1 John T. Boyd, Chief Justi ce (Ret .) , Sevent h Court of Appeal s, si tt ing by assi gnm ent. T EX
. G OV ’ T C ODE A NN . §75 .002 (a)(1) (V erno n S upp . 200 4). NO. 07-03-0234-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E MARCH , 2004

______________________________ BILLY RA

Y MCDANI ELS, Appellant
v. BERNHA RD T. MITT EMEYER, M.D., C. C OLEMAN B ROWN, M.D., and UNIVERS ITY MEDIC AL CENT ER BOARDOF DIREC TORS, DAVID AL LISON, JA MES P. CO URTNEY, AND CAR OL CLOUD , Appellees

_________________________________ FROM THE 99 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-520,136; HON. ANDREW KUPPER, PRE SIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. 1 BillyRay McDaniels appeals from final summary judgments decreeing that he take nothing, in his m edical m alpracti ce suit, a gainst B ernhard T . Mittemeyer, M.D ., and the Universi tyMedical Center Board of Directors David Alli son, James P. Courtney, and Carol2 In addit ion t o the par ti es we named , M cD an ie ls also sue d C. C olem an B rown , M.D . How ever, cita ti on wa s ne ver s erve d up on h im, a s de term ined by the trial cou rt. Nor d id Bro wn fi le an an swer
. Furt hermore, nothi ng of record i ndicat es that McDa niels cont inued to at tempt or expected t o obtain ser vice upon Br own
. Un de r t he se ci r cu ms tances, and si nce McDaniel s was denied recover y agai nst al l ot her defendant s, we t reatthe f ail ure t o serve Brown as a non-su itand deem the sum ma ry judg me nts fina l. See Youn gst own Sheet & Tube Co. v. Penn , 363 S. W.2d 230 , 232 (Tex. 1962) ( so holding under l ike circu ms tanc es).

3 We de scribe t he facts and background of the case in a l ight most f avorable t o McD aniels. 2 Cloud, R.N. (col lectivel y referred to as UMC ). 2 His sole issue co ncerns whethe r the trial court properly granted summary judgment on the basis of li mitations . We affirm the judgment of the tria l court. Background 3 The record before us reveals that McDan iels, an inmatein the Institutional Division of the Department of Criminal Justice, underwent surgery on May 16, 2 000, for the removal of a tumor o n his ki dney. Th e procedu re, done at the Un iversity Medical C enter, was performed by doctors Mittemeyer and Brown. And, rather th an simpl y remove t he tumor, the two surgeons purportedly removed his entire kidney and adrenal gland without his prior consent. This al legedly constitu ted medical malpra ctice. McDaniels sent toMittemeyer, Brown, and UMC notice of his claim on or by May 13, 20 02. Subsequ ently, according to McDaniels, suit was filed on August 12, 2002. After joining issue, U MC and Mittemeyer moved (in separate motions) for summary ju dgment, contending that the litigation was not commenced within the applicable statu te of limitati ons. Thetrial co urt grante d the moti ons and d enied Mc Daniels recovery
. Statute of Limitations Itis well settled that

an individual has two years to file suit alleging achose-in-action sounding in medical malpractice. Chilkewitz v. Hyson , 22 S.W.3 d 825, 82 9-30 (Tex . 1999).4 Though McDaniel s suggest s that Saturd ays, Sundays and hol idays are exc luded from the calcul at ion, he c ites us to no auth ority su ppo rting tha t prop osition . Indee d, su ch a mo de o f calcu lati n g deadli nes goes unmenti oned in t hose prov isi ons of t he Texas GovernmentCode addressi ng the c omputati on of time

. See T EX
. G OV ’ T C OD E A NN
. § 311.01 4 (Vernon 1998). Nor coul d one even saythat Rule 4 of

the Texa s Ru les of C ivil Proc edu re au thorize s the exc lusion of we eke nds and holida ys. See T EX
. R. C IV
. P. 4 (st ati ng that

Saturd ays, Sundays, a nd legal holi days shal l not be counted for

any pur pose in any t ime peri od of “fi ve days or less” in t hese rules). Thus, we reject McDaniels’ mode of cal culat ing t he rel evant t ime peri od. 3 The period commences on the date the breach or tort occurred or from the date the medical or health care treatment underlying the claim was completed

. Id. And, it is absolute, meaning that any delay in the discovery of the purported misfeasance does not postpone the date on which the two year period begins to run. Id. However, if timely notice of the claim is afforded the defendants, the two years is extended by 75 days. T EX
. R EV
. C IV
. S TAT
. A NN
. art. 4590 i §4.01(c ) (Vernon Supp. 20 03). Here, it is undisputed that the breach, act or treatment complained of

happened on Ma y 16, 2000 . Assumi ng notice of the c laim was timely afforded U MC and Mi ttemeyer, limitations began to run on May 17, 2 000, and expired two year s and 75 days late r, i.e. July 30, 2002. McDaniels, however, did not file sui t until August 12, 2002, or approximately 13 days after the period had lapsed. 4 Thus, suit was untimely as a matter of law. To the extent that McDaniels a lso avers t hat summary judgment could not be awarded to Mittemeyer on grounds not expressed in his motion, we note the followi ng. In his motion, Mittemeyer stated thathe “joins in the Motion for Summary Judgment filed by” UMC. So too did he expressly “adopt[] all briefing and facts set out in” the same motion. Furthermore, in UMC’s motion, the movants expressly alleged that “Plaintiff’s cla im [was],
as a matter of law, barred by the statute of limitat i ons conta ined in Tex. Rev . Civ. Sta t. Ann., Art. 4590 i, §10.01 .” Whilethe better practice may have been to expressly urge4

limitations as a grou nd for sum mary judgm ent, by jo ining i n the mo tion of UM C and by adopti ng its briefing and factual allegations, Mittemeyer effe ctively incorporated into his own motion the grou nd that su it was ba rred by l imitatio ns. See Chapmanv. King Ranch, Inc. , 41 S.W.3d 69 3, 699-70 0 (Tex. A pp.–Corp us Chris ti 2001), rev’d on other gro unds , 118 S.W.3d 742 (Tex. 2003) (stating that grounds for summary judgment appearing in o n e defendant’s moti on may be adopted and incorpor ated by reference into another defendan t’ s motion). For the reaso ns stated above, we overru le McDaniels’ issue and affirm the fina l summary ju dgments.

Brian Quinn Justice