ROBERT J. JOHNSON, Appellant,
OSCAR O. TENA AND MICHAEL GARCIA, Appellees
Appeal from the 142nd District Court Midland County, Texas
Trial Court Cause No. CV-49, 544
consists of: Wright, C.J., Willson, J., and Bailey, J.
years after a vehicle accident in Midland, Robert J. Johnson
sued Oscar O. Tena, the owner of a pickup that was involved
in that accident. Johnson alleged that he had sustained
bodily injuries and property damage in the accident. Five
months after the limitations deadline had expired, Johnson
sued Michael Garcia, Tena's nephew, who was the driver of
Tena's pickup at the time of the accident. Tena and
Garcia moved for summary judgment on traditional grounds.
Garcia moved for summary judgment on his affirmative defense
of statute of limitations.Johnson responded and argued that Garcia
was equitably estopped to assert the limitations defense. The
trial court granted Garcia's motion for summary judgment
and entered judgment in his favor. Johnson appealed.
appeal, Johnson asserts that the trial court erred when it
granted summary judgment in Garcia's favor because
Johnson had raised genuine issues of material fact on the
elements of his defense of equitable estoppel. We affirm.
day of the accident, Garcia and his cousin, Frank Tena,
borrowed a pickup owned by Frank's father, Oscar Tena. At
the time of the accident, they were on the way to
Garcia's father's house to get the spare keys to
Garcia's vehicle; Garcia had locked his other set of keys
in his vehicle. Oscar Tena gave Garcia permission to use the
pickup. Johnson stated in his affidavit that, as he waited at
a red stop light on July 12, 2011, he "was struck from
behind by a vehicle" owned by Oscar Tena. Garcia, the
driver of the pickup that collided with Johnson's pickup,
claimed that Johnson abruptly changed lanes in front of
Garcia just before the collision occurred.
after the accident, Johnson and Garcia spoke to each other
and exchanged insurance information. Garcia said that he and
his cousin spoke to Johnson and that Johnson called and spoke
to Loya Insurance Company, the company that provided the
insurance policy to Oscar Tena. Johnson did not mention that
he spoke to Frank Tena, but he did confirm that, while he was
at the scene, he spoke to an agent from Loya Insurance.
Garcia testified in his deposition that he gave Johnson his
name and his driver's license number and that Johnson
looked at Garcia's driver's license and then returned
it to Garcia. Johnson, however, denied that those things
happened. He stated that he thought Oscar Tena was the driver
of the pickup. According to Garcia, Johnson did not want to
involve the police or file an accident report. Garcia said
that Johnson told him that Johnson had been drinking a beer,
and Garcia saw a "tall boy" beer can in the console
of Johnson's pickup.
the accident, Johnson communicated with Loya Insurance and
received correspondence from it. Loya Insurance paid $1,
302.55 for Johnson's property damage and initially
offered a $250 settlement for Johnson's bodily injury
claim. Within three months after the accident, Johnson hired
a lawyer; the lawyer also communicated with Loya Insurance
about Johnson's claims and made a
Stowersdemand on October 7, 2011. On November 23,
2011, Loya Insurance then increased its settlement offer for
bodily injury to $5, 000.
lawyer rejected Loya Insurance's settlement offer and
made another Stowers demand on June 13, 2012, which
Loya Insurance did not accept. In July 2012, and then five
more times from January to May 2013, Loya Insurance sent
correspondence to Johnson's lawyer that requested
additional medical information to evaluate Johnson's
bodily injury claims, but Johnson's lawyer never
asserts one issue with five subparts and argues that he
raised a question of material fact on each element of his
equitable estoppel defense. Johnson claims in his first
subpart that he raised a genuine issue of material fact that
Loya Insurance misrepresented or concealed facts about the
identity of the driver, Garcia. In his second and third
subparts, he argues that he raised a fact question that Loya
Insurance withheld knowledge and remained silent when it
should have told him that Garcia was the driver. In addition,
in his last two subparts, Johnson claims that he had no
"means of knowing" the driver's identity and
that he reasonably relied on Loya Insurance's
Standard of Review
review a summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010);
Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d
618, 621 (Tex. 2007). As in this case, the movant for
traditional summary judgment must show that there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law. See Tex. R. Civ. P.
166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A
defendant who moves for traditional summary judgment must
either negate at least one essential element of the
nonmovant's cause of action or prove all essential
elements of an affirmative defense. See Randall's
Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.
1995). When a party moves for summary judgment on traditional
grounds, we take the evidence adduced in favor of the
nonmovant as true and draw every reasonable inference and
resolve all doubts in the nonmovant's favor. Id.
(citing El Chico Corp. v. Poole, 732 S.W.2d 306, 315
(Tex. 1987)). Once the defendant establishes a right to
summary judgment as a matter of law, the burden shifts to the
plaintiff to present evidence that raises a genuine issue of
material fact. City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678-79 (Tex. 1979); see also
Plunkett v. Conn. Gen. Life Ins. Co., No.