                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00275-CV

                                        Joseph MAYZONE,
                                             Appellant

                                               v.
                  Missionary Oblates of Mary Immaculate of and Father Thomas
             MISSIONARY OBLATES OF MARY IMMACULATE OF TEXAS and
                                     Father Thomas Ovalle,
                                           Appellees

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CI-19412
                             Honorable Peter A. Sakai, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 30, 2014

AFFIRMED

           Joseph Mayzone appeals from a summary judgment disposing of his claims against

Missionary Oblates of Mary Immaculate of Texas and Father Thomas Ovalle. We affirm.

                                            BACKGROUND

           On December 2, 2009, Mayzone filed a lawsuit against Missionary Oblates and Ovalle for

damages. The suit alleged that between 1980 and 1983, when Mayzone was still a minor, he was

sexually abused by Father Antonio Gonzales, a priest under the authority and supervision of

Missionary Oblates and Ovalle. The suit further alleged that Missionary Oblates and Ovalle were
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aware that Gonzales had a history of sexually abusing children, but they nevertheless retained

Gonzales as a priest. The suit asserted claims for negligence, civil conspiracy, breach of fiduciary

duty, and fraud. All of these claims stemmed from Gonzales’s alleged sexual abuse of Mayzone

between 1980 and 1983.

         On January 18, 2013, Missionary Oblates and Ovalle filed a traditional motion for

summary judgment, arguing that Mayzone’s claims were barred by the statute of limitations. A

hearing on the summary judgment motion was set for February 12, 2013. Mayzone was served

with the summary judgment motion and notified of the hearing, but he did not file a response.

Instead, Mayzone filed a motion for continuance, seeking to postpone the summary judgment

hearing until the end of March 2013. The trial court held a summary judgment hearing on February

12, 2013. A reporter’s record of the hearing was not made; however, the clerk’s record indicates

that Mayzone, who was in prison at the time, appeared at the hearing by telephone. The trial court

signed an order granting the summary judgment on the same day. The record does not show that

Mayzone urged his motion for continuance at the hearing or that the trial court ruled on the motion.

Mayzone filed a motion for new trial, which was denied by the trial court. This appeal ensued.

                                         MOTION FOR CONTINUANCE

         Mayzone first complains of the denial of his motion for continuance. 1 On February 7, 2013,

Mayzone filed a motion asking the trial court to continue the summary judgment hearing until the



1
 Although neither a written order nor an oral ruling appears in the record, Missionary Oblates and Ovalle do not argue
that this complaint has been waived. See Hightower v. Baylor Univ. Med. Ctr., 251 S.W.3d 218, 224 (Tex. App.—
Dallas 2008, pet. struck) (holding complaint about the trial court’s denial of a motion to continue the summary
judgment hearing was waived when the record failed to contain a written order or an oral ruling); but see Carter v.
MacFadyen, 93 S.W.3d 307, 310 n.2 (Tex. App.—Houston [14th Dist. 2002], pet. denied) (addressing complaint
about the trial court’s denial of a motion to continue the summary judgment hearing when the order granting summary
judgment recited that the trial court had read the documents containing the request for continuance); Cherry v. McCall,
138 S.W.3d 35, 40 (Tex. App.—San Antonio 2004, pet. denied) (stating that the trial court implicitly overruled a
request to continue the summary judgment hearing when it ruled on the summary judgment motion without continuing
the hearing); Clemons v. Citizens Med. Ctr., 54 S.W.3d 463, 468 (Tex. App.—Corpus Christi 2001, no pet.) (same).


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end of March 2013. Mayzone alleged that he did not receive twenty-one days’ notice of the

summary judgment hearing and that he needed additional time to make copies of his response and

his exhibits because he was in prison. The motion was neither verified nor supported by an

affidavit.

        We review the trial court’s denial of a motion for continuance for an abuse of discretion.

Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Lee v. Haynes & Boone, L.L.P, 129 S.W.3d

192, 198 (Tex. App.—Dallas 2004, pet. denied). A trial court abuses its discretion if it acts in an

unreasonable or arbitrary manner or without reference to any guiding rules and principles. Cire v.

Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). In reviewing the trial court’s decision, we

consider the record as it existed at the time the trial court made its ruling. Stephens Cnty. v. J.N.

McCammon, Inc., 52 S.W.2d 53, 55 (Tex. 1932); Hiles v. Arnie & Co., P.C., 402 S.W.3d 820, 827

n.7 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); French v. Gilbert, No. 01-07-00186-CV,

2008 WL 5003740, at *5 n.15 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

        A summary judgment motion must be filed and served at least twenty-one days before the

time specified for the hearing. TEX. R. CIV. P. 166a(c). When the summary judgment motion is

served by mail, three days are added to the twenty-one day period. See TEX. R. CIV. P. 21a(c);

Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994). Thus, if a summary motion is served by mail, it

may be heard on the twenty-fourth day after it is served. Lewis, 876 S.W.2d at 316.

        A party seeking more time to oppose a summary judgment must file an affidavit showing

why the continuance is necessary. Lee, 129 S.W.3d at 198; see TEX. R. CIV. P. 166a(g). “The trial

court may order a continuance of a summary judgment hearing if it appears ‘from the affidavits of

a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to

justify his opposition.’” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)

(quoting TEX. R. CIV. P. 166a(g)). Generally, if a party receives the twenty-one days’ notice
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required by rule 166a(c), the trial court does not abuse its discretion in denying a motion to

continue the summary judgment hearing. Lee, 129 S.W.3d at 198; Carter v. MacFadyen, 93

S.W.3d 307, 310 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

       Here, the record indicates that Mayzone had proper notice of the summary judgment

hearing. Service by mail is complete when a document is properly addressed and deposited in the

mail. TEX. R. CIV. P. 21a(b). And, a written certificate by a party or attorney of record is prima

facie proof of the fact of service. TEX. R. CIV. P. 21a(e). The summary judgment motion in this

case contains a certificate of service stating it was mailed to Mayzone by certified mail, return

receipt requested, on January 18, 2013. The summary judgment hearing was held twenty-five days

later, on February 12, 2013.

       On appeal, Mayzone argues he did not receive proper notice of the summary judgment

hearing because he did not receive the summary judgment motion and notice of the hearing from

prison officials until January 23, 2013. However, there was nothing before the trial court to support

this argument at the February 12, 2013 hearing. Thus, there was nothing before the trial court to

rebut the presumption of proper service as established by the certificate of service. Because the

record as it existed at the time of the hearing indicates that Mayzone had proper notice of the

summary judgment hearing, the trial court did not abuse its discretion in denying the motion for

continuance.

                                      SUMMARY JUDGMENT

       Next, Mayzone complains the trial court erred in granting summary judgment against him.

The only ground presented in the summary judgment motion was the statute of limitations. “The

purpose of statutes of limitations is to compel the assertion of claims within a reasonable period

while the evidence is still fresh in the minds of the parties and witnesses.” Computer Assoc. Int’l,

Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).
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       Generally, the limitations period begins to run when a cause of action accrues. S.V. v. R.V.,

933 S.W.2d 1, 4 (Tex. 1996); Doe v. Roman Catholic Archdiocese of Galveston-Houston, 362

S.W.3d 803, 809-10 (Tex. App.—Houston [14th Dist.] 2012, no pet.). A cause of action accrues

when a wrongful act causes some legal injury, even if the fact of injury is not discovered until

later, and even if all resulting damages have not yet occurred. S.V., 933 S.W.2d at 4. However, for

a claim arising from an injury received as a minor, limitations does not begin to run until the minor

reaches majority. TEX. CIV. PRAC. & REM. CODE ANN. § 16.001 (West 2002). Thus, claims for

injuries suffered during childhood are deemed to accrue on the plaintiff’s eighteenth birthday. Doe

v. Catholic Diocese of El Paso, 362 S.W.3d 707, 716-17 (Tex. App.—El Paso 2011, no pet.).

       When a plaintiff brings suit for personal injury caused by sexual assault or aggravated

sexual assault, the five-year statute of limitations applies. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.0045(a) (West Supp. 2014); Catholic Diocese of El Paso, 362 S.W.3d at 717 (applying five-

year statute of limitations to negligence, breach of fiduciary duty, and intentional infliction of

emotional distress claims arising from allegations of sexual abuse); Stephanie M. v. Coptic

Orthodox Patriarchate Diocese of the So. United States, 362 S.W.3d 656, 659-60 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied) (applying five-year statute of limitations to negligence

claim arising from allegations of sexual abuse).

       The standard for reviewing a traditional summary judgment is whether the movant carried

its burden of showing there is no genuine issue of material fact and judgment should be granted as

a matter of law. KPMG Peat Marwick v. Harrison Cnty. Housing Fin. Corp., 988 S.W.2d 746, 748

(Tex. 1999). A defendant moving for summary judgment on the affirmative defense of limitations

has the burden to conclusively establish that defense. Id. To establish the affirmative defense of

limitations, a defendant is required to (1) conclusively prove when the cause of action accrued,

and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by proving
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as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered,

or in the exercise of reasonable diligence should have discovered the nature of his injury. Id. If the

movant establishes that the statute of limitations bars the action, the nonmovant must then adduce

summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.

       Here, Missionary Oblates and Ovalle filed a summary judgment motion arguing that

Mayzone’s claims were governed by the five-year statute of limitations because they involved

allegations of sexual abuse. Missionary Oblates and Ovalle also argued that because Mayzone was

a minor when the alleged sexual abuse occurred, the limitations period did not begin to run until

December 1, 1984, when Mayzone turned eighteen-years old. Missionary Oblates and Ovalle

further argued that the five-year limitations period for all of Mayzone’s claims ended on December

1, 1989, when Mayzone turned twenty-three years old. For summary judgment evidence,

Missionary Oblates and Ovalle cited Mayzone’s deposition testimony. In this testimony, Mayzone

testified that the alleged sexual abuse occurred from 1980 to 1983, when Mayzone was a minor;

that Mayzone was fully aware of what was being done to him at the time the alleged sexual abuse

occurred and knew that it was wrong; that a year after the abuse ended Mayzone was still fully

aware of the abuse and reported it to a sibling; and that even when Mayzone turned eighteen and

became an adult he remained fully aware of the sexual abuse. We conclude that Missionary Oblates

and Ovalle conclusively established that the limitations period on Mayzone’s causes of action

began to run on December 1, 1984, when Mayzone turned eighteen-years old. Therefore, the five-

year limitations period ended on December 1, 1989, when Mayzone turned twenty-three years old.

Because Mayzone did not file suit until December 2, 2009, Mayzone’s claims were barred by

limitations.

       On appeal, Mayzone argues that the trial court erred in granting summary judgment

because the summary judgment motion erroneously focused on Mayzone’s knowledge of the
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sexual abuse. We disagree. All of the claims asserted in Mayzone’s suit arose from allegations that

Gonzales sexually abused Mayzone in the 1980s. Mayzone alleged that Gonzales had a history of

sexually abusing children and that Missionary Oblates and Ovalle were aware of this history but

nevertheless authorized him to work at the church where Mayzone met Gonzales. Under these

circumstances, Mayzone’s knowledge of the sexual abuse was the relevant knowledge for purposes

of determining the date his claims began to accrue against Missionary Oblates and Ovalle. See

Roman Catholic Archdiocese of Galveston-Houston, 362 S.W.3d at 814 (concluding that the

plaintiff’s knowledge of the sexual abuse was the relevant knowledge for purposes of determining

the accrual date for claims against both the alleged perpetrator and the archdiocese).

       Mayzone further argues that the trial court erred in granting summary judgment because

the summary judgment motion did not negate the application of the discovery rule, which was

raised in Mayzone’s pleadings. Again, we disagree. The discovery rule is a limited exception to

the statute of limitations and applies only if the nature of the plaintiff’s injury is both inherently

undiscoverable and objectively verifiable. Altai, 918 S.W.2d at 455-56. “Under Texas law,

knowledge and reporting of the [sexual] abuse foreclose the contention that this abuse was

inherently undiscoverable.” Doe v. St. Stephen’s Episcopal Sch., 382 Fed. App’x. 386, 389 (5th

Cir. 2010) (citing S.V., 933 S.W.2d at 6-7). For example, in Sanchez v. Archdiocese of San Antonio,

the plaintiff claimed that she was sexually abused as a child by a teacher at a catholic school. 873

S.W.2d 87, 89-90 (Tex. App.—San Antonio 1994, writ denied). The plaintiff claimed that she

reported the abuse to two priests when it occurred. The plaintiff also claimed that she repressed all

memory of the abuse for forty or fifty years and remembered the abuse as an adult in

psychotherapy. When the plaintiff was fifty-seven years old, she filed suit against the archdiocese

and other church entities, alleging they were aware or should have been aware of the abuse and

failed to stop the abuse or protect her. In Sanchez, we recognized that other jurisdictions had
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applied the discovery rule in childhood sexual abuse cases, but also noted that “we have been

pointed to no case applying the discovery rule where the knowledge of the wrong[ful]ness of the

sexual abuse was known at the time of its occurrence.” Id. at 91. We held that the archdiocese

negated the application of the discovery rule by showing that the plaintiff, by her own admission,

knew of the abuse when it occurred. Id. Similarly, the summary judgment proof filed in this case

shows that Mayzone, by his own admission, knew of the sexual abuse and its wrongfulness when

it occurred. We, therefore, conclude that Missionary Oblates and Ovalle met their summary

judgment burden to negate the application of the discovery rule.

        Finally, Mayzone argues the trial court erred in granting summary judgment because he

raised the affirmative defenses of fraudulent concealment and equitable estoppel and created a fact

issue on these defenses. A party asserting fraudulent concealment or equitable estoppel as an

affirmative defense to the statute of limitations has the burden to raise it in a response to the

summary judgment motion and to come forward with summary judgment evidence to raise a fact

issue on each of the elements of these defenses. See KPMG Peat Marwick, 988 S.W.2d at 748;

Hill v. Bartlette, 181 S.W.3d 541, 545 (Tex. App.—Texarkana 2005, no pet.). When the party

asserting an affirmative defense fails to raise a fact issue on each of the elements of that defense,

then summary judgment is proper. See Hill, 181 S.W.3d at 545. In the present case, Mayzone, who

did not file a summary judgment response, failed to raise the affirmative defenses of fraudulent

concealment or equitable estoppel and failed to create a fact issue on any affirmative defense. 2 We

conclude the trial court did not err in granting the summary judgment.




2
 To support his argument, Mayzone cites to documents he filed in support of his motion for new trial. Because these
documents were not before the trial court when it ruled on the summary judgment motion, we do not consider them
here.

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                                     MOTION FOR NEW TRIAL

       Finally, Mayzone complains that the trial court abused its discretion in denying his motion

for new trial. We review a trial court’s denial of a motion for new trial for an abuse of discretion.

Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987).

       In this section of his brief, Mayzone cites several cases that discuss the abuse of discretion

standard in different contexts. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997) (orig.

proceeding) (holding the trial court abused its discretion by not granting a continuance to allow a

jury request and fee to become timely); Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793,

795 (Tex. 1987) (holding that, absent a record showing an abuse of discretion, the appellate court

must presume the trial court had adequate evidence before it to justify an award of guardian ad

litem fees); Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986) (holding that the trial

court did not abuse its discretion in denying a motion for continuance on the last day of trial). None

of these cases, however, is analogous to the situation before us. In further support of his complaint,

Mayzone cites his motion for new trial, over 600 pages of documents accompanying his motion

for new trial, and the reporter’s record from the hearing on the motion for new trial. Mayzone

asserts that we may reverse the trial court’s denial of his motion for new trial if, after searching

the record, it is clear that the trial court’s decision was arbitrary and unreasonable.

       Under the Texas Rules of Appellate Procedure, a brief submitted by an appellant must

contain “a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” TEX. R. APP. P. 38.1(i). An appellate issue unsupported by argument

or citation to the record or by appropriate legal authority presents nothing for our review.

Blankinship v. Brown, 399 S.W.3d 303, 307 (Tex. App.—Dallas 2013, pet. denied). “Failure to

cite legal authority or to provide substantive analysis of the legal issues presented results in waiver

of the complaint.” In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.—Texarkana 2010, no
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pet.). “An appellate court has no duty—or even right—to perform an independent review of the

record and applicable law to determine whether there was error.” Valadez v. Avitia, 238 S.W.3d

843, 845 (Tex. App.—El Paso 2007, no pet.). “Were we to do so, even on behalf of a pro se

appellant, we would be abandoning our role as neutral adjudicators and become an advocate for

that party.” Id.

        Here, Mayzone has failed to provide appropriate legal authority and substantive analysis

of the legal issue complained of in this section of his brief. Mayzone has also failed to provide

appropriate citation to the record to support his complaint. We conclude Mayzone’s complaint

concerning the denial of his motion for new trial presents nothing for our review. See Blankinship,

399 S.W.3d at 307; TEX. R. APP. P. 38.1(i).

                                          CONCLUSION

        The trial court’s judgment is affirmed.

                                                           Karen Angelini, Justice




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