Leah Shike v. Anthony Charles Flot

ACCEPTED 03-15-00533-CV 8171903 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/10/2015 9:27:21 AM JEFFREY D. KYLE CLERK NO. 03-15-00533-CV

FILED IN 3rd COURT OF APPEALS In the Court of Appeals AUSTIN, TEXAS For the Third Court of Appeals District 12/10/2015 9:27:21 AM Austin, Texas JEFFREY D. KYLE Clerk

LEAH SHIKE

Appellant,

v.

ANTHONY CHARLES FLOT

Appellee

On Appeal from the 335th Judicial District Court, Bastrop County, Texas Trial Court Cause No. 29,439

APPELLANT’S BRIEF

HENSLEY LAW FIRM Edward Hensley SBN. 09492500 ed@hensleylawfirm.com

Deborah Hensley Loewe SBN. 00793939 deborah@hensleylawfirm.com

3809 South 2nd Street, Ste. A-100 Austin, Texas 78704 (512) 476-9988 (512) 327-9992, facsimile Counsel for Appellant, Leah Shike

Identity of Parties and Counsel Appellant/Plaintiff Plaintiff/Appellant’s Appellate Counsel:

HENSLEY LAW FIRM

Edward Hensley SBN. 09492500 ed@hensleylawfirm.com

Deborah Hensley Loewe SBN. 00793939 deborah@hensleylawfirm.com

3809 South 2nd Street, Ste. A-100 Austin, Texas 78704 (512) 476-9988 (512) 327-9992, facsimile

Appellee/Defendant Defendant/Appellee’s Appellate Counsel:

CLARK, TREVINO & ASSOCIATES

Ethan Goodwin SBN. 24064492 ethan.goodwin@farmersinsurance.com

1701 Directors Boulevard, Ste. 920 Austin, Texas 78744 (512) 445-1580 (512) 383-0503, facsimile

[Type text]

TABLE OF CONTENTS

Contents

STATEMENT TO THE JURISDICTION ................................................................1 STATEMENT OF THE CASE..................................................................................1 STATEMENT REGARDING ORAL ARGUMENTS .............................................1 CITATIONS TO THE RECORD ..............................................................................1 CERTIFICATE OF COMPLIANCE.........................................................................2 ISSUES PRESENTED...............................................................................................2 STATEMENT OF FACTS ........................................................................................2 SUMMARY OF ARGUMENT .................................................................................3 ARGUMENT .............................................................................................................5 A. Statute of Limitations..............................................................................5 PRAYER ....................................................................................................................8

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TABLE OF AUTHORITIES Cases

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008) .........................................4 Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) .............................4 Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005)............4 Dunmore v. Chicago Title Ins. Co., 400 S.W.3d 635, 641 (Tex. App.—Dallas 2013, no pet.) ..........................................................................................................5 Guardia v. Kontos, 961 S.W.2d 580, 583 (Tex. App.—San Antonio 1997, no pet.)6 Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532, 536 (Tex. 2013) ........7 Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985) ...........................4 Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999) ..........................6, 8 Rhone-Poulens, Inc., 997 S.W.2d at 223, n.3 ............................................................7 Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010) ............................4 Winston v. Am. Med. Int’l, Inc., 930 S.W.2d 945, 955 (Tex. App.—Houston [1st Dist.] 1996, writ denied) .........................................................................................6 Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975)...................................6 Statutes

TEX. CIV. PRAC. & REM. CODE § 16.003....................................................................3 TEX. CIV. PRAC. & REM. CODE § 16.063....................................................................3 TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2014).......................5 TEX. R. APP. P. 47.4 ...............................................................................................2, 4 TEX. R. CIV. P. 166a(c)...............................................................................................4 TEX. R. CIV. P. 45(b) ..................................................................................................7

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STATEMENT TO THE JURISDICTION This Court has appellate jurisdiction as the appeal was taken from a final

judgment of the 335th Judicial District Court of Bastrop County, Texas, disposing of all issues and parties, entered on June 17, 2015. [CR184]. Appellant/Plaintiff timely filed a notice of appeal on August 25, 2014. [CR195]

STATEMENT OF THE CASE Appellant/Plaintiff Leah Shike (“Shike”) brought a civil cause of action

against Appellee/Defendant Anthony Charles Flot (“Flot”) arising out of a motor vehicle accident which occurred April 26, 2012. Shike alleges Flot was negligent in the operation of his motor vehicle, causing the accident made the basis of the underlying suit.

Flot filed a Motion for Summary Judgment, which was granted. Shike raises a single issue in this Court challenging the sufficiency of Flot’s Motion for Summary Judgment.

STATEMENT REGARDING ORAL ARGUMENTS Appellant/Plaintiff waives her right to oral arguments.

CITATIONS TO THE RECORD The record in this case consists of a multi-volume, sequentially numbered

Clerk’s Record. Citations to this record are in the format [2CR pp].

CERTIFICATE OF COMPLIANCE I certify that this document brief/petition was prepared with Microsoft Word

2010. Relying on the word count function in the word processing software used to produce this document, I certify that the number of words in this reply (excluding any caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of facts, statement of issues presented, statement of jurisdiction, signature, proof of service, certificate of compliance, and appendix) is 1134.

ISSUES PRESENTED Shike raises a single issue in this Court, challenging the sufficiency of Flot’s

Motion for Summary Judgment. Because Flot did not prove he was entitled to judgment as a matter of law, Shike requests this Court reverse the summary judgment order because the law to be applied to this case is well settled. See TEX.

R. APP. P. 47.4.

STATEMENT OF FACTS On or about April 26, 2012, Shike was traveling on Hwy 290 in Elgin,

Bastrop County, Texas when she was involved in a motor vehicle accident with Flot.

Shike’s Original Petition [2CR5] was filed on April 11, 2014 in order to preserve the statute of limitations on Shike’s claims. Flot was served with

Citation and Petition on February 16, 2015 [2CR18]. Flot answered claiming a number of affirmative defenses, including an allegation that Shike’s claim was barred by the statute of limitations [2CR25].

Shike subsequently amended her pleadings to respond to the defense of limitations. Her Amended Petition added the following allegations: “Any applicable statute of limitations [ ] pursuant to TEX. CIV. PRAC. & REM. CODE § 16.003 is tolled pursuant [to] TEX. CIV. PRAC. & REM. CODE § 16.063 as to the named Defendant in his individual capacity. The limitations are tolled to the extent and for the duration that the individual Defendant was absent from Texas which suspends the running of the applicable statute of limitations for the period of his absence.” [2CR82].

Flot filed a motion for summary judgment based on his limitations defense [2CR29]. The trial court granted the Motion and dismissed Shike’s claim. [2CR184] Shike appeals.

SUMMARY OF ARGUMENT

Basis for Appeal

Leah Shike appeals the trial court’s order granting Flot’s Motion for Summary Judgment [2CR184] on Shike’s negligence claim. Shike raises a single issue in this Court, challenging the sufficiency of Flot’s Motion for Summary Judgment. Because Flot did not prove he was entitled to judgment as a matter of *4 law, Shike requests this Court reverse the summary judgment order because the law to be applied to this case is well settled. See TEX. R. APP. P. 47.4. Standard of Review

This court may apply well known standards in its review of traditional summary judgment motions. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden to demonstrate that no genuine issue of material fact exists and he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon, 690 S.W.2d at 548-49. We consider the evidence in the light most favorable to the nonmovant. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). In review of a traditional summary judgment in favor of a defendant, the court may determine whether the defendant conclusively disproved an element of the plaintiff’s claim or conclusively established every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to establish that defense conclusively. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). Within this framework, the court may review the trial court’s summary judgment denovo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

ARGUMENT Flot filed a traditional summary judgment motion on the single ground of

limitations [2CR29]. Flot’s summary judgment evidence included Shike’s original, but not her amended petition, which was timely filed after Flot’s Motion for Summary Judgment.

A. Statute of Limitations In her single issue, Shike argues the trial court erred in granting summary

judgment because the applicable statute of limitations was tolled by any absence of Flot from the state. A plaintiff must bring suit for personal injury no later than two years after the day the cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2014). A cause of action for negligence accrues on the date the injury-producing act is committed. Dunmore v. Chicago Title Ins. Co., 400 S.W.3d 635, 641 (Tex. App.—Dallas 2013, no pet.). The summary judgment evidence establishes that Shike’s negligence cause of action for personal injuries accrued on the date of the crash, April 26, 2012. Thus, Shike’s lawsuit would have been timely if she had filed it by April 26, 2014. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a). Shike filed suit timely, on April 11, 2014. [2CR5].

Flot’s Motion for Summary Judgment is not based upon Shike filing suit late, but on Flot’s claim that as a matter of law, Shike did not establish reasonable *6 diligence in pursing Flot to serve him with Shike’s petition and citation, claiming the defense of the statute of limitations as a bar to Shike’s claims. [2CR29].

However, when moving for summary judgment on limitations, the movant must not only establish the limitations bar, he must also negate any suspension or tolling of limitations asserted by the nonmovant. See, e.g., Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999) (discovery rule); Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975) (absence from state and diligence in procuring service of citation); Guardia v. Kontos, 961 S.W.2d 580, 583 (Tex. App.—San Antonio 1997, no pet.) (absence from state); Winston v. Am. Med. Int’l, Inc., 930 S.W.2d 945, 955 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (absence from state).

Shike’s amended pleading specifically raised the issue of Flot’s absence from the state during the limitations period and invoked the statutory provision that would have tolled the running of the statute of limitations during that absence. [2CR82]. The relevant statute provides “The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.063. Shike’s amended petition relies on this tolling “to the extent and for the duration that the individual Defendant was absent from Texas.” [2CR82].

On appeal, Shike anticipates Flot will challenge her tolling defense to his own limitations defense on two grounds. First, Flot may contend Shike’s amended pleading was insufficient to invoke Section 16.063 because the pleading does not (a) identify a particular number of days that Flot was absent from Texas or (b) aver that the number of days Flot was purportedly absent exceeded the time by which Flot claims Shike was late in serving him with citation. [2CR82].

Flot did not make this argument in his summary judgment motion, so Shike questions whether Flot has preserved it review. [2CR29]. However, even if the challenge to Shike’s pleading were preserved, it would fail. The rules require only that a party give an opponent fair notice of a cause of action or ground of defense. See TEX. R. CIV. P. 45(b); see also Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532, 536 (Tex. 2013) (purpose of notice pleading is to give opponent information sufficient to enable preparation of defense). Shike’s pleading satisfied this standard by identifying the specific statutory provision on which she relied to support her tolling defense.

Flot may also argue that Shike offered no summary judgment evidence that Flot was absent from the state a sufficient number of days to render her service of citation of petition timely. At trial, Shike would have the burden to prove Flot’s absence was in fact sufficient to overcome the limitations bar. See Rhone-Poulens, Inc., 997 S.W.2d at 223, n.3. But at the summary judgment stage, negating a *8 tolling provision is part of the movant’s burden to establish his defense of limitations conclusively. Id. at 223.

In this case, Flot did not challenge Shike’s tolling defense to Flot’s limitations defense in Flot’s motion for summary judgment and offered no summary judgment evidence related to his presence in — or absence from — the state during the relevant limitations period. Accordingly, he has not carried his burden to show he is entitled to judgment as a matter of law. See id. This Court should decide Shike’s issue in her favor.

PRAYER Leah Shike requests this court reverse the trial court’s order granting

summary judgment in favor of Flot and dismissing Shike’s claim against him, and remand this case for further proceedings consistent with this court’s opinion.

Respectfully submitted,

HENSLEY LAW FIRM

SBN. 09492500 ed@hensleylawfirm.com

Deborah Hensley Loewe SBN. 00793939 deborah@hensleylawfirm.com

3809 South 2nd Street, Ste. A-100 Austin, Texas 78704 (512) 476-9988 (512) 327-9992, facsimile

ATTORNEYS FOR APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellant’s Brief was forwarded to the following counsel of record on this 9th day of December, 2015:

Via Facsimile (512) 383-0503 Ethan Goodwin Clark, Trevino & Associates 1701 Directors Boulevard, Ste. 920 Austin, Texas 78744

JUDGMENT

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

It is ORDERED that Appellant Leah Shike recover her costs of this appeal from Appellee Anthony Charles Flot.

HONORABLE JUDGE PRESIDING

APPENDIX

Tab 1: Notice of Appeal Tab 2: Plaintiff’s Original Petition Tab 3: Citation and Affidavit of Delivery to Anthony Charles Flot Tab 4: Defendant’s First Amended Original Answer Tab 5: Plaintiff’s First Amended Original Petition Tab 6: Defendant’s Motion for Summary Judgment

Tab 7: The Trial Court’s Order Granting Defendant’s Motion for Summary Judgment Tab 8: Texas Civil Practice & Remedies Code §16.003

Tab 9: Texas Civil Practice & Remedies Code §16.063 Tab 10: Texas Rules of Appellate Procedure §47.4 Tab 11: Texas Rule of Civil Procedure 166a Tab 12: Texas Rule of Civil Procedure 45 Tab 13: Reporter’s Record