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Valencia v. McLendon

Court of Appeals of Texas, Fourteenth District

December 19, 2019

MARTHA PATRICIA VALENCIA, Appellant
v.
THOMAS MCLENDON, INDIVIDUALLY AND AS OWNER AND REPRESENTATIVE OF YEAH YOU RIGHT ENTERPRISES, INC. D/B/A THE BIG EASY SOCIAL AND PLEASURE BAR, AND ANTHONY BAZILE, INDIVIDUALLY AND AS TRUSTEE OF BAZILE LIVING TRUST, Appellees

          On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2017-59455

          Panel consists of Justices Christopher, Spain, and Poissant.

          MEMORANDUM OPINION

          MARGARET “MEG” POISSANT JUSTICE

         Appellant Martha Patricia Valencia ("Valencia") challenges the trial court's summary judgment order dismissing her negligence claim against Thomas McLendon ("McLendon"), individually and as owner and representative of Yeah You Right Enterprises, Inc. d/b/a The Big Easy Social and Pleasure Bar, and Anthony Bazile ("Bazile"), individually and as trustee of Bazile Living Trust (collectively "appellees") as time-barred by the statute of limitation. We affirm.

         I. Background

         The underlying facts of this case are undisputed. On September 11, 2017, Valencia, proceeding pro se, filed a negligence suit against appellees in Harris County District Court. In her Original Petition, Valencia alleged that on August 8, 2014, she went to hear live music at The Big Easy Social and Pleasure Club, located at 5731 Kirby Drive, Houston, Harris County, Texas. Valencia parked her car in the The Big Easy's parking lot, which is behind the building. While parked in The Big Easy's lot, Valencia's car was broken into, the driver's side window was smashed, and her belongings stolen. Valencia immediately notified employees of The Big Easy and the Houston Police Department.

         Appellees filed their original answers, asserting the affirmative defense of limitations. Appellee Bazile, Individually and as trustee of Bazile Living Trust filed a motion for summary judgment, seeking dismissal based on the two-year statute of limitations. Thereafter, counsel for Valencia filed a notice of appearance. Appellee McLendon, Individually and as Owner and Representative of Yeah You Right Enterprises, Inc. d/b/a The Big Easy Social and Pleasure Club filed a traditional motion for summary judgment, asserting Valencia's claims were untimely filed and that the statute of limitations was not tolled based on Valencia's previously filed voluntary nonsuit in justice court. McLendon attached exhibits to his traditional motion, including pleadings from the initial lawsuit in the justice court. After allowing Valencia a continuance in order to file a response, the motions were set for submission on the November 27, 2017, at 8:00 a.m.

         Valencia did not file a response seven days prior to the submission setting on November 27, 2017, at 8:00 a.m.; rather, Valencia asserts that on the submission date, she filed a motion for leave to file a late response together with a response. Valencia argued in her response to appellees' motions for summary judgment that her case was not time-barred. Valencia attached as exhibits to her response, pleadings filed in the justice court, including Valencia's Notice of Nonsuit Without Prejudice and the Order of Dismissal Without Prejudice signed by the Justice of the Peace, Precinct 1, Place 1. Valencia's request for leave to file a late response was never granted.

         On November 28, 2017, the trial court signed its Order Granting Motion for Summary Judgment as to All Defendants. On December 28, 2017, Valencia filed a Verified Motion for New Trial, maintaining that the statute of limitations was tolled. Appellees files their respective responses. Valencia filed a Reply. After conducting a hearing on February 9, 2018, the trial court denied Valencia's motion for new trial. This appeal timely followed.

         II. Analysis

         In her appellate brief, Valencia raises four issues, which we address in turn below.

         A. Standard of review

         The standard we follow when reviewing a summary judgment is well established. We review de novo the trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant must establish that no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). A genuine issue of material fact exists if the nonmovant produces more than a scintilla of probative evidence regarding the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We review the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Fielding, 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. KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); see also Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). If the movant establishes that the statute of limitations bars the action, the nonmovant ...


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