Opinion
No. 05-06-01480-CV
Opinion issued January 22, 2008.
On Appeal from the 193rd District Court Dallas County, Texas, Trial Court Cause No. 06-00701-L.
Before Justices FitzGERALD, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Edwin E. Ogbolu appeals the trial court's summary judgment rendering a take-nothing judgment in his suit against Colgate-Palmolive Co. In his sole point of error, appellant asserts the trial court erred in finding that appellant's lawsuit is barred by the statute of limitations. We affirm the trial court's judgment.
BACKGROUND
On April 10, 2001, appellant was an inmate in the Dallas County Jail. He purchased a tube of appellee's toothpaste from a vending machine. When he used the toothpaste, appellant allegedly suffered cuts and bleeding in his gums and mouth. Appellant filed suit against appellee on February 10, 2003 as a pro se litigant, and he filed a motion to proceed in forma pauperis. On October 9, 2003, the district clerk wrote to appellant and advised him that he needed to file an affidavit or unsworn declaration of indigence. Appellant testified he filed an affidavit of indigence when he filed the lawsuit and that he filed another affidavit after receiving the district clerk's letter. Appellee was served with the suit in November 2003. On January 21, 2004, the trial court dismissed the suit without prejudice because appellant had failed to file a declaration of his previous filings and a certified copy of his trust account statement. See Tex. Civ. Prac. Rem. Code Ann. § 14.004 (Vernon 2002). On January 20, 2006, appellant-now represented by counsel-filed this suit asserting claims for negligence, products liability, and breach of warranty.
Appellee moved for summary judgment on the ground that appellant's claims were barred by the statute of limitations. The trial court granted appellee's motion for summary judgment, rendering a take-nothing judgment on appellant's claims.
SUMMARY JUDGMENT
The standard for reviewing a summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). After the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence creating a fact issue. Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 881 (Tex.App.-Dallas 2007, no pet.).
In his sole point of error, appellant contends the trial court erred in granting appellee's motion for summary judgment on the affirmative defense of limitations. The limitations period for appellant's negligence and products liability causes of action is two years. See Tex. Civ. Prac. Rem. Code Ann. § 16.003 (Vernon Supp. 2007). The limitations period for appellant's breach of warranty claim is four years. Tex. Bus. Com. Code Ann. § 2.725 (Vernon Supp. 2007). Appellant's causes of action accrued when he suffered the injury from the toothpaste on April 10, 2001. Thus, appellant had to bring suit on his negligence and products liability claims by April 10, 2003, and he had to bring suit on his breach of warranty claim by April 10, 2005. Appellant timely filed his original suit on February 10, 2003, but that suit was dismissed without prejudice. When appellant's first suit was dismissed on January 21, 2004, the limitations period for appellant's negligence and products liability causes of action had expired; however, the limitations period for breach of warranty had not expired. By the time appellant filed this suit on January 20, 2006, the limitations period for breach of warranty had also expired.
Appellant first argues limitations does not bar his suit because he was diligent in serving appellee. Diligence in service is a consideration when suit is filed before expiration of limitations but the defendant is served after the limitations period. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam). Appellant's suit, however, was outside the limitations periods for all of his causes of action when he filed suit in January 2006. Accordingly, whether appellant acted with due diligence in serving appellee is not relevant. Appellant appears to argue that this rule should be expanded to the facts of this case because "[a]ppellant asserts that he acted first with due diligence in procuring the issuance of citation, and after the case was dismissed, and as a reasonably prudent person in refiling his lawsuit after the court dismissed the case without prejudice." Appellant cites no authority in support of this argument. Accordingly it is inadequately briefed. Tex. R. App. P. 38.1(h); Dallas Firefighters Ass'n v. Booth Research Group, Inc., 156 S.W.3d 188, 197 (Tex.App.-Dallas 2005, writ denied).
Appellant next argues that the limitations periods were equitably tolled for two years from the date of the dismissal of the first suit on January 21, 2004. Appellant relies on two federal cases in support of his assertion of equitable tolling. In Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424 (1965), an employee timely filed suit in state court under the Federal Employers Liability Act. Id. at 424-25. The action was dismissed for lack of venue, and eight days later, the plaintiff filed the identical suit in federal court. Id. 425. Limitations had expired by the time the suit was filed in federal court. Id. The Supreme Court held the state court action tolled limitations, which made the federal action timely. Id. at 426. The Court also observed that limitations may be equitably tolled in situations where the failure to file suit is due to the defendant misleading the plaintiff into believing he had more than the limitations period to file suit or where the plaintiff was prevented from filing suit due to war. Id. at 428-29. "In such cases a plaintiff has not slept on his rights but, rather, has been prevented from asserting them." Id. at 429.
Appellant also relies on United States v. Patterson, 211 F.3d 927 (5th Cir. 2000), where the court stated, "The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable. Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Id. at 930 (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), and Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999)).
Appellant asserts these federal cases require equitable tolling in this case because the trial court's order dismissing his first suit without prejudice actively misled him into believing he could refile his lawsuit on or before January 21, 2006. We disagree. The trial court's order dismissing appellant's first suit contained no suggestion that appellant could wait any length of time, much less almost two years, to refile his petition.
Appellant also argues equitable tolling should apply because the trial court dismissed the first suit without prejudice, which, appellant argues, indicates the trial court intended for appellant to be able to refile his suit without it being time-barred. We disagree. Dismissal without prejudice provides no protection from the statute of limitations. See Cronen v. City of Pasadena, 835 S.W.2d 206, 210 (Tex.App.-Houston [1st Dist.] 1992, no writ) (limitations on dismissed case runs from time claim accrued until date of refiling), disapproved on other grounds by Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994).
Appellant also asserts limitations should be tolled because "strict application of the statute of limitations would be inequitable." Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998). Appellant's first suit was dismissed because appellant failed to file the declaration of previous filings and a certified copy of his trust account statement. After the case was dismissed, appellant did not file a motion to reinstate or attempt to correct his failure to file the required documents. Cf. Brown v. Lubbock County Comm'rs Court, 185 S.W.3d 499, 503 (Tex.App.-Amarillo 2005, no pet.) (failure to file declaration of previous filings corrected by attaching declaration to motion for rehearing). Instead, appellant waited nearly two more years to refile his claims. Cf. Tex. Civ. Prac. Rem. Code Ann. § 16.064 (Vernon 1997) (limitations tolled when case dismissed for want of jurisdiction if suit is commenced in court of proper jurisdiction within sixty days); Burnett, 380 U.S. at 425 (limitations tolled when case dismissed for lack of venue refiled in court of proper venue eight days later). We do not perceive any inequity in applying the statute of limitations in this case.
We conclude the trial court did not err in granting appellee's motion for summary judgment. We overrule appellant's sole issue.
We affirm the trial court's judgment.