Fairmont Specialty Ins. Co. v. Apodaca

Decision Date10 February 2017
Docket NumberCivil Action No. H–15–3330
Citation234 F.Supp.3d 843
CourtU.S. District Court — Southern District of Texas

Debra Donaldson Hovnatanian, Bradford Wald Irelan, Irelan Hargis PLLC, Houston, TX, for Plaintiff.

Joseph P. McGuire, McGuire Woods & Bissette, P.A., Asheville, NC, Lewis William Jost, Attorney at Law, Houston, TX, for Defendant.


DAVID HITTNER, United States District Judge

Pending before the Court are Plaintiff's Motion for Summary Judgment and Defendant Thomas Apodaca's Response to Plaintiffs Motion for Summary Judgment and Cross–Motion for Summary Judgment. Having considered the motions, submissions, and applicable law, the Court determines Plaintiff's motion should be granted, and Defendant's motion should be denied.


This is a breach of contract claim. Plaintiff TIG Insurance Company ("TIG") seeks contractual indemnification from Defendant Thomas Apodaca ("Apodaca") for TIG's payment of a bail bond forfeiture judgment, which a Maryland court entered approximately sixteen years after initially declaring the bond forfeited. The following facts are undisputed. TIG is the successor-in-interest of Ranger Insurance Company ("Ranger"),1 a bail bond surety company.

Apodaca operated Southeastern Sureties ("Southeastern"), a general bail bond agency. On October 10, 1995, Ranger entered into a General Agent Bail Agreement ("Agreement") with Apodaca under which Ranger functioned as an authorized surety for Southeastern's bail bonds. Under the Agreement, Ranger furnished Apodaca with bail bond powers of attorney that Apodaca was solely responsible for administering. The Agreement runs to the benefit of TIG, as Ranger's successor-in-interest.

On March 15, 1999, the State of Maryland filed a criminal action against Anthony Stevenson ("Stevenson"). Stevenson's bail was set at $100,000.00. Southeastern's agent posted bond for Stevenson under a power of attorney that Ranger issued Apodaca under the Agreement ("Stevenson Bond"). Stevenson did not appear at his arraignment, and on April 20, 1999, the presiding judge declared the Stevenson Bond forfeited. The State of Maryland took no further action until July 7, 2015, when a bond forfeiture judgment was entered against Ranger on the Stevenson Bond in the amount of $100,000.00 plus interest ("Forfeiture Judgment").2 On April 5, 2015, Ranger gave Apodaca notice of the Forfeiture Judgment. Apodaca did not pay the Forfeiture Judgment. On October 5, 2015, TIG, as Ranger's successor-in-interest, paid the entire Forfeiture Judgment.3 TIG subsequently demanded Apodaca indemnify TIG for the Forfeiture Judgment payment, alleging the Agreement required Apodaca to do so. Apodaca has not indemnified TIG.

On November 12, 2015, TIG filed this lawsuit against Apodaca. TIG's complaint includes a claim for breach of contract, seeking indemnity for TIG's payment of the Forfeiture Judgment ("Indemnity Claim"). On January 15, 2016, Apodaca filed an answer asserting two affirmative defenses: (1) the statute of limitations; and (2) laches. On August 5, 2016, TIG moved for summary judgment against Apodaca on its breach of contract claim. On August 26, 2016, Apodaca moved for summary judgment on its affirmative defenses. Apodaca failed to respond to TIG's motion for summary judgment on TIG's substantive Indemnity Claim.


Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." FED. R. CIV . P. 56(a). The court must view the evidence in a light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). Initially, the movant bears the burden of presenting the basis for the motion and the elements of the causes of action upon which the nonmovant will be unable to establish a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant to come forward with specific facts showing there is a genuine dispute for trial. See FED. R. CIV . P. 56(c) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "A dispute about a material fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation omitted).

But the nonmoving party's bare allegations, standing alone, are insufficient to create a material dispute of fact and defeat a motion for summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247—48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, conclusory allegations unsupported by specific facts will not prevent an award of summary judgment; the plaintiff cannot rest on his allegations to get to a jury without any significant probative evidence tending to support the complaint. Nat'l Ass'n of Gov't Emps. v. City Pub. Serv. Bd. of San Antonio , 40 F.3d 698, 713 (5th Cir. 1994). If a reasonable jury could not return a verdict for the nonmoving party, then summary judgment is appropriate. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. The nonmovant's burden cannot be satisfied by "conclusory allegations, unsubstantiated assertions, or 'only a scintilla of evidence.' " Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) ). Furthermore, it is not the function of the court to search the record on the nonmovant's behalf for evidence which may raise a fact issue. Topalian v. Ehrman, 954 F.2d 1125, 1137 n.30 (5th Cir. 1992). Therefore, "[a]lthough we consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmovant, the nonmoving party may not rest on the mere allegations or denials of its pleadings, but must respond by setting forth specific facts indicating a genuine issue for trial." Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000).


This is a breach of contract suit arising out of Apodaca's failure to indemnify TIG for a $102,316.60 payment that TIG made in satisfaction of the Forfeiture Judgment. TIG contends Apodaca breached the Agreement by failing to indemnify TIG for the Forfeiture Judgment payment. Apodaca contends TIG's Indemnity Claim is barred by the statute of limitations and laches. The Court first addresses the affirmative defenses asserted and then turns to the merits of TIG's substantive claim.

A. Statute of Limitations

Apodaca contends TIG's Indemnity Claim accrued when the Stevenson Bond was declared forfeited on April 20, 1999 and is therefore barred by the statute of limitations. TIG contends the Indemnity Claim accrued when the Forfeiture Judgment was entered on July 7, 2015 and is therefore timely. Under Texas law, the statute of limitations on a breach of contract claim is four years from the date the claim accrues.4 TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3). A contractual claim for indemnity accrues, at the earliest, on the day judgment is entered against the indemnitee. Smith Int'l, Inc. v. Egle Grp., LLC , 490 F.3d 380, 389 (5th Cir. 2007) ; see also Krueger Eng'g & Mfg. Co. v. Admiral Truck Servs., Ltd., No. 14–01–0035–CV, 2002 WL 576083, at *8 (Tex.App.—Houston [14th Dist.] Apr. 18, 2002, no pet.) ("In the case of a promise to indemnify against liability, a cause of action accrues to the indemnitee only when the liability has become fixed and certain, as by rendition of a judgment.").

Although the Stevenson Bond was declared forfeited nearly sixteen years ago, the Forfeiture Judgment was not entered on the Stevenson Bond until July 7, 2015.5 Thus, the earliest possible accrual date for the Indemnity Claim is July 7, 2015. TIG, as Ranger's successor-in-interest, filed suit on November 12, 2015, approximately four months after the claim accrued. TIG's claim was therefore filed within the four-year statute of limitations. Accordingly, Apodaca's motion for summary judgment is denied as to its statute of limitations defense.

B. Laches

Apodaca contends TIG's claim is barred by laches. TIG contends laches does not apply because TIG's claim is not an equitable claim.6 "Laches is an equitable remedy that prevents a plaintiff from asserting a claim because of the lapse of time ...." Vickery v. Vickery, 999 S.W.2d 342, 355 (Tex. 1999). Under Texas law, a defendant proves laches by showing (1) an unreasonable delay in bringing a claim one otherwise has a right to bring; and (2) a good faith change of position by another, to his detriment, because of this delay. Clark v. Amoco Prod. Co., 794 F.2d 967, 971 (5th Cir. 1986). However, laches is generally only available as a defense to actions which are of an essentially equitable character. FDIC v. Fuller, 994 F.2d 223, 224 (5th Cir. 1993) ("[I]n legal actions, laches is not available."). A breach of contract claim is based on a purely legal right. See Garcia v. Garza, 311 S.W.3d 28, 40 (Tex. App.—San Antonio 2010, pet. denied). As such, laches is inapplicable to a breach of contract claim. See Three H Enters., L.L.C. v. Advanced Envtl. Recycling Techs., Inc., 256 F.Supp.2d 568, 590 (W.D. Tex. 2002) (Austin, J.) ("[B]ecause [the plaintiff's] claim is based purely upon a legal right, i.e. breach of contract, the doctrine of laches is inapplicable."). TIG's Indemnity Claim is a legal action for breach of contract.7 Laches is therefore inapplicable.

Further, even considering the doctrine of laches, any delay in this case was caused by the State of Maryland, not TIG. As discussed supra Part III.A., TIG's claim did not accrue until the Forfeiture Judgment was entered against Ranger on July 7, 2015. TIG filed suit on November 12, 2015, within months of the entry of the Forfeiture Judgment. Thus, TIG did not delay in...

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