Edward C. Stewart v. The Texas Department of Criminal Justice--Appeal from 333rd District Court of Harris County

Affirmed and Memorandum Opinion filed December 13, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00465-CV

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EDWARD C. STEWART, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee

On Appeal from 333rd District Court

Harris County, Texas

Trial Court Cause No. 01-35372

M E M O R A N D U M O P I N I O N

In this personal injury case, Edward Stewart appeals a summary judgment in favor of the Texas Department of Criminal Justice (ATDCJ@) on the grounds that there were material fact issues regarding: (1) the applicable statute of limitations; (2) Stewart=s negligence per se allegations; and (3) Stewart=s allegations of gross negligence. We affirm.

Stewart, an inmate of TDCJ, was injured in a vehicle collision while being transported on March 7, 2000. Stewart filed suit against TDCJ on July 13, 2001. However, TDCJ was not served with notice until September 6, 2002, because citation was repeatedly sent to an incorrect address. As relevant to this appeal, TDCJ filed a traditional motion for summary judgment based on the statute of limitations, which the trial court granted.

A traditional summary judgment may be granted if the motion and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response. Tex. R. Civ. P. 166a(c). A defendant moving for summary judgment on the affirmative defense of limitations must conclusively prove the elements of that defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In reviewing a summary judgment, we take all evidence favorable to the nonmovant as true and resolve every doubt, and indulge every reasonable inference, in the nonmovant=s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

It is undisputed that Stewart filed suit within the limitations period, but that service of citation occurred after the limitations period expired.[1] TDCJ=s motion for summary judgment asserted that Stewart=s claims were barred by limitations because he failed as a matter of law to exercise diligence in effecting service of citation on TDCJ. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). Stewart challenges this summary judgment on the ground that he provided notice to TDCJ within the six months required by the Tort Claims Act; thus, the two-year statute of limitations does not apply to his claim. However, this contention is legally incorrect. A plaintiff must bring suit for personal injury not later than two-years after the day the cause of action accrues, even if the independent requirement to provide notice has been complied with. See Tex. Civ. Prac. & Rem. Code Ann. '16.003 (Vernon Supp. 2005), ' 101.101 (Vernon 2005) (emphasis added). Because Stewart=s brief does not challenge that he failed to exercise diligence in effecting service, it affords no basis for relief on this ground. As this issue dispenses with Stewart=s appeal, we need not address his other issues, challenging alternative grounds for the summary judgment. Accordingly, the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed December 13, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

[1] In their motions for summary judgment, both parties acknowledge that Stewart=s cause of action accrued on March 7, 2000, the date of his injury. Stewart=s original petition was filed, and citation requested, on July 13, 2001. During the period between filing of suit and service of citation, Stewart attempted to serve TDCJ on four separate occasions to an improper service address. Finally, on September 6, 2002, almost fourteen months after suit was filed and six months after the expiration of the limitations period, citation was issued and service was effected successfully to TDCJ at its proper mailing address, an address that Stewart had been using to correspond with TDCJ prior to filing this lawsuit.