Gabriel v. Process Products6/27/1996
This is an appeal from a summary judgement in favor of defendant Process Products, Inc. on statute of limitations grounds.
We affirm.
On June 3, 1994, Donald Gabriel filed suit against Process Products, Inc., for personal injuries allegedly sustained almost two years earlier, on June 6, 1992, while working at Process Products' place of business. On July 28, 1995, Process Products moved for summary judgment asserting that the two-year limitations provision of TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 16.003 (Vernon 1986) barred the suit. Process Products alleged that Gabriel failed to exercise due diligence in effecting service on Process Products, as evidenced by a delay of over seven months in delivering the citation to the Fort Bend County Constable's office for service on Process Products. The trial court granted Process Products' motion for summary judgment.
In his sole point of error, Gabriel asserts the trial court erred in granting Process Products' motion for summary judgment, because Process Products failed to negate that Gabriel used due diligence in procuring service.
Summary judgement is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgement as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Bangert v. Baylor College of Medicine, 881 S.W.2d 564, 566 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Long v. State Farm Fire & Cas. Co., 828 S.W.2d 125, 126- 27 (Tex. App.--Houston [1st Dist.] 1992, writ denied). In reviewing a summary judgment, we must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Johnson, 891 S.W.2d at 644; Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Bangert, 881 S.W.2d at 565-66; Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. App.--Houston [1st Dist.] 1993, writ denied). This Court will also take all evidence favorable to the non-movant as true. Johnson, 891 S.W.2d at 644; Bangert, 881 S.W.2d at 565; Thompson v. Vinson & Elkins, 859 S.W.2d 617, 619 (Tex. App.--Houston [1st Dist.] 1993, writ denied).
A defendant is entitled to summary judgement if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Gary v. Bertrand, 723 S.W.2d 957, 958 (Tex. 1987); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. App.--Houston [1st Dist.] 1993, writ denied). A defendant is also entitled to summary judgement if he conclusively establishes all elements of an affirmative defense as a matter of law. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); Bangert, 881 S.W.2d at 566; Marchal, 859 S.W.2d at 412.
Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. The non-movant must respond to the motion for summary judgement and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. App.--Houston [1st Dist.] 1993, writ denied). The nonmovant must expressly present issues precluding the movant's entitlement to summary judgement by written response or answer to the motion; the nonmovant's issues are not expressly presented by mere reference to summary judgement evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).
To "bring suit" within the two-year limitations period prescribed by section 16.003, a plaintiff must not only file suit within the applicable limitations period, but also
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