JOHN A. MATHIS, Appellant v. JAMES BAILEY, Appellee

AFFIRMED; Opinion Issued October 1, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00183-CV
............................
JOHN A. MATHIS, Appellant
V.
JAMES BAILEY, Appellee
.............................................................
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 08-02142-M
.............................................................
MEMORANDUM OPINION
Before Chief Justice Thomas, and Justices O'Neill and Fillmore
Opinion By Chief Justice Thomas
        Appellant John A. Mathis appeals a summary judgment based on the affirmative defense of limitations rendered in favor of appellee James Bailey. We affirm the trial court's judgment.
        On April 15, 2006, appellant and appellee were in an automobile accident. Appellant filed suit on February 27, 2008 against Insurance Depot as the purported insurer of appellee. On July 22, 2008, appellant filed his amended petition. In that amended petition, appellant for the first time named appellee as a defendant, asserting a negligence cause of action against him. Appellee answered the lawsuit and raised the affirmative defense of limitations. Appellee then moved for summary judgment asserting appellant's negligence cause of action against appellee was barred by limitations. The trial court granted summary judgment on appellant's negligence cause of action against appellee. Appellant appealed the trial court's judgment in favor of appellee.
        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 Gen. 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)). Summary judgment may be granted on an affirmative defense. See Tex. R. Civ. P. 166a(c). A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. Diversicare, 185 S.W.3d at 846 (citing KPMG Peat Marwick, 988 S.W.2d at 748)); 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, 446 (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. 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.).
        The statute of limitations expired before appellant filed suit against appellee. The limitations period for this cause of action was two years from the accrual of the cause. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2008) (providing a two-year limitations period for personal injury claims). In his response to appellee's motion for summary judgment and on appeal, appellant admits the motor vehicle accident occurred on April 15, 2006 and the statute of limitations applicable to a negligence cause of action that arose from the accident expired April 16, 2008. The record confirms on February 27, 2008, appellant filed suit against Insurance Depot, Inc. and on July 22, 2008, appellant filed his amended petition including the negligence claim against the newly- named appellee.
        We conclude that appellee established its defense of limitations as a matter of law, and the summary judgment in favor of appellee was proper in this case. Accordingly, we affirm the trial court's judgment.
 
                                                          
                                                          LINDA THOMAS
                                                          CHIEF JUSTICE
 
 
090183F.P05