Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/10/2015 9:27:21 AM JEFFREY D. KYLE Clerk NO. 03-15-00533-CV THIRD COURT OF APPEALS 12/10/2015 9:27:21 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00533-CV *1 ACCEPTED CLERK In the Court of Appeals For the Third Court of Appeals District Austin, Texas

LEAH SHIKE

Appellant,

v. ANTHONY CHARLES FLOT Appellee

On Appeal from the 335 th Judicial District Court, Bastrop County, Texas Trial Court Cause No. 29,439 APPELLANT’S BRIEF HENSLEY LAW FIRM Edward Hensley

SBN. 09492500 ed@hensleylawfirm.com Deborah Hensley Loewe SBN. 00793939

deborah@hensleylawfirm.com 3809 South 2 nd Street, Ste. A-100 Austin, Texas 78704 (512) 476-9988

(512) 327-9992, facsimile Counsel for Appellant, Leah Shike *2 Identity of Parties and Counsel Plaintiff/Appellant’s Appellate Counsel : Appellant/Plaintiff

HENSLEY LAW FIRM Edward Hensley SBN. 09492500 ed@hensleylawfirm.com Deborah Hensley Loewe SBN. 00793939 deborah@hensleylawfirm.com 3809 South 2 nd Street, Ste. A-100 Austin, Texas 78704 (512) 476-9988 (512) 327-9992, facsimile Appellee/Defendant Defendant/Appellee’s Appellate Counsel:

CLARK, TREVINO & ASSOCIATES Ethan Goodwin SBN. 24064492 ethan.goodwin@farmersinsurance.com 1701 Directors Boulevard, Ste. 920 Austin, Texas 78744 (512) 445-1580 (512) 383-0503, facsimile [Type text]

TABLE OF CONTENTS Contents

STATEMENT TO THE JURISDICTION ................................................................1

STATEMENT OF THE CASE..................................................................................1

STATEMENT REGARDING ORAL ARGUMENTS .............................................1

CITATIONS TO THE RECORD ..............................................................................1

CERTIFICATE OF COMPLIANCE.........................................................................2

ISSUES PRESENTED...............................................................................................2

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF ARGUMENT .................................................................................3

ARGUMENT .............................................................................................................5

A. Statute of Limitations..............................................................................5 PRAYER ....................................................................................................................8

ii *4 TABLE OF AUTHORITIES Cases

20801, Inc. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008) .........................................4

Am. Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997) .............................4

Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 846 (Tex. 2005)............4

Dunmore v. Chicago Title Ins. Co. , 400 S.W.3d 635, 641 (Tex. App.—Dallas

2013, no pet.) ..........................................................................................................5

Guardia v. Kontos , 961 S.W.2d 580, 583 (Tex. App.—San Antonio 1997, no pet.)6

Kopplow Dev., Inc. v. City of San Antonio , 399 S.W.3d 532, 536 (Tex. 2013) ........7

Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985) ...........................4

Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999) ..........................6, 8

Rhone-Poulens, Inc. , 997 S.W.2d at 223, n.3 ............................................................7

Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010) ............................4

Winston v. Am. Med. Int’l, Inc. , 930 S.W.2d 945, 955 (Tex. App.—Houston [1st

Dist.] 1996, writ denied) .........................................................................................6

Zale Corp. v. Rosenbaum , 520 S.W.2d 889, 891 (Tex. 1975)...................................6

Statutes

T EX . C IV . P RAC . & R EM . C ODE § 16.003....................................................................3

T EX . C IV . P RAC . & R EM . C ODE § 16.063....................................................................3

T EX . C IV . P RAC . & R EM . C ODE A NN . § 16.003(a) (West Supp. 2014).......................5

T EX . R. A PP . P. 47.4 ...............................................................................................2, 4

T EX . R. C IV . P. 166a(c)...............................................................................................4

T . R. C IV . P. 45(b) ..................................................................................................7

iii *5

STATEMENT TO THE JURISDICTION This Court has appellate jurisdiction as the appeal was taken from a final judgment of the 335 th Judicial District Court of Bastrop County, Texas, disposing

of all issues and parties, entered on June 17, 2015. [CR184]. Appellant/Plaintiff

timely filed a notice of appeal on August 25, 2014. [CR195]

STATEMENT OF THE CASE Appellant/Plaintiff Leah Shike (“Shike”) brought a civil cause of action against Appellee/Defendant Anthony Charles Flot (“Flot”) arising out of a motor

vehicle accident which occurred April 26, 2012. Shike alleges Flot was negligent

in the operation of his motor vehicle, causing the accident made the basis of the

underlying suit.

Flot filed a Motion for Summary Judgment, which was granted. Shike raises a single issue in this Court challenging the sufficiency of Flot’s Motion for

Summary Judgment.

STATEMENT REGARDING ORAL ARGUMENTS Appellant/Plaintiff waives her right to oral arguments.

CITATIONS TO THE RECORD The record in this case consists of a multi-volume, sequentially numbered Clerk’s Record. Citations to this record are in the format [2CR pp].

CERTIFICATE OF COMPLIANCE I certify that this document brief/petition was prepared with Microsoft Word 2010. Relying on the word count function in the word processing software used to

produce this document, I certify that the number of words in this reply (excluding

any caption, identity of parties and counsel, statement regarding oral argument,

table of contents, index of authorities, statement of facts, statement of issues

presented, statement of jurisdiction, signature, proof of service, certificate of

compliance, and appendix) is 1134.

ISSUES PRESENTED Shike raises a single issue in this Court, challenging the sufficiency of Flot’s Motion for Summary Judgment. Because Flot did not prove he was entitled to

judgment as a matter of law, Shike requests this Court reverse the summary

judgment order because the law to be applied to this case is well settled. See T .

R. A PP . P. 47.4.

STATEMENT OF FACTS On or about April 26, 2012, Shike was traveling on Hwy 290 in Elgin, Bastrop County, Texas when she was involved in a motor vehicle accident with

Flot.

Shike’s Original Petition [2CR5] was filed on April 11, 2014 in order to preserve the statute of limitations on Shike’s claims. Flot was served with

Citation and Petition on February 16, 2015 [2CR18]. Flot answered claiming a

number of affirmative defenses, including an allegation that Shike’s claim was

barred by the statute of limitations [2CR25].

Shike subsequently amended her pleadings to respond to the defense of limitations. Her Amended Petition added the following allegations: “Any

applicable statute of limitations [ ] pursuant to T EX . C IV . P RAC . & R EM . C ODE §

16.003 is tolled pursuant [to] T . C IV . P RAC . & R EM . C ODE § 16.063 as to the

named Defendant in his individual capacity. The limitations are tolled to the

extent and for the duration that the individual Defendant was absent from Texas

which suspends the running of the applicable statute of limitations for the period of

his absence.” [2CR82].

Flot filed a motion for summary judgment based on his limitations defense [2CR29]. The trial court granted the Motion and dismissed Shike’s claim.

[2CR184] Shike appeals.

SUMMARY OF ARGUMENT Basis for Appeal

Leah Shike appeals the trial court’s order granting Flot’s Motion for Summary Judgment [2CR184] on Shike’s negligence claim. Shike raises a single

issue in this Court, challenging the sufficiency of Flot’s Motion for Summary

Judgment. Because Flot did not prove he was entitled to judgment as a matter of

law, Shike requests this Court reverse the summary judgment order because the

law to be applied to this case is well settled. See T EX . R. A PP . P. 47.4.

Standard of Review

This court may apply well known standards in its review of traditional summary judgment motions. See Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546,

548 (Tex. 1985). The movant has the burden to demonstrate that no genuine issue

of material fact exists and he is entitled to judgment as a matter of law. T . R.

C IV . P. 166a(c); Nixon , 690 S.W.2d at 548-49. We consider the evidence in the

light most favorable to the nonmovant. 20801, Inc. v. Parker , 249 S.W.3d 392,

399 (Tex. 2008). In review of a traditional summary judgment in favor of a

defendant, the court may determine whether the defendant conclusively disproved

an element of the plaintiff’s claim or conclusively established every element of an

affirmative defense. Am. Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425 (Tex.

1997).

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to establish that defense conclusively. Diversicare Gen.

Partner, Inc. v. Rubio , 185 S.W.3d 842, 846 (Tex. 2005). Within this framework,

the court may review the trial court’s summary judgment denovo. Travelers Ins.

Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010).

ARGUMENT

Flot filed a traditional summary judgment motion on the single ground of limitations [2CR29]. Flot’s summary judgment evidence included Shike’s

original, but not her amended petition, which was timely filed after Flot’s Motion

for Summary Judgment.

A. Statute of Limitations

In her single issue, Shike argues the trial court erred in granting summary judgment because the applicable statute of limitations was tolled by any absence of

Flot from the state. A plaintiff must bring suit for personal injury no later than two

years after the day the cause of action accrues. T EX . C IV . P RAC . & R EM . C ODE

A NN . § 16.003(a) (West Supp. 2014). A cause of action for negligence accrues on

the date the injury-producing act is committed. Dunmore v. Chicago Title Ins. Co. ,

400 S.W.3d 635, 641 (Tex. App.—Dallas 2013, no pet.). The summary judgment

evidence establishes that Shike’s negligence cause of action for personal injuries

accrued on the date of the crash, April 26, 2012. Thus, Shike’s lawsuit would have

been timely if she had filed it by April 26, 2014. See T . C IV . P RAC . & R EM .

C ODE A NN . § 16.003(a). Shike filed suit timely, on April 11, 2014. [2CR5].

Flot’s Motion for Summary Judgment is not based upon Shike filing suit late, but on Flot’s claim that as a matter of law, Shike did not establish reasonable

diligence in pursing Flot to serve him with Shike’s petition and citation, claiming

the defense of the statute of limitations as a bar to Shike’s claims. [2CR29].

However, when moving for summary judgment on limitations, the movant must not only establish the limitations bar, he must also negate any suspension or

tolling of limitations asserted by the nonmovant. See, e.g., Rhone-Poulenc, Inc. v.

Steel , 997 S.W.2d 217, 223 (Tex. 1999) (discovery rule); Zale Corp. v.

Rosenbaum , 520 S.W.2d 889, 891 (Tex. 1975) (absence from state and diligence in

procuring service of citation); Guardia v. Kontos , 961 S.W.2d 580, 583 (Tex.

App.—San Antonio 1997, no pet.) (absence from state); Winston v. Am. Med. Int’l,

Inc. , 930 S.W.2d 945, 955 (Tex. App.—Houston [1st Dist.] 1996, writ denied)

(absence from state).

Shike’s amended pleading specifically raised the issue of Flot’s absence from the state during the limitations period and invoked the statutory provision that

would have tolled the running of the statute of limitations during that absence.

[2CR82]. The relevant statute provides “The absence from this state of a person

against whom a cause of action may be maintained suspends the running of the

applicable statute of limitations for the period of the person’s absence.” T . C IV .

P RAC . & R EM . C ODE A NN . § 16.063. Shike’s amended petition relies on this tolling

“to the extent and for the duration that the individual Defendant was absent from

Texas.” [2CR82].

On appeal, Shike anticipates Flot will challenge her tolling defense to his own limitations defense on two grounds. First, Flot may contend Shike’s amended

pleading was insufficient to invoke Section 16.063 because the pleading does not

(a) identify a particular number of days that Flot was absent from Texas or (b) aver

that the number of days Flot was purportedly absent exceeded the time by which

Flot claims Shike was late in serving him with citation. [2CR82].

Flot did not make this argument in his summary judgment motion, so Shike questions whether Flot has preserved it review. [2CR29]. However, even if the

challenge to Shike’s pleading were preserved, it would fail. The rules require only

that a party give an opponent fair notice of a cause of action or ground of defense.

See T . R. C IV . P. 45(b); see also Kopplow Dev., Inc. v. City of San Antonio , 399

S.W.3d 532, 536 (Tex. 2013) (purpose of notice pleading is to give opponent

information sufficient to enable preparation of defense). Shike’s pleading satisfied

this standard by identifying the specific statutory provision on which she relied to

support her tolling defense.

Flot may also argue that Shike offered no summary judgment evidence that Flot was absent from the state a sufficient number of days to render her service of

citation of petition timely. At trial, Shike would have the burden to prove Flot’s

absence was in fact sufficient to overcome the limitations bar. See Rhone-Poulens,

Inc. , 997 S.W.2d at 223, n.3. But at the summary judgment stage, negating a

tolling provision is part of the movant’s burden to establish his defense of

limitations conclusively. Id. at 223.

In this case, Flot did not challenge Shike’s tolling defense to Flot’s limitations defense in Flot’s motion for summary judgment and offered no

summary judgment evidence related to his presence in — or absence from — the

state during the relevant limitations period. Accordingly, he has not carried his

burden to show he is entitled to judgment as a matter of law. See id. This Court

should decide Shike’s issue in her favor.

PRAYER

Leah Shike requests this court reverse the trial court’s order granting summary judgment in favor of Flot and dismissing Shike’s claim against him, and

remand this case for further proceedings consistent with this court’s opinion. *13 Respectfully submitted, HENSLEY LAW FIRM SBN. 09492500 ed@hensleylawfirm.com Deborah Hensley Loewe SBN. 00793939 deborah@hensleylawfirm.com 3809 South 2 nd Street, Ste. A-100 Austin, Texas 78704 (512) 476-9988 (512) 327-9992, facsimile ATTORNEYS FOR APPELLANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellant’s Brief was forwarded to the following counsel of record on this 9 th day of

December, 2015:

Via Facsimile (512) 383-0503

Ethan Goodwin

Clark, Trevino & Associates

1701 Directors Boulevard, Ste. 920

Austin, Texas 78744

JUDGMENT In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further

proceedings consistent with this opinion.

It is ORDERED that Appellant Leah Shike recover her costs of this appeal from Appellee Anthony Charles Flot.

HONORABLE JUDGE PRESIDING

APPENDIX

Tab 1: Notice of Appeal

Tab 2: Plaintiff’s Original Petition

Tab 3: Citation and Affidavit of Delivery to Anthony Charles Flot

Tab 4: Defendant’s First Amended Original Answer

Tab 5: Plaintiff’s First Amended Original Petition

Tab 6: Defendant’s Motion for Summary Judgment

Tab 7: The Trial Court’s Order Granting Defendant’s Motion for

Summary Judgment

Tab 8: Texas Civil Practice & Remedies Code §16.003

Tab 9: Texas Civil Practice & Remedies Code §16.063

Tab 10: Texas Rules of Appellate Procedure §47.4

Tab 11: Texas Rule of Civil Procedure 166a

Tab 12: Texas Rule of Civil Procedure 45

Tab 13: Reporter’s Record