Court of Appeals of Texas, Second District, Fort Worth
THE 348TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER, KERR, and BIRDWELL, JJ.
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 his personal-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. The trial court granted
summary judgment for Appellees and entered judgment that
Woods take nothing.
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.
Pertinent Factual Background
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.
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.
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 conducted a hearing on
Appellees' traditional motion for summary judgment on the
affirmative defense of limitations,  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.
Standards of Review
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).
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 the judgment 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.)