Appeal from the County Court at Law No. 1 Travis County,
Texas Trial Court Cause No. C-1-CV-17-011359
consists of Justices Christopher, Bourliot, and Zimmerer.
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.
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.
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).
filed an original answer that generally denied the
allegations against her. The answer did not contain any
mention of a possible misidentification of parties.
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.
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.
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.
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.
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.
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 ...