### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03 - 19 - 00160 - CV
Juan A. Martin - de - Nicolas, Appellant

v. Mark Octaviano and Victor i o Tostado, Appellee s
FROM THE 261ST DISTR ICT COURT OF TRAVIS COUNTY NO. D - 1 - GN - 18 - 007225 , THE HONORABLE STEP HEN Y ELENOSKY, JUDGE PRES IDING
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 t rial court ’ s orders grantin g motions for summary ju dg ment filed by Mark Octaviano and Vict or io Tos tado and ordering that Martin

- de

- Nicolas take not hing on his cl aims for negli genc e arising out of a motor vehicle accident . We will affirm. BACKGROUND

Martin

- de

- Nicolas, Oc taviano, and Joaquin Aguerre were involved in a three

- car collision on January 23, 2016. On January 24, 2018, Martin

- de

- Nicol as filed his original pet ition alleg ing that Octa viano ’ s and Aguerre ’ s negligen ce caus ed the collision. Martin

- de

- Nicolas also sued Tostado on a negligent entrust me nt theory, al leging th at Tostado owned the veh icle A guerre was dri ving and was negli gent in en trusting it to Aguerre, an unli censed driver. Octaviano and Tostado ea ch m o ved for summary judgment on the affirmativ e defense of limitations, arguing2

that the suit was time

- barred under the two

- year statute of limitations applicable to negligence
ac ti ons . See Tex. Civ. Prac. & R em . Code § 16.003
. The motion s for summary judgment filed by O ctaviano and Tostado w ere , in almost every resp ect, i dentical. After a hearing, the trial court granted both summary

- judgment motions. The court then signed an or der severing Martin

- de

- Nicolas ’ s claims against Oc taviano and Tosta do from the remaining claims , maki ng the summary

-

judgment orders final and appealab le. Martin

- de

- Nicolas perf ected this appeal
. DISCUSSION In his first issue, Martin

- de

- Nicolas contends th at he did not receive notice of the hearing on Oc taviano ’ s motion for summary judgment. Martin

- de

- Nicolas asserts t hat “ [c]ou nsel for Oc taviano merely showed up at the hearing set for Tostado ’ s summary judgm ent motion on May 29, 2 018, and the court saw fi t to also grant Octaviano ’ s sum mary judgmen t. ” A party moving for summary ju dgme nt must comply with the procedural requirements of Texas Rule of Civil Procedure 166a. Tank sley v. Citi Capital Commercial Corp. , 145 S.W.3d 76 0, 763 (Tex. App.

— Dallas 2004 , p et. deni ed). The non

- movant is enti tled to proper notice under the rule. Lewis v. Blake , 876 S.W.2d 314, 315 (Tex. 1994). The failure to provide no tice depri ves the
non - mo vant of the ri ght to be h eard, constitutes a denial of due process, and is grou n ds for reversal
. Ether edge v. Hidden Valley Airpark Ass ’ n , 169 S.W.3d 378, 383 (Tex. App.

— Fort Worth 2005, pet. denied).

Rule 166a re quires that both the motion for summary jud gment and notice of the summary judgment hearing be serve d 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 case s, Gordon v. Ward , 822 S.W.2d 90, 93 (T ex. App.

— Houston [ 1st Dist.] 1991, w rit denied),3

therefore the prim ary purpose of the no tice r e quired by rule 166a (c) is to allow the non

- movant to calculate the dat e by which he must file a written response or opposing affidavits. See Martin v. M

artin, Martin & Richards, Inc. , 989 S.W.3d 357, 359 (Tex. 19 98) (per curiam). On May 2, 201 8, counsel for Tostado electronically filed a letter addressed to Martin

- de

- Nicolas that stated: “ Please be advised t hat 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
. ” Couns el for Oc taviano was shown a s a recipient of a copy of the lett er. Martin

- de

- Nicolas does not cont end that he did not rec e ive this notice more than twe nty
- one days before the hearing date. Instead, Martin

- de

- Nicolas maintains tha t the notice did not appr ise him that Oc taviano ’ s motion for summary judgment would be heard at the May 29 hearing as well as Tosta do ’ s.

Due process re quires, at a minimum, notice and an opport unity to be heard at a meaningful time and in a meaningful manner. Texas Int egrated C onv ey or Sys
. , Inc. v. Innovative Conve yor Concepts, Inc. , 300 S. W.3d 348, 363 ( Tex. App.

— Dallas 2009, pet. denied). Martin

de

- Nicolas had both. The notice sent by Tosta do ’ s counsel plain ly stated t hat “ Defendant s ’ Mo tion s for Summary Judgment ” h ad bee n s et for hearing on May 29. 1 This pr ov ided Martin

de

- Nicolas with notice that both motions for summary jud gment wou ld be cons idered on that date. Ma rtin

- de

- Ni colas attended the May 29 hearing and had an opportunity to b e heard at th at hearing , whi ch addresse d Octavia no ’ s and To sta do ’ s limitations defense

— the only issue raised by both mo tions for summ ary judgment
. Martin

- de

- Nicolas filed a response to Tostado ’ s motion tha t inclu ded argument relevant to the l imitations defense
. T he record does not support Martin

de

- Ni cola s ’ s assertion that he did not have noti ce that both motions for summary judgment

1 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 sa me day the n o tice was sent t o Martin

- de

- Nicolas.4

would be he ard at the May 29 hearing , and Martin

- de

- Nicolas has not demonst rated that his due process rights were otherwise vi olat ed
. W e ov errule Mart in

- de

- Nicolas ’ s first iss ue.

In hi s second issue, Martin

- de

- Nicolas argues that the trial court e rred in granting Octaviano ’ s motion for summary judg ment based on l imitations because Oc taviano failed to
su bmit summary

-

judgment ev idence de m onstra ting that he did not leave the State of Texas during the two years following the accident and, consequently, failed to negate th e applicability of a tolling st atute ; specifically , Texas Civil Practi ce a nd Reme dies Co de section 16.063. See Tex. C iv. Prac. & Rem. Co de § 16.063
. This section pro vides : “ 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 l imitations for the period of the per son ’ s absence. ” Id. It is undi sputed th at the statute of l imitations for Martin

- de

- Nicol as ’ 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 Medin a v. Lope z Roman , 49 S.W.3d 393, 39 8 (Tex . A pp. — Aus tin 2000, pet. denied) (term “ year ” i s defined as calendar year and court looks to date upon which event occurred and then looks to calendar to fin d same date, two years later, to determine e x pirati on of limitations period). Martin

- de

- Ni co las
co n te nds tha t sec tion 16.063 rendered his suit time ly because O ctaviano did not submit evi dence establishin g that he remained in the state each day for the two years following the date of the accident. Martin

- d e - Nicolas argues that Oc taviano ’ s absen ce from the state for just one day would render his suit time l y pursuant to section 16.063.

As the party asserting the affirmative de fense and the movant for summary judgment, Oc taviano bore the burden to conclusiv ely establish his statute

- of

- limitations d efense
as a matt er of law
. Ri chardson v. Allstate Tex. L l oyd ’ s , 235 S.W.3d 863, 865 (Tex. App.

— Dallas 2007, no pet.) (ci ting Jenkins v. Henry C. Beck Co. , 449 S.W.2d 454, 455 (Tex. 1969)).5

This also include s the burden of negating the applicab ility of any toll ing or sus pension st atute raised by the non

- movan t. See Hargraves v. Armco Foods, Inc. , 894 S.W.2d 546, 547 (Tex. App.

— Austin 1995, no writ ) (per curiam )
. Here, Octaviano as serts that section 16.063 did not toll limitations for any period of time he was out side of the State of Texas because th at statut e is
concerne d with amenab ility to service of process rather than with physical pr esence within the territor ial l imits of the state. Octaviano contend s that because he was a resident o f the State of Te xas d uri n g the entire lim itations p eriod and subject t o the personal ju risd iction of Texas courts, his out

- of

- state travel, if any, would not constitu te “ absenc e from this state ” as that phr ase has been interpreted by the Texas Supreme Court when construin g sec tio n 16.06 3. We agr ee.

Under Texas Supreme Court c ases, one who is subject t o personal jurisdiction in Texas courts, and amen able to s ervice o f process, is not “ absent ” from th e state for the pur poses of section 16.063. In Kerlin v. Sa uceda , 263 S.W.3d 92 0 (Tex. 2008), t he Texas Supreme Court stated: [If ] a nonresident is amenable to service of process under the long arm statute and has contacts with the state su fficient to afford personal jurisd ic tion . . . th en we can discer n no reas on w hy a nonr es iden t ’ s “ prese nce ” in t his state would not be established for pu rposes of the tolling statute. Id. at 927. The court held that “ the statute of limitations wa s not tolled because, under the general longarm statute, Kerlin was present in the sta te. ” Id
. at 9 28
. In Ashl ey v. H aw kin s , 293 S.W.3d 175, 177 (Tex. 20 09), the supreme court consider ed the qu estion of “ whe ther sect ion 16.063 of the Texas Civil Prac tice and Remedies Code tolls the limitations period when a defendant lea ves Texas following a motor vehicl e c ollisio n but is otherwise amenable to out

- of

state service. ” See i d. The court conclude d 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, as6

long as th e d efendan t has ‘ co ntacts with the state sufficient t o afford personal jurisdict ion. ’ ” Id
. at 179. The court held that section 16.063 did not toll the l imita tions period as to such a defen dant. Id. The hol dings in Kerlin and Ash ley apply to this case as well be cause Octa viano has n ot ceased to be a Texa s resident since the cause of action accrue d. Any intermittent excursions outside t he territor ial boundaries of Texas did not affec t the ability of state courts to exercise personal jurisdictio n ov er hi m s ince it is self

- e vident that “ residence in a state is a valid ba sis for the exercise of in personam jurisdiction. ” J.M.R. v. A.M. , 683 S.W.2d 552, 557 (Tex. Ap p. — Fort Wo rth 1985, wr it ref ’ d n. r.e.). It is not dis puted that Octaviano was at all ti mes a men able to ser vic e o f process. See Tex. R. Civ. P. 1 06, 108 ( pursuant to these rules, it is n o t
n eces sary that Texas resident be personally served within the state). Thus, under the reas oning of Kerlin and Ash ley , Oct aviano was not “ absent ” from Tex as fo r t he purp ose s of se ction 16.063 during the two years following the accident , and therefore section 16.063 did not toll the lim itations period. We overrule Martin

- de

- Nicolas ’ s second i ssue.

In his third issue, Martin

- de

- Nicolas conte nds that summary ju dg ment was improp erl y gr anted in this case because M arti n - de

- Nicol as had made a wr itten objection to the case being presided over by a visiting jud ge. Martin

- de

- Nicolas asserts that this objection was included in his “ First Amended Original Petition , ” w hich he sent to the co urt by certified mail, return re c e ip t re quested , on May 22, 2018. At the end of the am en d ed petition, Martin

- de

- Nicolas included the f

o llowing ob

jection : “Pursuant to Texas Government Code § 74.053, Plaintiff hereby objec ts to a visiting judge or associa te judge being as signed to this case . ” The rec ord i ndicates that th e amende d petition was file

- stamp ed by t he Travis County District Clerk on May 31 , 2018, two days after the hearing on the mo tions for summary judgment during which7

the judge signed the or ders gr anting tho se motions. On app eal , Martin

- d e - Nicolas asserts that , because he included a section 74.05 3 objection in his amended petition, the presiding judge should have been removed from the case
. See Tex. Gov ’ t Cod e § 74.053.

Section 74.053 per mits parties to object to a judg e wh o ha s been assi gned to preside over a trial and who is not the duly elected or app ointed judge for that trial court. Id. In partic ular, the provision state s that “[i]f a party to a civil case files a timely objection t o the
as signment, the judge sha l l n ot h ear the case. ” Id. § 74.053(b)
. Martin

- de

- Nicolas ’s written
o bjection was contained in a ple ading that was not before the court at the time of the summary

judgment hearing
. Moreover, n othing in the record indicates that Martin

- de

- Nicolas took an y ac tion to app rise the judge presiding over the summary

- judgment hearing of his section 74.053 objection. “Unlike disqualification o f a jud ge b ased on a constitutional pro hibition, which can be raised a t any point in a proc eeding, a statutory ba sis for r ecus al o f a jud ge can be waived. ” S weetwater Austin Props., L. L.C. v. SOS All., Inc. , 299 S.W.3d 879, 890 (Te x. App.

— Austin 20 0 9, pe t. denied). “Because the prohibition from hearing a case under section 74.053 is
noncon stitu tional, . . . the objection is waiv a bl e and mu st be presented and ruled upon to t rigger any mandatory prohi bitio n. ” 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

- N icolas v. AAA Tex. C ty. Mut. In s. , No. 03

- 1 7
- 0005 4

- CV, 2018 WL 1868048, at *8

- 9 (Tex. App.

— Austin A pr . 19, 2018, pet. denied) ( mem. op.) ( section 74.053 objec tion waived by fai lure to present it to , or have it ruled on by , presiding judg e) ; In re Approxima tely $17,239.00 , 1 29 S.W.3d 167 , 1 68 (Tex. App.

— Houston [14th Dist.] 2003, orig. proceeding) (obje ction waived whe n judge
w a s unaware of objection filed seven days before he aring and hearing was “ underway for some time ” before party who ap peared at hearing finally m entioned objectio n)
. No thing in the record8

be fore this Court re flect s that Martin

- de

- Nic olas ma d e any attempt to present his objection to the pres iding judge or have it rule d on. Accordingly, we conclude that Ma rtin

- de

- Ni c o las waived any object io n to the assigned judge p resi d in g over th e case. We overrule Martin

- de

- Nicolas ’s third issue. CONCLUSION

Having overruled each of Martin

- de

- Nicolas ’s three appellate issues, we aff ir m the trial cou r t ’s orders granting Octaviano ’s and To stado ’s motion s for summary judgment
.

_________ _________________________________ Thomas J. Baker , Justice Befo re Chief Justic e Rose, Justices Baker and Triana Affirmed Filed: February 26, 2020