Cristina Garza v. Investigation Technologies, Inc. D/B/A International Investigators ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00399-CV
CRISTINA GARZA APPELLANT
V.
INVESTIGATION TECHNOLOGIES, APPELLEE
INC. D/B/A INTERNATIONAL
INVESTIGATORS
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 16-00145-367
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MEMORANDUM OPINION1
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This is an appeal by pro se appellant Cristina Garza from the grant of
summary judgment for appellee Investigation Technologies, Inc. d/b/a
International Investigators. The trial court granted summary judgment on the
basis of the expiration of a statute of limitations. In what we construe as a single
1
See Tex. R. App. P. 47.4.
issue, appellant argues that her suit was timely because she served citation on
appellee within thirty-eight months after the expiration of the statute of limitations.
Because this is not an accurate application of the law and because no other
assigned error from the trial court’s decision to grant summary judgment for
appellee is before us, we affirm.
Background Facts
According to appellant’s pleadings, on July 29, 2011, a minor child set fire
to a school, and the fire spread to appellant’s nearby property, causing damage.
Appellant, acting pro se, filed suit on July 25, 2013 against the minor’s parents
and against Gregory S. Peters, appellee’s president, claiming that appellee had
failed to properly secure the school. Appellant pled that appellee had a contract
with the school district for security services and that appellee was grossly
negligent with respect to providing those services.
On October 4, 2013, appellant sought leave from the trial court to amend
her petition so that she could substitute appellee in place of Peters. She
described the initial bringing of her suit against Peters, instead of against
appellee, as a “substantive defect” and asserted that appellee would not be
prejudiced by its substitution as the proper defendant. On October 11, 2013,
appellant nonsuited Peters.
On November 24, 2014, appellant filed an amended petition, formally
substituting appellee for Peters for the first time. Appellant served appellee with
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that amended pleading on July 20, 2015 by delivering it to Peters through
certified mail.
Appellee answered the suit through a general denial and through pleading
the affirmative defense that a statute of limitations barred appellant’s claim.
Appellee also sought summary judgment on the ground that the statute of
limitations had run. Specifically, appellee argued that the statute of limitations
had run because appellant had filed her amended petition against appellee more
than two years after July 29, 2011 and because appellant did not serve appellee
with the petition until long after that date.2 Appellant responded to appellee’s
motion, alleging that she had filed all necessary instruments in a timely manner.
The trial court granted appellee’s motion for summary judgment and
entered a take-nothing judgment on appellant’s claims against appellee.
Appellant filed a motion for reconsideration, and the trial court denied that
motion. Appellant brought this appeal.3
Appellant’s Argument on Appeal
Appellant challenges the trial court’s decision to grant summary judgment.
In a summary judgment case, the issue on appeal is whether the movant met the
2
A suit for property damage must generally be brought within two years
after the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann.
§ 16.003(a) (West Supp. 2015); Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314
(Tex. 2006).
The trial court severed appellant’s claim against appellee from her claim
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against the minor’s parents. Appellant obtained a money judgment against the
minor’s parents.
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summary judgment burden by establishing that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ.
P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
Appellant argues that under Gant v. DeLeon, service of the amended
petition on appellee was timely because it was diligently made less than thirty-
eight months after the expiration of the statute of limitations.4 786 S.W.2d 259
(Tex. 1990). She argues that she was diligent “as a matter of law” on this case
because, in part, she retained two attorneys, but neither of them filed documents
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Appellant argues in her brief that she was “diligent as a matter of law
throughout this lawsuit process and justice was not served according to the case
of Gant vs. DeLeon.” Later in the brief, she contends,
The primary issue in this case is that the Gant vs. DeLeon
case can be interpreted as another avenue to allow a plaintiff to still
be able to serve the defendant with a citation 38 months after the
[statute] of limitations [has] expired. And in this case the [statute] of
limitations expired on July 30, 2013. . . .
According to this case of Gant vs. DeLeon, [appellant] still had
38 months to issue a citation to [appellee] . . . .
....
[I ask] the court for a reversal of judgment . . . because the
judge has been [misinformed] and also because [I have] been
diligent all along this process in this case.
....
I have worked diligently throughout this case. I have served
[appellee] within less than 38 months.
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on her behalf or attended hearings with her. She contends, “I have worked so
diligently and so hard. I have come a long way as a pro se. [I have] been very
diligent in this case as a matter of law.”
Appellant contends that the trial court did not consider the holding in Gant.
But she has not accurately presented that holding. There, the supreme court
held that to comply with a statute of limitations, a plaintiff must file suit within the
limitations period and use diligence in effecting service, even if the service occurs
outside of the limitations period. Id. at 260. The court also held that an
unexplained delay of three periods totaling thirty-eight months in obtaining
service of the citation established failure to use diligence as a matter of law. Id.
The court did not hold, as appellant posits, that any delay in effecting service that
is less than thirty-eight months is reasonable. See id. Moreover, Gant is
distinguishable because there, the plaintiff sued the defendant within the
limitations period whereas here, appellant sued appellee explicitly only after
limitations expired. See id. at 259.
Appellant’s contention concerning the holding in Gant is her only
cognizable argument, and for the reasons stated above, we overrule it. To the
extent that she attempts to raise any other arguments to support an assertion
that the trial court erred by granting summary judgment, those arguments are
overruled as inadequately briefed. See Tex. R. App. P. 38.1(i) (“The brief must
contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”); Wilson v. Andrews, 10 S.W.3d 663,
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671 (Tex. 1999); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279,
284 (Tex. 1994); Allegiance Hillview, L.P. v. Range Tex. Prod., LLC, 347 S.W.3d
855, 873 (Tex. App.—Fort Worth 2011, no pet.). Moreover, we cannot reverse a
summary judgment for a reason not presented by the appellant on appeal or for a
reason not expressly presented in response to the summary judgment motion.
See Tex. R. Civ. P. 166a(c); W. Steel Co. v. Altenburg, 206 S.W.3d 121, 124
(Tex. 2006) (explaining that courts should not search for legal errors that the
parties have not raised and stating that “absent fundamental error, an appellate
court should refrain from deciding cases on legal errors not assigned by the
parties”); Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) (“[B]oth the reasons
for the summary judgment and the objections to it must be in writing and before
the trial judge at the hearing.”). We are “restricted to addressing the arguments
actually raised, not those that might have been raised.” Feagins v. Tyler Lincoln-
Mercury, Inc., 277 S.W.3d 450, 455 (Tex. App.—Texarkana 2009, no pet.) (op.
on reh’g); see also Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297,
303 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“We are . . . prohibited from
altering even an erroneous judgment in a civil case without a challenge to the
error on appeal.”).
Appellee asks us to sanction appellant for bringing a frivolous appeal.
Because we cannot conclude that appellant brought this appeal for delay or that
the prosecution of the appeal was egregious, we deny appellee’s request for
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sanctions. See Tex. R. App. P. 45; Durham v. Zarcades, 270 S.W.3d 708, 720
(Tex. App.—Fort Worth 2008, no pet.) (“Sanctions should be imposed only in
egregious circumstances.”); Hawkins v. Walker, 233 S.W.3d 380, 402 (Tex.
App.—Fort Worth 2007, no pet.) (“Rule 45 damages will not be imposed unless
the record, viewed from the appellant’s point of view at the time the appeal was
taken, clearly shows that the appeal was brought only for delay and that the
appellant had no reasonable expectation of reversal.”).
Conclusion
Having rejected appellant’s only cognizable argument challenging the trial
court’s decision to grant summary judgment for appellee, we affirm the trial
court’s judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DELIVERED: July 28, 2016
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