TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00160-CV

Juan A. Martin-de-Nicolas, Appellant

v.

Mark Octaviano and Victorio Tostado, Appellees

FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-18-007225, THE HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Juan A. Martin-de-Nicolas appeals from the trial court’s orders granting motions 

for summary judgment filed by Mark Octaviano and Victorio Tostado and ordering that 

Martin-de-Nicolas take nothing on his claims for negligence arising out of a motor vehicle 

accident. We will affirm.

BACKGROUND

Martin-de-Nicolas, Octaviano, and Joaquin Aguerre were involved in a three-car

collision on January 23, 2016. On January 24, 2018, Martin-de-Nicolas filed his original petition 

alleging that Octaviano’s and Aguerre’s negligence caused the collision. Martin-de-Nicolas also

sued Tostado on a negligent entrustment theory, alleging that Tostado owned the vehicle Aguerre 

was driving and was negligent in entrusting it to Aguerre, an unlicensed driver. Octaviano and 

Tostado each moved for summary judgment on the affirmative defense of limitations, arguing 
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that the suit was time-barred under the two-year statute of limitations applicable to negligence 

actions. See Tex. Civ. Prac. & Rem. Code § 16.003. The motions for summary judgment 

filed by Octaviano and Tostado were, in almost every respect, identical. After a hearing, the 

trial court granted both summary-judgment motions. The court then signed an order severing 

Martin-de-Nicolas’s claims against Octaviano and Tostado from the remaining claims, making 

the summary-judgment orders final and appealable. Martin-de-Nicolas perfected this appeal.

DISCUSSION

In his first issue, Martin-de-Nicolas contends that he did not receive notice of the 

hearing on Octaviano’s motion for summary judgment. Martin-de-Nicolas asserts that “[c]ounsel

for Octaviano merely showed up at the hearing set for Tostado’s summary judgment motion on 

May 29, 2018, and the court saw fit to also grant Octaviano’s summary judgment.” A party 

moving for summary judgment must comply with the procedural requirements of Texas Rule of 

Civil Procedure 166a. Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex.

App.—Dallas 2004, pet. denied). The non-movant is entitled to proper notice under the rule. 

Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994). The failure to provide notice deprives the 

non-movant of the right to be heard, constitutes a denial of due process, and is grounds for 

reversal. Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378, 383 (Tex. App.—Fort 

Worth 2005, pet. denied).

Rule 166a requires that both the motion for summary judgment and notice of the

summary judgment hearing be served on the non-movant at least twenty-one days before the 

hearing date. Tex. R. Civ. P. 166a(c). Rule 166a does not mandate an oral hearing in all cases, 

Gordon v. Ward, 822 S.W.2d 90, 93 (Tex. App.—Houston [1st Dist.] 1991, writ denied), 
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therefore the primary purpose of the notice required by rule 166a(c) is to allow the non-movant 

to calculate the date by which he must file a written response or opposing affidavits. See 

Martin v. Martin, Martin & Richards, Inc., 989 S.W.3d 357, 359 (Tex. 1998) (per curiam). On

May 2, 2018, counsel for Tostado electronically filed a letter addressed to Martin-de-Nicolas that 

stated: “Please be advised that the hearing on Defendants’ Motions for Summary Judgment has 

been set for Tuesday May 29, 2018 at 2:00 pm at Travis County District Court.” Counsel for 

Octaviano was shown as a recipient of a copy of the letter. Martin-de-Nicolas does not contend 

that he did not receive this notice more than twenty-one days before the hearing date. Instead, 

Martin-de-Nicolas maintains that the notice did not apprise him that Octaviano’s motion for 

summary judgment would be heard at the May 29 hearing as well as Tostado’s.

Due process requires, at a minimum, notice and an opportunity to be heard at a 

meaningful time and in a meaningful manner. Texas Integrated Conveyor Sys., Inc. v. Innovative 

Conveyor Concepts, Inc., 300 S.W.3d 348, 363 (Tex. App.—Dallas 2009, pet. denied). Martinde-Nicolas had both. The notice sent by Tostado’s counsel plainly stated that “Defendants’

Motions for Summary Judgment” had been set for hearing on May 29.1 This provided Martinde-Nicolas with notice that both motions for summary judgment would be considered on that 

date. Martin-de-Nicolas attended the May 29 hearing and had an opportunity to be heard at that

hearing, which addressed Octaviano’s and Tostado’s limitations defense—the only issue raised 

by both motions for summary judgment. Martin-de-Nicolas filed a response to Tostado’s motion

that included argument relevant to the limitations defense. The record does not support Martinde-Nicolas’s assertion that he did not have notice that both motions for summary judgment 

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 Tostado’s motion for summary judgment was filed on April 16, 2018, and Octaviano’s

nearly identical motion for summary judgment was filed on May 2, 2018—the same day the 

notice was sent to Martin-de-Nicolas.
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would be heard at the May 29 hearing, and Martin-de-Nicolas has not demonstrated that his due 

process rights were otherwise violated. We overrule Martin-de-Nicolas’s first issue.

In his second issue, Martin-de-Nicolas argues that the trial court erred in granting 

Octaviano’s motion for summary judgment based on limitations because Octaviano failed to 

submit summary-judgment evidence demonstrating that he did not leave the State of Texas

during the two years following the accident and, consequently, failed to negate the applicability 

of a tolling statute; specifically, Texas Civil Practice and Remedies Code section 16.063. See

Tex. Civ. Prac. & Rem. Code § 16.063. This section provides: “The absence from this state of a 

person against whom a cause of action may be maintained suspends the running of the applicable 

statute of limitations for the period of the person’s absence.” Id. It is undisputed that the statute 

of limitations for Martin-de-Nicolas’s negligence claim is two years and that Martin-de-Nicolas 

filed his negligence suit more than two years after his claim had accrued. See Medina v. LopezRoman, 49 S.W.3d 393, 398 (Tex. App.—Austin 2000, pet. denied) (term “year” is defined as 

calendar year and court looks to date upon which event occurred and then looks to calendar to 

find same date, two years later, to determine expiration of limitations period). Martin-de-Nicolas 

contends that section 16.063 rendered his suit timely because Octaviano did not submit evidence 

establishing that he remained in the state each day for the two years following the date of the 

accident. Martin-de-Nicolas argues that Octaviano’s absence from the state for just one day 

would render his suit timely pursuant to section 16.063.

As the party asserting the affirmative defense and the movant for summary

judgment, Octaviano bore the burden to conclusively establish his statute-of-limitations defense

as a matter of law. Richardson v. Allstate Tex. Lloyd’s, 235 S.W.3d 863, 865 (Tex. App.—

Dallas 2007, no pet.) (citing Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969)).
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This also includes the burden of negating the applicability of any tolling or suspension statute 

raised by the non-movant. See Hargraves v. Armco Foods, Inc., 894 S.W.2d 546, 547 (Tex. 

App.—Austin 1995, no writ) (per curiam). Here, Octaviano asserts that section 16.063 did not 

toll limitations for any period of time he was outside of the State of Texas because that statute is

concerned with amenability to service of process rather than with physical presence within the 

territorial limits of the state. Octaviano contends that because he was a resident of the State of 

Texas during the entire limitations period and subject to the personal jurisdiction of Texas courts, 

his out-of-state travel, if any, would not constitute “absence from this state” as that phrase has 

been interpreted by the Texas Supreme Court when construing section 16.063. We agree.

Under Texas Supreme Court cases, one who is subject to personal jurisdiction 

in Texas courts, and amenable to service of process, is not “absent” from the state for the 

purposes of section 16.063. In Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008), the Texas Supreme

Court stated:

[If] a nonresident is amenable to service of process under the longarm statute and 

has contacts with the state sufficient to afford personal jurisdiction . . . then we 

can discern no reason why a nonresident’s “presence” in this state would not be 

established for purposes of the tolling statute.

Id. at 927. The court held that “the statute of limitations was not tolled because, under the 

general longarm statute, Kerlin was present in the state.” Id. at 928. In Ashley v. Hawkins, 

293 S.W.3d 175, 177 (Tex. 2009), the supreme court considered the question of “whether section 

16.063 of the Texas Civil Practice and Remedies Code tolls the limitations period when a 

defendant leaves Texas following a motor vehicle collision but is otherwise amenable to out-ofstate service.” See id. The court concluded that “a defendant is ‘present’ in Texas, for purposes 

of the tolling statute, if he or she is amenable to service under the general longarm statute, as 
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long as the defendant has ‘contacts with the state sufficient to afford personal jurisdiction.’”

Id. at 179. The court held that section 16.063 did not toll the limitations period as to such a 

defendant. Id.

The holdings in Kerlin and Ashley apply to this case as well because Octaviano 

has not ceased to be a Texas resident since the cause of action accrued. Any intermittent 

excursions outside the territorial boundaries of Texas did not affect the ability of state courts to 

exercise personal jurisdiction over him since it is self-evident that “residence in a state is a valid 

basis for the exercise of in personam jurisdiction.” J.M.R. v. A.M., 683 S.W.2d 552, 557 (Tex. 

App.—Fort Worth 1985, writ ref’d n.r.e.). It is not disputed that Octaviano was at all times 

amenable to service of process. See Tex. R. Civ. P. 106, 108 (pursuant to these rules, it is not 

necessary that Texas resident be personally served within the state). Thus, under the reasoning 

of Kerlin and Ashley, Octaviano was not “absent” from Texas for the purposes of section 16.063 

during the two years following the accident, and therefore section 16.063 did not toll the

limitations period. We overrule Martin-de-Nicolas’s second issue.

In his third issue, Martin-de-Nicolas contends that summary judgment was 

improperly granted in this case because Martin-de-Nicolas had made a written objection to the 

case being presided over by a visiting judge. Martin-de-Nicolas asserts that this objection was 

included in his “First Amended Original Petition,” which he sent to the court by certified mail, 

return receipt requested, on May 22, 2018. At the end of the amended petition, Martin-de-Nicolas

included the following objection: “Pursuant to Texas Government Code § 74.053, Plaintiff 

hereby objects to a visiting judge or associate judge being assigned to this case.” The record

indicates that the amended petition was file-stamped by the Travis County District Clerk on 

May 31, 2018, two days after the hearing on the motions for summary judgment during which 
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the judge signed the orders granting those motions. On appeal, Martin-de-Nicolas asserts that, 

because he included a section 74.053 objection in his amended petition, the presiding judge 

should have been removed from the case. See Tex. Gov’t Code § 74.053.

Section 74.053 permits parties to object to a judge who has been assigned to 

preside over a trial and who is not the duly elected or appointed judge for that trial court. Id. In 

particular, the provision states that “[i]f a party to a civil case files a timely objection to the 

assignment, the judge shall not hear the case.” Id. § 74.053(b). Martin-de-Nicolas’s written 

objection was contained in a pleading that was not before the court at the time of the summaryjudgment hearing. Moreover, nothing in the record indicates that Martin-de-Nicolas took any 

action to apprise the judge presiding over the summary-judgment hearing of his section 74.053 

objection. “Unlike disqualification of a judge based on a constitutional prohibition, which can be 

raised at any point in a proceeding, a statutory basis for recusal of a judge can be waived.” 

Sweetwater Austin Props., L.L.C. v. SOS All., Inc., 299 S.W.3d 879, 890 (Tex. App.—Austin 

2009, pet. denied). “Because the prohibition from hearing a case under section 74.053 is 

nonconstitutional, . . . the objection is waivable and must be presented and ruled upon to trigger 

any mandatory prohibition.” Texas Emp’t Comm’n v. Alvarez, 915 S.W.2d 161, 165 (Tex. 

App.—Corpus Christi 1996, orig. proceeding) (emphasis added); see also Martin-de-Nicolas v. 

AAA Tex. Cty. Mut. Ins., No. 03-17-00054-CV, 2018 WL 1868048, at *8-9 (Tex. App.—Austin 

Apr. 19, 2018, pet. denied) (mem. op.) (section 74.053 objection waived by failure to present it 

to, or have it ruled on by, presiding judge); In re Approximately $17,239.00, 129 S.W.3d 167,

168 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (objection waived when judge 

was unaware of objection filed seven days before hearing and hearing was “underway for some 

time” before party who appeared at hearing finally mentioned objection). Nothing in the record 
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before this Court reflects that Martin-de-Nicolas made any attempt to present his objection to the 

presiding judge or have it ruled on. Accordingly, we conclude that Martin-de-Nicolas waived 

any objection to the assigned judge presiding over the case. We overrule Martin-de-Nicolas’s 

third issue.

CONCLUSION

Having overruled each of Martin-de-Nicolas’s three appellate issues, we affirm 

the trial court’s orders granting Octaviano’s and Tostado’s motions for summary judgment.

__________________________________________

Thomas J. Baker, Justice

Before Chief Justice Rose, Justices Baker and Triana

Affirmed

Filed: February 26, 2020