Conoco, Inc. v. Ruiz

• Decision Date: 25 September 1991
• Docket Number: No. 04-90-00402-CV,04-90-00402-CV
• Citation: 818 S.W.2d 118
• Court: Texas Court of Appeals
• Parties: CONOCO, INC., Appellant, v. Javier RUIZ, Appellee.

Page 118

818 S.W.2d 118

CONOCO, INC., Appellant, v. Javier RUIZ, Appellee.

No. 04-90-00402-CV.

Court of Appeals of Texas,

San Antonio.

Sept. 25, 1991.

Rehearing Denied Sept. 25, 1991.

Second Rehearing Denied Nov. 4, 1991.

Darrell L. Barger, Carlos Villarreal, Hunt, Hermansen, McKibben & Barger, Corpus Christi, Marina K. Pita, Conoco, Inc., Legal Dept., W. James Kronzer, Leslie C. Taylor, Law Offices of W. James Kronzer, Houston, for appellant.

Anthony F. Constant, Russell H. McMains, Kimberley Hall Seger, McMains & Constant, Corpus Christi, for appellee.

Before BUTTS, CARR and BISSETT, ¹ JJ.

ON APPELLANT'S AND APPELLEE'S MOTIONS FOR REHEARING

BISSETT, Justice (Assigned).

Both Conoco, Inc., appellant, and Javier Ruiz, appellee, have filed motions for rehearing in this case, wherein they point out that there are certain errors of fact set out in our original opinion, delivered and filed on July 31, 1991, and that there is some question as to whether this Court intended to sustain or overrule certain points of error presented by Conoco, Inc. in its brief. We withdraw our original opinion and substitute this opinion for the original opinion.

This is an appeal by Conoco, Inc. ("Conoco"), defendant in the trial court, from an order denying its motion to transfer venue to Harris County, Texas, and from the denial of its motions for summary judgment and directed verdict. We reverse and remand and order that the case be transferred to Harris County, Texas.

BACKGROUND

Javier Ruiz (hereafter sometimes called "Ruiz") was severely injured in an oil field accident on January 24, 1984, while working on a well, owned by Conoco, and situated in Webb County. Ruiz and Ludin Ruiz, his wife, acting by and through their attorney, Mr. Larry Watts, Houston, filed suit in Harris County on January 13, 1986, against Cameron Iron Works, Inc. to recover damages as a result of personal injuries sustained by Ruiz in the accident. Conoco was later made a third-party defendant to the action. The suit was dismissed by the judge of the 113th District Court of Harris County on April 29, 1987, for "discovery abuse."

Prior to the above-noted dismissal, Mr. Watts, as the attorney for Mr. and Mrs. Ruiz, filed suit in Zapata County to recover damages for the personal injuries suffered by Ruiz in the accident. Cameron Iron Works, Inc., Conoco, and others were named as defendants in the suit. Conoco filed a motion to transfer venue of the A motion to reinstate the suit previously dismissed in Harris County was filed by the law firm of McMains & Constant, Corpus Christi, the present attorneys for Ruiz, on July 14, 1988. The motion was denied on October 4, 1988, by the judge of the 113th District Court of Harris County, Texas.

cause to Harris County on February 25, 1987. However, the court did not rule on the motion prior to the time when it dismissed the suit on April 21, 1987, for "lack of prosecution."

On January 6, 1989, pursuant to a motion theretofore filed by Ludin Ruiz, the judge of County Court at Law No. 1 of Hidalgo County, after hearing, appointed Ludim Ruiz guardian of the person and estate of Javier Ruiz; however, the judgment, as recorded in the minutes of the court was not in accordance with the judgment signed on January 6, 1989; consequently, the former judgment was amended by a nunc pro tunc order signed on October 12, 1989. As a result, Javier Ruiz was adjudged to be incompetent, and was further found "to be incompetent since January 24, 1984."

The record does not show the date when the original petition was filed in Starr County, but it was filed before October 27, 1989, when Conoco filed its Motion to Transfer Venue from Starr County to Harris County. The first amended original petition was filed by Ruiz, on November 27, 1989, which recites: "JAVIER RUIZ brings this suit by his guardian, LUDIN RUIZ." The same recital appears in the second amended original petition, Ruiz's trial pleading, which was filed on December 12, 1989.

Conoco's Motion to Transfer Venue was denied by order signed by the Honorable Ricardo H. Garcia, judge of the 229th District Court of Starr County, Texas, dated February 22, 1989 (sic), and filed on February 23, 1990. Thereafter, Conoco filed a motion for summary judgment and orally moved for a directed verdict and an instructed verdict on the ground that the action brought by the guardian of Javier Ruiz was barred by the two-year statute of limitations. All such motions were denied. The action brought by Ludin Ruiz to recover for damages suffered by her because of the accident was severed from the action to recover damages by her as guardian for her husband. At the close of the evidence, the trial judge of the 229th District Court of Starr County granted the guardian's motions for an instructed verdict, and awarded her, "as guardian of the estate of Javier Ruiz," the sum of $4,500,000 as damages, plus court costs. Final judgment was signed on June 5, 1990.

THE APPEAL

Conoco complains of the denial of its motion to transfer venue from Starr County to Harris County in its first point of error. It also contends in its second, third, and fourth points of error that the trial court erred in denying its motions for summary judgment, directed verdict, and instructed verdict on the grounds that the suit brought by Ludin Ruiz, as guardian of the estate of Javier Ruiz, was barred by the two-year statute of limitations. We first consider the question of "limitations."

THE LIMITATION ISSUE

The issue presented is:

Can the guardian's claim of incompetency of the ward toll the running of the statute of limitations in a suit brought by the guardian on behalf of the ward more than five years after the accident which rendered the ward incompetent as of the date of the accident, after the ward, and in his own name, had previously instituted two suits to recover damages for the same injury?

Limitations has run against the suit brought by Ludin Ruiz, as guardian of the estate of Javier Ruiz, unless some tolling provision applies. The Starr County suit, which alleged that Conoco negligently caused Ruiz's injuries, was filed more than five years after the accident. Clearly, absent tolling, the applicable two-year statute of limitations has run. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003 (Vernon 1986).

The only defense by the guardian to Conoco's claim that the suit was barred by The provision upon which the guardian relies is TEX.CIV.PRAC. & REM.CODE ANN. § 16.001 (Vernon Supp.1991), which in relevant part, reads:

limitations was the allegation that the injuries received by her husband on January 24, 1984, rendered him mentally incompetent as of the date of injury. It is claimed that this incompetency tolled the running of the statute.

(a) For the purposes of this subchapter, a person is under a legal disability if the person is:

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(2) of unsound mind.

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Only after the Harris County and Zapata suits were dismissed did anyone seek a judicial declaration that Javier Ruiz was of unsound mind.

The general purpose behind statutes of limitations is to insure that plaintiffs have access to the courts, but still protect defendants from liability for claims which have become stale. Smith v. Erhard, 715 S.W.2d 707, 708 (Tex.App.--Austin 1986, writ ref'd n.r.e.). The applicable disability provision found in section 16.001 also serves to further equitable treatment for litigants. That provision preserves causes of action for those who, because of mental incompetency, are unable to protect their legal right to sue. "The evident purpose ... is to suspend limitation with respect to persons who have no access to the courts." Adler v. Beverly Hills Hospital, 594 S.W.2d 153, 158 (Tex.Civ.App.--Dallas 1980, no writ).

Conoco contends that the statute of limitations had run at the time the guardian filed suit in Starr County. It relies primarily upon Johnson v. McLean, 630 S.W.2d 790 (Tex.App.--Houston [1st Dist.] 1982, no writ), which it argues is analogous to the case at bar. We disagree. The plaintiff in Johnson brought suit for legal malpractice, while in prison, against the attorney who represented him in a criminal suit. (During the period in which that case was tried, imprisonment was a statutory disability which would toll the statute of limitations for causes of action arising during imprisonment.) However, the plaintiff, Johnson, failed to exercise due diligence in acquiring service of process. The court held that his imprisonment, i.e. his disability, protected his cause of action until he filed suit during the disability. After filing suit, the protective provisions of article 5535 (now section 16.001, above-quoted) did not apply. The court of appeals, in Johnson, held:

[I]f a prisoner had actual opportunity to prosecute a civil suit, the statute of limitations is not tolled by art. 5535.

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Clearly, the purpose of art. 5535 is to protect a legally disabled party who has no access to the courts, and to insure that his right to bring suit will not be precluded by the running of a limitations statute prior to the removal of his disability.

Johnson is not in point. There, Johnson, the plaintiff, had access to the courts even though he was in prison. He was mentally competent at all times. The appellate court in that case addressed a narrow fact situation presented in which a prisoner who had the actual opportunity to prosecute a civil suit before his imprisonment affirmatively took on the role of a litigant pro se and, having undertaken to obtain service by compliance with the pauper's affidavit in lieu of costs, made himself liable to statutory requirements imposed on all litigants to proceed with due diligence. Here, Javier Ruiz, personally, had no such prior opportunity as was conclusively proved by the finding of incompetency. As a matter of fact and as a matter of law, Javier Ruiz has been mentally incompetent continuously since the date of the accident.

Conoco further relies on ...