## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 24

- 00001

- CV

LAKEISHA MACKEY AND JAKAIRA MACKEY , Appellant s V. PATRICK LUGO , Appellee

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 21

- 0 822

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION
Lakeisha and Jakaira Mackey sue d Patrick Lugo for injuries arising from an automobile accident. Lugo filed a tradition a l motion fo r s um mary judgment on his statute of limitations defense, which the trial court granted

. On appeal, the Mackeys argue that summary judgment was improper only as to Jakaira because she was a minor at the time of the ac cident and limitati o ns was tolled unti l s he reached eighteen

. W e agr ee with the Mackeys’ argument that Jakaira ’s claims were brought and served within the statute of limitations applicable to her . Accordingly, we sustain the Mackeys’ sole point of error and reverse the portion of the trial c o u rt ’s judgment granting summary judgment

on Jakaira ’s claims.
I. Factual and Procedural Background The accident in question occurred on September 8, 2019. At the time of the accident, Jakaira was sixteen , but s h e turned eighteen in July of 202 1

. Exac t l y t wo years after the accident , o n September 8, 2021, Lakeisha filed an o riginal p etition suing Lugo

. In the original petition , Lakeisha asserts the capacity to sue individually , and as next friend of Jakaira
, even though Jakaira was an adult

. The crash rep ort listed Lugo ’ s address as “ 211 W 6th ST[,] Shady Shores , TX 7 6208 .” As a result, the Mackeys attempted service on that address, but Lugo had moved from that address

. T he citation was returned as undeliverable on Sept e mber 13, 2021 , and Lugo was never

serv ed with the original petition

. The case sat dormant un t il th e Mackeys filed an a mended
p etition on August 18, 2022. According to the record, Lugo was first served with citation on3

August 31, 2022 , and the Mackeys also ar gued that he was served by a p riva te process serv er on September 1, 2022

. In his M arch 202 3 a nswer, Lugo argued that the Mackeys ’ claims were barred by the statute of limitation s. Consequently, Lugo filed a t r aditional motion for summary judgment on his limitations defense and p r ove d th at he was not s erved with the o riginal p etition

. In respo n se , the Mackeys argued that Jakaira ’s claims were not barred by limitations because they were tolled whil e she was a minor. Even so, the trial court granted Lugo ’s s u mmary judgment motion and, in an order finding that Jakaira turned eighteen i n July 2021 , d i smissed the Mackeys’ claims , with prejudice. II. Jakaira ’s Claims W ere Not Barred by the Statute of Limitations On appeal, the Mackey s do not chal lenge the propr i e ty of the trial court ’ s s umma ry judgment as to Lakeisha . Instead, they argue only that su m mary judgment was not proper as to Jakaira because she reache d the age of majority in July 2021 , and limitations was tolled until July 2023. We agre e. A. Standard of Review A trial court’s gr ant of a summary judgment is reviewed de novo. Mann Fran kfort Ste i n & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009); Hearne v. Riversource Life
Ins. Co. , 670 S.W.3d 360, 364 (Tex. App.

— Texarkana 2023, pet. deni ed). In our review, we “v iew[ ] the evidence in the light most favorable to th e non - mova nt, c rediting evidence favorable to the non

- movant if rea s onable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” E rikson v. Renda , 590 S. W.3d 557, 563 ( Tex . 20 19) (citing Mann4

Frankfort Stein & Lipp Advisors , Inc

. , 28 9 S. W .3d at 848). When, as here, the party seeks a tradi t ional summary judgment, the movant “bears the burden of showing no genuine issue of material fa ct exists and i t is ent itled to judgme nt as a matter of law.” Mann Frankfort Stein & Lipp Ad visor s, In c. , 2 89 S.W.3d at 848 (citing T EX
. R. C IV
. P. 166a(c)). B. A n alysis

“ A suit for personal injuries must be brought within two years from the time the cause of action accru es. ” Pr oulx v. Wells , 235 S.W .3d 213, 215 (Tex. 2007) (per curiam) (citing T E X
. C I V
. P R AC
. & R EM
. C ODE A NN
. § 16.003(a) ). Here, the cause of ac t ion accrued on the date of the accident

— September 8 , 2019. See Murray v. San Jacinto Agency, I nc . , 800 S.W.2d 826, 828 (Tex. 1990)

. Su it w as filed exactly two years from the date of the accid ent. “ Me r e filing of suit, however, will not interrup t the running of limitations unless due diligence is exercised in the issuance and service of citation. ” Id. at 830 ; s ee Proulx , 235 S.W.3d a t 2 15

. Here, by granting Lugo’s summary judgment, the tria l cou rt f o und that the Mackeys did not exercise due di l igence because the citation on the o riginal p etition was returned as undeliverable an d service on that p etition was not reattempted. Because th e Ma ckeys’ appeal does not challenge that finding, w e wil l not dis turb it. Instead, we will address wh e ther Jakaira ’s claims were barred, even with this finding in p lace

. Alth ough S ection 16.003 of the Texas Civil Practice and Remedies Code provides a two

yea r statute of limitations for personal injury, T E X
. C I V
. P R AC
. & R EM
. C ODE A NN
. § 16.003(a) , Section 16.001 tolls the statute of limitations if “a person is under a legal di sability,” including if
a person is “ younger than 18 , ” T EX
. C IV
. P RAC
. & R EM
. C O DE A NN
. § 16.00 1 (a) . More5

specifically, “the time of th e dis abil ity is not included in a limitations period.” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 16.001(b). “ Taken together, these sections require a minor t o file a claim before reaching age twenty for pe rso nal injuries sustained during the peri od of mino rity. ”
We iner v. Wasson , 900 S.W.2d 3 1 6, 321 (Tex. 1995)

. Here, it is undisputed that Jakaira was a minor at th e time of the accident. Accordingly, the s tatute of limitations did not begin to run until he r eighteenth birthday in July 20 21. See id

. ; T E X
. C I V
. P R AC
. & R EM
. C ODE A NN
. § 16.001(b). As a result, limitations on her personal injury claims did not expire until Jul y 2023. See Weiner , 900 S.W.3d a t 321; In re Gamble , 676 S.W.3d 760, 807 (Tex. A pp.

— Fort Worth 2023 , orig. proceeding ) ; Gunderman v . Bue hr ing , No

. 13

- 05

- 278

- CV, 2 0 06 WL 240517, at *3 (Tex. App.

— Corpus Christi

– Edinburg Feb. 2, 2006, pet. denied) ( me m. op.) ; Guerra v. Lazarte , No. 13

- 96

- 42 2

- CV, 1998 WL 35277040, at *2 (Tex. App.

— Corpus Chr isti

– Edinburg July 2, 1998, no pet.) (not design ated fo r p u bli ca tion) ; see also Montalvo v. Lopez , 466 S.W.3d 290, 293 (Tex. App.

— San Antonio 2015 , pet. denied )

. Here, th e record established that Lugo wa s served with and answered the lawsuit before
Ju ly 2023. Because Lugo was served before limitation s on Ja kai ra ’s c laims expired , Lugo was not entitled to summary judgment against Jakaira on his statute of limitat ions defen se. Accordingly, we must sustain the Mackeys’ sole point of error.6

III. Disposi tio n We affirm the trial court’s summary judgment again st L a keis ha. However, we reverse the summary judgment against Jakaira and reman d the case to the trial court for furth er proceedings consistent with th is opinion.

Jeff Rambin Justice
Date Sub mitted: May 9, 2024 Date Decide d : May 10 , 2024