Opinion issued August 20, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00693-CV
                           ———————————
                     BRAD MICHAEL RYES, Appellant
                                       V.
                     DIANNE RICHARD ROSS, Appellee


               On Appeal from the County Court at Law No. 1
                          Brazoria County, Texas
                      Trial Court Case No. CI56457


                         MEMORANDUM OPINION

      Appellant, Brad Michael Ryes, challenges the trial court’s rendition of

summary judgment in favor of appellee, Dianne Richard Ross, in Ryes’s suit

against her for negligence. In his sole issue, Ryes contends that the trial court

erred in granting Ross summary judgment on his negligence claim because the
statute of limitations was tolled pursuant to Texas Civil Practices and Remedies

Code section 16.063 (“Section 16.063”).1

      We reverse and remand.

                                   Background

      In his petition, filed on September 5, 2017, Ryes alleged that, on August 30,

2015, while backing his car out of a parking space in a parking lot in Brazoria

County, Texas, Ross’s car “backed into” the car that Ryes was driving. According

to Ryes, he “sustained serious injuries” and incurred damages “[d]ue to the force

and impact of the collision.” Ryes brought a claim for negligence against Ross and

sought damages for the injuries resulting from the car collision. He further alleged

that “[u]pon information and belief,” Ross had “been outside of the State of Texas

for a number of days and unavailable for service of process.”

      Ross generally denied Ryes’s allegation and asserted various affirmative and

other defenses, including that Ryes’s claim was barred by the applicable two-year

statute of limitations.2 Ross then moved for summary judgment, arguing that she

was entitled to judgment as a matter of law because Ryes’s negligence claim was

time barred. More specifically, she asserted that pursuant to Section 16.003(a),

Ryes had two years from the date of the car collision—August 30, 2015—to bring



1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 16.063.
2
      See id. § 16.003(a).
                                         2
his claim for negligence against her. And Ryes did not bring suit until September

5, 2017, which is more than two years from the date of the car collision.

      In response to Ross’s summary-judgment motion, Ryes argued that his

claims were not time barred because the applicable limitations period was tolled

pursuant to Section 16.063, which suspends the running of limitations when a

person against whom a cause of action may be maintained is absent from the state.3

Therefore, Ryes argued that because Ross was “out of the State of Texas for more

than five days from the date of the [collision] until the date [his] lawsuit was filed,”

his filing of his negligence suit filed on September 5, 2017 was timely.

      Ross then amended her summary-judgment motion to assert that “brief,

intermittent absences from Texas” during a limitations period do “not toll the

statute of limitations period under Section 16.063.” And she asserted that the

statute of limitations should not be tolled in the case because she was a Texas

resident at the time of the car collision, remained a Texas resident for the entire

limitations period, and only left the state for a “brief, five (5) day

vacation . . . since the date of the [car collision].” Ross further asserted that during

her vacation she remained “amenable to service of process” and, thus, Section

16.063 did not apply in this case. Also, Ross argued that even if Section 16.063

applied, Ryes “still missed the deadline to file suit and [his negligence] claim [was]


3
      Id. § 16.063.
                                           3
barred” because he filed suit six days after the statute of limitations period had run

and Ross had only left the State of Texas for five days.

      In Ryes’s amended summary-judgment response, he asserted that he filed his

negligence suit against Ross on September 4, 2017, within the five-day tolling of

the applicable statute of limitations. And because Texas Rule of Civil Procedure

21(f)(5) deems an electronically-filed document “filed when transmitted to

the party’s . . . electronic filing service-provider,” his lawsuit was timely filed.4

Ryes attached to his amended summary-judgment response an electronic-filing

receipt reflecting that his suit was filed on Monday, September 4, 2017.

      In her reply Ross re-urged her argument that the limitations period was not

tolled in this case. She further argued that because Monday, September 4, 2017,

was Labor Day, which is a legal holiday, that Texas Rule of Civil Procedure

21(f)(5)(A)5 deemed that Ryes’s suit was filed the next day, i.e., six days after the

limitations period had run. Ross attached to her reply two documents establishing

that Monday, September 4, 2017 was Labor Day and that Labor Day is a legal

holiday.

      After a hearing, the trial court granted Ross’s summary-judgment motion.




4
      See TEX. R. CIV. P. 23(f)(5).
5
      Id. 21(f)(5)(A).
                                          4
                               Standard of Review

      We review a trial court’s summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take

as true all evidence favorable to the non-movant, and we indulge every reasonable

inference and resolve any doubts in the non-movant’s favor. Valence Operating,

164 S.W.3d at 661; Knott, 128 S.W.3d at 215.                     If a trial court

grants summary judgment without specifying the grounds for granting the motion,

we must uphold the trial court’s judgment if any of the asserted grounds are

meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied).

      To prevail on a matter-of-law summary-judgment motion, the movant must

establish that no genuine issue of material fact exists and the trial court should

grant judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat

Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

When a defendant moves for a matter-of-law summary judgment on an affirmative

defense, she must plead and conclusively establish each essential element of her

affirmative defense, thereby defeating the plaintiff’s cause of action. See Cathey v.

Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995). Once the movant meets her burden, the burden


                                          5
shifts to the non-movant to raise a genuine issue of material fact

precluding summary judgment. See Siegler, 899 S.W.2d at 197; Transcont’l Ins.

Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.]

2010, no pet.). The evidence raises a genuine issue of fact if reasonable and

fair-minded fact finders could differ in their conclusions in light of all of

the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007).

                                    Limitations

      In his sole issue, Ryes argues that the trial court erred in granting Ross

summary judgment based on limitations because the statute of limitations period

was tolled, pursuant to Section 16.063, making his negligence suit filed timely. It

is undisputed that the statute of limitations for Ryes’s negligence claim is two

years6 and that Ryes filed his negligence suit more than two years after his claim

had accrued. Ryes contends that Section 16.063 rendered his suit timely because

Ross left the state for five days during the two-year period.

      As the party asserting the affirmative defense and the movant for summary

judgment, Ross bore the burden to conclusively establish her statute-of-limitations

defense as a matter of law. Richardson v. Allstate Tex. Lloyd’s, 235 S.W.3d 863,

865 (Tex. App.—Dallas 2007, no pet.) (citing Jenkins v. Henry C. Beck Co., 449


6
      See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a).
                                          6
S.W.2d 454, 455 (Tex. 1969)). This also includes the burden of negating any

applicable tolling or suspension statute raised by the non-movant. See Medina v.

Tate, 438 S.W.3d 583, 586 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing

Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975)).

      Section 16.063, the tolling provision at issue in this case, provides:

      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 limitations for the period of the person’s absence.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.063.

      Here, Ross asserts that Section 16.063 did not toll the limitations period for

her five-day trip outside of the State of Texas and only concerns “amenability to

service, rather than . . . physical presence within the territorial limits of the state,”

relying on two opinions from the Texas Supreme Court and one from our sister

court. See Ashley v. Hawkins, 293 S.W.3d 175 (2009); Kerlin v. Sauceda, 263

S.W.3d 920 (Tex. 2008); Zavadil v. Safeco Ins. Co. of Ill., 309 S.W.3d 593 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied). However, as Ross also admits, this

Court has previously considered and rejected her exact argument. See Medina, 438

S.W.3d at 587–91. Thus, Ross requests that we reconsider our prior holding in

light of the case law cited in her brief, which is allegedly “on point and contrary to

[this Court’s] prior interpretation of [S]ection 16.063.”




                                           7
      As this Court recognized in Medina:

      Texas courts have historically interpreted [S]ection 16.063 to mean
      that “the time during a person’s absence from the state, for whatever
      purpose, will not be included in calculating the period of limitations.”
      E.g., Loomis v. Skillerns-Loomis Plaza, Inc., 593 S.W.2d 409, 410
      (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.). “The time of a
      person’s absence includes ‘each departure from the state and the
      whole time of [each] absence.’” Ray v. O’Neal, 922 S.W.2d 314,
      316–17 (Tex. App.—Fort Worth 1996, writ denied) (quoting Phillips
      v. Holman, 26 Tex. 276, 282 (1862); Fisher v. Phelps, Dodge &
      Co., 21 Tex. 551, 560 (1858)). “Although the applicability of
      [S]ection 16.063 does not depend on proof of the precise periods of
      the defendant’s absence from the state, there must be evidence from
      which the fact finder might reasonably conclude that the defendant
      had not, in the aggregate, been in the state the full statutory period.”
      Ray, 922 S.W.2d at 317 (citing Wise v. Anderson, 163 Tex. 608, 359
      S.W.2d 876, 880 (1962)).

438 S.W.3d at 586–87. We further explained:

      Section 16.063 has consistently been interpreted, as a general rule, to
      apply only to Texas residents. E.g., Guardia v. Kontos, 961 S.W.2d
      580, 584 (Tex. App.—San Antonio 1997, no writ) (“[T]he section
      16.063     tolling     provisions      are   not      applicable     to
      nonresidents.”); Mourning v. Crown Stevedoring Co., 417 S.W.2d
      725, 726 (Tex. Civ. App.—Waco 1967, no writ) ([p]redecessor to rule
      16.063 “Article 5537, Vernon’s Ann. Tex. Civ. St. (providing absence
      from the State shall not be counted as part of limitation time) has no
      application to non-residents.”). “The only exception to this rule is
      where the nonresident is present in Texas when the obligation arose.”
      Guardia, 961 S.W.2d at 584; see also Ahrenhold v. Sanchez, 229
      S.W.3d 541, 543 (Tex. App.—Dallas 2007, no pet.) (“Generally,
      [S]ection 16.063 applies to (1) resident defendants or (2)
      non-residents who are present in Texas when an obligation arises or
      when the cause of action accrues.”)[.]

Id. at 589.



                                         8
      Like Ross, the defendant in Medina also relied upon Ashley, Kerlin, and

Zavadil in support of his position. However, our Court distinguished the two

Texas Supreme Court cases relied upon by Ross, i.e., Ashley and Kerlin, as

involving the “exception” to the general rule that Section 16.063 does not apply to

nonresident defendants. Id. Specifically, we explained:

      [Ashley and Kerlin] involved nonresident defendants who had
      committed acts in Texas forming the basis of the suits against them.
      In Kerlin, the court held that a nonresident defendant who had
      contracted in Texas was nonetheless deemed “present by doing
      business in this state” as defined by the Texas longarm statute, despite
      his physically being absent from the state. 263 S.W.3d at 927–28.
      Accordingly, the court concluded that the tolling statute did not
      apply. Id. at 928. In Ashley, the court held that a nonresident
      involved in a car wreck in Texas was not considered absent from the
      state for purposes of tolling because he could be served both through
      section 17.062 (providing service on Chairman of Transportation
      Commission as agent for nonresident involved in vehicle accident in
      state) and through section 17.044 (longarm statute providing service
      on Secretary of State for nonresidents doing business in state) of the
      Texas Civil Practice and Remedies Code. 293 S.W.3d at 179–82.

Id. In other words, the rule set forth by Kerlin and Ashley is that a nonresident

defendant is “‘present’ in Texas, for purposes of the tolling statute, if he or she is

amenable to service under the general longarm statute, as long as the defendant has

‘contacts with the state sufficient to afford personal jurisdiction.’” Ashley, 293

S.W.3d at 179 (quoting Kerlin, 263 S.W.3d at 927).




                                          9
      This Court in Medina also rejected the defendant’s the request to extend the

logic of Kerlin and Ashley to resident defendants. In recognizing that our sister

court had reached the opposite conclusion in Zavadil, this Court explained:

      Although we strive for uniformity with our sister Houston court to
      provide predictability for litigants, practitioners, and trial courts
      within our overlapping jurisdictional boundaries, we do not view the
      supreme court decisions cited by the Fourteenth Court—dealing with
      nonresidents—so broad as to overrule our prior interpretation of
      [S]ection 16.063 with regard to Texas residents.                In our
      view, Zavadil’s holding that a resident defendant’s absence from the
      state does not toll limitations under [S]ection 16.063 because the state
      always has jurisdiction over its own residents and because residents
      need not be personally served cannot be squared with the actual
      language of [S]ection 16.063, and such interpretation effectively
      renders it meaningless.

      The statute provides that 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 limitations for the period of the
      person’s absence.” Zavadil essentially appends to the statute the
      additional provision, “unless the person is subject to personal
      jurisdiction in Texas and amenable to service.” With regard to
      Texas-resident defendants, [S]ection 16.063 and its predecessor
      statutes have consistently been—for more than one hundred years—
      interpreted to reflect the legislature’s intent that any departure from
      the state during the limitations period not be included in calculating
      the limitations period. With regard to Texas residents, [S]ection
      16.063’s application has not previously been tied to the Texas courts’
      personal jurisdiction over the defendant (which, as the Zavadil court
      pointed out, is never an issue when the defendant is a Texas resident),
      nor has it been tied to the defendant’s amenability to service (which
      again, as the Zavadil court pointed out, is never an issue given the
      options for substitute service in Texas). Indeed, we cannot conceive
      of a situation under Zavadil that the statute could ever toll limitations
      against a resident defendant.

Id. at 590–91 (internal footnote omitted).
                                         10
      Medina has not been overruled by this Court or the Supreme Court. And

there has been no statutory change to Section 16.063 since we interpreted the

provision in Medina. As such, we are bound by this Court’s prior holding in

Medina and Ross presents no reason to revisit the prior holding that was not

already considered by the Court in that case. See, e.g., Taylor v. First Cmty. Credit

Union, 316 S.W.3d 863, 869 (Tex. App.—Houston [14th Dist.] 2010, no pet.)

(“Absent a decision from a higher court or this court sitting en banc that is on point

and contrary to the prior panel decision or an intervening and material change in

the statutory law, this court is bound by the prior holding of another panel of this

court.”).

      Accordingly, we follow the binding precedent of this Court in Medina and

conclude that Ross’s five-day vacation out of the State of Texas tolled the statute

of limitations in this case.

      Ross next asserts that even if the Section 16.063 tolling provision applied in

the instant case it would only extend the statute of limitations period for five days

to September 4, 2017 and Ryes filed his petition six days after the two-year

limitations period had expired on September 5, 2017.

      A document is considered filed when it is electronically transmitted. See

TEX. R. CIV. P. 21(f)(5). However, if that document is transmitted on a Saturday,

Sunday, or legal holiday, it is “deemed filed on the next day that is not a Saturday,
                                         11
Sunday, or legal holiday.”          See TEX. R. CIV. P. 21(f)(5)(A).             The

summary-judgment evidence establishes that Ryes filed his petition electronically

on September 4, 2017, which was Labor Day (i.e., indisputably a “legal holiday”).

Therefore, his petition was deemed filed the next day that the trial court was open,

i.e., September 5, 2017. Although technically September 4, 2017 should have been

the last day on which Ryes could have filed his negligence suit, because that day

was a “holiday,” “the period for filing [his] suit [was] extended to include the next

day that the county offices [were] open for business.” TEX. CIV. PRAC. & REM.

CODE ANN. § 16.072.

      We note that Ross argues that Ryes could not rely on Texas Civil Practices

and Remedies Code section 16.072 to support his position because he did not raise

any argument based on the provision in his response to Ross’s summary-judgment

motion in the trial court. However, we disagree. The parties do not dispute, and

we may take judicial notice, that September 4, 2017 was a legal holiday on which

the Texas state courts were closed. See TEX. R. EVID. 201. Despite the alleged

tardiness of Ryes’s assertion, “the language of Section 16.072 and the days of the

year are beyond dispute.” Sanders v. Constr. Equity, Inc., 42 S.W.3d 364, 367

(Tex. App.—Beaumont, pet. denied) (taking judicial notice of holiday and holding

pleading timely filed where last day of limitations period on holiday and pleading

filed next day court opened even though “calendar” issue not raised until oral


                                         12
argument).     And, as previously stated, it was Ross’s burden as the

summary-judgment movant to conclusively establish the elements of her

affirmative defense of statute of limitations. See, e.g., Cathey, 900 S.W.2d at 341.

      Accordingly, because Ross did not conclusively prove her affirmative

defense of statute of limitations, we hold that the trial court erred in granting her

summary judgment.

      We sustain Ryes’s sole issue.

                                    Conclusion

      We reverse the judgment of the trial court and remand for further

proceedings consistent with this opinion.




                                              Julie Countiss
                                              Justice

Panel consists of Justices Lloyd, Landau, and Countiss.

Justice Lloyd, concurring.




                                         13
