      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00533-CV



                                      Leah Shike, Appellant

                                                  v.

                                 Anthony Charles Flot, Appellee


   FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
      NO. 29,439, HONORABLE REVA TOWSLEE-CORBETT, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Leah Shike appeals from the summary judgment granted in favor of

appellee Anthony Charles Flot in an automotive personal-injury suit. Flot had moved for summary

judgment on limitations grounds, challenging Shike’s failure to serve him with citation during

the limitations period. Shike maintains that she raised a fact question regarding a tolling issue that

precludes summary judgment. We will reverse the district court’s summary judgment.

               On April 26, 2012, Shike and Flot were involved in an automobile accident

from which Shike alleges she sustained bodily injuries. Shike filed a negligence suit against Flot

within two years of the accident, but did not serve Flot with citation until February 16, 2016, which

was outside the limitations period for personal-injury claims. See Tex. Civ. Prac. & Rem. Code

§ 16.003(a).
                Flot filed an answer asserting limitations as an affirmative defense, then moved for

summary judgment on the limitations issue. Flot established that Shike had served him with citation

outside the applicable limitations period and alleged that she had not been diligent in having

him served with citation. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (“To ‘bring suit’

within the two-year statute of limitations period prescribed by section 16.003, a plaintiff must

not only file suit within the applicable limitations period, but must also use diligence to have the

defendant served with process.”).

                Shike then amended her petition to “raise[] the issue of [Flot]’s absence from the state

during the limitations period and invoke[] the statutory provision that tolls the running of the statute

of limitations during that absence,” and to urge that she “relies on this tolling ‘to the extent and for

the duration that [Flot] was absent from Texas.’”

                Shike thereafter filed a response to Flot’s motion for summary judgment. In her

response, Shike urged her diligence in attempting to serve Flot, attaching an affidavit from

her attorney describing the efforts taken to serve him.           Shike also asserted that Flot, as

summary-judgment movant, was required to negate the tolling issue she had raised in her amended

petition. Shike did not attach any evidence related to her tolling assertion.

                The district court granted Flot’s motion for summary judgment. In one issue on

appeal, Shike contends that summary judgment was improper because Flot failed to negate the

applicability of the out-of-state tolling statute. We agree.

                Once a defendant seeking summary judgment on the affirmative defense of

limitations has established that service was effected after the limitations period, the burden shifts



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to the plaintiff to “explain the delay” by presenting evidence of her diligence. Proulx v. Wells,

235 S.W.3d 213, 216 (Tex. 2007); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220

(Tex. 2003) (citing Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975)). However, if the

plaintiff asserts that a tolling provision applies, the defendant is not entitled to summary judgment

on his limitations defense until he conclusively negates the applicability of the tolling statute.

Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996) (“If the nonmovant asserts that a tolling

provision applies, the movant must conclusively negate the tolling provision’s application to show

his entitlement to summary judgment.” (citing Zale, 520 S.W.2d at 891)).

                In her amended petition, Shike states, “Plaintiff specifically raises the issue of Flot’s

absence from the state during the limitations period and invokes the statutory provision that tolls the

running of the statute of limitations during that absence. Plaintiff relies on this tolling ‘to the extent

and for the duration that the individual Defendant was absent from Texas.’” Further, in her response

to Flot’s summary-judgment motion, Shike argues that her amended petition raised the out-of-state

tolling provision and that, by doing so, she “shift[ed] the burden to [Flot] to disprove.”

                Although Shike never directly alleges that Flot was absent from the state during

the limitations period, our standard of review requires us to indulge every reasonable inference

and resolve any doubts in the non-movant’s favor. See, e.g., Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005) (“When reviewing a summary judgment, we take as true all

evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve

any doubts in the non-movant’s favor.”); Knott, 128 S.W.3d at 215. Doing so here, we conclude

that Shike’s pleadings imply that Flot was out of the state during the limitations period such that the



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out-of-state tolling provision should be applied. As such, Shike raised the issue of the tolling statute

and, having done so, the burden then shifted to Flot to conclusively negate section 16.063’s

applicability. See Jennings, 917 S.W.2d at 793; Zale, 520 S.W.2d at 891. He did not. Therefore

summary judgment was improper. See Tex. R. Civ. P. 166a(c); Zale, 520 S.W.2d at 891. We

sustain Shike’s issue.

                Having sustained Shike’s appellate issue, we reverse the summary judgment and

remand the case to the district court.



                                                __________________________________________
                                                Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Reversed and Remanded

Filed: July 28, 2016




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