Opinion
No. 05-10-01584-CV
03-22-2012
ANTHONY DESHAUN JOHNSON, Appellant v. DALLAS CITY OFFICERS BENNY HANDLEY AND QUINN HUNTLEY, Appellees
AFFIRM; Opinion issued March 22, 2012
On Appeal from the 191 Judicial District Court
day after the date the dismissal. . . becomes final, the action is commenced in a court of proper jurisdiction.”
Dallas County, Texas
Trial Court Cause No. 07-10943-J
MEMORANDUM OPINION
Before Justices Bridges, Richter, and Murphy
Opinion By Justice Bridges
Appellant Anthony Deshaun Johnson appeals the trial court's decision to grant appellees Benny Handley and Quinn Huntley's motion for summary judgment. In three issues, appellant contends the trial court erred by: (1) granting appellees' motion for summary judgment “based on statute of limitations,” (2) incorrectly interpreting section 16.064 of the civil practice and remedies code, which suspends the running of limitations under certain circumstances, and (3) ignoring its own order and denying appellant a “jury demand.” We affirm.
Background
Appellant filed suit against appellees on September 14, 2007, alleging he was injured when appellees deprived him of medical care in the course of a custodial arrest that occurred on December 7, 2004. The trial court dismissed appellant's case for want of prosecution on June 30, 2008. This Court reversed and remanded the dismissal for further proceedings. Johnson v. Handley, 299 S.W.3d 925, 929 (Tex. App.-Dallas 2009, no pet.). Appellees then answered and filed their traditional motion for summary judgment, arguing appellant's suit was barred by limitations. The trial court granted appellees' motion. Analysis
Appellant attacks the grant of appellees' summary judgment. The standards for reviewing a traditional summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether a disputed material fact issue exists, precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the non-movant to present evidence raising a fact issue to defeat the motion for summary judgment. See Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982).
In his first issue, appellant contends the trial court improperly granted summary judgment based on the statute of limitations. In personal injury cases, a person must bring suit not later than two years after the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West 2012). To satisfy the two-year limitations period, a plaintiff must file suit within the limitations period and exercise due diligence in the issuance and service of citation. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990).
When reviewing evidence in the summary judgment context, pleadings generally do not constitute competent summary judgment evidence. Washington v. City of Houston, 874 S.W.2d 791, 794 (Tex. App.-Texarkana 1994, no writ). However, pleadings may be used as summary judgment evidence when they contain statements rising to the level of admitting a fact or conclusion which is directly adverse to that party's theory or defense of recovery. Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 504 (Tex. App.-Houston [1 Dist.] 1995, no writ). Further, assertions of fact in the live pleadings, which are not pleaded in the alternative, are regarded as formal judicial admissions and, as such, are conclusively established without the necessity of other evidence. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983).
Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 07- 10943-J).
In his live pleading, appellant states his injury took place on December 7, 2004. Generally, a cause of action accrues and limitations begin to run when facts exist that authorize a claimant to seek judicial relief. Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 279 (Tex. 2004). Thus, in this case, appellant's claim accrued on December 7, 2004. The record reflects appellant filed his suit on September 14, 2007. Therefore, appellant filed his lawsuit outside the required two-year statute of limitations period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).
Where the plaintiff's pleadings affirmatively show that the limitation period has run, the non- movant has the burden of producing evidence sufficient to raise a fact question as to the grounds for avoiding limitations. Wheatley v Nat'l Bank of Commerce, 555 S.W.2d 500, 503 (Tex. Civ. App.-Dallas 1977, no writ) (citing Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975)). In his response to appellees' motion for summary judgment, appellant claims he should not be subject to limitations because his “pain has been ongoing since the date [] the officers den[ied] him needed medical [care].” In support of his claim of continuing pain, he attached copies of selected medical records from 2008, 2009, and 2010 to his summary judgment response. However, in most cases, a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury or whether all resulting damages have yet to occur. Rodriguez v. Cromwell, 319 S.W.3d 751, 755 (Tex. App.-El Paso 2009, pet. denied) (citing S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)). Further, the discovery rule applies only in those rare cases when the nature of the injury is inherently undiscoverable and the evidence of injury is objectively verifiable. Rodriguez, 319 S.W.3d at 755. Here, appellant concedes his injuries were known to him at the time of his arrest on December 7, 2004. We, therefore, conclude appellant has presented no basis to assert a latent injury that would defer the accrual of the two-year limitations period. We overrule appellant's first issue.
Under his second issue, appellant invokes section 16.064 of the civil practices and remedies code to avoid limitations. Section 16.064 suspends the running of the applicable statute of limitations for the period “between the date of filing an action in a trial court and the date of a second filing of the same action in a different court” if “because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed” and “not later than the 60 Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (West 2012).
Appellant contends he should not be subject to the limitations period because he first filed his claim in federal court on November 13, 2006 (within the two-year limitations period) and has, therefore, properly triggered section 16.064. As evidence of the first lawsuit, appellant attached to his summary judgment response a copy of the first page (of two pages) of a civil docket sheet from the Northern District of Texas for a case filed by him on November 13, 2006 against appellees. The docket sheet classifies the lawsuit as “42:1983 Prisoner Civil Rights” and the nature of the suit as “555 Prison Conditions.” The docket sheet also reveals the lawsuit was terminated on March 22, 2007.
Without more than the single docket sheet in the record, we cannot determine if the federal lawsuit was the same action that was later filed below as required to invoke section 16.064. We also cannot determine if the federal suit was dismissed for lack of jurisdiction as required under section 16.064. But, even if we could positively identify the federal lawsuit as the same suit as the one now before us and that it was dismissed for lack of jurisdiction, the evidence shows the federal lawsuit ended on March 22, 2007. This lawsuit was filed on September 14, 2007. Therefore, section 16.064 did not suspend the running of limitations in this case since this lawsuit was filed outside the required 60-day period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (West 2012). Thus, we conclude the trial court properly found no genuine issue of material fact exists as to the application of the limitations period and that appellees were entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). We overrule appellant's second issue.
In his third issue, appellant contends the trial court erred in denying him a jury trial. A party does not have an absolute right to a jury trial in a civil case. See Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 810 (Tex. App.-Dallas 2006, pet. denied) (citing Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968)). Summary judgment is a procedure that may be used to dispose of a case when there are no genuine issues of material fact and only questions of law exist. Willms, 190 S.W.3d at 810. Where no material issues of fact exist, the granting of a summary judgment does not violate a party's constitutional right to a jury trial. Id. As we have already concluded, the trial court properly granted appellees' summary judgment. Thus, appellant was not entitled to a jury trial. Id. We overrule appellant's third issue.
Having overruled all of appellant's issues, we affirm the judgment of the trial court.
DAVID L. BRIDGES
JUSTICE
101584F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANTHONY DESHAUN JOHNSON, Appellant
V.
DALLAS CITY OFFICERS BENNY HANDLEY AND QUINN HUNTLEY, Appellees
No. 05-10-01584-CV
Appeal from the 191
Opinion delivered by Justice Bridges, Justices Richter and Murphy participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Dallas City Officers Benny Handley and Quinn Huntley recover their costs of this appeal from appellant Anthony Deshaun Johnson.
Judgment entered March 22, 2012.
DAVID L. BRIDGES
JUSTICE