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Colorado v. Luu

Court of Appeals of Texas, Fourteenth District

August 1, 2019

PANUNCIO COLORADO, Appellant
v.
PHUONG LUU AND THANH TAT, Appellees

          On Appeal from the County Court at Law No. 1 Travis County, Texas Trial Court Cause No. C-1-CV-17-011359

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.

          MEMORANDUM OPINION

          TRACY CHRISTOPHER JUSTICE

         We consider two issues in this appeal: (1) whether a fact issue on fraudulent concealment precluded a summary judgment on limitations, and (2) whether the trial court abused its discretion when it imposed sanctions against an attorney for filing a groundless claim. For reasons explained more fully below, we conclude that no fact issue was raised on the issue of fraudulent concealment, and that we lack jurisdiction over the issue of sanctions.

         BACKGROUND

         This case arises out of an automobile accident that occurred on Christmas Day 2015. The drivers of the two vehicles were Panuncio Colorado and Thanh Tat.

         Colorado filed suit on November 29, 2017 (within the two-year statute of limitations), but instead of naming Tat as his defendant, Colorado sued Tat's mother, Phuong Luu. Colorado asserted a single claim for negligence against Luu, and he served Luu on December 27, 2017 (two days after the statute of limitations had passed).

         Luu filed an original answer that generally denied the allegations against her. The answer did not contain any mention of a possible misidentification of parties.

         In response to a request for disclosure, Luu notified Colorado on February 14, 2018 that her son, Tat, was the driver and owner of the vehicle involved in the accident. That same day, Luu amended her answer to aver that she was improperly named in the lawsuit, that she was not personally involved in the accident, and that she had no ownership interest in Tat's vehicle. Luu thereafter moved for summary judgment, arguing on traditional grounds that she did not proximately cause any of Colorado's damages.

         Colorado moved to postpone the hearing on Luu's motion so that discovery could continue. The trial court granted Colorado's motion, and then Colorado had Luu deposed.

         At her deposition, Luu testified that her son had never been to prison, that he had never been in an accident before, and that she did not know if he had ever been cited for a traffic violation. She also revealed that she had co-signed for her son's vehicle, which made her a co-owner, and that she also pays for his car insurance. On the same day as her deposition, Luu amended her answer once more to aver that she did have an ownership interest in Tat's vehicle, but that she was still improperly named in the lawsuit and was not personally involved in the accident.

         Two days after the deposition (and well after the two-year statute of limitations had passed), Colorado amended his petition to assert a negligence claim against Tat. Colorado also abandoned his negligence claim against Luu and replaced it with a claim for negligent entrustment.

         Tat then filed his own original answer, where he asserted the affirmative defense of limitations. Along with that filing, Tat moved for a traditional summary judgment, arguing that Colorado's amended petition was untimely and that it did not relate back to his original petition because there is no tolling for the misidentification of an individual.

         In a response to Tat's motion, Colorado argued that summary judgment was inappropriate because there was a fact issue as to whether Tat's identity had been fraudulently concealed. Colorado also asserted that ...


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