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Johnson v. Tena

Court of Appeals of Texas, Eleventh District

June 8, 2017

ROBERT J. JOHNSON, Appellant,
v.
OSCAR O. TENA AND MICHAEL GARCIA, Appellees

         On Appeal from the 142nd District Court Midland County, Texas Trial Court Cause No. CV-49, 544

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          MEMORANDUM OPINION

          MIKE WILLSON JUSTICE

         Two 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.[1]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.

         On 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.

         I. Background Information

         On the 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.

         Immediately 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.

         After 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 Stowers[2]demand on October 7, 2011. On November 23, 2011, Loya Insurance then increased its settlement offer for bodily injury to $5, 000.

         Johnson's 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 responded.

         II. Issue Presented

         Johnson 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 misrepresentations.

         III. Standard of Review

         We 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. ...


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