Medina v. Tate

• Decision Date: 22 April 2014
• Docket Number: No. 01–12–00496–CV.,01–12–00496–CV.
• Citation: 438 S.W.3d 583
• Parties: Eddie MEDINA, Jr., Appellant v. Gloria TATE d/b/a Humble Family Skate Center and Humble Family Skate Center, Inc., Appellees.
• Court: Texas Court of Appeals

438 S.W.3d 583

Eddie MEDINA, Jr., Appellant

v.Gloria TATE d/b/a Humble Family Skate Center and Humble Family Skate Center, Inc., Appellees.

No. 01–12–00496–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

July 9, 2013.

Rehearing Overruled April 22, 2014.

Jack Todd Ivey, Jacob David Barber, Ivey Law Firm, P.C., Houston, TX, for Appellant.

Laura Beckman Hedge, Erin H. Pikoff, Litchfield Cavo L.L.P., Houston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices HIGLEY and BROWN.

OPINION

SHERRY RADACK, Chief Justice.

In this personal-injury case, the trial court granted summary judgment on the defendants' affirmative defense of limitations. We affirm as to Humble Family Skate Center Inc. and reverse and remand as to Gloria Tate d/b/a Humble Family Skate Center.

BACKGROUND

On November 22, 2011, plaintiff/appellant Eddie Medina, Jr. sued defendants/appellees Gloria Tate d/b/a Humble Family Skate Center and Humble Family Skate Center Inc., alleging that while he was skating at defendants' skating rink “on or about November 23, 2009,” he fell and was injured. Medina's petition claimed that defendants were negligent in several respects, including the maintaining of the premises in an unsafe condition and failing to warn plaintiff of the dangerous condition of the skating rink floor surface. Defendants answered, pleading a general denial and the affirmative defense of statute of limitations.

On April 5, 2012, defendants filed a traditional motion for summary judgment, arguing that although plaintiff's petition alleges that he was injured at defendants' premises “on or about November 23, 2009,” plaintiffs' medical records and the defendants' business records conclusively establish that the date of injury was actually November 21, 2009. Defendants' attached evidence included (1) a calendar reflecting that the skating rink was closed on Monday November 23, 2009, (2) an affidavit from defendant Gloria Tate indicating that the accident happened on Saturday, November 21, 2009, (3) emergency medical records from Memorial Hermann reflecting that plaintiff was admitted the night of November 21, 2009 with notes that plaintiff complained of a right-foot injury suffered while skating and discharge records from November 22, 2009 instructing plaintiff to follow up with surgeon about treatment for ankle fracture, and (4) December 2009 Ben Taub surgery records identifying the date of plaintiff's injury as November 21, 2009. Because the statute of limitations for negligence is two years, and because plaintiff did not file suit until November 22, 2011—the day after the limitations period expired on plaintiff's claim for a November 21, 2009 injury—defendants argued that plaintiff's claims were barred as a matter of law.

Medina responded with three arguments. First, he argued that “fact issues regarding the actual date of limitations are abundant,” i.e., (1) “prior to suit being filed, Defendant's agent repeatedly asserted November 23, 2009 as the date of loss; (2) Hospital records indicate Plaintiff was admitted approximately one hour prior to midnight on November 21, 2009; however emergency evaluations are indicated to have taken place on November 22, 2009; and (3) Plaintiff himself believed the date of loss to be November 23, 2009 in reliance on the representation of Defendants' agent.” Next, he argued that defendant Tate had not conclusively negated the applicability of the out-of-state tolling statute.¹SeeTex. Civ. Prac. & Rem.Code § 16.063 (Vernon 2008). Finally, Medina asserted that defendants should be equitably estopped from relying on the statute of limitations because “agents of Defendants made representations regarding the date of loss ... with the intention of misleading Plaintiff into believing the correct date of loss was November 23, 2009 and thus the statute of limitations was November 23, 2011.”

The trial court granted defendants' motion for summary judgment.

ISSUES ON APPEAL

Medina timely appealed here, raising three issues:

(1) “Whether presence within the state for purposes of negating the tolling statute is established by the general long-arm statute or by the availability of an alternate means of service?”

(2) “Whether the Texas Legislature intended to permit tolling as to resident defendants under Tex. Civ. Prac. & Rem.Code § 16.063?”

(3) “Whether Appellees are equitably estopped from asserting limitations due to willful misidentification of the date of loss?”

STANDARD OF REVIEW

A party moving for traditional summary judgment has the burden of proving that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). When a defendant moves for traditional summary judgment, he must either (1) disprove at least one element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). We review the granting of summary judgment de novo. See Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

OUT–OF–STATE TOLLING

A. Applicable law

The parties agree that the statute of limitation for Medina's claims is two years, and that he filed suit after two years had passed. Medina contends, however, that a statutory tolling provision rendered his suit timely:

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.

Tex. Civ. Prac. & Rem.Code § 16.063 (Vernon 2008). When summary judgment is sought on limitations, it is the movant's burden to also negate the applicability a tolling or suspension statute raised by the nonmovant. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975) (per curiam).

Texas courts have historically interpreted section 16.063 to mean that “the time during a person's absence from the state, for whatever purpose, will not be included in calculating the period of limitations.” E.g., Loomis v. Skillerns–Loomis Plaza, Inc., 593 S.W.2d 409, 410 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.). “The time of a person's absence includes ‘each departure from the state and the whole time of [each] absence.’ ” Ray v. O'Neal, 922 S.W.2d 314, 316–17 (Tex.App.-Fort Worth 1996, writ denied) (quoting Phillips v. Holman, 26 Tex. 276, 282 (1862); Fisher v. Phelps, Dodge & Co., 21 Tex. 551, 560 (1858)). “Although the applicability of section 16.063 does not depend on proof of the precise periods of the defendant's absence from the state, there must be evidence from which the fact finder might reasonably conclude that the defendant had not, in the aggregate, been in the state the full statutory period.” Ray, 922 S.W.2d at 317 (citing Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 880 (1962)).

B. Analysis

In his first two related issues, Medina argues that summary judgment was not proper because defendants failed to conclusively negate the applicability of section 16.063's tolling provisions. In response, Defendant urges us to affirm the summary judgment by adopting the reasoning of the Fourteenth Court of Appeals in Zavadil v. Safeco Insurance Co. of Illinois, which held that a resident defendant's brief travels outside Texas during the limitations period—where Texas courts maintained personal jurisdiction over her during the entire period, and where she was at all times amenable to service—did not toll limitations under section 16.063. 309 S.W.3d 593, 596 (Tex.App.-Houston [14th Dist.] 2010, pet. denied).

1. Humble Family Skate Center, Inc.

The analysis relevant to Gloria Tate as an individual defendant d/b/a Humble Family State Center is different than the analysis relevant to corporate defendant Humble Family Skate Center, Inc. (for which Gloria Tate is the registered corporate agent). Section 63.063 does not apply to toll limitations with regard to corporations when a plaintiff alleges that a corporate agent left the state for some period of time. E.g., Louis v. Discount Tire Co. of Tex., Inc., 1 S.W.3d 698, 700 (Tex.App.-Amarillo 1999, no pet.) (“[W]hen sued, [defendant corporation] was the ‘person against whom [the] cause of action ... [was] maintained’ for purposes of § 16.063, not ... its registered agent.”). Medina conceded as much in his sur-reply to defendant's motion for summary judgment, stating that “Plaintiff does not contend, nor has Plaintiff ever contended that Section 16.063 applies to the corporate Defendant, Humble Family Skate Center, Inc.”

Accordingly, Medina's first and second issues are overruled as to defendant/appellee Humble Family Skate Center, Inc.

2. Gloria Tate d/b/a Humble Family Skate Center

Gloria Tate is a Texas resident who was sued individually. On this summary-judgment record, we have (1) an applicable two-year statute of limitations, (2) suit filed two years and one day after Medina's claim accrued, and (3) Medina's allegation in his live petition that Tate was absent for at least one day during the limitations period, which he claims tolled limitations under Tex. Civ. Prac. & Rem.Code § 16.063. While it is the summary-judgment movant's burden to conclusively establish the limitations bar, including the negation of a tolling or suspension statute raised by the nonmovant, see Zale Corp., 520 S.W.2d at 891, Tate did not respond or provide evidence to rebut Medina's allegation that she had been absent from the state for at least one day during the limitations period.

a. This Court's Precedent

This Court has previously applied section 16.063 and the traditional summary-judgment burdens on essentially identical facts, and concluded that summary judgment was inappropriate. In Winston v. Am. Med. Int'l, Inc., the plaintiffs' live pleadings contained the allegation that the “...