Appeal from the 270th District Court Harris County, Texas
Trial Court Cause No. 2014-05478
consists of Chief Justice Frost, and Justices Brown and
W. BROWN, JUSTICE
Jessica Chavez filed suit against Josie Andersen,
alleging personal injuries from a vehicular collision. More
than two and a half years after the collision, Chavez amended
her pleadings to name Josie's husband, Kenneth Andersen,
as a new defendant and sought to recover for personal
injuries from the same incident. Kenneth pleaded the
affirmative defense of statute of limitations and filed a
traditional motion for summary judgment on that defense. The
trial court granted the motion. Chavez now challenges that
ruling, arguing her claims are not time-barred based on the
relation-back doctrine. We affirm the trial court's grant
of summary judgment.
February 6, 2014, Chavez filed her original petition against
Josie. Chavez alleged that on or about February 8, 2012,
Josie negligently rear-ended Chavez's vehicle, resulting
in personal injuries to Chavez. On August 21, 2014, Chavez
filed a first amended petition adding Kenneth as a defendant.
In her amended petition, Chavez alleged that it was Kenneth
(rather than Josie) who negligently rear-ended Chavez's
vehicle and caused her injuries.
answered with a general denial and also asserted that
Chavez's claim was barred by the affirmative defense of
statute of limitations. Kenneth filed a traditional motion
for summary judgment based on limitations and attached
Chavez's first amended petition, which showed the date
Chavez alleged that the injuries occurred and the date Chavez
sued Kenneth. Kenneth argued that Chavez had to have filed
her personal-injury suit against him by February 8, 2014, to
avoid limitations, but that Chavez did not sue him until
August 21, 2014. Chavez filed a response and attached: her
original petition; the Liberty Mutual automobile insurance
policy in effect at the time for the named insureds Josie and
Kenneth; three letters from Liberty Mutual to Chavez's
counsel dated February 13, 2012, August 21, 2012, and
December 17, 2012, regarding Chavez's insurance claim for
injuries; Chavez's second amended petition, and copies of
case law cited in the response. Kenneth filed a sur-reply to
Chavez's response and attached case law in support.
trial court granted Kenneth's motion for summary
judgment. Chavez timely appealed.
states in her "Statement of the Case" that she
brings three issues, but she does not include an "Issues
Presented" section or further delineate any particular
issues presented for review in her brief. See Tex.
R. App. P. 38.1(d), (f). Liberally construing Chavez's
brief, we conclude she is asserting that the trial court
erred by granting summary judgment against her in favor of
Kenneth. We disagree.
review a summary judgment de novo. Mann Frankfort Stein
& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009). To prevail on a traditional motion for
summary judgment, a movant must establish "there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law." Tex.R.Civ.P.
166a(c). We review the evidence presented in the light most
favorable to the party against whom the summary judgment was
rendered, crediting favorable evidence if reasonable jurors
could, and disregarding contrary evidence unless reasonable
jurors could not. Mann, 289 S.W.3d at 848. A
defendant moving for summary judgment on the affirmative
defense of limitations has the burden to conclusively
establish that defense. See Tex. R. Civ. P. 94;
KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp.,
988 S.W.2d 746, 748 (Tex. 1999). The defendant/movant must
prove when the claim accrued and, if the plaintiff pleads the
discovery rule, then the defendant/movant must conclusively
negate it. See KPMG Peat Marwick, 988 S.W.2d
at 748. If the defendant/movant establishes that the statute
of limitations bars the action, then the burden shifts and
the plaintiff/nonmovant must adduce summary-judgment proof
raising a fact issue in avoidance of the statute of
statute of limitations for a personal-injury claim is two
years after the day the claim accrues. See Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a) (West 2017).
There is no dispute that the two-year limitations period in
this case began on February 8, 2012, the date of the
vehicular accident. It is also undisputed that Chavez sued
Kenneth on August 21, 2014, more than six months after the
limitations period expired.
courts consistently have held that a personal-injury suit is
properly barred as a matter of law based on limitations under
similar circumstances-where the plaintiff-automobile-accident
claimant mistakenly identifies and names someone other than
the intended defendant as the defendant in the original
petition and the plaintiff does not amend the petition to
name the proper defendant until after the expiration of
limitations. See Marez v. Moeck, 608 S.W.2d 740,
741-42 (Tex. Civ. App.-Corpus Christi 1980, no writ)
(upholding judgment on basis of limitations where plaintiff
originally sued father instead of son actually driving the
vehicle); see also, e.g., Brown v.
Valiyaparampil, 507 S.W.3d 773, 776-77 (Tex. App.-El
Paso 2015, pet. denied) (same where plaintiff originally sued
son instead of father actually driving the vehicle); Eggl
v. Arien, 209 S.W.3d 318, 319-20 (Tex. App.-Dallas 2006,
pet. denied) (same where plaintiff originally sued person
listed on insurance card instead of person actually driving
the vehicle); Fleener v. Williams, 62 S.W.3d 284,
287 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (same where
plaintiff originally sued mother in whose name car had been
rented instead of daughter actually driving the vehicle);
Cortinas v. Wilson, 851 S.W.2d 324, 326-28 (Tex.
App.-Dallas 1993, no writ) (same where plaintiff originally
sued parents instead of daughter actually driving the
live pleading (second amended petition) and summary-judgment
response, Chavez asserted that section 16.068 of the Texas
Civil Practice and Remedies Code applied such that her
amended pleading naming Kenneth as a party related back to
the date of her original petition. Texas's "relation
back" doctrine, as set forth ...