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Robinson v. Tritico

Court of Appeals of Texas, First District

August 6, 2019

THEOLA ROBINSON AND BENJI'S SPECIAL EDUCATION ACADEMY, INC., Appellants
v.
CHRISTOPHER TRITICO AND ESSMYER, TRITICO & RAINEY L.L.P., Appellees

          On Appeal from the 125th District Court Harris County, Texas Trial Court Case No. 2013-26582

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          MEMORANDUM OPINION

          Gordon Goodman Justice.

         Benji's Special Education Academy and its Chief Executive Officer, Theola Robinson (collectively, the Academy) brought suit against their former attorney, Christopher Tritico, his former firm, Essmyer, Tritico & Rainey, L.L.P. (the firm), and his current firm, Tritico Rainey, P.L.L.C., complaining that Tritico and the firm wrongfully withheld funds after ending its representation.

         Tritico and the firm moved for summary judgment, contending that the applicable statutes of limitations barred the Academy's claims because, while the Academy timely filed its lawsuit, it did not serve Tritico and the firm until more than four years later. The trial court granted a take-nothing summary judgment, which the Academy challenges in this appeal. It contends that the trial court erred by failing to (1) apply the proper statutes of limitations to its claims; (2) conclude that the doctrine of misnomer applied to relate their claims against Tritico and the firm back to the original filing date; and (3) issue findings of fact and conclusions of law. We affirm.

         BACKGROUND

         After the Texas Education Agency suspended the funding of the Academy, a charter school, the Academy hired Christopher Tritico and the firm to challenge the suspension.[1] On July 14, 2009, Tritico and the firm notified the Academy that it was withdrawing from that representation, and neither Tritico nor the firm represented the Academy or Robinson after that date.

         In May 2013, the Academy brought this suit for legal malpractice against Tritico, the firm, and Tritico's current law firm, Tritico Rainey, alleging that they failed to return a portion of the retainer after they terminated their representation. The Academy timely served Tritico Rainey, which moved for summary judgment on the grounds that it was not formed until after the events that gave rise to the Academy's suit and has never represented the Academy. The trial court granted the motion and signed a take-nothing judgment in October 2014. This appeal does not challenge that ruling, and Tritico Rainey is not a party to this appeal.

         The Academy did not request issuance of citation or serve Tritico and the firm with suit until January 2018. Tritico and the firm moved for summary judgment, claiming that as a result of the delay in service, the statute of limitations barred the Academy's claims.

         The Academy's response to the summary-judgment motion asserts that the petition sent by certified mail to Tritico constituted service on all defendants; Tritico was on notice of the suit because of the service of citation on Tritico Rainey; and that the doctrine of misnomer allowed it to correct the defendant's name and maintain the cause of action after the statute of limitations expired.

         On the motion's submission date, the Academy amended its petition to include a claim for violations of the Texas Deceptive Trade Practices Act. Tritico and the firm filed a second motion for summary judgment to challenge the DTPA claim. The trial court granted both motions and signed a final take-nothing judgment.

         DISCUSSION

         I. Timeliness of the Appellants' Brief

         Tritico and the firm ask for dismissal of the Academy's appeal because of its failure to timely file its brief, ask for an extension of time, or explain the reason for the delay in filing. Under the Texas Rules of Appellate Procedure, an appellant must file its brief within 30 days after the date that the clerk's record was filed, or the date the reporter's record was filed, whichever is later. Tex.R.App.P. 38.6(a). In this appeal, the clerk's record ...


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