Opinions Released September 14, 2017

Rojas v. Citimortgage, Inc., No. 13-16-00257-CV (Opinion by Justice Rodriguez; Panel Members: Justices Contreras and Benavides)

In this appeal from an order of foreclosure, the Thirteenth Court of Appeals analyzed the effect of a minor delay in service of citation when such delay caused the defendants to be served after the statute of limitations had expired.

Miguel and Lourdes Rojas obtained a home-equity loan in 1999, and the loan was later assigned to Citimortgage, Inc.  Citi sent the Rojases a series of default notices. First, on January 16, 2009, Citi sent a notice of default and threatened acceleration and foreclosure. Citi then accelerated the loan and notified the Rojases on July 21, 2010, May 16, 2011, and August 16, 2011 that the full $188,000 amount was due. The Rojases made no payments.

Then, on November 6, 2013, Citi again sent the Rojases a notice of default, but this time demanded payment of the past due balance of $96,000 and threatened acceleration if the amount was not paid by December 11, 2013.

Finally, on June 23, 2014, Citi filed suit for judicial foreclosure. Thirty-six days later, the petition was served on the Rojases. Citi moved for summary judgment, but the Rojases responded that Citi’s suit was time-barred. The trial court granted summary judgment for Citi, and the Rojases appealed.

Held: The Rojases raised a fact issue precluding summary judgment by showing that the delay in service of process resulted in service beyond the statute of limitations, and Citi did not offer evidence to demonstrate diligence of justify the delay. Summary judgment was thus improper; the judgment was reversed and remanded.


First, the Thirteenth Court addressed Citi’s argument that the Rojases’ appeal was untimely. The court noted that, under Texas Rule of Appellate Procedure 26.1, a party must appeal within thirty days of the judgment or within ninety days if a motion for new trial or motion to modify the judgment is filed. Here, the judgment was entered on February 19, 2019, and the Rojases subsequently filed a motion to reconsider before appealing on May 2, 2016. The motion to reconsider was effectively a motion for new trial, extending the appellate timetable to require appeal within ninety days of the judgment. However, the Rojases’ appeal was outside the ninety-day timeframe. Nonetheless, it was within the fifteen-day grace period following the ninety-day deadline; thus, the Rojases’ appeal would have been timely had they filed a motion for an extension of time. Such a motion for an extension is implied—and the corresponding appeal allowed—if the appellant offers a reasonable explanation for its failure to file a timely notice of appeal. The Rojases explained that they filed an untimely notice because their trial counsel withdrew after the summary judgment, and they were representing themselves at the time of appeal. This explanation was reasonable enough to imply a motion for an extension, thus making the Rojases’ appeal timely.

Statute of Limitations

The Rojases argued that summary judgment for Citi was inappropriate because they raised a genuine issue of material fact regarding the statute of limitations. The parties disputed the date Citi’s foreclosure action accrued.

The Rojases argued that Citi’s acceleration of the debt on July 21, 2010 triggered the accrual of the four-year statute of limitations, which then expired on July 21, 2014. Citi however, argued that it abandoned its acceleration of the debt when it sent a notice of default on November 6, 2013, thus stopping the accrual of the statute of limitations. The Thirteenth Court of Appeals noted that there was conflicting case law on this issue, but nonetheless held that Citi did not submit its abandonment theory to the trial court. Thus, the only potential date of accrual presented to the trial court was July 21, 2010.

Reasonable Diligence

The Rojases further argued that Citi did not carry its burden to show that its service was timely and diligent. The Rojases argued that the evidence conclusively showed the statute of limitations had expired at the time of service, and Citi did not raise a fact issue as to the company’s diligence.   

A timely filed suit tolls the statute of limitations only if the defendant is diligently served. A plaintiff is diligent if he acts as an ordinarily prudent person would have acted under the same or similar circumstances. The plaintiff must prove timely, diligent service and explain any lapse or delay.

The Thirteenth Court first noted that the Rojases’ evidence showed untimely service, and the burden was thus on Citi to prove diligence. The record revealed that, while the Rojases were served only eight days after limitations had expired, the service was 36 days after Citi filed suit. Yet, Citi argued that this 36-day delay was negligible and showed diligence as a matter of law. While the Thirteenth Court acknowledged that a 36-day delay is minor, it held that even a minor delay must be explained when the service occurs after the statute of limitations has expired; the minor delay is not diligent as a matter of law. Yet, Citi submitted no evidence of its diligence or justification for the delay. Consequently, Citi did not meet its burden to show diligence as a matter of law, and summary judgment was improper.

The summary judgment was reversed and the case remanded.

Read the Full Opinion Here

Burton v. State, No. 13-16-00662-CR (Memorandum Opinion by Justice Rodriguez; Panel Members: Justices Contreras and Benavides)

In this appeal from a conviction, the Thirteenth Court of Appeals discussed the requirements for preserving error in various contexts.

Jerry Wayne Burton was convicted of aggravated sexual assault of a child younger than fourteen years of age, with one prior conviction for aggravated sexual assault of a child. The court sentenced Burton to life in TDCJ. Burton appealed, claiming that the trial court erred by (1) denying his motion for continuance; (2) conducting a competency evaluation of the complainant in front of the jury; and (3) commenting on the weight of the evidence.

Held: Burton failed to adequately preserve his challenges, or provided no authority for his arguments. The conviction was affirmed.

Motion for Continuance

Burton first claimed that the trial court erred by refusing to grant him a continuance on the first day of jury selection, when Burton requested time to investigate potential Brady material given to him just days before the trial. However, a motion for continuance in a criminal action must be in writing and sworn to by a person with knowledge of the facts stated therein, among other requirements. Burton’s motion for continuance was made orally. Thus, Burton did not preserve the error for review.

Competency Evaluation

Next, Burton argued that the trial court erred by evaluating the four-year-old complaining child’s competency in the presence of the jury. Burton claimed the presence of the jury created political pressure for the judge to find the child competent, as well as pressure on the child to “perform.” Burton raised a similar objection at the time the competency evaluation was performed during trial, but the court overruled his objection.

The Thirteenth Court noted that competency is a question for the trial court, and there is no requirement in the rules of evidence requiring the evaluation to be conducted outside the presence of the jury. Moreover, Burton provided no citation or authority for his argument. Thus, the trial court had the discretion to evaluate the child’s competency in the presence of the jury.

Comment on the Weight of the Evidence

Finally, Burton claimed that the trial court erroneously commented on the weight of the evidence during its preliminary competency evaluation of the child. Specifically, the court commented that the child was “smart” when the court asked the child about her age and about Minnie Mouse and Dora the Explorer. The court then proceeded to ask if anyone had done anything to hurt the child, and if the perpetrator was the defendant. However, Burton did not object to these questions during trial.

Generally, a challenge to a trial court’s comments on the weight of the evidence must be preserved unless the comments constitute fundamental error. Here, the Thirteenth Court held that the judge’s comments that the child was “smart” were not improper. The court noted that these comments were within the context of making the child feel comfortable in the courtroom. Moreover, the word “smart” did not indicate the court’s view of Burton’s guilt or innocence, and thus could not operate to vitiate the impartiality of the jury, as is required for a finding of fundamental error. Similarly, the court’s questions regarding the events underlying the charge were framed to determine the child’s capacity to recollect events, to narrate events, to identify the individuals involved, and to understand questions, as well as the child’s understanding of the need to tell the truth. Moreover, even if the questions were erroneous they would not rise to the level of fundamental error. Thus, the challenged comments were not erroneous, but even if they were such error was waived.

Having rejected each of Burton’s challenges to the judgment, the Thirteenth Court of Appeals affirmed his conviction.

Read the Full Opinion Here