                                 NO. 07-00-0529-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL A

                                NOVEMBER 28, 2001

                        ______________________________


                        SHAWNA LYN BORTH, APPELLANT

                                         V.

        JAMES WHITTENBURG WALKER, JR. M.D.; EARLY B. LOKEY, M.D.;

                   AND LISA E. VEGGEBERG, M.D., APPELLEES


                      _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 87,371-E; HONORABLE ABE LOPEZ, JUDGE

                       _______________________________

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


      Proceeding pro se, appellant Shawna Lyn Borth presents eight issues by which she

challenges two separate orders dated October 5, 2000, granting two motions for summary

judgment that she take nothing on her action against appellees James Whittenburg
Walker, Jr., M.D., Early B. Lokey, M.D., and Lisa E. Veggeberg, M.D. (doctors).1 Based

on the rationale expressed herein, we affirm.


       In April 1994, Borth was treated by Walker at the J.O. Wyatt Clinic which provides

care for indigent patients. At all relevant times during Borth’s treatment, Lokey was the

Indigent Care Coordinator for the Clinic. Borth continued to receive treatment and in

October 1997, she requested that Walker refer her to an allergist. Walker prescribed

nasal spray and informed Borth he would not grant the referral until she tried the spray.

She was not pleased and asked Lokey to place her under the care of another physician.

Her request was denied and she then asked Veggeberg, a pediatrician acting in an

administrative capacity as Medical Director, for assistance. Veggeberg responded by

denying Borth’s request for a referral on December 4, 1997. On January 14, 2000, Borth

sent a letter to each doctor stating her intent to file a healthcare liability claim, which was

followed by her petition filed on March 23, 2000, alleging various grounds of negligence

against Walker and Lokey and alleging negligence for failure to give a referral on

December 4, 1997, against Veggeberg. Borth subsequently stated in her deposition that

the alleged wrongdoing by Walker and Lokey occurred on or before December 17, 1997.




       1
        Multiple orders that, when taken together, dispose of all parties and claims can
constitute a final judgment. See generally Mafrige v. Ross, 866 S.W.2d 590 (Tex. 1993),
overruled in part, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204 (Tex. 2001) (overruling
Mafrige to the extent that it held that the inclusion of Mother Hubbard language in a
summary judgment made it final for purposes of appeal).

                                              2
       In response to Borth’s claims, the doctors answered contending (1) the absence of

a physician/patient relationship and (2) that her claims were barred by the two-year statute

of limitations per section 10.01 of the Medical Liability Insurance Improvement Act, Tex.

Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2002), which defenses were raised by the

doctors as grounds for their traditional motions for summary judgment pursuant to Rule

166a(b) of the Texas Rules of Civil Procedure. Before we consider Borth’s issues, we first

set forth the appropriate standard of review.


                                STANDARD OF REVIEW


       In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985):


       1. The movant for summary judgment has the burden of showing that there
       is no genuine issue of material fact and that it is entitled to judgment as a
       matter of law.

       2. In deciding whether there is a disputed material fact issue precluding
       summary judgment, evidence favorable to the non-movant will be taken as
       true.

       3. Every reasonable inference must be indulged in favor of the non-movant
       and any doubts resolved in its favor.


For a party to prevail on a motion for summary judgment, he must conclusively establish

the absence of any genuine question of material fact and that he is entitled to judgment

as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential


                                             3
elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least

one essential element of the non-movant's cause of action. Randall's Food Markets, Inc.

v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right

to summary judgment, the non-movant has the burden to respond to the motion for

summary judgment and present to the trial court any issues that would preclude summary

judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.

1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996,

writ denied). When a summary judgment does not specify or state the grounds relied on,

the summary judgment will be affirmed on appeal if any of the grounds presented in the

motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co.

of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no

writ). Issues which the non-movant contends preclude the granting of a summary judgment

must be expressly presented to the trial court by written answer or other written response

to the motion and not by mere reference to summary judgment evidence. McConnell v.

Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented

to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex.

R. Civ. P. 166a(c). Further, all theories in support of or in opposition to a motion for

summary judgment must be presented in writing to the trial court. Casso v. Brand, 776

S.W.2d 551, 553 (Tex. 1989). Additionally, pleadings do not constitute summary judgment

proof. Clear Creek Basin Authority, 589 S.W.2d at 678.



                                             4
       Borth does not present a general issue complaining that the trial court erred in

granting summary judgment which would have allowed her to raise all possible grounds

upon which summary judgment should have been denied. See Malooly Brothers, Inc. v.

Napier, 461 S.W.2d 119, 121 (Tex. 1970). Instead, she presents eight issues which do

not state concisely any contentions and in her brief she does not clearly and concisely

argue her issues. See Tex. R. App. P. 38.1(e) and (h). All of the issues state conclusions

without addressing any specific error. However, because we are required to review briefs

liberally, Tex. R. App. P. 38.9, we will consider the statute of limitations issue presented

in Borth’s fifth issue. She contends:


       [a]uthorities and arguments presented in Plaintiff’s Response to Defendants’
       Motions for Summary Judgment in order to prevent Defendants’ (sic) from
       hiding behind the two-Year Statute of Limitations.


Borth contended that the doctors were negligent for failing to grant a referral on two dates

in December 1997.2 On January 14, 2000, Borth sent by certified mail, return receipt

requested, a handwritten letter to each doctor stating that she intended to assert a

healthcare liability claim against each of them. She attached a copy of each letter to her

response to the doctors’ motions for summary judgment, but the letters stating that she

intended to assert healthcare liability claims were not supported by proper affidavit and



       2
       According to Borth’s deposition, the date of alleged wrongdoing by Doctors Lockey
and Walker is December 17, 1997. Additionally, Borth’s petition referenced December 4,
1997 as the date of wrongdoing by Doctor Veggeberg.

                                             5
were not in a form admissible at trial and, therefore, were not summary judgment evidence.

See Tex. R. Civ. P. 166a(c); Trunkhill Capital, Inc. v. Jansma, 905 S.W.2d 464, 469 (Tex.

App.--Waco 1995, writ denied).


        Moreover, under section 10.01 of the Act, a healthcare liability claim must be filed

within two years. Section 4.01(c) of the Act provides that the limitations period can be

tolled for 75 days following written notice to the party against whom recovery is sought as

required by section 4.01(a). Borth admitted in her deposition that Walker and Lokey

committed no wrongful acts after December 1997. Also, in her petition, Borth alleged that

Veggeberg’s negligent failure to refer her to a specialist resulted in injury on December 4,

1997.


        The two-year statute of limitations begins to run from the date medical treatment is

completed. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). When the date of the

tort is ascertainable, limitations begins to run on that date. Id. Because Borth complains

that the alleged wrongdoing occurred in December 1997, the maximum limitations period

would be 75 days after the December 1999 deadlines. Borth’s failure to timely give notice

before this date precluded her from claiming the additional 75-day tolling period. Notice

given to extend filing for 75 days in accordance with section 4.01(a) must be given before

limitations runs in order to extend the deadlines. Jennings v. Burgess, 917 S.W.2d 790,

793 (Tex. 1996). Borth’s complaints against all three doctors alleged torts occurring in

December 1997. At the latest, the two-year statute of limitations expired on December 4,

                                             6
1999, as to Veggeberg, and on December 17, 1999, as to Lokey and Walker. The

additional dates that Borth alleged treatment occurred are immaterial because the statute

began to run when the alleged tort occurred. Kimball, 741 S.W.2d at 372. Thus, when

Borth filed her petition on March 23, 2000, the two-year statute of limitations had already

expired. Borth’s fifth issue is overruled. Pursuant to Carr, 776 S.W.2d at 569, because

the summary judgments did not specify the grounds relied on, both can be affirmed on the

statute of limitations ground. Thus, we need not address Borth’s remaining contentions.


              Accordingly, the judgment of the trial court is affirmed.



                                          Don H. Reavis
                                            Justice

Do not publish.




                                             7
