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Woods v. Soules

Court of Appeals of Texas, Second District, Fort Worth

May 17, 2018

DANNY MCCOY WOODS APPELLANT
v.
JIMMY LEWIS SOULES, ESTATE OF HOWARD WALSH SR., AND WALSH RANCH APPELLEES

          FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 348-290594-17

          PANEL: WALKER, KERR, and BIRDWELL, JJ.

          MEMORANDUM OPINION[1]

          SUE WALKER JUSTICE

         I. Introduction

         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 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.[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.

         II. Pertinent Factual Background

         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 conducted a 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.

         III. Standards of Review

         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 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.) (mem. op.).

         IV. ...


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