COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

NUMBER 13-08-00501-CV 

ALVINO CHACON, Appellant,

v.

ANDREWS DISTRIBUTING COMPANY

LTD. AND ROBERT SANCHEZ, Appellees.

 

NUMBER 13-08-00558-CV

ALVINO CHACON, Appellant,

v.

WAL-MART STORES, INC., Appellee.

 

On appeal from the 105th District Court

of Kleberg County, Texas.

 

O P I N I O N

Before Chief Justice Valdez and Justices Yañez and Benavides

 Opinion by Chief Justice Valdez
 Because the first issue presented on appeal is identical in both cases, we, on our own motion, 1

consolidate the appeals. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion

that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the

appeal.”).

 Section 25.1802 of the government code defines the jurisdiction of county courts at law in Nueces 2

County, not Kleberg County. See TEX. GOV’T CODE ANN. § 25.1082 (Vernon 2004).

2

Appellant, Alvino Chacon, appeals from summary judgments granted in favor of

appellees, Wal-Mart Stores, Inc. (cause number 13-08-00558-CV), Andrews Distributing

Company, Ltd., and Robert Sanchez (cause number 13-08-00501-CV). In two issues,

Chacon contends that the district court erred in granting summary judgments in the

appellees’ favor because: (1) the evidence did not establish as a matter of law that he

intentionally disregarded a county court at law’s jurisdiction where a similar suit was

previously filed; and (2) the county court at law had jurisdiction to grant Wal-Mart’s motion

to designate a responsible third party and the designation tolled limitations. We affirm in 1

part and reverse and remand in part. 

I. BACKGROUND

On October 6, 2003, Chacon allegedly slipped and fell on a wet floor in a Wal-Mart

store located in Kingsville, Texas. Shortly thereafter, Chacon retained the law firm of

Herrman & Herrman, L.L.P. to recover damages for the injuries that he allegedly sustained,

and a suit was filed within the two-year limitations period.

A. County Court Suit

On October 4, 2005, Chacon brought a premises liability claim against Wal-Mart in

the Kleberg County Court at Law (hereinafter “county court”). Chacon’s original petition

alleged that the county court had jurisdiction under section 25.1802 of the government

code, and it did not specify the amount in controversy. Wal-Mart answered and filed 2

special exceptions requesting that Chacon amend his petition to specify the maximum
3

amount of damages sought. On December 15, 2005, Chacon amended his petition to

specify that the maximum amount of damages sought was $1,000,000. 

On September 1, 2006, Wal-Mart sought and received leave of court to designate

Andrews Distributing, a beer distributing company, and Sanchez, an Andrews Distributing

employee (hereinafter collectively referred to as “Andrews Distributing”), as responsible

third parties. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (Vernon 2008). On

September 22, 2006, Chacon filed his second amended petition, which included

negligence claims against Andrews Distributing, alleging that Sanchez was asked by a

Wal-Mart employee to caution customers about a wet area of the store’s floor, that he

failed to do so, and that Chacon was injured, in part, by Sanchez’s negligence.

On May 8, 2007, Andrews Distributing moved to dismiss Chacon’s suit for lack of

jurisdiction on the ground that the amount in controversy was beyond the jurisdictional

limits of the county court. Andrews Distributing argued that: (1) the county court could not

hear any matter in which the amount in controversy exceeded $100,000; (2) Chacon

pleaded for $1,000,000 in damages in his first and second amended petitions; and (3) he

knew when suit was filed that his damages were over $100,000. See TEX. GOV’T CODE

ANN. § 25.1392 (Vernon 2004) (providing that jurisdiction for the Kleberg County Court at

Law is set by, among other statutes, section 25.003 of the government code); id. § 25.003

(Vernon Supp. 2008) (providing that the maximum amount in controversy for county courts

at law is $100,000). 

In support of its motion, Andrews Distributing attached a tabulation of medical

expenses and several medical bills that Chacon had disclosed to Wal-Mart through the

discovery process. The tabulation, which is undated, lists bills from several medical
 Chacon was billed a total of $1,396.00 for “glucos bld meter,” “magnesium bld,” and “basic metabolic 3

panel.” He was also billed $1,320.00 for an “open heart surgery unit.”

 Attached to Chacon’s response was an affidavit by Garcia. The contents of the affidavit will be 4

discussed in subsection III of this opinion.

4

providers and alleges that Chacon’s total medical expenses were $182,112.72. The

attached bills that were used in the tabulation show that Chacon was, inter alia, treated in

a Kingsville emergency room the day of the accident at a cost of $6,549.37, hospitalized

at Corpus Christi Medical Center from June 9 to 12, 2004, at a cost of $100,949.00, and

received several radiological scans of his lumbar region throughout 2004. The Corpus

Christi Medical Center bill includes charges for care that appear related to diabetes and a

heart condition.3

Chacon responded to the dismissal motion by arguing that the suit was mistakenly

filed in county court because Debra Garcia, a litigation legal assistant who drafted the

petition, believed that the county court had concurrent jurisdiction with district courts, which

is generally the practice in Nueces County’s county courts at law. Additionally, Chacon 4

pleaded in his response that Cindy Trigo, a pre-litigation legal assistant, attempted to settle

the suit for almost two years, but when no settlement was reached, suit was filed shortly

before the two-year limitations period ran. Chacon contended that at the time suit was

filed, neither Kyzmyck Byerly, the associate handling his case, nor Garcia “[was] aware of

the full extent of [Chacon’s] injuries.” In the event of dismissal, Chacon requested a finding

that his filing was an “unintentional” disregard of the county court’s jurisdictional limits.

On June 19, 2007, the county court dismissed Chacon’s suit without prejudice and

denied all other relief.

B. District Court Suit

On August 1, 2007, Chacon filed his premise liability claim in the 105th Judicial
 Section 16.064 tolls the running of limitations from the date a plaintiff files an action in one trial court 5

until the filing of the same action in a different court if (1) the first action is dismissed, set aside, or annulled

for lack of jurisdiction, and (2) the second suit is filed within sixty days of the dismissal or disposition of the

first action. TEX. CIV. PRAC. & REM. CODE ANN. § 16.064(a) (Vernon 2008). Section 16.064(a) does not apply

if the first action was filed with “intentional disregard of proper jurisdiction.” Id. § 16.064(b).

 Andrews Distributing also moved for summary judgment on the ground that the county court did not

6

have jurisdiction to grant W al-Mart’s motion for leave to designate it as a responsible third party. See TEX.

CIV. PRAC. & REM. CODE ANN. § 33.004 (Vernon 2008). The section 33.004 ground will be detailed in

subsection IV of this opinion. 

5

District Court of Kleberg County against Wal-Mart and Andrews Distributing. The

defendants answered with a general denial. In addition, Wal-Mart asserted numerous

affirmative defenses, including limitations. See TEX. CIV. PRAC. & REM. CODE ANN. §

16.003 (Vernon Supp. 2008) (prescribing a two-year statute of limitations for personal

injury claims). On May 15, 2008, Chacon amended his petition to request a tolling of the

limitations period under section 16.064 of the civil practice and remedies code. See id. §

16.064 (Vernon 2008).5

In the spring of 2008, Wal-Mart and Andrews Distributing filed similar motions for

summary judgment on, inter alia, two grounds asserting that section 16.064 was

inapplicable because Chacon’s filing of the suit in county court was not an accident or

mistake, but instead, was an “intentional disregard of proper jurisdiction.” In support of 6

their motions, the defendants attached substantial portions of the clerk’s record in the

county court suit, which included several pleadings, the tabulation of Chacon’s medical

bills, and the medical bills that were summarized in the tabulation. 

The defendants, anticipating Chacon would blame any mistake on legal assistants,

asserted as their first summary judgment ground that any miscalculation of Chacon’s

damages was irrelevant because the law firm “intentionally” filed suit in county court,

believing the county court had concurrent jurisdiction with district court. The legal

assistant’s misunderstanding of the county court’s jurisdictional limits, Andrews Distributing
6

posited, would have led to filing the suit in county court regardless of knowing the full

extent of Chacon’s injuries, and such a mistake was a mistake of law that section 16.064

was not intended to remedy. 

As to the second summary judgment ground, the defendants argued that the record

established as a matter of law that Chacon knew his damages exceeded $100,000 before

suit was filed by pointing to the tabulation and the dates that the medical bills were

invoiced, which show treatments and billing dates in 2003 and 2004. Andrews Distributing

specifically argued that “[i]t stands to reason that [Chacon], his attorneys, and his

attorney[s’] staff would not attempt to settle his case, prior to filing suit, without even a

basic assessment of [Chacon’s] medical bills or other damages for which he seeks

recovery.” 

Chacon responded by arguing that the record affirmatively demonstrated that the

county court had jurisdiction when the suit was originally filed because his original petition

did not specify an amount in controversy. The “demonstration of jurisdiction” in his original

petition, Chacon argued, negated the intentional disregard exception to the tolling statute.

Chacon also argued that the defendants failed to establish that Garcia and Byerly knew

the full extent of his injuries when they drafted and signed the petition. 

As evidentiary support against summary judgment, Chacon attached affidavits from

Trigo, Garcia, and Byerly. Trigo averred:

I first met with Mr. Alvino Chacon on or about October 13, 2003. Mr. Chacon

had been injured on the premises of Wal-Mart. I was the Legal Assistant

who was assigned to work on Mr. Chacon’s case. It was I, and my assistant

Gracie Cisneros, who corresponded with Mr. Chacon and the representative

of Wal-Mart. For nearly two years I made several attempts to settle the case

with Wal-Mart. When it became apparent that the case was not going to

settle before the running of the statute of limitations on October 6, 2003, I

asked Ms. Debra Garcia to draft a petition so that a lawsuit could be filed.
7

After that request, I had no further dealing with Mr. Chacon’s case. I did not

work on the petition, nor did I see a draft of the petition.

Garcia averred:

I am the legal secretary for Mr. Gregory H. Herrman. I handle all calls for him

and perform legal secretarial duties. I am also in charge of preparing drafts

for the majority of lawsuits in this firm. I remember preparing a draft for

review on behalf of Alvino Chacon in Kleberg County. The style of the case

was Cause No. 05-496-C; Alvino Chacon v. Wal-Mart Stores, Inc. I was

given Mr. Chacon’s case by Legal Assistant Cindy Trigo who had worked on

the file in pre-litigation. The file was given to me to draft a lawsuit three days

prior to the running of the statute of limitations. I prepared a draft of the

lawsuit based on the information I had at the time. I then gave the petition

to Ms. Kyzmyck Byerly to review and sign on behalf of Mr. Herrman. After

Ms. Byerly signed the petition, I filed Mr. Chacon’s case in the County Court

at Law in Kleberg County not knowing the full extent of Mr. Chacon’s injuries.

Mr. Herrman assigned the case to Ms. Byerly after Defendant Wal-Mart filed

an Answer.

Byerly averred:

I am an attorney at Herrman and Herrman, L.L.P. On or about October 3,

2003, I was handed a draft of a petition pertaining to Alvino Chacon to review

from Mr. Gregory Herrman’s legal secretary Debra R. Garcia. I reviewed the

petition and signed the petition with permission. At the time I signed the

petition I was not aware of the extent of Mr. Chacon’s injuries having not

worked on the case prior to this. After the case was in litigation, Mr. Herrman

assigned the case to me. Upon responding to Defendant Wal-Mart’s

Request for Disclosures, I discovered the extent of Mr. Chacon’s injuries.

Chacon claimed that the tabulation and medical bills were discovery products, and Byerly

did not know about them until well after suit was filed.

The trial court granted summary judgment in favor of Wal-Mart and Andrews

Distributing, without specifying which ground(s) it relied upon, and dismissed Chacon’s suit.

Chacon’s motion for new trial was denied by written order. This appeal ensued.

II. STANDARD OF REVIEW

We review a trial court’s grant or denial of a traditional motion for summary judgment
8

under a de novo standard of review. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816

n.7 (Tex. 2005) (citing Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137

(Tex. 2004)); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.–Corpus Christi 2003, no

pet.). The function of summary judgment is to eliminate patently unmeritorious claims and

defenses, not to deprive litigants of the right to a trial by jury. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Alaniz, 105 S.W.3d at 345.

To obtain relief via a traditional motion for summary judgment, the movant must

establish that no material fact issue exists and that it is entitled to judgment as a matter of

law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002); Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.–Corpus Christi 2002, pet.

denied). After the movant produces evidence sufficient to show it is entitled to summary

judgment, the non-movant must then present evidence raising a fact issue. See Walker

v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In deciding whether there is a disputed fact

issue that precludes summary judgment, evidence favorable to the non-movant will be

taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Evidence favorable to the movant, however, will not be considered unless it is

uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391

S.W.2d 41, 47 (Tex. 1965). Moreover, every reasonable inference must be indulged in

favor of the nonmovant and any doubts resolved in his favor. Nixon, 690 S.W.2d at 549.

In this case, Chacon pleaded for the application of the tolling provision in section

16.064 of the civil practice and remedies code. The applicability of section 16.064 is a

question of law, which we review de novo. Brown v. Fullenweider, 135 S.W.3d 340, 342

(Tex. App.–Texarkana 2004, pet. denied) (citing Tex. Dep’t of Transp. v. Needham, 82
9

S.W.3d 314, 318 (Tex. 2002)). Limitations is an affirmative defense, and a defendant

asserting limitations must plead, prove, and secure findings on that issue. TEX. R. CIV. P.

94; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). Limitations may

be addressed by way of special exceptions or other preliminary hearing only if it is clear

from the face of the plaintiff’s pleadings that limitations have run. See Armstrong v. Snapp,

186 S.W.2d 380, 383 (Tex. Civ. App.–Fort Worth 1945, no writ); Steele v. Glenn, 57

S.W.2d 908, 913 (Tex. Civ. App.–Eastland 1933, writ dism’d w.o.j.). 

III. INTENTIONAL DISREGARD

In his first issue, Chacon argues the district court’s ruling that he intentionally

disregarded the county court’s jurisdictional limits when he filed his first suit, and section

16.064’s tolling provision was thereby inapplicable, is not supported by the evidence. The

defendants contend that Chacon’s intentional disregard is evident from the face of the

pleadings in the first suit and can be “reasonably inferred” from the affidavits that Chacon

tendered.

A. Applicable Law

Section 16.064 of the civil practice and remedies code provides a tolling provision

for litigation initially filed in a court without jurisdiction if, within sixty days of the dismissal

for lack of jurisdiction, suit is filed in a court of proper jurisdiction and if the initial filing was

not done with intentional disregard of proper jurisdiction. TEX. CIV. PRAC. & REM. CODE

ANN. § 16.064(a). Section 16.064 is to be liberally construed to effectuate its manifest

objective—relief from penalty of limitation bar to one who has mistakenly brought his action

in the wrong court—but its reach is not limitless. Clary Corp. v. Smith, 949 S.W.2d 452,

461 (Tex. App.–Fort Worth 1997, writ denied); see also Burford v. Sun Oil Co., 186 S.W.2d
10

306, 310 (Tex. Civ. App.–Austin 1944, writ ref’d w.o.m.). The “limit” that is tested in this

appeal is whether Chacon intentionally disregarded the proper jurisdiction of the county

court by first filing suit there.

“Intentional disregard” is not defined in the statute or our case law; therefore, we

must look to the phrase’s common usage and accord it a plain meaning. See TEX. GOV’T

CODE ANN. § 33.011 (Vernon 2005); see e.g., McIntyre v. Ramirez, 109 S.W.3d 741, 745

(Tex. 2003). Black’s Law Dictionary defines intent as, among other things, “design,

resolve, or determination with which [a] person acts.” BLACK’S LAW DICTIONARY 810 (6th

ed. 1990). It also defines disregard as “to treat as unworthy of regard or notice; to take no

notice of; to leave out of consideration; to ignore; to overlook; to fail to observe.” Id. at 472.

Thus, for the trial court to have granted the defendants’ motion for summary

judgment on limitations, it would have to find as a matter of law that Chacon, acting with

design, resolve, or determination, treated as unworthy of regard or notice the county court’s

amount-in-controversy limits on its jurisdiction. 

B. Analysis

In moving for summary judgment, each defendant urged the district court to consider

Chacon’s filing of the suit in county court as a mistake of law that section 16.064 was not

intended to redress, and that such a mistake of law could not be overcome by the affidavits

from law firm personnel. The defendants relied on Parker v. Cumming for the proposition

that section 16.064 remedies only mistakes of fact. See 216 S.W.3d 905, 908 (Tex.

App.–Eastland 2007, pet. denied); see also French v. Gill, 252 S.W.3d 748, 757 (Tex.

App.–Texarkana 2008, pet. denied) (concluding that the plaintiff is “charged with

knowledge of the law” in analyzing the applicability of section 16.064).
11

In Parker, the plaintiff’s counsel filed a personal injury suit just before the two-year

limitations period ran in bankruptcy court. 216 S.W.3d at 908. The bankruptcy court

dismissed the plaintiff’s claim and so did the federal district court when the claim was refiled there. Id. The plaintiff then filed her personal injury claim in state district court and

pleaded section 16.064’s tolling provisions, but the state district court granted the

defendant summary judgment on limitations. Id. On appeal, the Eastland Court of

Appeals, charging the plaintiff with knowledge of statutory provisions, held that the federal

statute the plaintiff relied on did not provide federal jurisdiction for her claim, and that the

defendants “carried their burden of proof.” Id. at 911 (citing Virtual Healthcare Servs., Ltd.

v. Laborde, 193 S.W.3d 636, 644 (Tex. App.–Eastland 2006, no pet.)).

The Parker court, however, noted that the plaintiff had not created a question of fact

like the plaintiff in Williamson v. John Deere Company had done. Id. (citing Williamson v.

John Deere Co., 708 S.W.2d 38, 40 (Tex. App.–Tyler 1986, no writ)). In Williamson, the

plaintiff’s original federal court pleading clearly established lack of diversity jurisdiction on

its face, even though she pleaded diversity as a basis for federal jurisdiction. Williamson,

708 S.W.2d at 38. The federal court dismissed the plaintiff’s suit for lack of subject-matter

jurisdiction, and when she filed in state court, the defendants moved for summary judgment

on limitations and contested the applicability of section 16.064’s precursor. Id. at 39. The

plaintiff’s counsel, responding to the summary judgment motions, tendered an affidavit

explaining that the defect in the federal court pleading was the result of his mistake. The

Williamson court held that the affidavit created a fact issue that precluded summary

judgment. Williamson, 708 S.W.2d at 40.

In this case, Chacon tendered affidavits from Trigo, Garcia, and Byerly, which taken
12

together, illustrate the inner workings of the law firm and its personnel’s

misunderstandings. The defendants’ two summary judgment grounds latched onto this

illustration, and they essentially equated the law firm’s ineptitude to intentional disregard

because intent may be proven by circumstantial evidence. Section 16.064, however,

requires some finding of “intentional disregard,” and specific intent is difficult to establish

as a matter of law. See, e.g., Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d

427, 431 (Tex. App.–San Antonio 1993, writ denied) (“We think it to be a rare instance

where subjective intent could be established as a matter of law.”) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 816-17(1982)).

As support for the defendants’ first summary-judgment ground, which asserts that

Garcia would have filed suit in county court regardless of the extent of Chacon’s injuries

because she misunderstood the jurisdictional limits of the courts, the defendants point to

Garcia’s affidavit that was filed in the county court. The county court affidavit substantially

comports with Garcia’s district court affidavit, with the exception of the following additional

statement:

After Ms. Byerly signed the petition, I filed Mr. Chacon’s case in the County

Court at Law, not knowing that Mr. Chacon’s damages were beyond the

jurisdictional limits of the County Court. I assumed that the jurisdictional

limits for the County Court at Law in Kleberg County ran concurrent with their

District Court as they do in Nueces County, Texas, where I file the majority

of Herrman & Herrman’s lawsuits. Filing this lawsuit in the County Court at

Law where it lacked jurisdiction was not intentional but was due to not having

all the correct information.

The defendants posit that Garcia would have filed Chacon’s suit in county court regardless

of the amount in controversy because she misunderstood the county court’s jurisdictional

limits, and they implicitly contend that “would have” is tantamount to intentional disregard.
See Michelle Andrews, 4 Ways to Save on Your Medical Bills, U.S. NEW S & W ORLD REPORTS (Aug. 7

21, 2008), available at: http://health.usnews.com/blogs/on-health-and-money/2008/08/21/4-ways-to-save-onyour-medical-bills.html (last visited on Jun. 23, 2009) (“Letting the [medical] bills pile up unopened is a popular

but ineffective way to address the problem [of mounting healthcare debt].”)

13

But Garcia does not state what she “would have done,” and we are to indulge every

reasonable inference in Chacon’s favor rather than in the defendants’ favor. See Nixon,

690 S.W.2d at 549. Garcia merely recounted her misunderstanding of the jurisdictional

limits of the county court and her typical practice in Nueces County. There is, therefore,

a fact question as to whether suit was filed in county court intentionally or mistakenly. 

As to the second ground, which asserts that the record conclusively establishes that

Chacon knew of his damages before suit was first filed, the defendants point to the

tabulation and corresponding medical bills as conclusive evidence. While the presence

of pre-suit medical bills, when presented to a fact finder, might weigh in the defendants’

favor, it is counter-balanced by Garcia’s and Byerly’s affidavit testimony that they were not

aware of the full extent of Chacon’s injuries when the petition was drafted and signed. But

see TEX. R. CIV. P. 13 (“The signatures of attorneys or parties constitute a certificate by

them that they have read the pleading, motion, or other paper; that to the best of their

knowledge, information, and belief formed after reasonable inquiry the instrument is not

groundless and brought in bad faith or groundless and brought for the purpose of

harassment.”).

Byerly further stated that she became aware of Chacon’s injuries when she

responded to Wal-Mart’s requests for disclosure. Additionally, there is no evidence that

Chacon himself immediately received and opened the bills on the invoiced date, nor that

he calculated the total amount of damages and informed Garcia of any calculation.7

Moreover, in response to our questions at oral argument, Byerly noted that she initially
 The dissent contends that the facts in this case are undisputed. W e believe that most of the facts 8

in this case are settled, with the exception of whether the law firm’s conduct amounted to intentional disregard

as a matter of law. The dissent rationalizes its legal conclusion by (1) implicitly defining intentional disregard

as some sort of negligence, and (2) using the rules of professional conduct to impute Trigo’s knowledge of

Chacon’s injuries to Byerly. W e believe that we have explicitly and appropriately defined intentional disregard.

Additionally, W al-Mart has not urged any imputation of knowledge between law firm personnel based on the

rules of professional conduct, and our adversarial system of justice and prudential rules militate against

considering such an unbriefed issue. Make no mistake, we are no fans of negligent representation. See infra

note 9. However, we are bound by a defined standard of review, the legislature’s choice of words, and the

briefing before us.

 Our sustaining Chacon’s first issue should in no way be interpreted as us condoning the way 9

Chacon’s suit was handled by the law firm. The rules of professional conduct prohibit a lawyer from assisting

a person who is not a member of the bar in the performance of activity that constitutes the unauthorized

practice of law. TEX. DISCIPLINARY R. PROF’L CONDUCT 5.05(b), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit.

G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). Comment 4 to Rule 5.05 states, “Paragraph (b) of

Rule 5.05 does not prohibit a lawyer from employing the services of paraprofessionals and delegating

functions to them. So long as the lawyer supervises the delegated work, and retains responsibility for the

work, and maintains a direct relationship with the client . . . .” Id. at cmt. 4.

14

believed Chacon had suffered only a “soft tissue injury” at Wal-Mart and pre-existing

conditions may have aggravated his injury. Indeed, the Corpus Christi Medical Center’s

bill details care that appears related to diabetes and a heart condition. There is, thus, a

fact issue as to whether Chacon or Garcia and Byerly knew of the amount in controversy

when he filed suit in county court.8

Chacon’s first issue is sustained.9

IV. DESIGNATION OF RESPONSIBLE THIRD PARTY

Andrews Distributing was not made a party to the suit in county court until

September 2006, when the trial court granted Wal-Mart’s motion to designate a

responsible third party (the “designation order”) and Chacon filed his second amended

petition asserting negligence claims against it. Under its third ground for summary

judgment, Andrews Distributing essentially urged the district court to declare the

designation order void and, because the county court lacked subject-matter jurisdiction to

sign the designation order, adjudicate its invalidity. SeeTEX. CIV.PRAC.& REM. CODE ANN.

§ 33.004(e) (Vernon 2008). Andrews Distributing contended that because the designation
15

order was void, there was no timely-filed suit against it and there was no statutory provision

to toll limitations.

In his second issue, Chacon argues that the evidence does not support the trial

court’s implicit ruling that the county court did not have jurisdiction to grant the designation

order. Specifically, Chacon argues that because the face of his October 4, 2005 original

petition in county court did not allege an amount in controversy, such an omission, when

liberally viewed, conferred jurisdiction on the county court and allowed it to “bring in”

Andrews Distributing after limitations had run according to the provisions of section

33.004(e). 

On appeal, Andrews Distributing contends that Chacon did not preserve his second

issue because he did not argue to the county court that it had proper jurisdiction over the

original suit. Instead, according to Andrews Distributing, Chacon judicially admitted to the

county court that it lacked proper jurisdiction by claiming that he filed suit in county court

without knowing that his damages exceeded the court’s jurisdictional limits.

A. Applicable Law

We begin with a review of basic pleading requirements. Texas Rule of Civil

Procedure 47(b) requires that an original pleading “contain . . . the statement that damages

sought are within the jurisdictional limits of the court.” TEX. R. CIV. P. 47(b). Additionally,

“[t]he general rule is that the allegations of the plaintiff’s petition must state facts which

affirmatively show the jurisdiction of the court in which the action is brought.” Richardson

v. First Nat’l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967). 

Andrews Distributing argues that the county court lacked subject-matter jurisdiction

when the designation order was signed and that, before the district court on a motion for
16

summary judgment, it adjudicated the county court’s lack of jurisdiction and invalidity of the

designation order. A void judgment or order may be collaterally attacked only when it is

apparent that the court rendering judgment “had no jurisdiction of the parties or property,

no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no

capacity to act.” See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (citing

Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985)). 

Andrews Distributing further contends that sections 16.064 and 33.004 do not toll

limitations for Chacon’s claim against it. Specifically, Andrews Distributing argues that

section 33.004’s exception to limitations does not apply to Chacon’s claims against it

because the county court that signed the designation order lacked subject-matter

jurisdiction. Section 33.004(e) provides that if:

a person is designated under this section as a responsible third party, a

claimant is not barred by limitations from seeking to join that person, even

though such joinder would otherwise be barred by limitations, if the claimant

seeks to join that person not later than 60 days after that person is

designated as a responsible third party.

TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(e). Andrews Distributing also argues that

section 16.064 does not toll limitations for Chacon’s claim against it because Chacon sued

it after limitations had run. Section 16.064 provides that:

[t]he period between the date of filing an action in a trial court and the date

of a second filing of the same action in a different court suspends the running

of the applicable statute of limitations . . . .

Id. at § 16.064.

B. Analysis

Chacon’s original petition in county court, which was filed on October 6, 2005, only

days before the two-year limitations period had expired, did not affirmatively demonstrate
17

the jurisdiction of that court because it did not state an amount in controversy and its

jurisdictional allegations referred to the government code provision governing the county

courts at law of Nueces County. It was, therefore, up to Wal-Mart, the only defendant at

the time, to raise a special exception regarding Chacon’s defective petition. Cf. Peek v.

Equip. Serv. Co.,779 S.W.2d 802, 804 (Tex. 1989) (“Even if the jurisdictional amount is

never established by pleading, in fact, a plaintiff may recover if jurisdiction is proved at

trial.”). Wal-Mart specially excepted, and on December 15, 2005, Chacon amended his

petition to specify damages of $1,000,000. 

Thus, Chacon’s original petition did not affirmatively establish the county court’s

jurisdiction and his first amended petition negated its jurisdiction because it pleaded for

damages beyond the county court’s jurisdictional limits. Thus, Chacon’s assertion that the

county court momentarily maintained jurisdiction over his suit is not supported by the

record. Additionally, Chacon did not plead that the county court acquired jurisdiction

because his damages had increased because of the passage of time. See Continental

Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996) (citing Mr. W. Fireworks,

Inc. v. Mitchell, 622 S.W.2d 576, 577 (Tex. 1981) (holding that “[i]f a plaintiff’s original

petition is properly brought in a particular court, but an amendment increases the amount

in controversy above the court’s jurisdictional limits, the court will continue to have

jurisdiction if the additional damages accrued because of the passage of time.”)). 

Chacon’s contention that sections 33.004 and 16.064 of the civil practice and

remedies code tolled limitations for his claim against Andrews Distributing is equally

meritless. Section 33.004(e)’s exception to limitations applies only upon a designation of

a responsible third party under that section. TEX. CIV. PRAC. & REM. CODE ANN. §
 Before the district court granted summary judgment, W al-Mart filed a motion for leave to designate 10

Andrews Distributing as a responsible third party. See TEX. CIV. PRAC. & REM. CODE ANN.§ 33.004. The

propriety of W al-Mart’s motion was not at issue in this case and we express no view on it.

18

33.004(e). The record, however, conclusively establishes that the county court lacked

subject-matter jurisdiction when it signed the designation order. Therefore, Andrews

Distributing established that the designation order was void. Additionally, section 16.064

tolls limitations for the period between the first and second-filed suits. See id. at § 16.064.

The first time Chacon pleaded a claim against Andrews Distributing in the county court was

on September 22, 2006, after the designation order had been signed and nearly a year

after the two-year limitations period had expired. We hold Andrews Distributing established

its affirmative defense of limitations as a matter of law.

Chacon’s second issue is overruled.

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V. CONCLUSION

We affirm the district court’s summary judgment in favor of Andrews Distributing.

Additionally, we reverse the summary judgment in favor of Wal-Mart and remand for further

proceedings.

 

ROGELIO VALDEZ

Chief Justice

Concurring and Dissenting Opinion

by Justice Linda Reyna Yañez.

Opinion delivered and filed on

this the 13th day of August, 2009.