Appeal from the 281st District Court Harris County, Texas
Trial Court Cause No. 2017-59455
consists of Justices Christopher, Spain, and Poissant.
MARGARET “MEG” POISSANT JUSTICE
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.
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.
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.
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.
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.
appellate brief, Valencia raises four issues, which we
address in turn below.
Standard of review
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.
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