Opinion
No. 04-05-00578-CV
Delivered and Filed: January 18, 2006.
Appeal from the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 288688, Honorable David J. Rodriguez, Judge Presiding.
The order granting the motion for summary judgment lists County Court at Law No. 2 in the style of the order. The order granting the motion for sanctions lists County Court at Law No. 10 in the style of the order. The reporter's records from the hearings list County Court at Law No. 10 in the style of the records. The hearings were presided over by the Honorable David J. Rodriguez, who signed both orders.
Reversed and Remanded.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Colonial County Mutual Insurance Company appeals the trial court's orders granting summary judgment in favor of Gilberto Ruiz and ordering it to pay sanctions. On appeal, Colonial contends: (1) Ruiz did not carry his burden regarding the limitations issue; (2) Ruiz did not carry his burden to establish sanctions were appropriate; (3) the sanctions order is void; and (4) the limitations period was tolled. We reverse the trial court's orders and remand the cause to the trial court for further proceedings consistent with this opinion.
Background
Ruiz and Michael Brillion, Colonial's insured, were involved in an automobile accident. On December 19, 2003, Colonial sued Ruiz as subrogee of Brillion for damages arising from the automobile accident. Colonial's petition alleged that the accident occurred on December 18, 2001.
On September 3, 2004, Ruiz filed his answer, asserting an affirmative defense that Colonial failed to use due diligence in serving him. Ruiz asserted that he was not served until August 18, 2004. On February 1, 2005, Ruiz filed a motion for summary judgment asserting that Colonial had not filed suit within the applicable two-year limitations period because if the accident occurred on December 18, 2001, suit was filed one day after the limitations period expired.
On February 25, 2005, Colonial filed an amended petition alleging as an exception to the limitations defense that Ruiz was absent from the State of Texas from December 8, 2001 through December 18, 2003. Colonial also filed a response to the motion for summary judgment asserting: (1) pursuant to the mail box rule, Colonial's petition was filed on December 15, 2003; (2) limitations was tolled due to Ruiz's absences from the State; and (3) Ruiz failed to assert the affirmative defense of limitations in his answer; therefore, no pleading supported the basis for his motion for summary judgment. Colonial noted that the only affirmative defense raised in Ruiz's answer was failure to use due diligence in serving him with citation.
On June 23, 2005, Ruiz filed a reply to Colonial's response asserting: (1) Colonial admitted in a motion for continuance that the accident occurred on December 8, 2001, which date is supported by photographs taken of the damage to the car, the investigative report, and Brillion's sworn statement regarding the accident; (2) since the accident occurred on December 8, 2001, the petition filed on December 15, 2003, was outside the limitations period; (3) Colonial had the burden to establish the exception to the limitations defense based on Ruiz's absence from the state; and (4) Ruiz's verified interrogatory answer negated the exception. The motion was set for a hearing on July 21, 2005.
On July 18, 2005, Ruiz filed a motion seeking sanctions against Colonial for frivolous pleadings because it continued to pursue the litigation even though the accident occurred on December 8, 2001, and was barred by limitations. On July 18, 2005, Ruiz also filed an amended answer asserting the two-year limitations defense.
On July 18, 2005, Colonial filed a supplemental response to the motion for summary judgment asserting: (1) Ruiz cannot rely on his own interrogatory answer as summary judgment evidence; and (2) the limitations defense was outside the pleadings because the amended answer had not been filed until three days before the date of the hearing. Colonial also filed a second amended petition asserting Brillion's active duty military service as an additional exception to Ruiz's limitations defense.
On July 21, 2005, the trial court began hearing the motion for summary judgment and first considered Colonial's objection to the untimeliness of the amended answer and the lack of proper notice of the hearing on the motion for sanctions. The trial court went off the record and apparently reset the hearing.
On July 27, 2005, the trial court again called the matter for a hearing. The reporter's record reflects that the trial court considered the application of both tolling exceptions asserted by Colonial. The trial court also conducted a hearing on the motion for sanctions. The trial court took the matters under advisement and later signed orders granting both motions.
Summary Judgment
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Traditional summary judgment is proper only when the movant establishes 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. 166 a(c). In reviewing a traditional summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Dorsett, 164 S.W.3d at 661.
When a defendant moves for summary judgment on the affirmative defense of limitations, the defendant assumes the burden of showing as a matter of law that the lawsuit was time barred. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996). If the nonmovant asserts that a tolling provision applies, the movant must conclusively negate the tolling provision's application to show his entitlement to summary judgment. Diaz v. Westphal, 941 S.W.2d 96, 97 (Tex. 1997); Jennings v. Burgess, 917 S.W.2d at 793; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex. 1988); see also DeRuy v. Garza, 995 S.W.2d 748, 751 (Tex.App.-San Antonio 1999, no pet.); see generally Timothy Patton, Summary Judgments in Texas § 9.04[2] (3rd ed. 2005) (noting limitations defense is not conclusively established until movant meets his burden of negating applicability of statute that tolls or suspends the running of limitations). The burden of proof with regard to the tolling provisions is different in the summary judgment context than during a trial on the merits. Woods, 769 S.W.2d at 518 n. 2.
In this case, Colonial asserted two tolling provisions: absence from the state and active duty military service. In response to the absence from the state exception, the only evidence produced by Ruiz was his verified interrogatory response stating that he had not been absent from the State of Texas during the limitations period. A movant is prohibited from using his own interrogatory responses to support its motion for summary judgment. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000); Yates v. Fisher, 988 S.W.2d 730, 731 (Tex. 1998); Tex. R. Civ. P. 197.3; see generally Timothy Patton, Summary Judgments in Texas § 6.04[2] (3rd ed. 2005). Accordingly, Ruiz failed to introduce evidence to conclusively negate the applicability of the first tolling provision.
Although we reverse the trial court's summary judgment order on the ground that Ruiz failed to conclusively negate the applicability of the absence from the state tolling provision, we acknowledge that the issue of whether Colonial is entitled to raise the tolling provision contained in section 526 of the Servicemembers Civil Relief Act will likely be reasserted on the remand of the cause. Ruiz contends that Colonial must establish standing as an assign to assert the tolling provision. We note that Colonial argued at the hearing before the trial court, "We are the individuals who have been assigned the right from our insured, per our insurance contract, to pursue the property damage as well as their deductible." Therefore, it appears that Brillion may have assigned his rights against Ruiz to Colonial pursuant to the insurance contract. Because we reverse the trial court's order on other grounds, we do not resolve whether the insurance contract or applicable statutes gave Colonial the status of an assign for purposes of the section 526 tolling provision or whether a subrogee is also entitled to assert the section 526 tolling provision. See American Motorists Ins. Co. v. Manhattan Lighterage Corp., 80 F. Supp. 335, 335 (S.D.N.Y. 1948) (holding carrier that was subrogated to rights of employer who was assigned employee's rights against defendant by statute was entitled to assert section 526 tolling). In a different context, we note that one court has held that a tolling provision that applies to a plaintiff's claim also applies to a claim asserted by an insurance company under its subrogation rights. See Sheppard v. State Farm Mutual Automobile Ins. Co., 496 S.W.2d 216, 219 (Tex.Civ.App.-Houston [14th Dist.] 1973, no writ).
Sanctions
Colonial complains that the sanctions order is void because it does not specify the basis upon which the sanctions were imposed. Because Colonial failed to bring this complaint to the trial court's attention through a proper objection or motion, Colonial failed to preserve this complaint for our review. See Birnbaum v. Law Offices of G. David Westfall, 120 S.W.3d 470, 475-76 (Tex.App.-Dallas 2003, pet. denied); Bloom v. Graham, 825 S.W.2d 244, 247 (Tex.App.-Fort Worth 1992, writ denied). Colonial further contends that the trial court abused its discretion in imposing the sanctions because the evidence is insufficient to support the award. Because we cannot determine from the record before us that the trial court would have imposed sanctions if it had properly denied the motion for summary judgment, we reverse the sanctions order in the interest of justice without addressing the merits of Colonial's complaint.
Conclusion
The trial court's orders granting the motion for summary judgment and motion for sanctions are reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.