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Chavez v. Andersen

Court of Appeals of Texas, Fourteenth District

April 25, 2017

JESSICA CHAVEZ, Appellant
v.
KENNETH ANDERSEN, Appellee

         On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2014-05478

          Panel consists of Chief Justice Frost, and Justices Brown and Jewell.

          OPINION

          MARC W. BROWN, JUSTICE

         Appellant Jessica Chavez filed suit against Josie Andersen, [1] 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.

         I. Background

         On 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.

         Kenneth 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.

         The trial court granted Kenneth's motion for summary judgment.[2] Chavez timely appealed.

         II. Analysis

         Chavez 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.[3] We disagree.

         We 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.[4] 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 limitations. Id.

         The 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.

         Texas 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 vehicle).

         In her 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 ...


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