Frasier v. Shafeeq

Alexander Frasier and Hitomi Frasier, Appellants v. Kathleen Ann Shafeeq, Appellee

No. 02-21-00010-CV

Court of Appeals of Texas, Second District, Fort Worth

February 17, 2022

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-322104-20

Before Womack, Wallach, and Walker, JJ.

MEMORANDUM OPINION

BRIAN WALKER JUSTICE

In this appeal from a summary judgment, we are asked a discrete legal question based on undisputed facts: If a limitations period expires on a Saturday and the next Monday is a national holiday, is the period extended to Tuesday even though the county's offices were open for business on the national holiday? We conclude that limitations was extended to Tuesday and reverse the trial court's summary judgment concluding the opposite.

I. BACKGROUND

Appellants Alexander and Hitomi Frasier were in a car accident with appellee Kathleen Ann Shafeeq on November 9, 2017, in Tarrant County. Under the applicable statute of limitations, the Frasiers' personal-injury suit was due no later than November 9, 2019, which was a Saturday. See Tex Civ. Prac. & Rem. Code Ann. § 16.003(a). Monday November 11, 2019, was Veterans Day, which the Texas Legislature has classified as a "national holiday . . . dedicated to the cause of world peace and to honoring the veterans of all wars in which Texans and other Americans have fought." Tex. Gov't Code Ann. § 662.003(a)(7). The Frasiers filed suit on Tuesday, November 12, 2019, in Tarrant County.

Shafeeq answered the petition and raised the affirmative defense of limitations. She then filed a traditional motion for summary judgment on her defense and argued that because the Tarrant County Commissioners Court had determined that county offices would be open on Veterans Day, the Frasiers' limitations period was not extended to the next day-November 12-under either Rule 4 or the statutory limitations extension. See Tex. Civ. Prac. & Rem. Code Ann. § 16.072; Tex. R Civ. P. 4. The Frasiers responded that because the Texas Legislature had expressly provided that Veterans Day is a "national holiday," Rule 4 extended their deadline to file suit to the next day that was not a legal holiday-November 12, 2019. Tex. Gov't Code Ann. § 662.003(a)(7). The trial court granted Shafeeq's motion and dismissed the Frasiers' individual claims against her.^[1]

II. DISCUSSION

A. Standard of Review

We review the trial court's summary judgment de novo. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We take as true all evidence favorable to the Frasiers and we indulge every reasonable inference and resolve any doubts in their favor. Id.

A traditional motion for summary judgment may be granted only when the movant-Shafeeq- establishes that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Because Shafeeq moved for summary judgment on the basis of limitations, she had the burden to conclusively establish the defense by showing when the cause of action accrued and that suit was filed outside the applicable limitations period. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Boyd v. Kallam, 152 S.W.3d 670, 683 (Tex. App.-Fort Worth 2004), pets. denied, 232 S.W.3d 774, 776 (Tex. 2007). If she did so, the burden shifted to the Frasiers to raise a fact issue regarding an applicable avoidance of limitations. See KPMG Peat Marwick, 988 S.W.2d at 748.

B. Time Calculation and Extension

Rule 4 governs time computation for "any period of time prescribed or allowed by [the rules of civil procedure], by order of court, or by any applicable statute." Tex.R.Civ.P. 4 (emphasis added). Thus, Rule 4 applies to the calculation of a limitations period. Martinez v. Windsor Park Dev. Co., 833 S.W.2d 950, 951 (Tex. 1992); Hughes v. Autry, 874 S.W.2d 890, 894 (Tex. App.-Austin 1994, no writ) (per curiam). The rule directs that the first day of the time period is not counted but that the last day is included unless the last day "is a Saturday, Sunday, or legal holiday," which extends the operative period to the end of the next day that is not a Saturday, Sunday, or legal holiday. Tex.R.Civ.P. 4.

Section 16.072, which also applies to limitations periods, is a little different. It provides that if the last day of a limitations period falls on a "Saturday, Sunday, or holiday," the period is "extended to include the next day that the county offices are open for business." Tex. Civ. Prac. & Rem. Code Ann. § 16.072. Section 16.072 is "somewhat broader" than Rule 4 because Section 16.072's application "is not restricted to legal holidays." Martinez , 833 S.W.2d at 951.

Even so, Section 16.072 and Rule 4 should be construed similarly because both "extend time periods for taking action when the period ends on weekends and holidays." Id.

C. Application

On appeal, the Frasiers contend that Rule 4 extended the limitations period to November 12 because a legal holiday, which includes national holidays set by the Legislature, is not included in time computations. And although they initially seemed to concede that limitations expired on Veterans Day under Section 16.072 because the county offices were open, the Frasiers later argued that Section 16.072 includes the same holidays contemplated under Rule 4 and did extend the limitations period. In sum, the Frasiers assert that under either Rule 4 or Section 16.072, November 11 is not included in the computation of the end of their limitations period because Veterans Day is a legislatively declared holiday.

We note that the Frasiers did not make their argument based on Section 16.072 in the trial court in response to Shafeeq's summary-judgment motion and that the majority of their appellate argument is focused on Rule 4. But the Frasiers asserted in the trial court that they had filed their suit timely, thereby necessarily arguing that Shafeeq had not conclusively established that they had filed their suit outside of the limitations period. The Frasiers continue to raise that issue on appeal in attacking the trial court's summary judgment. Because the trial court's summary judgment must stand or fall on its own merits, the Frasiers may challenge on appeal the legal sufficiency of the summary-judgment grounds presented by Shafeeq-Rule 4 and Section 16.072. See Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); cf Li v. Pemberton Park Cmty. Ass'n, 631 S.W.3d 701, 704-05 (Tex. 2021) ("And while appellate courts 'do not consider issues that were not raised . . . below,' parties may 'construct new arguments in support of issues' that were raised." (quoting Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014))).

Again, the Legislature has identified Veterans Day as a national holiday and, thus, as a legal holiday. Tex. Gov't Code Ann. §§ 662.003(a)(7), 662.021(1). See generally Cummings v. Billman, 629 S.W.3d 297, 299 n.1 (Tex. App.-Fort Worth 2020, no pet.) (concluding, in case from Denton County, that motion to reinstate was timely filed on 31st day because 30th day fell on Veterans Day). The Texas Supreme Court has held that a legislatively declared holiday for state employees is "a legal holiday for procedural purposes within the meaning of Rule 4." Mid-Continent Refrigerator Co. v. Tackett, 584 S.W.2d 705, 706 (Tex. 1979); see also Dorchester Master Ltd. P'ship v. Hunt, 790 S.W.2d 552, 552-53 (Tex. 1990); Johnson v. Tex. Employers Ins. Ass'n, 674 S.W.2d 761, 762 (Tex. 1984); Blackman v. Hous. Auth. of City of Dall, 254 S.W.2d 103, 104-06 (Tex. 1953); Old Republic Ins. Co. v. Wuensche, 782 S.W.2d 346, 348 (Tex. App.-Fort Worth 1989, writ denied). Thus, it seems clear that under Rule 4, the Frasiers' suit was timely filed on November 12 because that was the "next day which [was] not a Saturday, Sunday, or legal holiday." Tex.R.Civ.P. 4.

The wrinkle in this case arises because the Tarrant County Commissioners Court, contrary to many other counties, ^[2] has declared that its offices will be open on Veterans Day. Section 16.072, therefore, would seem to dictate that the Frasiers were required to file suit on November 11 because the county offices were "open for business." Tex. Civ. Prac. & Rem. Code Ann. § 16.072. The Frasiers succinctly illustrate the practical complications that would arise under an interpretation that would render their suit timely under Rule 4 but time-barred under Section 16.072:

If this Court adopts the position of Shafeeq in this case, then the last day of any statute of limitations (and perhaps deadlines under other statutes as well), would vary from county to county. It would vary depending on which county the incident sued upon occurred. It would depend on how many Defendants are being sued and the residences of each of those Defendants. Each of these factors influence the appropriate venue for a suit and, therefore, would influence a determination of the last day of a statute of limitations[, ] which will be different in each case. In sum, an identical event in two different counties in the state would have two different statutes of limitation even though the state has only one statute of limitation for that type of event. If an attorney woke up on a day after a legal holiday and realized that a county of proper venue was open for business on that legal holiday, he could pick any other county, say Cherokee County, to file in the next day so long as that county had not been open for business on the legal holiday. If it is a county of improper venue, it will probably then be transferred to a county of proper venue. But it will nevertheless be timely filed under the law that Shafeeq is

...