Affirmed and Memorandum Opinion filed February 9, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00078-CV
OLIVIA SEGOVIA, Appellant
V.
SUZANNE STEBBINS, Appellee
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2020-64170
MEMORANDUM OPINION
Appellant Olivia Segovia challenges the trial court’s summary-judgment
dismissal of her negligence claims against appellee Suzanne Stebbins. The order
granting Stebbins’s motion for summary judgment based on her statute of
limitations defense effectively disposed of the only claims asserted by Segovia and
operates as a final judgment. In three issues she challenges the order, asserting that
the trial court erred (1) by granting the motion after Segovia raised a valid Statue
of Limitations tolling argument to which Stebbins failed to respond, (2) by
implicitly finding that the time to file her lawsuit had not been extended under the
Supreme Court’s Emergency Order, and (3) by any implicit finding that Segovia
failed to diligently serve Segovia with her lawsuit. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises from a motor vehicle accident that occurred on October 5,
2018. More than two-years later, on October 8, 2020, Segovia filed her personal
injury negligence lawsuit against Stebbins.
Stebbins filed her first amended answer on November 9, 2020, asserting that
Segovia’s claims are barred by the two-year statute of limitations. Not long
thereafter, Stebbins filed her summary-judgment motion based on the two-year
statute of limitation under Section 16.003(a) of the Texas Civil Practice and
Remedies Code.
In response to Stebbins’ summary-judgment motion, Segovia argued that the
statute of limitations had been tolled or extended under an emergency order issued
by the Supreme Court of Texas.
The trial court granted Stebbins’ motion and this appeal followed.
II. ISSUES AND ANALYSIS
Though we address each issue raised by Stebbins, we approach them as one
singular question that calls for us to determine whether the trial court erred in
granting summary judgment on the statute of limitations defense in light of the
Supreme Court’s emergency order related to COVID-19 in effect at the time.
In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
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Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court’s
summary judgment, we consider all the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors 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). When the order
granting summary judgment does not specify the grounds upon which the trial
court relied, we must affirm the summary judgment if any of the independent
summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872 (Tex. 2000). The only summary-judgment ground
before the trial court was Stebbin’s affirmative defense on the statute of
limitations.
A defendant moving for summary judgment on the affirmative defense of
limitations has the burden to conclusively establish that defense. KPMG Peat
Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). 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.
The parties do not dispute that Segovia’s claim accrued on October 5, 2018,
the day of the car collision, or that Segovia filed her lawsuit on October 8, 2020.
Neither party disputes that the nature of the case is one of “personal injury” such
that, barring any other relevant consideration, Segovia would had to have brought
her suit not later than October 5, 2020, “two years after the day the cause of action
accrues.” Tex. Civ. Prac. & Rem. Code § 16.003(a).
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But in response to Stebbins’s motion, Segovia asserted that the limitations
period was suspended or tolled by operation of the Twenty-Sixth Supreme Court’s
Emergency Order Regarding COVID-19 State of Disaster (Twenty-Sixth
Emergency Order). We thus review the trial court’s implicit rejection of this
argument. The pertinent part of the Twenty-Sixth Emergency Order stated:
2. Subject only to constitutional limitations, all courts in Texas may in
any case, civil or criminal—and must to avoid risk to court staff,
parties, attorneys, jurors, and the public—without a participant's
consent. . .modify or suspend any and all deadlines and procedures,
whether prescribed by statute, rule, or order, for a stated period ending
no later than December 1, 2020.
Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster, 609
S.W.3d 135 (Tex. 2020) (September 18, 2020).
This court has previously held that the Supreme Court COVID Emergency
Orders do not extend deadlines for perfecting appeals, Lane v. Lopez, No. 14-20-
00633-CV, 2020 WL 6439689 (Tex. App.—Houston [14th Dist.] Nov. 3, 2020,
pet. denied) (mem. op.), nor do they permit a court to extend deadlines once
jurisdiction is lost. Harris County v. Davidson, 653 S.W.3d 318, 322 (Tex. App.—
Houston [14th Dist.] 2022, no pet.). A statute of limitations deadline, however, is
an affirmative defense and “not a jurisdictional hurdle.” Prescod v. Tkach, No. 02-
21-00162-CV, 2022 WL 246858, at *5 (Tex. App.—Fort Worth Jan. 27, 2022, no
pet.).
Presuming without deciding that the Twenty-Sixth Emergency Order gives
the trial court discretion to suspend the statute of limitations, trial courts could just
as easily exercise discretion and choose not to. By its terms, the Twenty-Sixth
Emergency Order authorizes a trial court to modify statutory deadlines “[s]ubject
only to constitutional limitations.” Though the authorization is generally
discretionary, i.e. “all courts in Texas may”, it also imposes a mandate on trial
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courts to exercise this function “to avoid risk to court staff, parties, attorneys,
jurors, and the public.”
In affirming a trial court’s denial of a motion to dismiss based on late
medical expert reports this court recently observed, construing the same language
in the Twenty-Ninth Emergency Order, that such language does not condition the
trial court’s exercise of this discretion on evidence that COVID-19 affected the
claimant’s ability to meet the initial expert-report deadline. See Ajao v. Hall, 654
S.W.3d at 28. But that does not mean that the trial court is required to grant all
requests for extensions or extend statutes of limitations. The “starting point” for
the Emergency Order “is that the trial court ‘may’ modify or suspend any
deadline.” Pescod, 2022 WL 246858, at *5. In general, “may” is a permissive term
that gives rise to discretionary authority or grants permission or a power. See Tex.
Gov't Code Ann. § 311.016(1); see Walker v. Schion, 420 S.W.3d 454, 458 (Tex.
App.—Houston [14th Dist.] 2014, no pet.); see also Skeels v. Suder, No. 02-18-
00112-CV, 2021 WL 4785782, at *8 (Tex. App.—Fort Worth Oct. 14, 2021, no
pet. h.) (mem. op. on reh’g). Consistent with the use of this permissive term, Texas
courts have interpreted the emergency orders as generally permitting trial courts to
extend deadlines rather than requiring them to do so. See Kim v. Ramos, 632
S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (collecting cases);
Pescod, 2022 WL 246858, at *5.
In this case, Segovia’s attorneys presented two affidavits from her counsel.
One attorney indicated that he was infected with COVID from October 2, 2020 to
October 18, 2020, and presented test results to support the statement. Another
attorney filed an affidavit that his lawyers and staff had been badly infected for
more than a month during the summer, well before the expiration of the statute of
limitations. The latter attorney did not indicate what prevented him from filing the
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lawsuit within the statute of limitations.
We find nothing on this record that would have required the court to act
pursuant to the mandatory language to “avoid risk to court staff, parties, attorneys,
jurors, and the public.” Moreover, Segovia has not argued that any constitutional
provision required the trial court to extend the statute of limitations. In light of
these findings, we conclude that the trial court did not abuse its discretion by
refusing to extend the statute of limitations. See Broadway v. Lean on 8, Inc., No.
03-21-00663-CV, 2022 WL 3691678, at *4 (Tex. App.—Austin Aug. 26, 2022, no
pet.). We therefore overrule appellant’s second issue.
Because it was Segovia’s burden to establish a valid basis to avoid the
operation of the statute of limitations and she failed to do so, Stebbins was not
required to rebut the argument. We thus, overrule appellant’s first issue.
Finally, because we have determined–based on the time of Segovia’s filing–
that the trial court had discretion to not extend the statute of limitations and
accordingly grant the summary-judgment motion on the statute of limitations
defense, we need not address the court’s order with respect to any implicit finding
as to the timing of service. We therefore overrule appellant’s third issue.
III. CONCLUSION
Having overruled each issue asserted by Segovia, we affirm.
/s/ Randy Wilson
Justice
Panel consists of Justice Bourliot, Justice Hassan and Justice Wilson.
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