Opinion
NO. 14-17-00321-CV
04-17-2018
OPHELIA MOSBEY, Appellant v. TAYLOR N. BOWMAN AND MARIA PIPER, Appellees
On Appeal from the 295th District Court Harris County, Texas
Trial Court Cause No. 2015-47795
MEMORANDUM OPINION
Appellant Ophelia Mosbey sued appellees Taylor Bowman and Maria Piper for damages allegedly resulting from an automobile accident. Bowman and Piper moved for summary judgment on limitations grounds, which the trial court granted. In our court, Mosbey first argues that we lack jurisdiction over her appeal because the summary judgment order is not final. Alternatively, she seeks reversal of the order because: (1) Bowman and Piper failed to plead limitations in their answer; and (2) genuine issues of material fact precluded summary judgment.
Concluding that we have jurisdiction because the order was final and appealable, we agree with Mosbey that granting summary judgment on limitations grounds was error because appellees' motion was not supported by their pleading. Accordingly, we reverse the trial court's judgment and remand the case for further proceedings.
Background
On July 8, 2013, Mosbey and Bowman were in a car accident. Mosbey alleges that Bowman's car struck hers at a high rate of speed, causing injury to Mosbey. On August 17, 2015, Mosbey sued Bowman for negligence; Mosbey also asserted a claim against Piper, alleging Piper negligently entrusted her vehicle to Bowman.
Bowman and Piper moved for summary judgment, arguing that Mosbey's claims were barred by the two-year statute of limitations governing personal injury actions. Mosbey responded, correctly pointing out that Bowman and Piper had not pleaded the affirmative defense of statute of limitations. Six days before the motion for summary judgment was set for ruling by submission, and after the pleading amendment deadline in the most recent docket control order, Bowman and Piper filed an amended answer, asserting limitations as a defense. Bowman and Piper did not file a motion for leave to file the amended answer. Mosbey moved to strike the amended answer because Bowman and Piper had not obtained leave of court to file their amended answer. The trial court did not rule on Mosbey's motion to strike.
The trial court signed an order granting Bowman and Piper's motion for summary judgment. Mosbey now appeals.
Analysis
Mosbey raises two main issues for our review. First, Mosbey contends that we lack jurisdiction over her appeal because the order she appealed is not final. Next, she argues that the trial court erred in granting summary judgment on limitations grounds because appellees did not properly plead limitations or, alternatively, material fact questions preclude summary judgment. We address each in turn.
A. Finality of the Summary Judgment Order
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). An order issued without a conventional trial on the merits, like the summary judgment order here, is final for purposes of appeal if it (1) actually disposes of all claims and all parties before the court, or (2) clearly and unequivocally states that it finally disposes of all claims and all parties. Id. at 205.
Mosbey argues that the summary judgment order is not final, but rather interlocutory, because it does not specifically identify and dispose of Mosbey's claim against Piper for negligent entrustment or Mosbey's claim for exemplary damages. We disagree. Bowman and Piper moved for summary judgment, arguing that all of Mosbey's claims were barred by the statute of limitations applicable to personal injury claims. See Tex. Civ. Prac. & Rem. Code § 16.003(a). There were no counterclaims or other parties. The trial court granted the motion for summary judgment, stating that the order is final and dismissing the entire case with prejudice. The text of the order shows it was intended to, and did, dispose of all parties and all claims. Accordingly, the summary judgment order is final and appealable, and we have jurisdiction. Lehmann, 39 S.W.3d at 205.
We overrule Mosbey's first issue.
B. Propriety of the Summary Judgment Order
In her second issue, Mosbey argues that the summary judgment is not supported by appellees' answer. Specifically, she contends that appellees' original answer did not plead the affirmative defense of limitations and, further, appellees failed to obtain leave of court to file their amended answer, in which they raised limitations for the first time. Because appellees did not secure leave to file their amended answer, Mosbey says, the trial court erred in granting summary judgment on an unpleaded affirmative defense. Appellees, on the other hand, contend that we must presume leave was granted based on the present record. We agree with Mosbey.
Statute of limitations is an affirmative defense, and Texas Rule of Civil Procedure 94 requires a party to plead all affirmative defenses. Tex. R. Civ. P. 94; Hassell Constr. Co. v. Stature Commercial Co., 162 S.W.3d 664, 667 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Summary judgment cannot be granted on an unpleaded affirmative defense when, as here, the nonmovant objects. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991).
Bowman and Piper did not plead a limitations defense in their original answer, but argued in their summary judgment motion that all of Mosbey's claims were barred by the statute of limitations. Mosbey responded to the motion for summary judgment, expressly objecting to the unpleaded limitations defense. Bowman and Piper immediately filed an amended answer, asserting a limitations defense. At the time appellees filed their amended answer, the amended pleading deadline in the docket control order had passed, and the summary judgment submission date was less than seven days away. Bowman and Piper did not seek leave to file an amended answer. Mosbey moved to strike the amended answer, arguing that Bowman and Piper were required to, but did not, request leave of court before amending their pleading. The trial court did not rule on Mosbey's motion to strike before granting summary judgment in Bowman and Piper's favor. On appeal, Mosbey complains that the trial court abused its discretion in not striking Bowman and Piper's amended answer and that, in the absence of a timely filed pleading raising the limitations defense, summary judgment cannot stand.
A party may amend its pleading within seven days of trial only after obtaining leave of court. Tex. R. Civ. P. 63. A summary judgment hearing is considered a "trial" for purposes of Rule 63. See Goswami v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988). Here, Bowman and Piper filed their amended answer on December 13, 2016. The summary judgment submission date was set for December 19, 2016. Under Rule 63, "any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party." Tex. R. Civ. P. 63. Therefore, Bowman and Piper were required to obtain leave to file the amended answer. Tex. R. Civ. P. 63. The record does not indicate that the court granted leave, or that appellees requested leave.
Bowman and Piper suggest that their amended answer was timely regardless of Rule 63's operation. They contend that the trial court's order resetting the trial date to February 2017 also indicated that the discovery limitations of Rule 190.3 applied. We disagree that this means their amended answer was timely. The trial court signed a docket control order under Rule 166. It contained a pleading deadline, which was July 22, 2016. The initial trial setting was September 6, 2016. Under Rule 166, a docket control order "shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice." Tex. R. Civ. P. 166. In October 2016, the trial court signed an order resetting the trial to February 2017. That order did not establish any new pleading deadlines. Though Bowman and Piper correctly observe that the court's October 2016 order stated that the discovery limitations of Rule 190.3 applied based on the new trial setting, Rule 190.3 does not impact pleading deadlines, and the court did not sign a new docket control order. Invoking Rule 190.3 in the order does not revive an amended pleading deadline that has already expired. At the time Bowman and Piper filed their amended answer on December 13, 2016, it was untimely under either Rule 63 or the docket control order. Thus, leave to file was required.
Bowman and Piper argue, however, that we may presume that leave was granted. An appellate court will presume leave was granted to file an amended pleading when an order states that all pleadings were considered, the record does not indicate that an amended pleading was not considered, and the opposing party does not show surprise. See Goswami, 751 S.W.2d at 490; see also Cont'l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276 (Tex. 1996). The summary judgment signed by the trial court in this case states that the court considered the motion, the response, the reply, and applicable authority; the order does not state that the court considered all pleadings. Accordingly, we cannot presume that the trial court granted Bowman and Piper leave to file their amended answer. See Budd v. Conroe Indep. Sch. Dist., No. 09-98-520-CV, 1999 WL 652005, at *1 (Tex. App.—Beaumont Aug. 26, 1999, pet. denied) (not designated for publication) (because summary judgment order recited that trial court considered motion, response, and applicable authority and did not state that all pleadings on file were part of its consideration, appellate court could not presume that leave of court was granted); see also Markovsky v. Kirby Tower, L.P., No. 01-13-00516-CV, 2015 WL 8942528, at *5 (Tex. App.—Houston [1st Dist.] Dec. 15, 2015, no pet.) (mem. op.) ("[T]he order must affirmatively state or show that the trial court considered [the defendant's] late-filed pleading—her answer—to support a presumption that leave to file the answer was granted."). Thus, the only answer before the trial court when it signed the summary judgment order was Bowman and Piper's original answer, which does not assert a limitations defense.
This court has presumed a trial court granted leave to file an amended petition when a summary judgment order reflected that the trial court considered all pleadings on file, and it was undisputed that the amended petition was on file prior to the summary judgment hearing. See Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 672 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (rejecting argument that trial court only considered "pleadings . . . properly before the Court"). As noted above, however, the trial court's order in this case did not contain any language reflecting consideration of all pleadings—including those filed untimely—and so Yeske does not counsel against our decision today.
Because Bowman and Piper's answer does not raise the affirmative defense of limitations, the trial court erred in granting summary judgment in their favor based on limitations. See Bridgestone Lakes Cmty. Improvement Ass'n, Inc. v. Bridgestone Lakes Dev. Co., Inc., 489 S.W.3d 118, 127 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) ("[T]he Defendants did not assert collateral estoppel in their pleadings, and summary judgment cannot be granted on an unpleaded affirmative defense when the nonmovant objects, as the HOA did here.") (citing Roark, 813 S.W.2d at 494); Walton v. City of Midland, No. 11-03-00381-CV, 2005 WL 2090655, at *3 (Tex. App.—Eastland Aug. 31 2005, pet. denied) (mem. op) (holding that trial court erred in granting summary judgment on unpleaded affirmative defense, when plaintiff objected to defendant's reliance on defense in summary judgment response).
We sustain Mosbey's second issue.
Because we sustain Mosbey's second issue, we need not address her remaining issue regarding the merits of Bowman and Piper's limitations defense. Tex. R. App. P. 47.1.
Conclusion
Because the trial court erred in granting summary judgment on an unpleaded affirmative defense, we reverse and remand the case to the trial court for proceedings consistent with this opinion.
/s/ Kevin Jewell
Justice Panel consists of Justices Busby, Brown, and Jewell.