i i i i i i
OPINION
Nos. 04-08-00587-CV, 04-08-00857-CV
Sonia VALVERDE,
Appellant
v.
BIELA’S GLASS & ALUMINUM PRODUCTS, INC. and Alert Lock & Key,
Appellees
From the 224th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2008-CI-10519, 2008-CI-18017
Honorable Janet Littlejohn, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: June 10, 2009
REVERSED AND REMANDED
In this consolidated appeal, Sonia Valverde challenges the trial court’s orders granting
summary judgment on her claims against Biela’s Glass & Aluminum Products, Inc. and Alert Lock
& Key. We reverse the judgments of the trial court, and remand the causes for further proceedings.
04-08-00587-CV, 04-08-00857-CV
BACKGROUND
On April 24, 2005, Valverde was injured when a door fell on her while working at a store
in the mall. She sued P.S.I. Total Facility, Inc. (“P.S.I.”), the contractor who had recently repaired
the door, and Ingram Park Mall, L.P. (“Ingram”), the owner of the premises. On August 14, 2007,
P.S.I. filed a motion to designate Biela’s Glass & Aluminum Products, Inc. (“Biela’s”) and Alert
Lock & Key (“Alert”) as responsible third parties pursuant to section 33.004 of the Texas Civil
Practice and Remedies Code (“the Code”). See TEX . CIV . PRAC. & REM . CODE ANN . § 33.004
(Vernon 2008). P.S.I. contracted with Biela’s and Alert to perform maintenance and/or repairs on
the door prior to Valverde’s accident. Valverde was not served with P.S.I.’s motion, and became
aware of it about three months later.
On December 26, 2007, Valverde amended her petition to add causes of action for negligence
against Biela’s and Alert. After filing answers, both Biela’s and Alert responded with motions for
summary judgment alleging that the two-year statute of limitations barred Valverde’s claims against
them. On June 13, 2008, an agreed order was entered by Judge Peter Sakai designating Biela’s and
Alert as responsible third parties as of the date of entry of the order. On June 16, 2008, Valverde
filed her second amended petition, again naming all four defendants. The motions for summary
judgment were subsequently heard and were granted by the trial court on June 24, 2008.1 The June
24 order stated that “the GRANTING of these Motions will have no effect on the designation of
BIELA’S GLASS & ALUMINUM PRODUCTS, INC. and ALERT LOCK & KEY as ‘responsible
third parties’ pursuant to TEXAS CIVIL PRACTICE & REMEDIES CODE § 33.004.”
1
… The trial court severed these claims into a new cause number, 2008-CI-10519, and Valverde filed a notice
of appeal, subsequently numbered 04-08-00587-CV.
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Valverde then filed her third amended petition, again alleging negligence claims against
P.S.I., Ingram, Biela’s, and Alert. Both Biela’s and Alert answered and filed a joint motion for
summary judgment alleging that the original summary judgment entered by the trial court was res
judicata. The trial court heard the matter and granted the joint motion for summary judgment.2
DISCUSSION
On appeal, Valverde challenges the summary judgments granted by the trial court. First, she
contends the trial court erred in granting the motions in the first suit because Biela’s and Alert were
not designated as responsible third parties until Judge Sakai signed the June 13, 2008 order
designating them as such, and therefore, she had 60 days from that date to add them as defendants.
Second, Valverde alleges that the joint motion for summary judgment in the second suit was
erroneously granted on the basis of res judicata. We will address her arguments in turn.
Standard of Review
We review the trial court’s granting of a summary judgment de novo. Reynosa v. Huff, 21
S.W.3d 510, 512 (Tex. App.—San Antonio 2000, no pet.). Accordingly, we will uphold a traditional
summary judgment only if the summary judgment record establishes that there is no genuine issue
of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in
the motion. See TEX . R. CIV . P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.
1997). In determining whether a disputed issue of material fact exists which precludes summary
judgment, we view as true all evidence favorable to the non-movant and indulge every reasonable
inference, and resolve all doubts, in the non-movant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690
2
… The trial court severed these claims into a third cause number, 2008-CI-18017, and Valverde appealed the
matter in appeal number 04-08-00857-CV. This appeal was consolidated with appeal number 04-08-00587-CV pursuant
to Valverde’s unopposed motion.
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S.W.2d 546, 548-49 (Tex. 1985). If the movant establishes his right to summary judgment as a
matter of law, the burden then shifts to the non-movant to raise fact issues that would preclude
summary judgment. Tex. Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730, 733 (Tex.
App.—San Antonio 1998, no pet.) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678 (Tex. 1979)). A defendant seeking summary judgment on the basis of an affirmative
defense, such as statute of limitations, has the burden to conclusively establish that defense,
including the accrual date of the cause of action. Diversicare Gen. Partner, Inc. v. Rubio, 185
S.W.3d 842, 846 (Tex. 2005).
First Suit: Summary Judgment Granted on the Basis of Limitations
To begin with, Valverde argues the trial court erred in granting summary judgment in the first
suit because her claims against Biela’s and Alert were timely. A negligence claim arising from a
personal injury must be brought within two years from the date of injury. TEX . CIV . PRAC. & REM .
CODE ANN . § 16.003(a) (Vernon Supp. 2008). Section 33.004 of the Code, however, provides a
plaintiff with the opportunity to assert a claim after the expiration of limitations when certain
conditions are met. Section 33.004, entitled “Designation of Responsible Third Party,” states in
relevant part:
(a) A defendant may seek to designate a person as a responsible third party by filing
a motion for leave to designate that person as a responsible third party. The motion
must be filed on or before the 60th day before the trial date unless the court finds
good cause to allow the motion to be filed at a later date.
...
(e) If a person is designated under this section as a responsible third party, a claimant
is not barred by limitations from seeking to join that person, even though such
joinder would otherwise be barred by limitations, if the claimant seeks to join that
person not later than 60 days after that person is designated as a responsible third
party.
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(f) A court shall grant leave to designate the named person as a responsible third
party unless another party files an objection to the motion for leave on or before the
15th day after the date the motion is served.
...
(h) By granting a motion for leave to designate a person as a responsible third party,
the person named in the motion is designated as a responsible third party for purposes
of this chapter without further action by the court or any party.
TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(a), (e), (f), (h) (Vernon 2008).
Valverde claims that although the motion for leave to designate Alert and Beila’s as
responsible third parties was filed on August 14, 2007, the trial court did not actually grant the
motion until June 13, 2008. Accordingly, she had 60 days from June 13, 2008 in which to assert
claims against Biela’s and Alert. She filed her second amended petition naming Biela’s and Alert
as defendants on June 16, 2008. Valverde’s responses to the motions for summary judgment
included as attachments both the June 13, 2008 order designating the appellees as responsible third
parties and her second amended petition filed on June 16, 2008.
Alert responds that because Valverde did not file an objection to the motion to designate
within 15 days from the filing of the motion, the motion was granted as a matter of law on August
29, 2007. In support, Alert cites subsection (f), which states that the trial court “shall grant leave to
designate the named person as a responsible third party unless another party files an objection to the
motion for leave on or before the 15th day after the date the motion is served.” TEX . CIV . PRAC. &
REM . CODE ANN . § 33.004(f). Accordingly, Alert argues that Valverde had 60 days from August
29, 2007 in which to join Alert and Biela’s. Biela’s likewise argues that Valverde had 75 days from
August 14, 2007 in which to sue Biela’s and Alert, and that an order granting the motion for leave
is only necessary when there is an objection to the designation.
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04-08-00587-CV, 04-08-00857-CV
This court recently analyzed the language of section 33.004 to determine whether a defendant
is required to file a motion for leave to designate a person as a responsible third party. See Ruiz v.
Guerra, No. 04-08-00090-CV, 2009 WL 1472051 (Tex. App.—San Antonio May 27, 2009, no pet.
h.). We held that the clear language of the statute unambiguously requires that a motion be filed.
Id.; see also Sheffield v. Begeman, 274 S.W.3d 846, 850 (Tex. App.—Eastland 2008, pet. filed).
Further, we held that the plain language of the statute requires the trial court to take action by
granting the motion. Ruiz, 2009 WL 1472051, at *4 (“A plain reading of the statute compels us to
hold that such a designation cannot be achieved without both the timely filing of a motion for leave
and a court order granting leave to designate the named person.”). We based our conclusion on the
language of subsections (f) and (h), which demonstrate that the trial court must take action to grant
the motion for leave. See TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(f) (“A court shall grant
leave to designate the named person as a responsible third party unless another party files an
objection to the motion for leave on or before the 15th day after the date the motion is served.”)
(emphasis added); TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(h) (“By granting a motion for
leave to designate a person as a responsible third party, the person named in the motion is
designated as a responsible third party for purposes of this chapter without further action by the court
or any party.”) (emphasis ours); see also Gregory J. Lensing, Proportionate Responsibility and
Contribution Before and After the Tort Reform of 2003, 35 TEX . TECH L. REV . 1125, 1182 (2004)
(citing TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(e), (h)) (“The sixty-day revival period starts
when the person ‘is designated as a responsible third party,’ which apparently occurs at the time the
trial court ‘actually grant[s] a motion for leave to designate a person as a responsible third party.’”).
It is only upon the trial court’s granting of a motion for leave to designate a person as a responsible
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third party that the designation becomes effective. See TEX . CIV . PRAC. & REM . CODE ANN .
§ 33.004(h).
Because our reading of the statute compels us to hold that an order granting the motion for
leave is required to designate a responsible third party, we cannot agree with the appellees’ assertions
that either: 1) the motion is granted as a matter of law if no objection is filed, or 2) an order is only
required in those instances where an objection is filed. Here, there is an order granting the motion
for leave to designate Biela’s and Alert as responsible third parties. The order was signed by Judge
Sakai on June 13, 2008. Accordingly, Valverde had 60 days from that date in which to join Biela’s
and Alert. Valverde filed her second amended petition on June 16, 2008 naming Biela’s and Alert
as defendants, and thus her claims against them were timely.
Biela’s argues that even assuming the 60-day period ran from the granting of the motion for
leave to designate the appellees as responsible third parties on June 13, 2008, Valverde’s second
amended petition filed on June 16, 2008 fails to “add any allegations that defeat application of the
statute of limitations as to Biela’s” because she “merely amended her already fatally deficient
pleadings.” Biela’s cites no authority to support this proposition, and we disagree that section 33.004
requires Valverde to use any special language to join a party once they have been designated. Under
the statute, once the designation is achieved by virtue of the trial court’s order granting leave to
designate a named person as a responsible third party, the claimant may join the person(s) within 60
days. See TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(e), (h). Accordingly, Valverde’s second
amended petition filed three days after the order designating Biela’s and Alert as responsible third
parties was entered is sufficient to join the appellees.
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Based on the foregoing analysis, we cannot conclude Biela’s and Alert met their summary
judgment burden of conclusively establishing their affirmative defense of limitations. Accordingly,
we sustain Valverde’s first issue on appeal, reverse the summary judgment granted on June 24, 2008,
and remand the cause to the trial court for further proceedings.
Second Suit: Summary Judgment Granted on the Basis of Res Judicata
In response to Valverde’s third amended petition filed on August 7, 2008, Biela’s and Alert
moved for summary judgment contending that her claims against them were barred by res judicata.
Specifically, they argued that: (1) the order granting summary judgment signed by the trial court on
June 24, 2008 was a final order; (2) the parties to the first suit were identical to those in the second
suit; and (3) the second suit was based on the same claims that were raised or could have been raised
in the first suit. The trial court granted the motion for summary judgment on October 14, 2008.
Res judicata bars a party from attempting to relitigate a claim or cause of action that a
competent tribunal has finally adjudicated. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d
203, 206 (Tex. 1999). For res judicata to apply, the following elements must be present: (1) a prior
final judgment on the merits by a court of competent jurisdiction; (2) the same parties or those in
privity with them; and (3) a second action based on the same claims as were raised or could have
been raised in the first action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex.
2008).
Because of our holding that the motions for summary judgment in the first suit were
erroneously granted, a prior final judgment on the merits does not exist on which Biela’s and Alert
can base their res judicata argument. Accordingly, the appellees cannot establish the first element
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of res judicata as a matter of law. The October 14, 2008 order granting summary judgment is
therefore reversed, and the cause is remanded to the trial court for further proceedings.
CONCLUSION
Because the appellees did not establish their affirmative defense of limitations as a matter
of law, the order granting summary judgment in the first suit was erroneous, and therefore the trial
court’s judgment is reversed. Because the second order is solely premised on the erroneously-
granted summary judgment in the first suit, it is also invalid. Accordingly, we also reverse the order
granting summary judgment in the second suit. Both causes are remanded to the trial court for
further proceedings.
Phylis J. Speedlin, Justice
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Sonia Valverde v. Biela's Glass & Aluminum Products, Inc. and Alert Lock and Key
Combined Opinion