Victor Walls v. Travis County and Travis County Sheriff's Department

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00647-CV

Victor Walls, Appellant

v.

Travis County and Travis County Sheriff's Department, Appellees

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,

NO. 225,112, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

Victor Walls, while confined in the Travis County jail, suffered second and third degree

burns when another inmate threw hot water on him. The trial court, in rendering summary judgment against

Walls, found the statute of limitations barred Walls' suit against Travis County. We hold to the contrary,

reverse the trial-court judgment, and remand the cause.

The Controversy

In March 1993, another inmate in the Travis County jail picked up a container of near-boiling water and threw the water on Walls, who was transported to the hospital for treatment of burns to

his face, chest, and arms. In April 1993, Walls notified the Travis County Commissioners Court and the

Travis County Attorney's office of his claim against the county. Travis County investigated Walls' claim

and made a settlement offer shortly before the expiration of the applicable two-year statute of limitations. (1)

Walls filed a hand-written petition in county court on the last day of limitations. His petition named Travis

County as the defendant and gave its correct address for service. The printed face of the citation was

directed to Travis County and gave its correct address; however, a handwritten notation directed service

upon the sheriff's office. The return of service recited that the citation had been served on "Travis County

by delivering to Internal Affairs Michael G. Hemby." It is not controverted that Hemby at that time was

an employee of the Travis County Sheriff's office.

An assistant county attorney filed an answer. The county attorney's office represents Travis

County and the sheriff's office as a part of county government. (2) The answer was filed by an attorney with

authority to act for the county, and with knowledge of the relationship between the county and the sheriff's

office. Although the petition attached to the citation clearly named Travis County as the defendant, the

answer was filed on behalf of Terry Keel as sheriff. Although the answer disclaimed that Terry Keel was

a proper defendant, it went on to interpose a general denial and raise the affirmative defense of sovereign

immunity. (3) Travis County subsequently entered into a Rule 11 agreement concerning discovery, which

referred to "Victor Walls v. Travis County" and which was signed "Attorney for Defendant." All of the

defendant's objections and responses to interrogatories opened with, "Comes Now Defendant Travis

County" and was signed "Attorney for Defendant Travis County." Travis County then filed an answer that

was clearly on behalf of "Travis County" as an entity. This answer raised sovereign immunity as a defense,

but still did not plead that the statute of limitations barred the claim. (4)

In its motion for summary judgment, Travis County for the first time claimed limitations

barred Walls' suit, relying on the rule that a plaintiff must not only file his suit within the limitations period,

but also use diligence to secure service of citation. On appeal, Walls contends that the trial court erred in

rendering judgment that limitations barred his claims. We agree.

Limitations

The general purpose of a statute of limitations is to "compel the exercise of a right of action

within a reasonable time so that the opposing party has fair opportunity to defend, while witnesses are

available and evidence is fresh in their minds." Price v. Estate of Anderson, 522 S.W.2d 690, 692 (Tex.

1975). A statute of limitations ensures that adverse parties receive notice of a claim to prevent "fraudulent

and stale claims from springing up at great distances of time and surprising the other party." Hallaway v.

Thompson , 226 S.W.2d 816, 820 (Tex. 1950). Statutes of limitations should not apply in situations in

which no party is misled or disadvantaged by an error in pleading. Palmer v. Enserch Corp ., 728 S.W.2d

431, 434 (Tex. App.--Austin 1987, writ ref'd n.r.e.). At times, courts apply limitations rules equitably

rather than rigidly. Hernandez v. Furr's Supermarkets, Inc. , 924 S.W.2d 193, 196 (Tex. App.--El

Paso 1996, writ denied); Palmer , 728 S.W.2d at 433 .

"Wrong Defendant "

When the wrong defendant is sued and the proper defendant is not named until after

limitations has expired, suit against the proper defendant will not be barred as long as the record reflects

that there exists a special relationship between the two defendants such that the added defendant was

aware of the facts, not misled, and not disadvantaged in preparing a defense. Enserch v. Parker , 794

S.W.2d 2, 6 (Tex. 1990); Palmer , 728 S.W.2d at 433 . In determining whether to sustain the application

of a limitations statute, the reviewing court should examine the entire record to decide whether the unsued

party had notice and reasonable opportunity to defend. Castro v. Harris County, 663 S.W.2d 502, 505

(Tex. App.--Houston [1st Dist.] 1983, writ dism'd w.o.j.); see Howell v. Coca Cola Bottling Co. of

Lubbock, Inc., 595 S.W.2d 208, 212 (Tex. Civ. App.--Amarillo 1980, no writ).

In Castro , the plaintiffs sued "Harris County" to recover for injuries sustained in a collision

with a truck owned by the Harris County Flood Control District. 663 S.W.2d at 503 . After the expiration

of limitations, Harris County filed a plea in bar, and the plaintiffs then amended their petition to name the

"Harris County Flood Control District" as the proper defendant. Id. at 504 . The Harris County Flood

Control District then filed a plea of limitations. The trial court sustained both pleas, and the plaintiffs

appealed. Id. The Houston Court of Appeals reversed the dismissal, noting that the district had received

appellants' notice of injury and claim within three weeks after the injury arose and the county attorney's

office, which represented both entities, knew that the district was the true target of the suit. Id. at 505 . The

court also noted that the Harris County Flood Control District is not a separate unit of government but part

of the county government unit. Id. The concurring opinion noted that it was inappropriate for government

officials to play a "shell game" with citizen litigants, stating that the county attorney's office "represents no

ordinary party to a controversy, but a client whose chief business is to establish justice, not to achieve

victory." Id. at 506 .

In Rooke v. Jenson, 838 S.W.2d 229 (Tex. 1992), the defendant was the dead tort-feasor's wife, who was the named executrix in the will. Id. The will was probated as a muniment of title,

avoiding the need for an executrix. Upon the plaintiff's motion to seek appointment of an executrix, the

couple's daughter was appointed as executrix. Id. After the plaintiff amended her petition to sue the newly

named executrix, the executrix moved for summary judgment based on limitations. Id. The ultimate

defendant sought to distinguish cases that refused to apply limitations under similar circumstances on the

grounds that the party finally named as defendant in her case was not the person previously served. Id. at

230 . The court noted her knowledge of the suit and representation by the same attorney as represented

her mother and refused to apply limitations. It then stated that the Houston Court of Appeals

"appropriately determined" the law in Castro when it stated that "the statute of limitation herein involved

was not created to provide a log behind which opportunist defendants could smugly lay for two years and

then emerge solemnly proclaiming their rights." Id.

Due Diligence in Service

In its motion for summary judgment, Travis County relied on the rule that to toll the statute

of limitations, a plaintiff must not only file suit within the limitations period, but also must exercise due

diligence in procuring the issuance and service of citation. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.

1990). Due diligence is that diligence to procure service which an ordinarily prudent person would have

used under the same or similar circumstances. Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d

587, 590 (Tex. App.--Corpus Christi 1994, no writ). Cases finding a lack of due diligence in procuring

the issuance and service of citation fall into two general categories: (1) a case is filed within limitations, but

service is not attempted until several months after limitations has run, Gonzalez, 884 S.W.2d at 590

(original petition amended to add new defendants who were not served until five months after limitations

expired); Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.--Fort Worth 1984, writ ref'd n.r.e.) (suit

filed within limitations but no service attempted until ten months after limitations expired); or (2) a case is

filed within limitations, prompt service is attempted but is unsuccessful, and repeated attempts at service

are not timely made, Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 535 (Tex. App.--Dallas

1987, no writ) (petition filed on last day of limitations period, service served on wrong address and returned

unexecuted; no further attempt at service for eight months); Hamilton v. Goodson, 578 S.W.2d 448, 449

(Tex. Civ. App.--Houston [1st Dist.] 1979, no writ) (petition filed within limitations period, service

returned unexecuted after limitations period; no repeat attempt at service for six months).

The cases concerning diligence in service are distinguishable from the current cause. Here,

there was no period of unexplained inactivity on Walls' part. He filed suit within the limitations period and

citation issued promptly. An executed citation was returned. Travis County did not properly raise a defect

in parties, nor move to quash service. Tex. R. Civ. P. 93, 122. Instead, it entered an answer combining

a denial that the sheriff's department was a proper defendant with a general denial and affirmative defense

and then, during discovery, behaved as if Travis County were properly before the court as a defendant.

At the very least, Travis County's actions would have raised a fact issue whether Walls had exercised due

diligence, making summary disposition improper.

More importantly, we think that the cases such as Castro set out the appropriate analysis.

The principles enunciated in these "wrong defendant" cases apply to this cause although Walls actually

named the correct defendant in his petition. See Rooke, 838 S.W.2d 230 . Walls filed a claim with Travis

County approximately one month after the incident. Travis County investigated his claims and made a

settlement offer just before the expiration of the statute of limitations. Walls named Travis County as the

defendant in the original petition, and the attorney responsible for representing Travis County filed an

answer to the suit. The sheriff's office is a party of county government as was the water district in Castro .

As discussed above, Travis County's actions show it was not misled. It had notice of Walls' claim, time

to investigate the claim, and a reasonable opportunity to defend itself against the claim.

Accordingly, we sustain Walls' point of error. We reverse the trial-court judgment and

remand the cause for further proceedings in accordance with this opinion.

Mack Kidd, Justice

Before Justices Powers, Jones and Kidd

Reversed and Remanded

Filed: January 8, 1998

Publish

1. The parties agree that a two-year statute of limitations applies.

2. See County of Brazoria v. Radtke, 566 S.W.2d 326, 328-29 (Tex. Civ. App.--Beaumont 1978,

writ ref'd n.r.e.) (county liable for acts of sheriff as a part of county government).

3. Travis County did not properly plead a defect in parties because it failed to file a verified pleading.

Tex. R. Civ. P. 93.

4. The statute of limitations is an affirmative defense that must be set forth "in a pleading to a preceding

pleading." Tex. R. Civ. P. 94. In its brief on appeal, Travis County refers to its answer as having raised

limitations as a defense. The answer did contain a sentence stating that the county asserts "sovereign

immunity and the exemptions, exceptions and limitations of the Texas Tort Claims Act." Because the Tort

Claims Act itself does not contain a section setting out a statute of limitations but does have a section

entitled "Limitations on Amount of Liability" we think the pleading was ambiguous and question whether

it was adequate to satisfy Rule 94 as the pleading appears to refer to the liability-limitation section of the

Tort Claims Act. However, stronger reasons than waiver exist to hold the defense of limitations unavailable

to Travis County.

-Corpus Christi 1994, no writ). Cases finding a lack of due diligence in procuring

the issuance and service of citation fall into two general categories: (1) a case is filed within limitations, but

service is not attempted until several months after limitations has run, Gonzalez, 884 S.W.2d at 590

(original petition amended to add new defendants who were not served until five months after limitations

expired); Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.--Fort Worth 1984, writ ref'd n.r.e.) (suit

filed within limitations but no service attempted until ten months after limitations expired); or (2) a case is

filed within limitations, prompt service is attempted but is unsuccessful, and repeated attempts at service

are not timely made, Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 535 (Tex. App.--Dallas

1987, no writ) (petition filed on last day of limitations period, service served on wrong address and returned

unexecuted; no further attempt at service for eight months); Hamilton v. Goodson, 578 S.W.2d 448, 449

(Tex. Civ. App.--Houston [1st Dist.] 1979, no writ) (petition filed within limitations period, service

returned unexecuted after limitations period; no repeat attempt at service for six months).

The cases concerning diligence in service are distinguishable from the current cause. Here,

there was no period of unexplained inactivity on Walls' part. He filed suit within the limitations period and

citation issued promptly. An executed citation was returned. Travis County did not properly raise a defect

in parties, nor move to quash service. Tex. R. Civ. P. 93, 122. Instead, it entered an answer combining

a denial that the sheriff's department was a proper defendant with a general denial and affirmative defense

and then, during discovery, behaved as if Travis County were properly before the court as a defendant.

At the very least, Travis County's actions would have raised a fact issue whether Walls had exercised due

diligence, making summary disposition improper.

More importantly, we think that the cases such as Castro set out the appropriate analysis.

The principles enunciated in these "wrong defendant" cases apply to this cause although Walls actually

named the correct defendant in his petition. See Rooke, 838 S.W.2d 230 . Walls filed a claim with Travis

County approximately one month after the incident. Travis County investigated his claims and made a

settlement offer just before the expiration of the statute of limitations. Walls named Travis County as the

defendant in the original petition, and the attorney responsible for representing Travis County filed an

answer to the suit. The sheriff's office is a party of county government as was the water district in Castro .

As discussed above, Travis County's actions show it was not misled. It had notice of Walls' claim, time

to investigate the claim, and a reasonable opportunity to defend itself against the claim.

Accordingly, we sustain Walls' point of error. We reverse the trial-court judgment and

remand the cause for further proceedings in accordance with this opinion.

Mack Kidd, Justice

Before Justices Powers, Jones and Kidd

Reversed and Remanded

Filed: January 8, 1998

Publish

1. The parties agree that a two-year statute of limitations applies.

2. See County of Brazoria v. Radtke, 566 S.W.2d 326, 328-29 (Tex. Civ. App.--Beaumont 1978,

writ ref'd n.r.e.) (county liable for acts of sheriff as a part of county government).

3. Travis County did not properly plead a defect in parties because it failed to file a verified pleading.

Tex. R. Civ. P. 93.

4. The statute of limitations is an affirmative defense that must be set forth "in a pleading to a preceding

pleading." Tex. R. Civ. P. 94. In its brief on appeal, Travis County refers to its answer as having raised

limitations as a defense. The answer did contain a sentence stating that the county asserts "sovereign

immunity and the exemptions, exceptions and limitations of the Texas Tort Claims Act." Because the Tort

Claims Act itself does not contain a section setting out a statute of limitations but does have a section

entitled "Limitations on Amount of Liability" we think the pleading was ambiguous and question whether

it was adequat