RUBEN LUNA, III AND

JORGE LUIS HERNANDEZ,						Appellants,

HOTTIE'S GRILL & BAR,

INC., D/B/A KOOLY'S,							   Appellee.

	The sole issue in this appeal is whether Ruben Luna III and Jorge Luis Hernandez'snegligence claim against appellee, Hotties Grill & Bar, Inc. d/b/a Kooly's, is barred by thestatute of limitations.  The trial court granted summary judgment for appellee.  Appellants,Luna and Hernandez, contend that the trial court erred in granting appellee's motion forsummary judgment.  We affirm the trial court's judgment.

	On August 4, 2000, appellants were shot and injured while working as securitypersonnel ("bouncers") at Club Liquid in McAllen, Texas.  On August 2, 2002, appellantssued Liquid, Inc. d/b/a Club Liquid ("Liquid") and Ricardo Roux ("Roux") for negligence. (1) On May 13, 2004, Liquid and Roux, after earlier obtaining leave of court, filed a third-partypetition against appellee, asserting they were entitled to contribution and indemnity. (2) Shortly thereafter, on June 3, 2004, appellants amended their pleadings to includeappellee as a defendant.  Appellee moved for summary judgment on the sole ground thatappellants' negligence claim was barred by the two-year statute of limitations. (3)  The trialcourt granted summary judgment for appellee.  This appeal followed.

	The standards for reviewing a traditional summary judgment are well established. (4) The party moving for summary judgment has the burden of showing that no genuine issueof material fact exists and that it is entitled to judgment as a matter of law. (5)  When adefendant moves for summary judgment based on an affirmative defense, such as thestatute of limitations, the defendant bears the burden of proving each essential elementof that defense. (6)  Once the defendant establishes its right to summary judgment as amatter of law, the burden shifts to the plaintiff to present evidence raising a genuine issueof material fact, thereby precluding summary judgment. (7)  A nonmovant need not answeror respond to a motion for summary judgment to contend on appeal that the groundsexpressly presented by the movant's motion are insufficient as a matter of law to supportsummary judgment.  However, the nonmovant may not raise any other issues as groundsfor reversal. (8)

	Appellee filed its motion for summary judgment, contending appellants' claim wasbarred by the two-year statute of limitations because it was filed approximately three yearsand ten months after the day the cause of action accrued. (9)  The pleadings on file establishappellee's contention.  Therefore, appellants, as the nonmovants, were required to comeforward with evidence to raise a fact issue as to whether the statute of limitations shouldapply. (10)

	In their response to appellee's motion for summary judgment, appellants argued thatsuit was timely filed in accordance with section 33.004(e) of the civil practice and remediescode. (11)  Section 33.004(e) provides:  "A claimant may join a responsible third party, eventhough such joinder would otherwise be barred by limitations, if the claimant seeks to jointhe responsible third party not later than 60 days after a third party claim is filed underSubsection (d)." (12)  Appellants asserted that their claim was timely under this sectionbecause they added appellee as a defendant within sixty days of Liquid and Roux's thirdparty claim against appellee.

	Appellee, however, preempted this argument in its summary judgment motion,asserting that section 33.004(e) could only apply if appellants complied with subsection (d). The basis for this argument is that subsection (e) specifies that a claimant may join aresponsible third party if "a third party claim is filed under Subsection (d)." (13)  Section33.004(d) provides:  "A third party claim by a defendant under this section may be filed,even though the claimant's action against the responsible third party would be barred bylimitations, if the third party claim is filed on or before 30 days after the date thedefendant's answer is required to be filed." (14)  Appellee proved that a third party claim wasnot "filed on or before 30 days after the defendant's answer [was] required to be filed." (15) Accordingly, because subsection (d) was not properly complied with, appellee contendsthat no third party claim has been "filed under Subsection (d)" as required by subsection(e). (16)  Appellants assert, however, that appellee's 33.004(d) argument raises the issue ofimproper joinder, not limitations.  Therefore, because summary judgment was grantedsolely on the basis of limitations, the only issue that should be considered is whetherappellants complied with section 33.004(e).  We disagree with this contention.

	Though subsection (d) concerns joinder, it warrants consideration on the limitationsquestion before us.  Appellants requested the trial court to consider section 33.004(e) asa defense to the running of the two-year statute of limitations; subsection (e) in turndirected the court to further examine the rules laid out in subsection (d) to fully determineif appellants had a viable defense.  Accordingly, the trial court was free to consider section33.004(d) in deciding whether the statute of limitations had run on appellants' claim againstappellee. (17)

	Appellants further contend, however, that if consideration is given to section33.004(d), it must be read together with Texas Rule of Civil Procedure 38(a), whichdiscusses when a defendant may bring in a third party. (18)  Rule 38(a) states:

	At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a citation and petition to be served upon a personnot a party to the action who is or may be liable to him or to the plaintiff forall or part of the plaintiff's claim against him.  The third-party plaintiff need notobtain leave to make the service if he files the third-party petition not laterthan thirty (30) days after he serves his original answer.  Otherwise, he mustobtain leave on motion upon notice to all parties to the action. (19)

Appellants assert that rule 38(a) allows a defendant to join a responsible third party under33.004(d), despite not having done so within thirty days after the day the defendant'sanswer was due, so long as leave of court is granted.  Therefore, since Liquid and Rouxwere granted leave of court, appellee was properly joined under subsection (d).

	We believe that rule 38(a) is inapplicable to section 33.004.  Section 33.004(b)states that "[n]othing in this section shall affect the third-party practice as previouslyrecognized in the rules and statutes of this state with regard to the assertion by adefendant of rights to contribution or indemnity." (20)  Section 33.004(b) thus "makes clearthat the procedures outlined in Texas Rule of Civil Procedure 38 for the joinder of thirdparty defendants are neither added to nor diminished by section 33.004's requirements forthe joinder of responsible third parties." (21)  We overrule appellants' point of error.

	Accordingly, we affirm the trial court's judgment.

							LINDA REYNA YAÑEZ,

							Justice

Memorandum opinion delivered and filed 

this the 7th day of December, 2006.

1. In their original petition, appellants asserted that Ricardo Roux was the sole shareholder of Liquid,Inc. and requested the trial court to disregard the corporate fiction of Liquid, Inc. and hold Roux jointly andseverally liable for appellants' damages.

2. Liquid and Roux assert that immediately prior to the shooting, appellee served the shooter alcoholto the point where he presented a danger to himself and to others.

3. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 1998).

4. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

5. Tex. R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548.

6. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Swilley v.Hughes, 488 S.W.2d 64, 67 (Tex. 1972).

7. City of Houston, 589 S.W.2d at 678.

8. See id.

9. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 1998).

10. See City of Houston, 589 S.W.2d at 678.

11. Tex. Civ. Prac. & Rem. Code Ann. § 33.004 (Vernon 1997).  The present case was filed before theeffective date of the most recent amendments to section 33.004.  The version of Chapter 33 of the Texas CivilPractice and Remedies Code in effect at the time appellants initially filed suit is found in the prior version ofthe statute.  See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, secs. 33.001-33.017, 1995 Tex. Gen. Laws971, 972-75 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001-33.017 (Vernon1997 & Supp. 2006)).  All references to Chapter 33 in this opinion are to the prior version of the Act.

12. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(e) (Vernon 1997).

13. Id.

14. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(d) (Vernon 1997).

15. Id.  Liquid and Roux were served with citation on October 10, 2002, and had until Monday,November 4, 2002, to answer.  The thirty-day period for Liquid and Roux to file a third party claim undersection 33.004(d) expired on December 4, 2002.  Their third-party petition against appellee was filed on May13, 2004.

16. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(e) (Vernon 1997).

17. The Fifth Court of Appeals, albeit in an unpublished opinion, has ruled similarly as we now do here. Beckham v. DePaula, No. 05-00-01230-CV, 2001 Tex. App. LEXIS 4855 (Tex. App.-Dallas July 24, 2001,no pet.) (not designated for publication).

18. Tex. R. Civ. P. 38(a).

19. Id.

20. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(b) (Vernon 1997).

21. Gregory J. Lensing, Proportionate Responsibility and Contribution Before and After the Tort Reformof 2003, 35 Tex. Tech. L. Rev. 1125, 1194 (2004).  Lensing further notes that "the legislature left section33.004(b) untouched in the 2003 amendments, further suggesting a legislative intent merely to clarify that truethird party practice under Rule 38 is completely separate and distinct from responsible-third-party practiceunder 33.004."  Id.