 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Toubaniaris v. American Bureau of Shipping12/7/1995
This is an appeal from a take-nothing summary judgement rendered in favor of the defendants, American Bureau of Shipping and American Bureau of Shipping -- Singapore (ABS). In four points of error, the plaintiff, Panagiotis Toubaniaris, asserts that the trial court erred in rendering summary judgement because: (1) the court applied the incorrect statute of limitations; (2) the court did not apply the discovery rule; and (3) the court rendered a summary judgement against Toubaniaris even though ABS did not request such relief in a motion. We reverse and remand.
Summary of Facts
Toubaniaris, a Greek citizen, was injured in a ship explosion in Genoa, Italy, on April 11, 1991. Toubaniaris filed suit against ABS on August 31, 1993, for negligence in inspecting the ship. ABS filed a "motion to dismiss for forum non conveniens and motion for partial summary judgment." The trial court rendered summary judgement against Toubaniaris on the basis of limitations.
Adequacy of ABS' Motion
As noted, ABS filed a motion that was captioned as "a motion to dismiss for forum non conveniens and motion for partial summary judgment." ABS conceded in their motion that the Supreme Court of Texas had held that, under the law in effect when this lawsuit was filed, an action for personal injury caused by an act or omission out of state was not subject to dismissal on forum non conveniens grounds. See Dow Chemical Co. v. Castro Alfaro, 786 S.W.2d 674, 679 (Tex. 1990); TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 71.031 (1986).
However, ABS noted that section 71.031 on its face only applies when the claim is begun in Texas within the time provided by Texas laws for beginning the action. TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 71.031(a)(2). ABS contended that Toubaniaris' claim was barred by limitations under Texas law, and this case was therefore subject to forum non conveniens dismissal. ABS asserted that the statute of limitations on Toubaniaris' claim for personal injuries was two years, accruing on the date of the incident allegedly resulting in the injury. TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 16.003(a) (1986).
ABS asserted several additional reasons that Toubaniaris' claim should be dismissed on forum non conveniens grounds, including the lack of Texas connections to the act giving rise to the lawsuit and the difficulty of obtaining witnesses and evidence if the trial were to be held in Texas. ABS agreed to waive their limitations claim if the court were to grant their motion to dismiss on forum non conveniens grounds.
ABS requested the following relief in their motion: (1) that Toubaniaris' action be dismissed on forum non conveniens grounds with prejudice to refiling except in the appropriate forum and (2) such other relief, both at law and in equity, to which ABS could show itself to be justly entitled. Apart from the caption at the top of the motion labeling it as a motion for partial summary judgment, ABS did not request in their motion that summary judgement be rendered on Toubaniaris' claim.
In support of their motion, ABS submitted evidence to prove the date that Toubaniaris was injured, the date that he filed suit, and that maintenance of this case in Texas would be impractical.
In point of error four, Toubaniaris contends the trial court erred in rendering summary judgement against him because ABS did not request summary judgement in their motion. We judge the character of a motion by its substance rather than its form or caption. State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); Law v. Law, 792 S.W.2d 150, 152 (Tex.App. -- Houston [1st Dist.] 1990, writ denied); see TEX. R.
Page 1 2 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|