RUBEN LUNA, III AND JORGE LUIS HERNANDEZ v. ULTIMATE INVESTMENTS, INC.--Appeal from 206th District Court of Hidalgo County

NUMBER 13-05-073-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

RUBEN LUNA, III AND

JORGE LUIS HERNANDEZ, Appellants,

 
v.

ULTIMATE INVESTMENTS, INC., Appellee.

On appeal from the 206th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Ya ez, and Rodriguez
Memorandum Opinion by Justice Ya ez

The sole issue in this appeal is whether Ruben Luna III and Jorge Luis Hernandez's negligence claim against appellee, Ultimate Investments, Inc., is barred by the statute of limitations. The trial court granted summary judgment for appellee. Appellants, Luna and Hernandez, contend that the trial court erred in granting appellee's motion for summary judgment. We affirm the trial court's judgment.

On August 4, 2000, appellants were shot and injured while working as security personnel ("bouncers") at Club Liquid in McAllen, Texas. On August 2, 2002, appellants sued Liquid, Inc. d/b/a Club Liquid ("Liquid") and Ricardo Roux ("Roux") for negligence. (1) On May 13, 2004, Liquid and Roux filed a third-party petition against Hotties Grill & Bar, Inc. d/b/a Kooly's ("Hotties"), asserting they were entitled to contribution and indemnity. (2) Appellants later amended their petition and asserted claims against Hotties; Hotties was ultimately served with appellants' amended petition on June 19, 2004. Hotties then in turn filed a third party petition against appellee on August 16, 2004. (3) Shortly thereafter, on September 3, 2004, appellants amended their pleadings to include appellee as a defendant. Appellee moved for summary judgment on the sole ground that appellants' negligence claim was barred by the two-year statute of limitations. (4) The trial court granted summary judgment for appellee. This appeal followed.

The standards for reviewing a traditional summary judgment are well established. (5) The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. (6) When a defendant moves for summary judgment based on an affirmative defense, such as the statute of limitations, the defendant bears the burden of proving each essential element of that defense. (7) Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. (8) A nonmovant need not answer or respond to a motion for summary judgment to contend on appeal that the grounds expressly presented by the movant's motion are insufficient as a matter of law to support summary judgment. However, the nonmovant may not raise any other issues as grounds for reversal. (9)

Appellee filed its motion for summary judgment, contending appellants' claim was barred by the two-year statute of limitations because it was filed more than four years after the day the cause of action accrued. (10) The pleadings on file establish appellee's contention. Therefore, appellants, as the nonmovants, were required to come forward with evidence to raise a fact issue as to whether the statute of limitations should apply. (11)

In their response to appellee's motion for summary judgment, appellants argued that suit was timely filed in accordance with section 33.004(e) of the civil practice and remedies code. (12) Section 33.004(e) provides: "A claimant may join a responsible third party, even though such joinder would otherwise be barred by limitations, if the claimant seeks to join the responsible third party not later than 60 days after a third party claim is filed under Subsection (d)." (13) Appellants asserted that their claim was timely under this section because they added appellee as a defendant within sixty days of Hotties' third party claim against appellee.

Appellee replied to appellants' response, asserting that section 33.004(e) could only apply if appellants complied with subsection (d). The basis for this argument is that subsection (e) specifies that a claimant may join a responsible third party if "a third party claim is filed under Subsection (d)." (14) Section 33.004(d) provides: "A third party claim by a defendant under this section may be filed, even though the claimant's action against the responsible third party would be barred by limitations, if the third party claim is filed on or before 30 days after the date the defendant's answer is required to be filed." (15) Appellee proved that a third party claim was not "filed on or before 30 days" after Hotties' answer was required to be filed. (16) Accordingly, because subsection (d) was not properly complied with, appellee contends that no third party claim has been "filed under Subsection (d)" as required by subsection (e). (17) Appellants assert, however, that appellee's 33.004(d) argument raises the issue of improper joinder, not limitations. Therefore, because summary judgment was granted solely on the basis of limitations, the only issue that should be considered is whether appellants complied with section 33.004(e). We disagree with this contention.

Though subsection (d) concerns joinder, it warrants consideration on the limitations question before us. Appellants requested the trial court to consider section 33.004(e) as a defense to the running of the two-year statute of limitations; subsection (e) in turn directed the court to further examine the rules laid out in subsection (d) to fully determine if appellants had a viable defense. Accordingly, the trial court was free to consider section 33.004(d) in deciding whether the statute of limitations had run on appellants' claim against appellee. (18)

Appellants further contend, however, that if consideration is given to section 33.004(d), it must be read together with Texas Rule of Civil Procedure 38(a), which discusses when a defendant may bring in a third party. (19) Rule 38(a) states:

At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party petition not later than thirty (30) days after he serves his original answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action. (20)

 

Appellants assert that rule 38(a) allows a defendant to join a responsible third party under section 33.004(d), despite not having done so within thirty days after the day the defendant's answer was due.

We believe that rule 38(a) is inapplicable to section 33.004. Section 33.004(b) states that "[n]othing in this section shall affect the third-party practice as previously recognized in the rules and statutes of this state with regard to the assertion by a defendant of rights to contribution or indemnity." (21) Section 33.004(b) thus "makes clear that the procedures outlined in Texas Rule of Civil Procedure 38 for the joinder of third party defendants are neither added to nor diminished by section 33.004's requirements for the joinder of responsible third parties." (22) Furthermore, even if we were to assume that rule 38(a) is applicable, the rule would have required Hotties to obtain leave on motion prior to filing its third party petition against appellee because more than thirty days had transpired from the day Hotties served its original answer; (23) the record reveals, however, that Hotties did not ask for leave of court. We overrule appellants' point of error.

Accordingly, we affirm the trial court's judgment.

LINDA REYNA YA EZ,

Justice

 

Memorandum opinion delivered and filed

this the 7th day of December, 2006.

1. In their original petition, appellants asserted that Ricardo Roux was the sole shareholder of Liquid, Inc. and requested the trial court to disregard the corporate fiction of Liquid, Inc. and hold Roux jointly and severally liable for appellants' damages.

2. Liquid and Roux assert that immediately prior to the shooting, Hotties served the shooter alcohol to the point where he presented a danger to himself and to others.

3. Appellee, Ultimate Investments, is the owner of the premises upon which the shooting occurred.

4. Tex. Civ. Prac. & Rem. Code Ann. 16.003(a) (Vernon 1998).

5. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

6. Tex. R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548.

7. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).

8. City of Houston, 589 S.W.2d at 678.

9. See City of Houston, 589 S.W.2d at 678.

10. Tex. Civ. Prac. & Rem. Code Ann. 16.003(a) (Vernon 1998).

11. See City of Houston, 589 S.W.2d at 678.

12. Tex. Civ. Prac. & Rem. Code Ann. 33.004 (Vernon 1997). The present case was filed before the effective date of the most recent amendments to section 33.004. The version of Chapter 33 of the Texas Civil Practice and Remedies Code in effect at the time appellants initially filed suit is found in the prior version of the statute. See Act of May 8, 1995, 74th Leg., R.S., ch. 136, 1, secs. 33.001-33.017, 1995 Tex. Gen. Laws 971, 972-75 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. 33.001-33.017 (Vernon 1997 & Supp. 2006)). All references to Chapter 33 in this opinion are to the prior version of the Act.

13. Tex. Civ. Prac. & Rem. Code Ann. 33.004(e) (Vernon 1997).

14. Id.

15. Tex. Civ. Prac. & Rem. Code Ann. 33.004(d) (Vernon 1997).

16. Id. Hotties was first served with appellants' petition on June 19, 2004. Hotties' answer was due on July 12, 2004. Tex. R. Civ. P. 99(b). The deadline for Hotties to file a third party action under section 33.004(d) of the civil partice and remedies code was August 12, 2004. Hotties' third party petition against appellee was made on August 16, 2004.

17. Tex. Civ. Prac. & Rem. Code Ann. 33.004(e) (Vernon 1997).

18. The Fifth Court of Appeals, albeit in an unpublished opinion, has similarly ruled as we now do here. Beckham v. DePaula, No. 05-00-01230-CV, 2001 Tex. App. LEXIS 4855 (Tex. App.-Dallas July 24, 2001, no pet.) (not designated for publication).

19. Tex. R. Civ. P. 38(a).

20. Id.

21. Tex. Civ. Prac. & Rem. Code Ann. 33.004(b) (Vernon 1997).

22. Gregory J. Lensing, Proportionate Responsibility and Contribution Before and After the Tort Reform of 2003, 35 Tex. Tech. L. Rev. 1125, 1194 (2004). Lensing further notes that "the legislature left section 33.004(b) untouched in the 2003 amendments, further suggesting a legislative intent merely to clarify that true third party practice under Rule 38 is completely separate and distinct from responsible-third-party practice under 33.004." Id.

23. Tex. R. Civ. P. 38(a).