
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-93-017-CV



JIMMY GEORGE HUGHES,

	APPELLANT

vs.



SANDRA A. AUTRY, SUCCESSOR TO EUGENE A. BRODHEAD, RECEIVER 
FOR NATIONAL COUNTY MUTUAL FIRE INSURANCE COMPANY,


	APPELLEE

 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 91-2360, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

 



PER CURIAM
	Appellant, Jimmy George Hughes, appeals from the trial court's summary judgment
granted in favor of appellee Sandra A. Autry, successor to Eugene A. Brodhead, receiver for
National County Mutual Fire Insurance Company.  We will reverse the trial court's judgment.


I.  BACKGROUND
	Hughes suffered severe injuries when the vehicle in which he was riding was
involved in a head-on collision with a vehicle driven by Julie Collette Holveck.  The Holveck
vehicle was insured under a general liability policy issued by National County Mutual Fire
Insurance Company (National). (1)  In May 1989, National was placed in receivership and Stephen
S. Durish was appointed as receiver for National. (2) See Tex. Ins. Code Ann. art. 21.28, § 2 (West
Supp. 1994). (3)  Hughes timely filed a proof of claim with the receiver in the amount of $30,000
against the assets of the receivership estate.  See § 3(a).  On November 13, 1990, Hughes received
notice that the receiver had rejected his claim in part.  See § 3(h).  On February 14, 1991, Hughes
filed suit for damages, alleging the receiver negligently evaluated his claim and failed and refused
to pay the claim in good faith.  The receiver answered and subsequently filed a motion for
summary judgment.  Hughes did not file a response.  On October 13, 1992, the trial court heard
the motion.  Hughes did not appear at the hearing.  The trial court granted summary judgment in
favor of the receiver.  Hughes filed motions for new trial on November 12 and November 16,
1992.  The trial court, in a written order, denied Hughes' motions for new trial.  By two points
of error, Hughes appeals from the summary judgment. (4)


II.  DISCUSSION
	In his first point of error, Hughes asserts that the trial court erred in granting
summary judgment because a genuine issue of material fact existed as to whether he timely filed
his petition against the receiver.  The standard for reviewing a summary judgment is well
established.  The movant for summary judgment has the burden of showing that no genuine issue
of material fact exists and that it is entitled to judgment as a matter of law.  In deciding whether
there is a disputed material fact issue precluding summary judgment, evidence favorable to the
nonmovant will be taken as true.  This Court must indulge every reasonable inference in favor of
the nonmovant and resolve any doubts in its favor.  Nixon v. Mr. Property Management Co., 690
S.W.2d 546, 548-49 (Tex. 1985).  
	Hughes did not file a response to the motion for summary judgment.  Thus, the
only contention he may raise on appeal is that the grounds expressly presented to the trial court
by the movant's motion are insufficient as a matter of law to support summary judgment.  City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).    
	The receiver's motion for summary judgment is based on the sole ground that
Hughes' claim was barred by limitations under Texas Insurance Code article 21.28, section (3)(h). 
The receiver must prove all essential elements of her affirmative defense as a matter of law.  See
id.  Thus, the receiver's summary-judgment proof must establish as a matter of law that Hughes
did not timely file his petition.  
	Section 3(h) provides, in pertinent part:


Upon the rejection of each claim either in whole or in part, the receiver shall notify
the claimant of such rejection by written notice.  Action upon a claim so rejected
must be brought in the court in which the delinquency proceeding is pending within
three (3) months after service of notice; otherwise, the action of the receiver shall
be final and not subject to review.


Whether Hughes timely filed his petition turns on whether service of notice is complete when
mailed or when Hughes received the notice.  Section 3(h) does not define "service of notice" or
when notice is effective.  Id.; see also Khalaf v. Odiorne, 767 S.W.2d 856, 857 (Tex.
App.--Austin 1989, writ denied).    
	The receiver argues service of notice was completed and the limitations period
began to run when the rejection notice was mailed, citing Whitson v. Harris, 792 S.W.2d 206,
208 (Tex. App.--Austin 1990, writ denied) (notice requirements of section 3(h) are satisfied by
mailing notice via first-class mail without proof of receipt unless receivership court orders
otherwise).  In Whitson, however, we did not hold that the limitations period of section 3(h)
begins to run when the rejection notice is mailed.   Moreover, for the reasons set forth below, we
conclude that under the facts of this case, the limitations period should not be calculated from the
date the rejection notice was mailed.  
	This Court has twice discussed methods of service of notice under section 3(h). 
In Khalaf, we said that the receiver's notice of rejection of claims should be in a manner
determined by the receivership court. See Khalaf, 767 S.W. 2d at 858 (receivership-court order
specified that mailing via first-class mail was sufficient proof of notice).  Khalaf does not help
here, however, because the receivership-court did not specify the manner of service of notice. 
In Whitson, this Court said that unless the receivership court orders a different manner of notice,
service of notice by first-class mail satisfies the statutory notice requirement of section 3(h); proof
of receipt of that notice is not required. (5) Whitson, 792 S.W.2d at 208 (emphasis added).  This
conclusion governing the fact of notice does not preclude a party from presenting proof of when
the notice is actually received for the purpose of establishing the limitations period. (6) 
	We hold that if a party can prove the date notice was actually received, service of
notice is complete when received and limitations begins to run on that date.  In summary, unless
the receivership court orders a different manner of service, service of notice by first-class mail
satisfies the statutory notice requirement of section 3(h) and proof of receipt of that notice is not
required; but if a party can prove the date notice was actually received, service of notice is
complete when received and limitations begins to run on that date.
	The receiver's summary-judgment proof shows that the receiver's rejection notice
was sent certified mail, return receipt requested and establishes as a matter of law that Hughes
received notice on November 13, 1990, informing him that his claim had been rejected in part. 
Accordingly, the limitations period of section 3(h) began to run when the rejection notice was
received.  We must now determine whether Hughes filed his original petition within three months
of receipt of the receiver's rejection notice.
	Section 3(h) provides that an action on a claim rejected by the receiver must be
brought in the court in which the delinquency proceeding is pending.  The delinquency proceeding
against National was brought in a Travis County district court.  Thus, the Texas Rules of Civil
Procedure govern the filing of Hughes' action on his rejected claim.  See Tex. R. Civ. P. 2. 
Accordingly, Texas Rule of Civil Procedure 4 applies in computing the limitations period for the
filing of Hughes' claim. (7)
 	Rule 4 provides, in pertinent part, "In computing any period of time prescribed or
allowed by these rules, by order of court, or by any applicable statute, the day of the act, event,
or default after which the designated period of time begins to run is not to be included."  Tex. R.
Civ. P. 4 (emphasis added).  Hughes received the receiver's rejection notice on November 13,
1990.  Under Rule 4, the three-month limitations period ran from the day after Hughes received
notice, November 14.  Thus, Hughes had until February 14, 1991, to file suit.  See Tex. Govt.
Code Ann. § 312.011(7) (West 1988) ("month" means a calendar month).
	Hughes original petition was filed on February 14, 1991, within three months after
he received the rejection notice.  Thus, the receiver has not shown as a matter of law that Hughes
failed to file his petition timely.  Accordingly, the receiver has not shown that she is entitled to
summary judgment as a matter of law based on the ground that limitations had run under section
3(h).  We sustain point of error one.  Because of our disposition of Hughes' first point of error,
we need not address his second point of error.


III.  CONCLUSION
	  The trial court's judgment is reversed and the cause is remanded to the trial court.

Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Reversed and Remanded
Filed:   April 13, 1994
Publish
1.      1 These facts are drawn from appellant's brief.  Tex. R. App. P. 74(f) (any statement by
appellant in original brief as to facts or record may be accepted by court as correct unless
challenged by opposing party).
2.      2 Eugene A. Brodhead succeeded Durish as receiver, and Autry succeeded Brodhead as
receiver.
3.      3  All subsequent references to article 21.28 of the Texas Insurance Code are to the applicable
section and subsection of the article only.
4.      4 Hughes' original petition named as defendants National, Durish, and Richard Holveck.  On
November 24, 1993, we ordered this appeal abated as premature, because the order appealed from
did not dispose of National or Holveck and did not contain a "Mother Hubbard" clause.  See
Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993) (if summary-judgment order appears to be
final, as evidenced by inclusion of language purporting to dispose of all claims or parties,
judgment should be treated as final for purposes of appeal); North E. Indep. Sch. Dist. v.
Aldridge, 400 S.W.2d 893, 895 (Tex. 1986); Tingley v. Northwestern Nat'l Co., 712 S.W.2d 649,
650 (Tex. App.--Austin 1986, no writ) (final judgment must dispose of all issues and parties in
case).  Hughes subsequently filed with this Court a supplemental transcript containing his nonsuit
of National and Holveck.  Accordingly, that portion of our November 24, 1993, order abating the
appeal terminated.
5.      5 Hughes argues the receiver did not carry her burden of proof to show that the receivership
court did not order a different manner of service by offering summary-judgment proof that "there
were no other Orders presented by the Court which required any other method of service on the
Plaintiffs."  The receiver's summary-judgment proof includes the receivership court's final order,
which does not specify the manner of service of notice.  If other orders exist requiring a method
of service, it was Hughes' burden to present proof creating a fact issue.  The movant need not
negate all possible issues of law or fact that could be raised by the nonmovant in the trial court
but were not.  Clear Creek, 589 S.W.2d 578-79.
6.      6 Texas Rule of Civil Procedure 21a, which provides that service by mail is complete on
deposit in a post office or official depository under the care and custody of the United States
Postal Service, also provides that a party is not precluded from offering proof that notice was not
received within three days from the date of deposit and that on so finding the court may extend
the time for taking the action required of such party.  Rule 21a does not apply here, however,
because the mailing of the rejection notice is not a procedure in the justice, county, or district
court.  Tex. R. Civ. P. 2. (rules govern procedure in justice, county, and district courts of State
of Texas in all actions of civil nature).
7.      7 The receiver cites Harper v. American Motors Corp., 672 S.W.2d 44 (Tex. App.--Houston
[14th Dist.] 1984, no writ), for the proposition that Rule 4 does not apply in computing the
limitations period.  In Harper, Rule 4 and a statutory limitations provision provided conflicting
methods for computing the last day of a limitations period when the last day fell on a Saturday,
Sunday, or legal holiday.  In that situation, the court said that when a rule of court conflicts with
a legislative enactment, the rule must yield.  Harper, 672 S.W.2d at 45.  We distinguish Harper
from the case at hand because Rule 4 does not conflict with section 3(h), which is silent regarding
computation of time.
