month delay

in filing suit after discovery of the injury was unreasonable), and Voegtlin v. Perryman, 977

S.W.2d 806, 813 (Tex. App.–Fort Worth 1998, no pet.) (concluding that a delay of more

than one year was unreasonable when plaintiff offered no explanation for the delay), and

Fiore v. HCA Health Servs. of Tex., Inc., 915 S.W.2d 233, 237 (Tex. App.–Fort Worth

1996, writ denied) (holding that a thirteen-month delay in bringing suit was excessive as

a matter of law when plaintiff offered no explanation for the delay), and LaGesse v.

PrimaCare, Inc., 899 S.W.2d 43, 47 (Tex. App.–Eastland 1995, writ denied) (concluding

that a twelve-month delay was excessive as a matter of law where the only reasons for the

delay were the result of the trial attorney’s actions), and Work v. Duval, 809 S.W.2d 351,

353-54 (Tex. App.–Houston [14th Dist.] 1991, no writ) (holding that an injury discovered

four months prior to the expiration of the two-year limitations period irrelevant because

plaintiff unreasonably delayed in filing suit for twenty-one months following the discovery

of the injury).

                                             11
        In the present case, Dr. Sweeney first operated on Moroles’s knee at Doctor’s

Hospital on July 8, 2004, which we concluded earlier was the date of the alleged tortious

conduct from which the limitations period outlined by section 74.251(a) began to run. See

TEX . CIV. PRAC . & REM . CODE ANN . § 74.251(a). Thus, under the applicable limitations

period, Moroles should have filed suit by July 10, 2006.5 Moroles alleged to have first

discovered the fungal infection on September 14, 2005, which was within the governing

limitations period. However, she did not file suit until August 17, 2007, more than thirteen

months after the limitations period expired and more than twenty-three months after she

alleged to have discovered the infection. Assuming, arguendo, that Moroles indeed first

discovered the infection on September 14, 2005, she had approximately ten months to file

suit before the limitations period expired on July 10, 2006. The record does not contain

an explanation from Moroles as to the delay in filing suit. On appeal, she argues that she

delayed filing suit because she was receiving ongoing treatment for the infection.

However, this precise explanation was not made to the trial court. See TEX . R. APP. P.

33.1(a).

        We do not find Moroles’s delay in bringing suit to be reasonable. See Shah, 67

S.W.3d at 847; Hall, 114 F.3d at 77; Erickson, 172 S.W.3d at 666; Pech, 112 S.W.3d at

287; Voegtlin, 977 S.W.2d at 813; Fiore, 915 S.W.2d at 237; LaGesse, 899 S.W.2d at 47;

Work, 809 S.W.2d at 353-54. We therefore conclude that Moroles did not meet her burden

in raising a fact issue that the open courts provision defeats the governing limitations

statute; thus, the open courts provision does not save Moroles’s claim. See TEX . CIV.

PRAC . & REM . CODE ANN . § 74.251(a); see also Yancy, 236 S.W.3d 778, 782; Pech, 112

S.W.3d at 287-88.

        Because we have held that Doctor’s Hospital was entitled to summary judgment on

limitations and the open courts provision of the Texas Constitution did not save Moroles’s


         5
           July 8, 2006, two years from the date of the July 8, 2004 surgery, fell on a Saturday; therefore,
Moroles had until the following Monday, July 10, 2006, in which to file suit. See T EX . R. C IV . P. 4 (“The last
day of the period so com puted is to be included, unless it is a Saturday, Sunday or legal holiday, in which
event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.”).

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claims, we conclude that the trial court correctly granted summary judgment and did not

abuse its discretion is denying Moroles’s motion for reconsideration. See Downer, 701

S.W.2d at 241-42; Macy, 294 S.W.3d at 651; see also Shanley, 2009 Tex. App. LEXIS

9301, at *6. Accordingly, we overrule both of Moroles’s issues on appeal.

                                    IV. CONCLUSION

      We affirm the judgment of the trial court.




                                                   DORI CONTRERAS GARZA,
                                                   Justice

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




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