Woods v. Soules
| Decision Date | 17 May 2018 |
| Docket Number | NO. 02-17-00336-CV,02-17-00336-CV |
| Parties | DANNY MCCOY WOODS APPELLANT v. JIMMY LEWIS SOULES, ESTATE OF HOWARD WALSH SR., AND WALSH RANCH APPELLEES |
| Court | Texas Court of Appeals |
FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
In this personal-injury case, a collision occurred on August 22, 2014, between Appellant Danny McCoy Woods, who was driving a motorcycle, and a commercial truck driven by Appellee Jimmy Lewis Soules. Woods filed hispersonal-injury negligence suit more than two years later, on February 21, 2017. Appellees, Soules, Estate of Howard Walsh Sr., and Walsh Ranch, filed a traditional motion for summary judgment on the affirmative defense of statute of limitations.2 The trial court granted summary judgment for Appellees and entered judgment that Woods take nothing.
Woods perfected this appeal and raises three issues. Woods does not dispute that Appellees conclusively established the affirmative defense of limitations; he instead asserts the statute of limitations was tolled by equitable estoppel, that Appellees waived their statute of limitations defense, and that the trial court abused its discretion by sustaining three of Appellees' objections to the summary judgment affidavit of Woods's counsel. For the reasons set forth below, we will affirm.
At approximately 11:45 a.m. on August 22, 2014, a collision occurred between Woods and Soules, who was operating a commercial truck in the scope of his employment as the foreman of Walsh Ranch. Woods alleged that Soules failed to properly yield to oncoming traffic, pulled out in front of Woods, and caused Woods to crash his motorcycle. Woods suffered severe injuries.
St. Paul Fire and Marine Insurance, a member of Travelers Insurers, (Travelers) provided the commercial vehicle insurance policy on the truck driven by Soules. Travelers paid Woods $6,100.00 for the property damage portion of Woods's claim and in October of 2014, Woods's counsel began discussing Woods's bodily-injury claim with Travelers.
According to Woods's counsel's affidavit, Travelers's adjuster Victor Caldero said that Travelers had accepted liability. During a follow-up telephone call, Caldero informed Woods's counsel that Travelers would need Woods's medical bills and records or the applicable medical release to obtain them. Several different adjusters with Travelers subsequently handled Woods's claim. Eventually, in early January 2017, Travelers's representative, Teresa Orseno, contacted Woods's counsel to inform her that Orseno would be the new point of contract on Woods's claim and said that her file showed Woods's claim had been closed due to the expiration of limitations. In a January 16, 2017 e-mail, Orseno informed Woods's counsel that the claim was closed, that Travelers would not reopen it, and that Travelers would address Woods's claim if and when he filed a lawsuit.
Woods then filed suit on February 21, 2017. In response to Appellees' traditional motion for summary judgment on the affirmative defense of limitations, Woods filed a summary-judgment response that included an affidavit from his counsel with eighteen exhibits attached to it. Appellees asserted five objections to the summary judgment affidavit of Woods's counsel. The trial court conducteda hearing on Appellees' traditional motion for summary judgment on the affirmative defense of limitations,3 sustained three of Appellees' objections to Woods's counsel's summary-judgment affidavit, granted summary judgment for Appellees, and entered judgment that Woods take nothing.
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A defendant is entitled to a traditional summary judgment on an affirmative defense if the defendant conclusively establishes all the elements of the affirmative defense as a matter of law. See Tex. R. Civ. P. 166a(b), (c); Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). When, in response to a motion for summary judgment on limitations, a nonmovant asserts an affirmative defense in the nature of confession and avoidance—like equitable estoppel, the nonmovant bears the burden of raising a genuine issue of material fact on every element of the defense in avoidance. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975); Vills. of Greenbriar v. Torres, 874 S.W.2d 259, 262 (Tex. App.—Houston [1st Dist.] 1994, writ denied). In our de novo review, we consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
An appellate court reviews a trial court's ruling that sustains an objection to summary judgment evidence for an abuse of discretion. Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 667 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); In re Estate of Denman, 362 S.W.3d 134, 140 (Tex. App.—San Antonio 2011, no pet.). Cruikshank v. Consumer Direct Mortg., Inc., 138 S.W.3d 497, 499 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). An appellant has the burden to bring forth a record that is sufficient to show the trial court abused its discretion when it sustained the appellee's objections to the summary judgment evidence. See Pipkin, 383 S.W.3d at 667. Even if a trial court errs by excluding summary-judgment evidence, to obtain a reversal based on the exclusion, the appellant must demonstrate that the exclusion probably resulted in an improper judgment. Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 824 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Tex. R. App. P. 44.1(a)(1)); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001)). A successful challenge to the trial court's evidentiary rulings generally requires the complaining party to demonstrate that thejudgment turns on the particular evidence excluded. See Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *3 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.).
In his first issue, Woods claims he raised a genuine issue of material fact on each element of equitable estoppel and thereby defeated Appellees' right to summary judgment on limitations.
The doctrine of equitable estoppel requires: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998); Forrest v. Vital Earth Res., 120 S.W.3d 480, 486-87 (Tex. App.—Texarkana 2003, pet. denied) (citing Vills. of Greenbriar, 874 S.W.2d at 262-63). When equitable estoppel is alleged in avoidance of a limitations defense, the failure to file suit must be "unmixed" with any want of diligence on the plaintiff's part. Leonard v. Eskew, 731 S.W.2d 124, 129 (Tex. App.—Austin 1987, writ ref'd n.r.e.).
Woods obtained counsel about two months after being injured. We have not located and Woods has not cited a case holding that a genuine issue of material fact existed concerning the fourth and fifth elements of the equitable-estoppel defense to avoid application of the statute of limitations when the "party without knowledge or means of [obtaining] knowledge of the facts" was a party represented by counsel.4 See, e.g., Lewallen v. Cross, No. 03-14-00026-CV, 2014 WL 4365081, at *5 (Tex. App.—Austin Aug. 27, 2014, no pet.) (mem. op.) ( to apply equitable estoppel because there was no evidence "defense counsel made a false representation to the [appellants'] attorney or concealed any material fact from him . . . that the [appellants'] attorney had no means of knowing himself"); Fiengo v. Gen. Motors Corp., 225 S.W.3d 858, 861-62 (Tex. App.—Dallas 2007, no pet.) ( to apply equitable estoppel to avoid limitations when plaintiff was represented by counsel); City of Houston v. McDonald, 946 S.W.2d 419, 422 (Tex. App.—Houston [14th Dist.] 1997, writ denied) ();Duncan v. Lisenby, 912 S.W.2d 857, 859 (Tex. App.—Houston [14th Dist.] 1995, no writ) ( to apply equitable estoppel to avoid limitations when plaintiff was represented by counsel); Cook v. Smith, 673 S.W.2d 232, 234-35 (Tex. App.—Dallas 1984, writ ref'd n.r.e.) (); Mandola v. Mariotti, 557 S.W.2d 350, 351 (Tex. Civ. App.—Houston [1st Dist.] 1977, writ ref'd n.r.e.) (same).
Woods's summary judgment evidence does not raise a genuine issue of material fact on the fourth and fifth elements of equitable estoppel. Instead, viewed in the light most favorable to Woods and indulging in all reasonable inferences in Woods's favor, the summary judgment record conclusively establishes that no communications or conversations occurred between Woods's counsel and any Travelers representative between June 2016 and when the statute of limitations ran on August 22, 2016.5 Nor had Travelers paid Woods's bodily injury claim or sent any type of written acceptance of liability for Woods's bodily injury claim or for his entire claim. Although Travelers had paid Woods's property damage claim and was working with Woods's counsel to collect information...
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