
NO. 07-04-0036-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL A



MAY 27, 2004



______________________________





JEROME GONZALES, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE





_________________________________



FROM THE 242ND DISTRICT COURT OF HALE COUNTY;



NO. B13535-9909; HONORABLE ED SELF, JUDGE



_______________________________



Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Jerome Gonzales filed a Motion to Dismiss Appeal on May 24, 2004, averring that he no longer wishes to prosecute his appeal.   The Motion to Dismiss is signed by both appellant and his attorney.  

Without passing on the merits of the case, appellant’s motion for voluntary dismissal is granted and the appeal is hereby dismissed.  Tex. R. App. P. 42.2.   Having dismissed 



the appeal at appellant’s personal request, no motion for rehearing will be entertained and our mandate will issue forthwith.  





Phil Johnson

    	Chief Justice































































Do not publish.



lso executed an order identifying her as a vexatious litigant.  Borth previously sued Kelleher for damages purportedly arising from a surgery performed by Kelleher on July 25, 1991.  That suit resulted both in a trial court judgment denying her relief against the doctor and an opinion from this court affirming that judgment.  
See Borth v. Kelleher
, No. 07-01-0054-CV, 2002 Tex. App. 
Lexis
 398 (Tex. App.–Amarillo, January 18, 2002, pet. denied).  Despite those decrees, Borth again sued the doctor, on November 5, 2004, again seeking recovery for injuries purportedly caused by the same 1991 surgery.  Upon joining issue, Kelleher moved for summary judgment alleging, among other things, limitations and 
res judicata
.  So too did it move to have Borth designated a vexatious litigant.  Both forms of relief were granted Kelleher by the trial court.  Appealing from those orders, Borth contends that the trial court erred in entering them.

Having determined in our 2002 opinion that Borth’s claims against the doctor arising from the 1991 surgery were then barred by limitations, we see no reason why that conclusion should be any different now.  As early as March 11, 1993, she accused the doctor of erring, in some manner, during the surgery.  So too has she sought and obtained medical care related to her alleged injuries as well as initiated multiple suits against Kelleher involving the same acts (though claiming different injuries).  More importantly, her having so initiated such suits (as early as November 16, 1998), it cannot be said that she lacked reasonable opportunity to discover the purported wrongs and prosecute the claims encompassed in her 2004 suit.  
See Shah v. Moss
, 67 S.W.3d 836, 842 (Tex. 2001) (holding that the open courts provision of our state constitution bars application of limitations to claims of which the complainant lacked reasonable opportunity to discover).  So, for the reasons expressed in our 2002 opinion, we again conclude that limitations barred Borth from suing Kelleher in 2004.   Finally, because Borth again attempted to sue Kelleher upon causes of action encompassed by previous suits and rejected through a prior judgment, we also conclude that the trial court had basis to deem her a vexatious litigant.  
See 
Tex. Civ. Prac. & Rem. Code Ann. 
 §11.054(2)(A) & (B) (Vernon 2002) (defining a vexatious litigant as one who attempts 
to relitigate, in propria persona, the validity of a prior determination against the same defendant after litigation has been finally determined against her and there is no reasonable probability she will prevail).

Accordingly, we overrule Borth’s points of error and affirm the judgment and order of the trial court.





Per Curiam

