### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00533- CV

Leah Sh ike, Appellan t

v. Anthony Ch arles F lot, Appellee

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 335 TH JUDICI AL DISTRICT NO. 29,4 39, H ONO RAB LE REVA TOW SLEE-CO RB ETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant L eah Shike appea ls from the summary judgme nt g rante d in favor of appellee Anthony Charles Flot in an automotive persona l-injury suit. Flot had moved for summary judgme nt on limit ations g rounds, challeng ing Shike’s failure to serve him with cit at i o n d u ring the limit ations period. Shike maintains that she raised a fac t question reg arding a tolling issue that prec ludes summary

judgme nt. We will reverse the district court’s summar y judgme nt. On April 26, 2012, Shike an d Fl o t wer e involved in an automobile acc ident fr o m wh i ch Shike alleg es she sustained bodi ly injuries. Shike filed a neg lige nce suit ag ainst Flo t within two y ear s of the acc ident, but did not serve Flot with citation until Fe bruar y 16, 2016, which

was outside the limit atio n s p er i o d fo r persona l-injury claims. See Tex. Civ. Prac. & Rem. Code § 16.003(a)

.Flot filed an answe r asser ting limit ations as an aff

irmative defe nse, then moved for summary judgme nt on the limit ations issue. Flot established that Shike had serve d him with citation outside the applicable limit ations per i o d and alleg ed that she had not been diligent in having him se rved with c itation. See Gant v. DeLeon , 786 S.W .2d 259, 260 (Tex. 1990) (“To ‘bring suit’ within the two-y ear statute of limit ations period presc ribed by section 16.003, a plai n t i ff must not only file suit within t h e applicable limit ations period, but must also use diligenc e to have the defe ndant serve d with proce ss.”).

Shike then amende d her petition to “ra ise[] the issue of [Flot] ’s absenc e from the state during the limit ations period and invoke[] the statutory provision that tolls the running of the statute of limit ations during that absenc e,” and to urg e that she “re lies on this tolling ‘to the extent and for the dura tion that [ Flot] was absent fr om Texas.’”

Shike there afte r filed a response to Flot’ s m o t i o n for summary judgme nt. I n her response , Shike urg ed her diligenc e in attempt i n g t o s er ve Flot, attaching an aff idavit from her attorney d es cr i b i n g t he eff orts taken to serve him. Shike also asser ted that Flot, as summary -judg ment movant, was require d to neg ate the tolling issue she had raised in her amende d petition. Shi ke did not attach a ny evidenc e re lated to her

tolling asser

tion. The dis t ri ct court g rante d Flot’s motion for summary judgme nt. I n one issue on ap p ea l , Shike contends that summary judgme nt was improper beca use Flot failed to neg ate t h e applicability

of the out-of

-state tolling sta tute. We ag ree . Once a defe ndant seeking summary jud g ment on the aff irmative defe nse of limi t at i o n s has established that service was eff ecte d afte r the limit ations period, the burden shifts

2to the plaintiff to “explain the delay ” by prese nting evidenc e of her dil i g ence . Proulx v. W ells , 235 S.W .3d 213, 216 (Tex. 2007); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 220 (Tex. 2003) (citing Zale Corp. v. Rosenbaum , 520 S.W .2d 889, 891 (Tex. 1975) ). Howeve r, if the plaintiff asser

ts tha t a tolling provision a pplies, the defe ndant is not e ntitled to summary judgme nt

on his limit ations defe nse until he co n cl u s ively neg ates the applicability of the tolling statute. Jennings v. Burgess , 917 S.W .2d 790, 793 (Tex. 1996) (“I f the nonmovant asser ts that a t o l l i n g provision applies, the movant must conclusively neg ate the tolling provision’s application to show his entitlement to summ ary judgme nt.” (c iting Zale , 520 S.W .2d at 891)). I n her amende d petition, Shike states, “Plaintiff specific ally raises the issue of Flot’s absenc e from the state during the limit ations period and invokes the statutory provision that tolls the running of the statute of limit ations during that absenc e. Plaintiff relies on this tolling ‘to the extent and for the duration that the individual Def endant was absent from Texas.’” Fur ther, in her response to Flot’s summary -judg ment motion, Shike arg ues that her amende d petition raised the out-of-state tolling provision and that, by doing so, she “shift[ed] t he burde n to [ Flot] to di sprove.” Although Shike never direc tly al l ege s that Flot was absent from the state during the limit ations period, our standard of revie w require s us to indulge ever y rea sonable in fer ence and resolve any doubts in the non-movant’s favor

. See, e.g. , Valence Operating Co. v. Dors et t , 1 6 4 S.W .3d 656, 661 (Tex. 2005) (“When revie wing a summary judgme nt, we take as true all evidenc e favor able to t h e n o n m o v ant, and we indulge ever y rea sonable infere nce and resolve any dou b t s i n t he non-movant’s favor .”); Knott , 128 S.W .3d at 215. Doing so here , we conclude that Shike’s pleading s imply that Flot was out of the state during the limit ations period such that the

3out-of-state tolling provision should be applied. As such, Shike raised the issue of the tolling statute

and, having done so, the b u rd en t h en shifted to Flot to conclusively neg ate section 16.063’s applicability

. See Jennings , 917 S.W .2d at 793; Zale , 520 S.W .2d at 891. He did not. There fore summary judgme nt wa s i m p ro p er . See Tex. R. Civ. P. 166a(c ); Zale , 520 S.W .2d at 891. We sustain Shike’s issue.

Having s u s t ained Shike’s appellate issue, we reve rse the summary judgme nt and

rema nd the ca se to the district court.

__________________________________________ J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Bour land Reverse d and Remande d Filed: Jul y

28, 2016

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