TARA SCHILLER AND JEFFREY SCHILLER, Appellants v. JERREL LYNNE LEWIS, AS HEIR AND EXECUTOR OF THE ESTATE OF CHRISTINE ABBOTT, Appellee

AFFIRM and Opinion Filed August 12, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00209-CV
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TARA SCHILLER AND JEFFREY SCHILLER, Appellants
V.
JERREL LYNNE LEWIS, AS HEIR AND EXECUTOR OF
THE ESTATE OF CHRISTINE ABBOTT, Appellee
 
.............................................................
On Appeal from the County Court of Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-06-06010-D
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MEMORANDUM OPINION
Before Justices O'Neill, Richter and Lang
Opinion By Justice Richter
                Tara and Jeffrey Schiller appeal a traditional summary judgment rendered for Jerrel Lynn Lewis (“Executor”) on her affirmative defense of limitations. They raise two issues. First, the Schillers contend the trial court failed to properly apply tolling provisions in Texas Civil Practice and Remedies Code Sections 16.062 and 16.063 when it held their claims were time- barred. Tex. Civ. Prac. & Rem. Code Ann. §§ 16.062-16.063 (Vernon 1997). In their second issue, the Schillers argue the trial court granted more relief than the Executor requested. Finding no reversible error, we affirm the trial court's judgment.
Background
 
        On January 14, 2004, the Schillers and the Executor's mother, Christine Abbott, were in a car accident. Ms. Abbott died on October 22, 2005 of an unrelated illness. The Executor was qualified and appointed fifty-three days later, on December 14, 2005.
        The Schillers filed suit twenty-nine months after the accident on June 2, 2006. The Executor answered with a general denial and asserted, among other claims, an affirmative defense of limitations. She then moved for summary judgment “on the basis of limitations” and thereafter “pray[ed] upon final hearing herein, that [the Schillers] recover nothing from [her], that [she] have judgment in [her] favor....” In support of her motion, the Executor filed a certified copy of the death certificate establishing her mother died on October 25, 2005, letters testamentary that she was qualified as the Executor on December 14, 2005, and her affidavit where, among other facts, she attests that she is, and intends to remain, a resident of Louisiana. The motion was first set for hearing in September 2006. The Schillers requested and obtained a two-month continuance.
        Despite the additional time, the Schillers submitted no evidence and no objections to the Executor's evidence. Instead, they amended their petition to add an allegation   See Footnote 1  that the Executor was in Texas on January 14, 2004 when the car accident occurred and then was out of the state for twenty-two months which tolled limitations for that period. Based on this allegation, the Schillers argue in their summary judgment response that their claims are not time-barred.
        The summary judgment motion was granted and the judgment stated, in pertinent part: “[t]he Defendant's [sic] Motion for Summary Judgment is Granted [sic]. Plaintiff will take nothing. This is a final order, disposing of all matters before the Court.”
Standard of Review
 
        Summary judgment is appropriate when there is no genuine issue as to any material fact and judgment should be granted in favor of the movant as a matter of law. Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005) (citing KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999)). A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. Id.; Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 501 (Tex. 1982). If the movant establishes that the statute of limitations bars the action, the nonmovant must then present summary judgment evidence raising a fact issue in avoidance of the statute of limitations. Id.; Kang v. Hyundai Corp., 992 S.W.2d 499, 501 (Tex.App.-Dallas 1999, no pet.); Palmer v. Enserch Corp., 728 S.W.2d 431, 435-36 (Tex.App.-Austin 1987, writ ref'd n.r.e.).
 
Discussion
 
        The Schillers admit that if Christine Abbott had not died, the statute of limitations would have barred their claims on January 14, 2006. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2007) (providing a two-year limitations period for personal injury claims). In their first issue, however, they argue the limitations period was tolled because of her death under either (a) Texas Civil Practice and Remedies Code (“CPRC”) Section 16.063    See Footnote 2  for an additional twenty- two months because the Executor was in Texas on the date of the accident and then out of state until June 2, 2006; or (b) CPRC Section 16.062   See Footnote 3  for an added twelve months because Abbott died and the Executor was qualified after the accident, but before limitations would have run if Abbott had not died. Neither argument persuades us.
A.
 
CPRC § 16.062
 
        CPRC § 16.062 applies to toll limitations in certain instances when a potential litigant dies after a claim accrues. Specifically, subpart (a) of CPRC § 16.062 tolls limitations for a twelve month period if a potential plaintiff or defendant dies. However, subpart (b) stops the tolling if and when an executor is qualified during those 12 months. Garcia v. Caremark, Inc., 921 S.W.2d 417, 421 (Tex.App.-Corpus Christi 1996, no writ) (formal qualification provides a definite date upon which limitations begins to run again). In support of her motion for summary judgment, the Executor submitted a certified copy of Letters Testamentary that certify she took her oath, and was appointed executor and qualified on December 14, 2005. See Tex. Prob. Code Ann. § 189 (Vernon 2003) (personal representative deemed qualified when he takes and files his oath and makes any required bond). The Schillers did not dispute these facts or submit any evidence relating to the Executor's qualification. Accordingly, the summary judgment evidence establishes only a fifty- three day tolling period between Abbott's death and the Executor's qualification to extend the Schillers' filing deadline from January 14, 2006 to March 4, 2006.   See Footnote 4  Suit was not filed until June 2, 2006 - three months after limitations ran. Accordingly, the Schillers' claims remain time-barred.
B.
 
CPRC § 16.063
 
        CPRC §16.063 suspends the running of the statute of limitations during the period a defendant is absent from the state. Generally, this tolling provision applies to (1) resident defendants, and (2) nonresidents who are present in Texas when the cause of action accrues. Ahrenhold v. Sanchez, 229 S.W.3d 541, 543 (Tex.App.-Dallas 2007, no pet.) (citing Stone v. Phillips,176 S.W.2d 932, 933 (Tex.1944)); Wyatt v. Lowrance, 900 S.W.2d 360, 362, (Tex.App.-Houston [14th Dist.] 1995, writ denied)(tolling provision does not apply to nonresidents). The Executor's affidavit states she is not a resident of Texas. The Schillers do not dispute her Louisiana residency and submitted no evidence that the Executor was in Texas on the day of the car accident. The only support they put before the trial court was an unverified allegation in their third amended petition   See Footnote 5 . The Schillers' allegation does not satisfy their burden to present competent summary judgment evidence raising a fact issue in avoidance of the statute of limitations. Diversicare General Partner, Inc., 185 S.W.3d at 846. We resolve the Schillers' first issue against them.
C.
 
The Take-Nothing Summary Judgment was proper
 
        In their second issue, the Schillers argue that, even if the trial court was correct in granting the Executor's motion, the judgment granted more relief that the Executor requested by ordering the Schillers take nothing and purporting to dispose of all claims in the case. Specifically, they contend that when they amended their petition (after the Executor's motion was filed) to add the allegation that the Executor's absence from the state tolled limitations, they created a new claim which was not addressed by the Executor's motion. We are not persuaded by the Schillers' contention because their additional allegation is an avoidance of the Executor's affirmative defense of limitations -- not a new claim.
        There is no dispute as to the date the Schillers' claims accrued, that day Abbott died and when the Executor was qualified. The Executor's motion asked for summary judgment “on the basis of limitations” and prayed that “each Plaintiff recover nothing.” In a similar case, this court held when a defendant asked for judgment because the plaintiffs' claims were barred, the language “was sufficient to entail the entirety of appellants' claims.” Fiengo v. General Motors Corp., 225 S.W.3d 858, 863 (Tex. App.-Dallas 2007, no pet.); see also Dallas Firefighters Ass'n v. Booth Research Group, Inc., 156 S.W.3d 188, 198-98 (Tex.App.-Dallas 2005, pet. denied)(summary judgment movant need not amend motion if it is broad enough to encompass a later-filed claim). The Schillers' third amended petition does not raise a new cause of action. It merely alleges a new reason why their claims are not time-barred; i.e., CPRC § 16.063 instead of §16.062. Summary judgment was proper and we overrule the Schillers' second issue.
Conclusion
 
        Finding no reversible error, we affirm the trial court's judgment.
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
070209F.P05        
 
Footnote 1 The Schillers third amended petition alleges “ [i]n response to the motion for summary judgment defense of limitations asserted by [the Executor], [they] would show the Court that accrual of limitations was tolled by CPRC 16.062 because Defendant Abbott died on October 22, 2005, and the limitations are tolled by one year upon the death of a party, and by CPRC 16.063 due to [the Executor] being in the State of Texas on January 14, 2004, and then being out of the State of Texas from January 15, 2004 until June 2, 2006 (the date the petition was filed) other than the 203 days [the Executor] was in the State of Texas during that time period ... [to extend] ... the statute of limitations period by the amount of time [the Executor] was out of the State of Texas, which is 665 days (a little over 22 months).”
Footnote 2 CPRC § 16.063 is entitled Temporary Absence from State and 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.”
Footnote 3 CPRC § 16.062:
(a) The death of a person against whom or in whose favor there may be a cause of action suspends the running of an applicable statute of limitations for 12 months after the death.
(b) If the executor or administrator of a decedent's estate qualifies before the expiration of the period provided in this section, the statute of limitations begins to run at the time of the qualification.
Footnote 4         The fifty-three day period actually ends on Sunday, March 3, 2006.
Footnote 5         The Schillers rely incorrectly on three discovery rule cases to support their argument. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 224 (Tex. 1999) (toxic tort); Velsicol Chem Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997) (toxic tort); Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996) (medical malpractice). The Schillers' reliance is misplaced because, in each instance, the discovery rule allegation put the material fact of when the cause of action accrued at issue. Here, no one disputes the car accident occurred on January 14, 2004.