File: 051049F - From documents transmitted: 01/31/2008
AFFIRM; Opinion issued January 31, 2008



In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01049-CV
............................
ROBERT LEE HOOD, Appellant
V.
WAL-MART STORES, INC., CHRISTINA SNYDER,
AND GERALD WAYNE BLY, Appellees
.............................................................
On Appeal from the 160th District Court
Dallas County, Texas
Trial Court Cause No. 04-10679-H
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Robert Lee Hood appeals the trial court's judgment in favor of Wal-Mart Stores, Inc., Christina Snyder, and Gerald Wayne Bly. Appellant asserts the trial court erred in granting appellees' motion for summary judgment on the affirmative defense of limitations. We affirm the trial court's judgment.
        Appellant alleged that on May 3, 2001 he attempted to return a television to a Wal-Mart store. After a heated exchange with an employee at the customer service booth, appellant attempted to leave the store with the television. Other employees, the individual appellees, thought appellant was trying to steal the television, and they stopped him from leaving the store. Appellant alleged he was physically assaulted by appellees. Appellant filed his original petition in this cause on October 20, 2004, which appears to allege causes of action for common-law assault, negligence, and negligence per se.
        Appellee moved for summary judgment on the ground that appellant's claims were barred by the statute of limitations. The trial court subsequently granted appellees' motion for summary judgment.
        The standard for reviewing a summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). After the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence creating a fact issue. Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 881 (Tex. App.-Dallas 2007, no pet.).
        Appellant's brief does not contain a concise statement of the issues or points presented for review as required by rule of appellate procedure 38.1(e). See Tex. R. App. P. 38.1(e). However, it appears from appellant's argument that his complaint is the trial court erred in granting appellees' motion for summary judgment on limitations. The limitations period for appellant's causes of action is two years. See Tex. Civ. Prac. & Rem. Code Ann. 16.003 (Vernon Supp. 2007). Accordingly, appellant had to file this suit by May 3, 2003.
        Appellant first argues limitations does not bar his suit because he was diligent in serving appellees. Diligence in service is a consideration when suit is filed before expiration of limitations but the defendant is served after the limitations period. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam); Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). Appellant's suit, however was outside the limitations periods when he filed this suit on October 20, 2004. Accordingly, whether appellant acted with due diligence in serving appellees is not relevant.
        Appellant also asserts the trial court erred in granting summary judgment because appellees sought a no-evidence summary judgment on an affirmative defense. Appellant is incorrect. Appellees motion for summary judgment “moves for summary judgment pursuant to Texas Rule of Civil Procedure 166a on all of Plaintiff's claims.” The motion contains no allegation of no evidence.
        Appellant also argues discovery was tolled by the discovery rule. The discovery rule operates to toll the running of the period of limitations until the time a plaintiff discovers, or through the exercise of diligence should have discovered, the nature of his injury. In this case, there is no dispute that appellant knew or should have known the nature of his injuries at the time of the incident, May 3, 2001. Accordingly the discovery rule did not toll limitations.
        Appellant asserts he timely filed suit on April 24, 2003 and that suit was dismissed without prejudice. The record contains no evidence of these assertions.   See Footnote 1  Moreover, a timely filed suit subsequently dismissed does not generally toll limitations. See Bailey v. Gardner, 154 S.W.3d 917, 918 (Tex. App.-Dallas 2005, no pet.) (voluntary nonsuit does not toll limitations); Cronen v. City of Pasadena, 835 S.W.2d 206, 210 (Tex. App.-Houston [1st Dist.] 1992, no writ) (dismissal for want of prosecution does not toll limitations), disapproved on other grounds by Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994). The fact that appellant may have filed previous suits that were dismissed without prejudice does not toll the running of limitations.
        We hold the trial court did not err in granting appellees' motion for summary judgment.
        We affirm the trial court's judgment.


                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE

051049F.P05


Footnote 1 Appellant attached to his reply brief copies of documents he asserts are the Dallas County District Clerk's summary for the 2003 case as well as another 2004 case and this case. Documents attached to briefs that are not part of the clerk's or reporter's records are not part of the appellate record and may not be considered by the reviewing court. Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.-Dallas 2006, no pet.). Appellant also asks that we take judicial notice of the documents. As a general rule, appellate courts take judicial notice “only to determine jurisdiction over an appeal or to resolve matters ancillary to decisions which are mandated by law (e.g., calculation of prejudgment interest when the court renders judgment).” City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 162-63 (Tex. App.-Dallas 2001, pet. denied) (quoting SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex. App.-Dallas 1991, no writ). To go further runs the risk of effectively rendering this Court into one of original, not appellate, jurisdiction. Id. at 163. The proffered materials do not affect our jurisdiction over this appeal or resolve a matter ancillary to a decision mandated by law. Moreover, this appeal concerns whether the trial court was confronted with an issue of material fact, based on the record before it, making its rendition of summary judgment erroneous. Asking this Court to take judicial notice of matters that were not presented to the lower court does not change the nature or scope of our review. If appellant thought the materials in question were relevant to raise an issue of material fact, he should have presented them to the trial court. Because appellant did not do so, we will not consider them on appeal. See id.
        Even if we could consider them, however, the attached documents consist of a list of documents and fees with their applicable dates. The attached documents do not show that either of the previous lawsuits relates to this case. Furthermore, the documents state the prior lawsuits were nonsuited by appellant, and a voluntary nonsuit does not toll the statute of limitations. Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex. App.-Dallas 2005, no pet.).

File Date[01/31/2008]
File Name[051049F]
File Locator[01/31/2008-051049F]