Opinion issued July 15, 2014




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                          ————————————
                               NO. 01-13-00527-CV
                          ———————————
  KAREN MURRAY, INDIVIDUALLY AND AS REPRESENTATIVE OF
    THE ESTATE OF JEAN PIERRE ANTHONY JACKSON SMITH,
                          Appellant
                                       V.
PINNACLE HEALTH FACILITIES XV D/B/A WOODRIDGE NURSING &
                REHABILITATION, Appellee



                  On Appeal from the 270th District Court
                           Harris County, Texas
                     Trial Court Case No. 2012-49263



                        MEMORANDUM OPINION

     Appellant, Karen Murray, individually and as representative of the Estate of

Jean Pierre Anthony Jackson Smith, challenges the trial court’s rendition of
summary judgment in favor of appellee, Pinnacle Health Facilities XV doing

business as Woodridge Nursing & Rehabilitation (“Pinnacle”), in Murray’s suit

against Pinnacle for the wrongful death of Smith, her child. In her sole issue,

Murray contends that the trial court erred in granting Pinnacle summary judgment.

      We affirm.

                                    Background

      In her petition, filed on August 27, 2012, Murray raised claims for wrongful

death and survival, alleging that Pinnacle provided “medical care, advice and

treatment” to Smith. In doing so, Pinnacle violated the “duty of care it owed to”

Smith, was negligent, and caused Smith’s death on August 28, 2010.

      Pinnacle moved for summary judgment, asserting that the statute of

limitations barred Murray’s claims. Pinnacle argued that Murray was required to

file suit no later than two years from the date Smith was discharged from

Pinnacle’s care, August 24, 2010, because her claims are for health care liability

and she failed to provide the required medical authorization necessary to toll

limitations. 1 Pinnacle attached to its motion a copy of its discharge form for

Smith, a January 18, 2011 notice of claim from Murray, and a “HIPAA

Authorization to Disclose Protected Health Information” form signed by Murray.
1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a), (c) (Vernon 2011), § 74.052
      (Vernon Supp. 2013), § 74.251(a) (Vernon 2011) (governing statute of limitations
      for health care liability claims, medical authorization, and tolling of statute of
      limitations).


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      In her response to Pinnacle’s motion, Murray argued that the statute of

limitations should be tolled for seventy-five days because she provided Pinnacle

with the requisite notice and medical authorization. 2       Murray attached to her

response an affidavit from her counsel, who testified that he sent the notice and

medical authorization to Pinnacle on November 11, 2010. She also attached to her

response a copy of her November 11, 2010 notice of claim and a “HIPPA

Authorization to Disclose Protected Health Information” form signed by her.

      After the trial court denied Pinnacle’s summary-judgment motion, Pinnacle

filed a motion for rehearing, arguing that Murray’s claims were barred by the

statute of limitations because Murray had failed to provide Pinnacle with a proper

medical authorization. 3 Pinnacle attached to its motion for rehearing the same

exhibits it had attached to its summary-judgment motion. In response, Murray

asserted that there was “a genuine issue of material fact . . . as to [her] claim of the

tolling of the Statute of Limitations” and Pinnacle should not be allowed to

complain that her notice and medical authorization were improper when Pinnacle

had previously denied that Smith had been a resident at Pinnacle. Murray attached

to her response an affidavit from her counsel, who testified that he sent the notice

and medical authorization to Pinnacle on November 10, 2010, and Pinnacle had

2
      See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.051(a), (c), 74.052 (addressing
      notice, medical authorization, and tolling of statute of limitations).
3
      See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.051(a), (c), 74.052, 74.251(a).


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denied that Smith had been its resident. She also attached to her response a copy

of her November 11, 2010 notice of claim, a “HIPPA Authorization to Disclose

Protected Health Information” form signed by Murray, and Pinnacle’s December

6, 2010 “Medical Records Request Response Form,” which stated that Smith had

not been a resident at Pinnacle.

      The trial court granted Pinnacle’s motion for rehearing and signed an order

“alter[ing] its [previous] ruling denying [Pinnacle’s] Motion for Summary

Judgment” and dismissing all of Murray’s claims against Pinnacle.            Murray

subsequently filed a motion for new trial, arguing that, “because of the defective

discharge of the deceased by [Pinnacle],” the statutory date for the filing of her

claims was “August 27[,] 2012 instead of August 23, 2012.” The motion was

overruled by operation of law.

                                 Summary Judgment

      To prevail on a summary-judgment motion, a movant has the burden of

proving that it is entitled to judgment as a matter of law and there is no genuine

issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). When a defendant moves for summary judgment, it must either

(1) disprove at least one essential element of the plaintiff’s cause of action or (2)

plead and conclusively establish each essential element of its affirmative defense,

thereby defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341;



                                         4
Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied). When deciding whether there is a disputed, material fact

issue precluding summary judgment, evidence favorable to the non-movant will be

taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.

1985). Every reasonable inference must be indulged in favor of the non-movant

and any doubts must be resolved in its favor. Id. at 549.

      In her sole issue, Murray argues that the trial court erred in granting Pinnacle

summary judgment because Smith had been “transported to a hospital for

emergency treatment of bedsores and the requirements for discharge [were]

not . . . met pursuant to the Texas Administrative Code.” In other words, Murray

seeks to challenge “the discharge compliance with the Texas Administrative Code”

on appeal.

      In response, Pinnacle argues that Murray waived this issue for appellate

review because she did not raise it in her response to Pinnacle’s summary-

judgment motion or in her response to Pinnacle’s motion for rehearing. Because

Murray did not raise her argument concerning Smith’s purportedly defective

discharge in the trial court, we must address the issue of whether she waived her

right to challenge the summary judgment on such grounds. See Wilson v. Deutsche

Bank Trust Co. Ams., No. 01-12-00284-CV, 2014 WL 1516533, at *3 (Tex.

App.—Houston [1st Dist.] Apr. 17, 2014, no pet.) (mem. op.); Kuper v. Stewart



                                          5
Title Guar. Co., No. 01-00-00777-CV, 2002 WL 31429754, at *4 (Tex. App.—

Houston [1st Dist.] Oct. 31, 2002, no pet.) (not designated for publication).

      A non-movant must expressly present in her written response or answer to a

summary-judgment motion any issues that would defeat the movant’s entitlement

to summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,

341, 343 (Tex. 1993); Dubose v. Worker’s Med., P.A., 117 S.W.3d 916, 920 (Tex.

App.—Houston [14th Dist.] 2003, no pet.); Frazer v. Tex. Farm Bureau Mut. Ins.

Co., 4 S.W.3d 819, 824–25 (Tex. App.—Houston [1st Dist.] 1999, no pet.); see

also City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.

1979).   To “expressly” present issues, the written answer or response to the

summary-judgment motion must fairly apprise the movant and the trial court of the

issues the non-movant contends should defeat summary judgment. Tello v. Bank

One, N.A., 218 S.W.3d 109, 119 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Any issues not expressly presented by the non-movant to the trial court in a written

response may not be considered as grounds for reversal. 4 See TEX. R. CIV. P.

166a(c); Dubose, 117 S.W.3d at 920; Frazer, 4 S.W.3d at 825; see also TEX. R.

APP. P. 33.1(a) (as prerequisite for presenting complaint for appellate review,

4
      The exception to this general rule is that the non-movant may still challenge on
      appeal the legal sufficiency of the evidence supporting summary judgment. City
      of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Haden v.
      David J. Sacks, P.C., 332 S.W.3d 503, 516–17 (Tex. App.—Houston [1st Dist.]
      2009, pet. denied). Here, Murray does not challenge the legal sufficiency of the
      evidence supporting summary judgment.


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record must show complaint was made to trial court by timely request, objection,

or motion). The failure to present an issue to defeat summary judgment in the trial

court waives the issue on appeal. D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co.,

300 S.W.3d 740, 743 (Tex. 2009); Dubose, 117 S.W.3d at 920; Kaye v. Harris

Cnty. Mun. Util. Dist. No. 9, 866 S.W.2d 791, 794 (Tex. App.—Houston [14th

Dist.] 1993, no writ).

      Murray did not raise, in either her response to Pinnacle’s summary-judgment

motion or her response to Pinnacle’s motion for rehearing,5 the issue concerning

Smith’s purportedly defective discharge by Pinnacle. Instead, Murray waited until

her motion for new trial—filed after the trial court had granted Pinnacle’s motion

for rehearing and dismissed Murray’s claims against Pinnacle—to raise the issue of

the faulty discharge of Smith. This was not sufficient to preserve the issue for

appellate review. See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797–98

(Tex. 2008) (argument first raised by non-movant in post-judgment filing did not

preserve argument for appeal); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980

S.W.2d 462, 467 (Tex. 1998) (party waived reliance on argument that it asserted

for first time in motion for new trial); UL, Inc. v. Pruneda, No. 01-09-00169-CV,

2010 WL 5060638, at *8 (Tex. App.—Houston [1st Dist.] Dec. 9, 2010, no pet.)


5
      See Lection v. Dyll, 65 S.W.3d 696, 703 (Tex. App.—Dallas 2001, pet. denied)
      (“[M]otion to reconsider the denial of the motion for summary judgment [is]
      simply a reassertion of the motion for summary judgment.”).


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(mem. op.) (appellate court cannot consider, as grounds for reversal, argument first

raised post-judgment in reply to appellee’s response to appellant’s motion for new

trial); City of Lancaster v. Clopton, 246 S.W.3d 837, 839 (Tex. App.—Dallas

2008, no pet.) (“Alleged unconstitutionality of the statute raised for the first time in

the City’s postjudgment motions did not bring the issue before the trial court and

will not be considered by this Court.”); Bazile v. Aetna Cas. & Sur. Co., 784

S.W.2d 73, 74 (Tex. App.—Houston [14th Dist.] 1989, writ dism’d) (appellant

waived argument presented for first time in motion for new trial). Because Murray

did not timely raise her argument regarding the alleged defective discharge of

Smith, we hold that she waived the issue for appellate review and we may not

consider it as grounds for reversal. See TEX. R. CIV. P. 166a(c).

      We overrule Murray’s sole issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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