 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lewis v. AAA Flexible Pipe Cleaning Co. Inc.2/17/2005
This is a negligence claim arising out of a motor vehicle collision. Appellants, Raymond and Rebecca Lewis, contend that the trial court erred in granting summary judgment in favor of appellees, Dennis Brian Mann and AAA Flexible Pipe Cleaning Company, Inc. ("AAA"), on the basis of appellees' statute-of-limitations defense.
We affirm.
BACKGROUND
On April 18, 2001, Mann, driving a truck belonging to his employer, AAA, collided with a car operated by appellant, Raymond Lewis. Raymond sustained significant personal injury .
On April 17, 2003, the Lewises filed suit against Mann, alleging negligent operation of the truck, and against AAA, alleging vicarious liability. However, the Lewises never sought service of citation on either Mann or AAA, on their original petition. The Lewises allege that this was due to an oral agreement between the parties to postpone litigation until Raymond's surgeries were complete, so that the full extent of his medical issues could be ascertained.
In July 2003, the Lewises' counsel, Bartholomew Okonkwo, learned that he had been administratively suspended from the practice of law. On or about September 1, 2003, substitute counsel, Yvonne Okonkwo, was found.
On September 12, 2003, the trial court dismissed the suit for want of prosecution. On September 22, 2003, Yvonne Okonkwo filed her notice of appearance as the attorney of record and a motion to reinstate the suit, "seeking an additional sixty days to enable both sides to engage in serious negotiations . . . . In the alternative, to be given an opportunity to serve the defendant and hopefully proceed to negotiations." The trial court reinstated the suit on October 3, 2003.
On October 28, 2003, the Lewises filed a First Amended Original Petition and made their first request for service of citation on Mann and AAA. Service was effectuated on Mann and AAA on October 31, 2003.
On November 18, 2003, Mann and AAA filed an original answer and a motion for summary judgment on the ground that the limitations period had expired. On December 15, 2003, the trial court granted Mann and AAA summary judgment on their limitations defense due to the Lewises' lack of diligence in serving citation.
ANALYSIS
The Lewises raise several contentions that are cognizable as a single claim that the trial court erred in granting summary judgment in favor of AAA and Mann based on the statute of limitations defense.
A. Standard of Review
We review a trial court's granting of a summary judgment de novo. Natividad v. Alexis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). A summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when a movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's cause of action, or (2) plead and conclusively establish each essential element of an affirmative defense to rebut plaintiff's cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether there is a disputed material fact precluding summary judgment, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Tex. R. Civ. P. 166a; Nixon, 690 S.W.2d at 549.
B. Statute of Limitations
The statute of limitations is an affirmative defense. Tex. R. Civ. P. 4. To recover, a defendant must show when the plaintiff's cause of action accrued, show the applic
Page 1 2 3 4 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|