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Guillen v. Frels12/8/2005
Guillen raises the following two issues: (1) whether Arnold's unavailability and that of "his caretaker, and elusive executor for service of process will be imputed to [Guillen] as lack of diligence," and (2) whether Frels's summary judgment proof established Guillen's lack of diligence as a matter of law. Both issues are directed at the trial court's grant of Frels's motion for summary judgment.
The movant for summary judgment has the burden to show there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non-movant. Id. at 548-49. The reviewing court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Id. at 549.
A defendant moving for a traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against it. See Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Additionally, after sufficient time for discovery has passed, a party may file a "no evidence" motion for summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i). As with the traditional summary judgment, in reviewing a "no evidence" summary judgment, we review the evidence in the light most favorable to the non-movant and disregard all evidence and inferences to the contrary. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.--Houston [14th Dist.] 2000, no pet.). We sustain a no evidence summary judgment if (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Id.
Because the propriety of summary judgment is a question of law, we review the trial court's decision de novo. Brown v. Blum, 9 S.W.3d 840, 844 (Tex. App.--Houston [14th Dist.] 1999, pet. dism'd w.o.j.); see Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). When a party moves for summary judgment on both traditional and no-evidence grounds and the trial court does not specify which it granted, we can uphold the summary judgment on either ground. See Taylor v. Carley, 158 S.W.3d 1, 8 (Tex. App.--Houston [14th Dist.] 2004, pet. denied).
II. Propriety of Summary Judgment on Limitations
Guillen's cause of action accrued September 20, 1999. See Brown v. Shores, 77 S.W.3d 884, 887 (Tex. App.--Houston [14th Dist.] 2002, no pet.) (setting date of accident as date cause of action accrued). Limitations expired September 20, 2001. See TEX. CIV. PRAC. & REM. CODE ANN. ยง 16.003(a) (Vernon Supp. 2005) (providing person must bring suit for personal injury no later than two years after day cause of action accrues). Guillen filed her original petition September 19, 2001, one day short of the two-year period. It is undisputed that Guillen did not effect service until December 22, 2003, over four
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