*1 contract, tions from the or to other extract part agreement.
concessions as authority F.2d at No cited for statement, which is the for the basis
majority’s holding that holder
right refusal first remove
conditions from contract or extract if
concessions the conditions of offered
contract commercially were nоt faith, imposed in bad specifical-
ly designed option to defeat holder’s
rights. other Texas cases relied on
by the proposition Fifth Circuit for this are Id. point.
also not in my colleagues with
Fifth buyers Circuit that sellers and should
not be allowed defeat a of first by creating
refusal terms that a sham. this difficult re- issue is best judgment.
solved after a full trial and a final
I think we have both weak and a record in West Texas opinion
weak Transmission Thus,
which tо announce new rule of law. judge the trial did hold
abuse in preserving his discretion the status
quo pending judgment. a final
I respectfully dissent. BATTAILE, as Next Friend Battaile, Minor,
Appellant, YOFFE,
Stuart M.D. James and Richard Vadala, M.D., Appellees.
No. 01-93-01168-CV. Texas, Appeals (1st Dist.).
Houston *2 Cotton, Austin, on Clark, filed this suit Shannon’s Don R. for Claire Battaile Mark P. 29, 1993; fif- appellant. behalf on March years оld at the time. Doctors Yoffe teen Porter, Houston, appellees. E. for Joan summary judg- filed and Vadala motions claiming was time that Shannon’s suit OLIVER-PARROTT, C.J., and Before granted. Both barred. motions MIRABAL JJ. error,1 рoints of Bat-
In three related grant in the trial court erred taile contends OPINION summary the statute judgment because MIRABAL, Justice. (the Li Improvement Act summary judg- appeal This from Act)2 as is unconstitutional aрpellees, Dr. ment in favor Stuart James plaintiff, minor Shannon. Yadala, in Dr. Yoffe and Richard malpractice suit. passing upon constitutionali brought this medical mal- Claire Bataille presumption ty bеgin Dr. practice Dr. Yoffe and Vada- presumed that the validity. It is to be daughter, Shannon. la on behalf of her acted or alleged that original petition, In her Bataille Davis, arbitrarily. Smith v. Yoffe and Vаdala Doctors opin A mere difference properly grossly negligent and/or differ, ion, could where reasonable minds diagnose for certain sei- and treat Shannon legis striking a sufficient basis for down (cid:127) activity apneic episodes that she zure as or unreasonable. lation days after her in the first three suffered provides part: birth. law, any health Notwithstanding summary judgment undisputed evi- un- be cоmmenced care claim gave that Claire Battaile birth dence shows filed within two less the action is Medical Center to Shannon Northwest or tort occurrence the breach from the Fеbruary Dr. 1978. Neither Houston on or care from date the medical health or were involved with Yoffe nor Vadala subject claim treatment prenatal care Shannon’s Battaile’s or the claim is hospitalization or birth, Dr. day birth. On that, completed; provided minors made is Khan, Lee Ahmad “on call” for Dr. Yoffe was have until tmder shall primary pediatrician. Dr. Yoffe Battaile’s file, birthday in ivhich their Hth approximately five hours first saw Shannon Ex- the claim. their filed by a he was alerted after her birth when subchapter cept provided, herein as peri- suffering nurse that Shannon was minor- applies persons regardless breathing. Dr. cessation of apnea; ods of disability. ity next did not see Shannon Vadala February 1978. Doctors morning, added). (Vernon Pamph.1994) (emphasis for her continu- treated Shannоn and Vadala limita- argues that the statute of Battaile transferred Her- ing apnea until she was Liability Act unconsti- in the Medical days her birth. tions Hospital three after mann regard such as Shan- tutional with trеated or seen Shannon doctor has Neither non, “open courts” because February since violates Therefore, negligence. will summary Ais Court motion for Aat Dr. Yoffe's genuine error con- was no judgment that there address Battaile's first asserted negligence regarding applicable cerning fact issue of material cause, point fourth proximate and that Battaile's limitatiоns. summary ground judg- of error addresses appel- his concedes in ment. (Vernon Pamph. art. 4590Í 2. Tex Rev.Civ.Stat.Ann summary response Aat Battaile’s late brief genuine issue of material judgment raised a Appаrently bar- Constitution her case. he believes Shan- ring a why minor’s cause action before he or non show some her mother reason she is able suit. The failed assert a claim on her behalf. provides: “All courts shall the court indicated that is open, every person inquiry for an done not a relevant because it would be *3 him, lands, goods, to person reputa- rely upon reasonаble nor to “neither realistic tion, remedy by parents may ignorant, lethargic, shall have ... who due course of I, concern, malpractice § bring law.” or lack to ac- Tex.Const. statute, prоvided by tion” within the time the In to assert a of order violation the and, failing if a even provision, litigant meet timely sue the child’s the child is (1) two criteria: that she cognizable has a Sax, precluded suing pаrent. the 648 being of common-law cause action that at 667. S.W.2d (2) restricted; that Finally, argues that even if and basis of the statute. find the article 661, Sax v. 648 S.W.2d 666 4590i, § 10.01 as to unconstitutional by equita claim is also barred Sаx, Supreme the Texas Court consid- ble doctrine of laches. the record ered precursor of the plead shows Dr. Yoffe did that not section 10.01 of Medical Act.3 defense, raise it in his motiоn sum acknowledged legitimate pur- court mary of judgment. The defense laches can pose of length the statute was to limit of appeal. be raised the first time on professionals time that exposed Dietz, Refining 398 Danaho Co. S.W.2d potential liability. By doing, so it was 307, 1966, (Tex.Civ.App. Corpus 312 Christi — hoped malpractice that medical insurance Dunn, n.r.e.); Merrill v. ref'd decrease, thereby increasing rates would 320, (Tex.Civ.App. Paso — El availability quality of all. health care for 1940, cor.). judgmt writ dism’d Nevertheless, Id. the court concluded that cognizant that We are of the fact the cur the limitations statute was an unreasonable rent of than limitations is broader restriction on a minor’s common-law cause statute declared unconstitutional the Sax negligence, action for off because it cut that 10.01, a minor Under cause of action before the minor was age given age child under the of 12 is to the able to providing assert without ade- suit, bring previ 14 to quate remedy. whereas substitute Id. аt 667. 4, ous statute minor child six was under responds that has an given age eight only to his or her remedy; conten- is his that the claim. we find rea tion that Shannon sue her soning opinion governs dispo Sax negligently malprac- assert a sition case. the Waco of this We that tice claim behalf. on her the Sax Appeals recently reached the same rejected court argument. Weiner, conclusion Wasson v. n.w.h.). 1994, (Tex.App. Waco, argues Dr. Vadala that Shannon must show that the uncon- limitations is We further note that court recently applied continuing appli- stitutional as facts of reаffirmed the 5.82, 4, 5.82, 4, § § Insur- Former article the Texas 4. Former article of the Texas Insur- 3, 1975, R.S., Leg., 3, 1975, R.S., ance June Code Act of 64th Leg., ance Act of June 64th Code 330, 1, 864, 865-66, ch. 1975 Tex.Gen.Laws 1, 864, 865-66, 330, § ch. 1975 Tex.Gen.Laws 16, 1977, repealed by C.S., Leg., 1st 65th 1977, 16, repealed Leg., by Act of June 65th 1st Improve- and Insurance C.S., Improve- and Insurance Act, pt. ment 2039, ch. 1977 Tex.Gen.Laws pt. ch. 1977 Tex.Gen.Laws precursor 2064. Under this to article 2039, 2064. 10.01, years under six given eight was old suit. reаching eight cability employed file his or her action Sax when reason holding age, the section unconstitu- involving legal dis Sax issues tional as it do feel incapacity. In Ruiz v. of mental Co decision, the Sax which concerned noco, Inc., court stated: eight unreasonable when compared disabilities purpose of incapacity: and mental status dispositive new statute impossible analogy It to avoid the period in which a minor which increases the plain- between the situation of the child years, file is unconstitutional. can arguably incompe- tiff and the [in Sacc] majоrity agrees with Sax that plaintiff Traditionally tent this case. purpose and basis for the medical minors, incompetents, the interests legitimate. at 667. I with the *4 helpless persons and other are viewed majority respect. in this similar, substantially law as and both the justify Sax uses One reasons proce- substantive law and rules criteria, i.e., that is second comparable dure accord them treatmеnt. arbitrary when unreasonable balanced (Tex.1993).5 752, 755 purpose, is neither against cuts off a Because article 10.01 rely nor realistic to minor’s cause of action before the minor a who themselves be legally able and there agree. minors. remedy available to legislature evidently The felt that this ar- minor, we hold be unconstitu- gument immediately reasonable tional as argument changed addressed appellant’s of er- We sustain statute to extend the time which minors ror. age. may file at three to four have child judgment We reverse the and remand argument substantiate cause to trial legislature in wisdom statute. The its new felt, agree, that this extension to and I would Justice, dissenting. fair reasonable legislature restrict Did the rights minor child’s between the balance passed of minоr to sue when need that we all exists for requiring mi statute. nor file his cause action reach The court has not addressed the age? an years of To determine the which the court was conсerned matter with question swer we must address liability Sax since new not the restriction contained became effective. the Medical (Vernon Pamph.1994). purpose present I would hold that medical lia- v. and basis of the statute. Sax nor bility is neither unreasonable ar- 661, 666 bitrary when specifically mandated that and basis of statute. liability apply persons the medical judgment and would affirm I dissent legаl disabili- regardless of of the trial court. majority ty. The relies in which the court court decision the former medical
whether or not 5.82, 4, former article Code, required a minor to approval Constitution when it the case of our 5. The court cited with Ruiz Henderson, operates the cause of action from medical to bar Tinkle ref'd). malpractice brought remained one who has App. Tyler Tinkle court continuously mentally incompetent the time two-year had limitation held suit is filed.” 730 S.W.2d Act was "violative of