Zale Corp. v. Rosenbaum
| Citation | 520 S.W.2d 889 |
| Decision Date | 19 March 1975 |
| Docket Number | No. B--5026,B--5026 |
| Parties | ZALE CORPORATION, Petitioner, v. Louis ROSENBAUM et al., Respondents. |
| Court | Texas Supreme Court |
Goodman, Hallmark & Akard, Kenneth L. King and Gerald P. Keith, El Paso, for petitioner.
Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, John A. Grambling. Kemp, Smith, White, Duncan & Hammond, Royal Ferguson, Glenn E. Woodard, Alex Silverman, El Paso, for respondents.
ON APPLICATION FOR WRIT OF ERROR
Petitioner, Zale Corporation, brought suit against Louis Rosenbaum et al. alleging negligent construction of a building which resulted in flood damage. The trial court granted summary judgment for defendants on its finding that the two-year statute of limitations had expired on Zale's cause of action. The court of civil appeals affirmed. 517 S.W.2d 440. We reverse the judgments of the courts below and remand the cause to the trial court.
The summary judgment record reveals that the cause of action arose in July 2, 1971, and suit was filed on June 28, 1973. Zale, however, failed to request issuance of citation until August 3, 1973. It is clear that to toll the statute of limitations, diligence must be exercised in securing the issuance and service of citation. Rigo Manufacturing Co. v. Thomas, 458 S.W.2d 180 (Tex.1970). The court of civil appeals held that defendants conclusively established their defense of limitations by showing the date the cause of action arose, the date that plaintiff's petition was filed, and the date that issuance of citation was requested.
Zale sought to defeat the limitations defense by urging that it had exercised diligence in procuring issuance and service of citation, and that Article 5537, Vernon's Tex.Rev.Civ.Stat.Ann. (1958), operated to suspend the limitations statute, Article 5526, Tex.Rev.Civ.Stat.Ann. (1958), for a sufficient period to make its petition timely. Article 5537 provides that the time a person is absent from the state shall not be counted as part of the limitations period. The court of civil appeals held that Zale had the burden of proof on both issues. As to the diligence issue, the court of civil appeals found that lack of diligence was established as a matter of law. It was also held that Zale had not met its burden of showing that the defendants were absent for a sufficient time to reduce the time of their presence in the state to less than the statutory period.
The court of civil appeals has misplaced the burden of proof on both issues. When summary judgment is sought on the basis that limitations have expired, it is the movant's burden to...
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Medina v. Tate
...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......
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Shemwell v. Cannon
...mere filing of a suit will not interrupt or toll the running of a statute of limitations.’ " Id. at 1112 (quoting Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) ). Compliance with Rule 4 of the Federal Rules of Civil Procedure has no bearing on whether limitations has run. Paredes......
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Draughon v. Johnson
...defense. The non-movant would then be required to raise a fact issue with respect to the estoppel. Id.The following year, in Zale Corp. v. Rosenbaum , we applied the same rule to a statute tolling limitations during the defendant's absence from the state (now section 16.063 of the Civil Pra......
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Ellis v. Great Southwestern Corp.
...to interrupt the statute, the use of diligence in procuring the issuance and service of citation is required." Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex.1975). Accord, Rigo Manufacturing Co. v. Thomas, 458 S.W.2d 180, 182 (Tex.1970); Buie v. Couch, 126 S.W.2d 565, 566 (Tex.Civ.App. ......