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Ryes v. Ross

Court of Appeals of Texas, First District

August 20, 2019

BRAD MICHAEL RYES, Appellant
v.
DIANNE RICHARD ROSS, Appellee

          On Appeal from the County Court at Law No. 1 Brazoria County, Texas Trial Court Case No. CI56457

          Panel consists of Justices Lloyd, Landau, and Countiss.

          MEMORANDUM OPINION

          Julie Countiss, Justice.

         Appellant, 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 ("Section 16.063").[1]

         We reverse and remand.

         Background

         In his 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."

         Ross 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.[2] 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 collision.

         In 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.[3]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.

         Ross 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.

         In 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.[4]Ryes attached to his amended summary-judgment response an electronic-filing receipt reflecting that his suit was filed on Monday, September 4, 2017.

         In her 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)[5] 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.

         After a hearing, the trial court granted Ross's summary-judgment motion.

         Standard of Review

         We 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).

         To 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 ...


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