Ok v. Queen
| Decision Date | 23 September 2021 |
| Docket Number | 01-19-00472-CV |
| Parties | JUNE OK AND T.T., A MINOR CHILD, Appellants v. AMY JOELYN QUEEN, Appellee |
| Court | Texas Court of Appeals |
On Appeal from County Civil Court at Law No. 2 Fort Bend County Texas Trial Court Case No. 17-CCV-060124
Panel consists of Justices Kelly, Hightower, and Farris.
June Ok, and her minor son, T.T., [1] sued Robert Queen and Amy Joelyn Queen for injuries Ok and T.T. allegedly sustained in a motor vehicle accident. The trial court granted summary judgment in Robert's favor for Ok's and T.T.'s claims. The court then granted summary judgment in Amy's favor against only Ok based on limitations. The trial court later dismissed T.T.'s claims against Amy for want of prosecution without prejudice.
On appeal, Ok does not challenge the partial summary judgment in favor of Robert. Instead, in two issues, Ok challenges the summary judgment in favor of Amy. She asserts that there was a genuine issue of material fact regarding whether the statute of limitations was tolled under the doctrine of fraudulent concealment, and she contends that the trial court "erred in ruling that [her] summary judgment evidence was inadmissible hearsay." Even though he was named in the notice of appeal as an appellant, T.T. raises no issues on appeal regarding either the grant of summary judgment in Robert's favor or the dismissal of his claims against Amy.
Because the trial court properly granted summary judgment on Ok's claims against Amy, and no other portion of the judgment is challenged, we affirm the trial court's judgment.
An automobile accident occurred on June 3, 2015, between a vehicle driven by Amy Joelyn Queen and another vehicle driven by June Ok.[2] T.T., Ok's minor son, was a passenger in Ok's vehicle. Alleging claims of negligence, Ok and T.T. filed suit on June 1, 2017, two days before the expiration of the two-year statute of limitations. But instead of naming Amy as the defendant, they named Amy's husband, Robert Queen, as the only defendant.
On September 8, 2017, Ok and T.T. amended their petition, adding Amy as a defendant. They alleged that Amy and Robert had each been negligent in his or her operation of the motor vehicle that hit Ok's vehicle on June 3, 2015.
In his answer, Robert asserted there was "a defect of parties." He stated that he was not involved in the accident. Robert pointed out that, "as detailed in the Police Report, Amy Joelynn Queen, was the driver/owner of the vehicle involved in the collision." Amy also answered the suit, generally denying the allegations. She later amended her answer to assert the affirmative defense of limitations.
Ok and T.T. filed a second amended petition. They added a claim of negligent entrustment against Robert, and they asserted that Amy and Robert had fraudulently concealed the identity of the proper defendant.
Robert filed a combined no-evidence and traditional motion for summary judgment for Ok's and T.T.'s claims against him. The trial court signed an order granting Robert's summary-judgment motions.[3]
Amy also moved for summary judgment, later amending her motion. In her "Amended Second Motion for Summary Judgment," Amy moved for traditional summary judgment on Ok's claims against her but did not move for summary on T.T.'s claims. Amy argued that she was entitled to summary judgment against Ok because the statute of limitations for Ok's negligence claim against Amy had expired on June 3, 2017, two years after the June 3, 2015 motor-vehicle accident. Amy pointed out that when the suit was filed on June 1, 2017, Ok had misidentified Robert as the defendant. Ok did not file suit against Amy until she was added as a defendant in the first amended petition in September 2017, three months after the statute of limitations had expired. Amy also pointed out that any claim to recover medical expenses incurred for T.T.'s injuries while he was a minor belonged to June, as T.T.'s parent, not to T.T.
Amy asserted that Ok's claim that her identity had been fraudulently concealed failed because Ok had access to the accident report, which identified Amy as the driver and the owner of the vehicle that had collided with Ok's vehicle. As summary-judgment evidence, Amy offered a certified copy of the accident report obtained from the Texas Department of Transportation.
In her response, Ok claimed that there was "a genuine issue of material fact" regarding whether "[Amy's] misrepresentation and fraudulent concealment of the proper party caused [Ok] to be deceived as to the proper party to sue in this case." Although she offered no evidence to support the assertion, Ok claimed that she did not know the identity of the driver who had hit her vehicle because she had been rendered unconscious during the accident. As evidence of fraudulent concealment, Ok offered two letters from Farmers Insurance sent to her attorney before suit was filed, regarding the auto accident. Ok pointed to information in the top portion of the letters in which Robert was listed as the insured. Ok asserted that this was a misrepresentation by Amy and "her representatives" that Robert was the "responsible party" and concealed Amy's identity as "the proper party" for the two-year period following the accident.
Amy filed an objection to Ok's summary-judgment evidence. She asserted that the two letters attached to Ok's response were hearsay because they had not been authenticated as business records by the insurance company. Without ruling on Amy's evidentiary objection, the trial court signed an order granting Amy's "Amended Second Motion for Summary Judgment" and ordering "that Plaintiff June Ok's claims against Defendant Amy Joelyn Queen are hereby dismissed with prejudice to the refiling of same, and that Plaintiff June Ok take nothing from Defendant Amy Joelyn Queen by this suit." The order did not adjudicate T.T.'s claims against Amy.
Ok filed a motion to reconsider the order and a motion to "reopen evidence" in which she asserted that she had properly authenticated the insurance-company letters. At the end of a hearing, the trial court denied Ok's motions.
Although T.T.'s claims against Amy remained pending, Ok and T.T. filed a notice of appeal, appealing the order granting summary judgment against Ok. They then filed a brief in this Court, raising two issues challenging the summary judgment, and Amy filed a responsive brief.
We notified the parties that the order granting summary judgment against Ok was not an appealable order because it did not adjudicate T.T.'s claims and did not contain language of finality. We informed the parties that the appeal was subject to dismissal for lack of jurisdiction unless a response was provided establishing this Court's jurisdiction. Ok and T.T. responded, stating that the lack of a signed final judgment was an "oversight" by the trial court. We abated the appeal to provide Ok and T.T. an opportunity to obtain a final judgment that disposed of T.T.'s claims against Amy.
While the appeal was abated, the trial court signed a final judgment in which it reiterated that it had granted summary judgment against Ok and, for the first time, disposed of T.T.'s claims. The trial court stated that it had "called this cause and Minor Child's [T.T.'s] claims for trial, as previously noticed by the Court," the month after it had granted Amy's motion for summary judgment against Ok. The trial court stated that Amy and her counsel had appeared for trial, but "June Ok, Individually and on behalf of Minor Child, failed to appear, as did her counsel of record." Although no prior order dismissing T.T.'s claims appears in the record, the trial court noted that it had previously "dismissed the claims of Minor Child against Defendant Amy Joelynn Queen for want of prosecution without prejudice," presumably at the time T.T. failed to appear for trial. The trial court also stated in the judgment that it was incorporating its "prior rulings and orders" and that the judgment was "intended to be final for all purposes and dispose[d] of all claims by all Plaintiffs against [Amy]."
After a supplemental clerk's record containing the final judgment was filed, we issued an order reinstating the appeal. The order provided T.T. an opportunity to supplement his briefing "to assert any challenge that he may have to the trial court's judgment now disposing of his claims." No supplemental briefing has been filed, and no challenge to the portion of the trial court's judgment dismissing T.T.'s claims against Amy for want of prosecution has been raised. Thus, the only issues on appeal are the two issues raised in the appellants' original brief, relating to the trial court's grant of summary judgment against Ok in favor of Amy.
In her first issue, Ok contends that the trial court erred in granting summary judgment in Amy's favor.[4]
A. Standard of Review
We review de novo a trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Valence Operating Co. v Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
A party moving for traditional summary judgment has the burden to prove that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); SeaBright Ins. Co. v. Lopez 465 S.W.3d 637, 641 (Tex. 2015). A defendant is entitled to summary judgment if it conclusively negates an essential element of the plaintiff's case or conclusively establishes all...
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