Appeal from the County Court at Law No. 1 Brazoria County,
Texas Trial Court Case No. CI56457
consists of Justices Lloyd, Landau, and Countiss.
Brad Michael Ryes, challenges the trial court's rendition
of summary judgment in favor of appellee, Dianne Richard
Ross, in Ryes's suit against her for negligence. In his
sole issue, Ryes contends that the trial court erred in
granting Ross summary judgment on his negligence claim
because the statute of limitations was tolled pursuant to
Texas Civil Practices and Remedies Code section 16.063
reverse and remand.
petition, filed on September 5, 2017, Ryes alleged that, on
August 30, 2015, while backing his car out of a parking space
in a parking lot in Brazoria County, Texas, Ross's car
"backed into" the car that Ryes was driving.
According to Ryes, he "sustained serious injuries"
and incurred damages "[d]ue to the force and impact of
the collision." Ryes brought a claim for negligence
against Ross and sought damages for the injuries resulting
from the car collision. He further alleged that "[u]pon
information and belief," Ross had "been outside of
the State of Texas for a number of days and unavailable for
service of process."
generally denied Ryes's allegation and asserted various
affirmative and other defenses, including that Ryes's
claim was barred by the applicable two-year statute of
limitations. Ross then moved for summary judgment,
arguing that she was entitled to judgment as a matter of law
because Ryes's negligence claim was time barred. More
specifically, she asserted that pursuant to Section
16.003(a), Ryes had two years from the date of the car
collision-August 30, 2015-to bring his claim for negligence
against her. And Ryes did not bring suit until September 5,
2017, which is more than two years from the date of the car
response to Ross's summary-judgment motion, Ryes argued
that his claims were not time barred because the applicable
limitations period was tolled pursuant to Section 16.063,
which suspends the running of limitations when a person
against whom a cause of action may be maintained is absent
from the state.Therefore, Ryes argued that because Ross
was "out of the State of Texas for more than five days
from the date of the [collision] until the date [his] lawsuit
was filed," his filing of his negligence suit filed on
September 5, 2017 was timely.
then amended her summary-judgment motion to assert that
"brief, intermittent absences from Texas" during a
limitations period do "not toll the statute of
limitations period under Section 16.063." And she
asserted that the statute of limitations should not be tolled
in the case because she was a Texas resident at the time of
the car collision, remained a Texas resident for the entire
limitations period, and only left the state for a
"brief, five (5) day vacation . . . since the date of
the [car collision]." Ross further asserted that during
her vacation she remained "amenable to service of
process" and, thus, Section 16.063 did not apply in this
case. Also, Ross argued that even if Section 16.063 applied,
Ryes "still missed the deadline to file suit and [his
negligence] claim [was] barred" because he filed suit
six days after the statute of limitations period had run and
Ross had only left the State of Texas for five days.
Ryes's amended summary-judgment response, he asserted
that he filed his negligence suit against Ross on September
4, 2017, within the five-day tolling of the applicable
statute of limitations. And because Texas Rule of Civil
Procedure 21(f)(5) deems an electronically-filed document
"filed when transmitted to the party's . . .
electronic filing service-provider," his lawsuit was
timely filed.Ryes attached to his amended
summary-judgment response an electronic-filing receipt
reflecting that his suit was filed on Monday, September 4,
reply Ross re-urged her argument that the limitations period
was not tolled in this case. She further argued that because
Monday, September 4, 2017, was Labor Day, which is a legal
holiday, that Texas Rule of Civil Procedure
21(f)(5)(A) deemed that Ryes's suit was filed the
next day, i.e., six days after the limitations period had
run. Ross attached to her reply two documents establishing
that Monday, September 4, 2017 was Labor Day and that Labor
Day is a legal holiday.
hearing, the trial court granted Ross's summary-judgment
review a trial court's summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005); Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting
our review, we take as true all evidence favorable to the
non-movant, and we indulge every reasonable inference and
resolve any doubts in the non-movant's favor. Valence
Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d
at 215. If a trial court grants summary judgment without
specifying the grounds for granting the motion, we must
uphold the trial court's judgment if any of the asserted
grounds are meritorious. Beverick v. Koch Power,
Inc., 186 S.W.3d 145, 148 (Tex. App.- Houston [1st
Dist.] 2005, pet. denied).
prevail on a matter-of-law summary-judgment motion, the
movant must establish that no genuine issue of material fact
exists and the trial court should grant judgment as a matter
of law. See Tex. R. Civ. P. 166a(c); KPMG Peat
Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex. 1999). When a defendant moves for a
matter-of-law summary judgment on an affirmative defense, she
must plead and conclusively establish each essential element
of her affirmative defense, thereby defeating the
plaintiff's cause of action. See Cathey v.
Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
1995). Once the movant meets her burden, the burden shifts to
the non-movant to raise a genuine issue of material fact
precluding summary judgment. See Siegler, 899 S.W.2d
at 197; Transcont'l Ins. Co. v. Briggs Equip.
Trust, 321 S.W.3d 685, 691 (Tex. App.-Houston [14th
Dist.] 2010, no ...