Latrina Kingsbury v. A. C. Automotive, Inc. and Maria G. Martinez

• Court: Court of Appeals of Texas
• Decided: April 2, 2015
• Docket: 01-14-00205-CV
• Status: Published

Opinion

ACCEPTED 01-14-00205-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/2/2015 1:46:51 PM CHRISTOPHER PRINE CLERK

No. 01-14-00205-CV ______________________________________________________________________________ FILED IN IN THE 1st COURT OF APPEALS COURT OF APPEALS HOUSTON, TEXAS FOR THE 4/2/2015 1:46:51 PM FIRST SUPREME JUDICIAL DISTRICT CHRISTOPHER A. PRINE OF Clerk TEXAS AT HOUSTON, TEXAS ______________________________________________________________________________

LaTRINA KINGSBURY, Appellant,

vs.

A.C. AUTOMOTIVE, INC. AND MARIA G. MARTINEZ, Appellees. ______________________________________________________________________________

Appeal from the County Civil Court At Law No. 1 of Harris County, Texas ______________________________________________________________________________

MOTION FOR REHEARING

TO THE HONORABLE COURT OF APPEALS:

LaTRINA KINGSBURY, Appellant in this cause, makes this Motion for Rehearing of

the judgment of this Court rendered on March 26, 2015, and in support of said motion would

respectfully show the Court the following.

I.

1. Point of Error: The Court of Appeals erred in affirming the trial court’s judgment

on the basis that the statute of limitations had run on the Appellant’s breach of contract cause of

action. 2. Argument and Authorities: The Court is asked to take judicial notice of the factual

assertions contained in Appellees’ Brief. On page 1 of Appellees’ Brief, the Appellees judicially

admit that they sold Appellant’s vehicle on November 19, 2010. On that same page, the

Appellees judicially admit that the Appellant filed her lawsuit on January 8, 2013. This Court

must accept those facts as true if they are not contradicted. See, e.g., Western Steel Co. v.

Altenburg, 206 S.W.3d 121, 124 (Tex. 2006); TEX. R. APP. P. 38.1(g).

The harm to the Appellant, as to the breach of contract cause of action, did not occur until

the vehicle in question was sold. Moreover, even this Court opined that in November, 2011, the

Appellant did not find out that the vehicle was sold until she attempted to purchase a new

registration sticker for the vehicle. See Slip Op. at 3-4.

The statute of limitations runs not from the date of the wrongful act or omission, but from

the date the nature of the injury was or should have been discovered by the plaintiff. See Weaver

v. Witt, 561 S.W.2d 792, 793-794 (Tex. 1977); Sonethal v. Wheatley, 661 S.W.2d 169, 171-172

(Tex. App.--Houston [14th Dist.] 1983, writ ref’d n.r.e.).

Pursuant to TEX. CIV. PRAC. & REM. CODE § 16.004, the statute of limitations on

Appellant’s breach of contract cause of action is four years. The legal injury did not occur until

the vehicle was sold on November 19, 2010. The Appellant filed her breach of contract cause of

action on January 8, 2013, which is well within the applicable statute of limitations. Cf. Taub v.

Houston Pipeline Co., 75 S.W.3d 606, 618-619 (Tex. App.--Texarkana 2002, pet. denied). As a

matter of law, the judgment of the trial court, as to the breach of contract cause of action, should

be reversed and remanded with instruction to order a new trial.

WHEREFORE, PREMISES CONSIDERED, Appellant requests the Court grant this

motion, that the Court vacate its opinion and judgment as to Appellant’s breach of contract cause of action and that the judgment of the trial court, as to Appellant’s breach of contract cause of

action, be reversed and the case remanded with instructions to order a new trial.

Respectfully submitted,

WILLIE & ASSOCIATES, P.C.

By:/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 (713) 659-7330 (713) 599-1659 (FAX) SBOT #21633500

ATTORNEY FOR APPELLANT LaTRINA KINGSBURY

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served via e- service to Amelia Rodriguez, 2020 Southwest Freeway, Suite 328, Houston, Texas 77098, on the 2nd day of April, 2015.

/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.

CERTIFICATE OF COMPLIANCE

I certify that the Motion for Rehearing submitted complies with TEX. R. APP. P. 9 and the word count of this document is 455. The word processing software used to prepare the document and to calculate the word count is Windows 7.

/s/ Joseph R. Willie, II, D.D.S., J.D. Joseph R. Willie, II, D.D.S., J.D.