Latrina Kingsbury v. A. C. Automotive, Inc. and Maria G. Martinez ( 2015 )

ACCEPTED
01-14-00205-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/2/2015 1:46:51 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00205-CV
______________________________________________________________________________
FILED IN
IN THE 1st COURT OF APPEALS
COURT OF APPEALS HOUSTON, TEXAS
FOR THE 4/2/2015 1:46:51 PM
FIRST SUPREME JUDICIAL DISTRICT CHRISTOPHER A. PRINE
OF Clerk
TEXAS
AT HOUSTON, TEXAS
______________________________________________________________________________
LaTRINA KINGSBURY,
Appellant,
vs.
A.C. AUTOMOTIVE, INC. AND MARIA G. MARTINEZ,
Appellees.
______________________________________________________________________________
Appeal from the County Civil Court At Law No. 1
of Harris County, Texas
______________________________________________________________________________
MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
LaTRINA KINGSBURY, Appellant in this cause, makes this Motion for Rehearing of
the judgment of this Court rendered on March 26, 2015, and in support of said motion would
respectfully show the Court the following.
I.
1. Point of Error: The Court of Appeals erred in affirming the trial court’s judgment
on the basis that the statute of limitations had run on the Appellant’s breach of contract cause of
action.
2. Argument and Authorities: The Court is asked to take judicial notice of the factual
assertions contained in Appellees’ Brief. On page 1 of Appellees’ Brief, the Appellees judicially
admit that they sold Appellant’s vehicle on November 19, 2010. On that same page, the
Appellees judicially admit that the Appellant filed her lawsuit on January 8, 2013. This Court
must accept those facts as true if they are not contradicted. See, e.g., Western Steel Co. v.
Altenburg, 206 S.W.3d 121, 124 (Tex. 2006); TEX. R. APP. P. 38.1(g).
The harm to the Appellant, as to the breach of contract cause of action, did not occur until
the vehicle in question was sold. Moreover, even this Court opined that in November, 2011, the
Appellant did not find out that the vehicle was sold until she attempted to purchase a new
registration sticker for the vehicle. See Slip Op. at 3-4.
The statute of limitations runs not from the date of the wrongful act or omission, but from
the date the nature of the injury was or should have been discovered by the plaintiff. See Weaver
v. Witt, 561 S.W.2d 792, 793-794 (Tex. 1977); Sonethal v. Wheatley, 661 S.W.2d 169, 171-172
(Tex. App.--Houston [14th Dist.] 1983, writ ref’d n.r.e.).
Pursuant to TEX. CIV. PRAC. & REM. CODE § 16.004, the statute of limitations on
Appellant’s breach of contract cause of action is four years. The legal injury did not occur until
the vehicle was sold on November 19, 2010. The Appellant filed her breach of contract cause of
action on January 8, 2013, which is well within the applicable statute of limitations. Cf. Taub v.
Houston Pipeline Co., 75 S.W.3d 606, 618-619 (Tex. App.--Texarkana 2002, pet. denied). As a
matter of law, the judgment of the trial court, as to the breach of contract cause of action, should
be reversed and remanded with instruction to order a new trial.
WHEREFORE, PREMISES CONSIDERED, Appellant requests the Court grant this
motion, that the Court vacate its opinion and judgment as to Appellant’s breach of contract cause
of action and that the judgment of the trial court, as to Appellant’s breach of contract cause of
action, be reversed and the case remanded with instructions to order a new trial.
Respectfully submitted,
WILLIE & ASSOCIATES, P.C.
By:/s/ Joseph R. Willie, II, D.D.S., J.D.
Joseph R. Willie, II, D.D.S., J.D.
4151 Southwest Freeway, Suite 490
Houston, Texas 77027
(713) 659-7330
(713) 599-1659 (FAX)
SBOT #21633500
ATTORNEY FOR APPELLANT
LaTRINA KINGSBURY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served via e-
service to Amelia Rodriguez, 2020 Southwest Freeway, Suite 328, Houston, Texas 77098, on the
2nd day of April, 2015.
/s/ Joseph R. Willie, II, D.D.S., J.D.
Joseph R. Willie, II, D.D.S., J.D.
CERTIFICATE OF COMPLIANCE
I certify that the Motion for Rehearing submitted complies with TEX. R. APP. P. 9 and the
word count of this document is 455. The word processing software used to prepare the document
and to calculate the word count is Windows 7.
/s/ Joseph R. Willie, II, D.D.S., J.D.
Joseph R. Willie, II, D.D.S., J.D.