Doris D. Hawkins v. Gail Ashley ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-359 CV ____________________

DORIS D. HAWKINS, Appellant

V.

GAIL ASHLEY, Appellee

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On Appeal from the County Court at Law No. 2 Montgomery County, Texas Trial Cause No. 05-04-02954-CV

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MEMORANDUM OPINION

Doris Hawkins sued Gail Ashley for personal injuries that Hawkins alleged were caused by a May 31, 2003, automobile accident. The trial court granted summary judgment for Ashley based upon her statute of limitations claim. We reverse the trial court's judgment and remand.

The record shows that Ashley moved to California in 2004. Hawkins filed her lawsuit against Ashley on April 1, 2005. Subsequently, Ashley moved for summary judgment and asserted that she was not served within the two-year limitations period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2006). In response, Hawkins asserted that she had used diligence in procuring issuance and service of citation and that Ashley's absence from the State suspended the running of the statute under section 16.063. See Tex. Civ. Prac. & Rem. Code Ann. § 16.063 (Vernon 1997). Section 16.063 provides: "The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence." Id.

Because Hawkins asserted that Ashley had been absent from the State, Ashley, as the movant on the motion, bore the burden of conclusively establishing that limitations had expired despite any suspension periods allowed by section 16.063. See Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996) (citing Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975)). The summary judgment evidence indicated that Hawkins has lived in California since 2004. Also, at the hearing on Ashley's motion, her attorney stated, "We will agree that she left Texas and that she did not leave a forwarding address. I don't think that's at issue."

During periods that a person is absent from the State, the legislature directs that limitations is suspended. Tex. Civ. Prac. & Rem. Code Ann. § 16.063; see Wyatt v. Lowrance, 900 S.W.2d 360, 361-62 (Tex. App.-Houston [14th Dist.] 1995, writ denied) (explaining that section 16.063 applies to a non-resident who was present in Texas when cause of action arose) ⁽¹⁾

; see also Vaughn v. Deitz, 430 S.W.2d 487, 488, 490 (Tex. 1968) (applying former tolling statute [article 5537] when defendants, who were Texas residents at time of accident, moved out of state six months later).

The hearing reflects that the trial court failed to apply section 16.063. Instead, the trial court required that Hawkins demonstrate due diligence in locating and serving Ashley during the period between May 31, 2005 (the date by which the two-year statute would have run), and the date Ashley was actually served. At the hearing's conclusion, the court stated: "The facts in this case do not show continuous diligence, and therefore the Motion for Summary Judgment is granted on the limitations defense."

On the pleadings before it, the trial court erred in requiring Hawkins to demonstrate continuous due diligence during the periods when Ashley was absent from the State. In a summary judgment proceeding regarding limitations, the burden was on Ashley, the movant, to conclusively negate Hawkins's contention that the tolling provision suspended the running of the statute. See Rosenbaum, 520 S.W.2d at 891. Ashley's summary judgment evidence, which shows that she has lived in California since 2004, does not negate Hawkins's tolling allegation.

Ashley also argues that the statute does not apply in situations where the resident's move is permanent rather than temporary. Ashley's argument is premised on the tolling provision's title, "Temporary Absence From State." However, we are not persuaded by Ashley's argument in light of the Texas cases in which appellate courts agreed that the provision applied in similar circumstances. See Wyatt, 900 S.W.2d at 361-62; see also Vaughn, 430 S.W.2d at 490. Further, even if Ashley were correct, her summary judgment evidence did not prove as a matter of law that she had permanently moved to California. Thus, even if the statute applied only to temporary absences, an argument we reject, Ashley was not entitled to have the trial court grant her summary judgment motion on the record that was before the trial court.

We hold that Ashley failed to meet her burden to conclusively negate the applicability of section 16.063 of the Texas Civil Practice and Remedies Code. As a result, the trial court's judgment must be reversed. Therefore, we reverse and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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HOLLIS HORTON

Justice

Submitted on March 26, 2007

Opinion Delivered June 7, 2007

Before Gaultney, Kreger, and Horton, JJ.

1. Citing cases decided under article 5537, the prior tolling statute, the Wyatt Court explained that such cases are instructive because 16.063 was a recodification of article 5537. Wyatt v. Lowrance, 900 S.W.2d 360, 361-62 (Tex. App.-Houston [14th Dist.] 1995, writ denied) (citing, among others, Jackson v. Speer, 974 F.2d 676, 679 (5th Cir. 1992); Wise v. Anderson, 163 Tex. 608, 611, 359 S.W.2d 876, 879 (1962); Stone v. Phillips, 142 Tex. 216, 219-20, 176 S.W.2d 932, 933-34 (1944); L.F. Wilson & Co. v. Daggett, 88 Tex. 375, 377, 31 S.W. 618, 619 (1895); Ayres v. Henderson, 9 Tex. 539, 541 (1853)).