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Cantu v. Landy10/31/1995
Vicki Cantu appeals from a summary judgement granted in favor of appellees. In two points of error, Cantu contends the trial court erred in granting appellees' motions for summary judgement based upon the statute of limitations.
FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 1987, William Freeman shot Donald Hazelwood, Shane Hazelwood's father. Freeman had been taking Halcion, a drug manufactured by the Upjohn Company (Upjohn) and prescribed by Dr. Landy.
Six years after Hazelwood's death, Cantu filed this wrongful death action on behalf of her son against appellees and three other defendants. Appellees filed motions for summary judgment. The trial court granted appellees' motions for summary judgement based solely on limitations and severed Cantu's claims against the appellees. Appellant settled with the remaining defendants and pursued this appeal against Dr. Landy and Upjohn. Subsequently, appellant settled with Upjohn.
APPLICABLE LAW
The purpose of the summary judgement rule is not to provide either a trial by deposition or a trial by affidavit, but rather to provide a method of summarily ending a case that involves only questions of law and no genuine material fact issues remain. Port Distrib. Corp. v. Fritz Chem. Co., 775 S.W.2d 669, 670 (Tex. App. -- Dallas 1989, writ dism'd by agr.). A motion for summary judgement "must stand or fall on the grounds expressly presented in the motion." McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); McDaniel v. Continental Apartments Joint Venture, 887 S.W.2d 167, 173 (Tex. App. -- Dallas 1994, writ denied). Put another way, "a summary judgement cannot be sustained on a ground not specifically set forth in the motion." Rutherford v. Whataburger, Inc., 601 S.W.2d 441, 443 (Tex. Civ. App. -- Dallas 1980, writ ref'd n.r.e.).
APPLICATION OF LAW
Landy
In her first point of error, Cantu complains the trial court erred in granting Landy's motion for summary judgement because her son's minority status tolled the limitations period.Landy's motion for summary judgment stated as its sole ground that Cantu's claim was barred by the two year statute of limitations found in section 16.003(b) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 16.003(b) (Vernon 1986). Landy's brief states article 4590i, Section(s) 10.01 "is the statute of limitations which controls." During oral argument, Landy stipulated and insisted the trial court granted him summary judgement based solely upon article 4590i, Section(s) 10.01 of the Texas Revised Civil Statutes - not section 16.003(b).
The trial court granted Landy's motion for summary judgement upon grounds not stated in the motion. Accordingly, we hold the trial court improperly granted Landy's motion for summary judgment. See McConnell, 858 S.W.2d at 341; McDaniel, 887 S.W.2d at 173; Rutherford, 601 S.W.2d at 443. We sustain Cantu's first point of error.
We expressly do not address the applicability of article 4590i to this cause.
The Upjohn Company
In her second point of error, Cantu complains the trial court erred in granting Upjohn's motion for summary judgment. In Cantu's reply brief, Cantu states the claim against Upjohn has been settled. At oral argument, Cantu abandoned her second point of error. Accordingly, we do not address it.
We reverse the trial court's judgement and remand this cause to the trial court for further proceedings consistent with this opinion.
TOM JAMES JUSTICE
Do Not Publish Tex. R. App. P. 90 941992F.U05
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