Charleszetta Yvonne Deloney v. Todd Koscelnik and Son ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00433-CV
___________________________
CHARLESZETTA YVONNE DELONEY, Appellant
V.
TODD KOSCELNIK AND SON, Appellees
On Appeal from the 367th District Court
Denton County, Texas
Trial Court No. 19-3908-367
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
I. Introduction
On May 12, 2017, Appellee Noah Koscelnik backed his truck into a car
occupied by Appellant Charleszetta Deloney. According to Deloney, the injuries she
suffered as a result of this collision required her to undergo two knee surgeries. On
the eve of limitations,1 Deloney, acting pro se,2 filed an original petition alleging
negligence against both Noah and his father—Appellee Todd Koscelnik3—and
Travelers Insurance, the Koscelniks’ insurance provider.4
1
Deloney filed her lawsuit on April 30, 2019.
A pro se litigant is held to the same standards as licensed attorneys and must
2
comply with rules of procedure. Thomas v. Logic Underwriters, Inc., No. 02-16-00376-
CV, 2017 WL 5494386, at *3 (Tex. App.—Fort Worth Nov. 16, 2017, pet. denied)
(mem. op.).
3
Deloney’s pro se pleadings are challenging to decipher. In her “Amendment
Plaintiff’s Original Petition,” she sued “Todd Koscelnik and Son,” without providing
a name for the “Son,” and complained that Todd was the “responsible parties of son
action” but later alleged that the vehicle was “operated by Defendant Todd Koscelnik,
under age child.” Likewise, the Koscelniks answered the lawsuit as “Todd Koscelnik
and Son” and did not specially except to the petition’s defects. See Tex. R. Civ. P. 90.
In their summary judgment motion, they pointed out that “by way of clarification,
Plaintiff’s Original Petition fails to indicate whether Todd Koscelnik and Son are two
individuals or a single entity,” but for purposes of the summary judgment motion,
“assumed Todd Koscelnik and Son [were] two individuals.” On appeal, the parties
seem to agree that Noah was the driver and that Todd is Noah’s father.
4
Travelers filed its original answer and a Rule 91a motion to dismiss on May 29.
In its Rule 91a motion, Travelers argued that there was no basis in law for Deloney’s
lawsuit against it because of the “No Direct Action” rule, i.e., that Deloney could not
sue Travelers directly until the Koscelniks’ liability had been determined. See In re
Essex Ins. Co., 450 S.W.3d 524, 525 (Tex. 2014) (orig. proceeding) (per curiam). The
2
In three issues, Deloney complains that a fact issue regarding due diligence,
equitable estoppel, and a special relationship between the Koscelniks and Travelers
should have precluded summary judgment. Because the summary judgment response
upon which Deloney relies was filed late and without leave of court, and because she
waived her equitable estoppel and special relationship arguments by failing to raise
them in the trial court, we will affirm.
II. Background
Deloney served Travelers with citation on May 1, but the parties agree that the
Koscelniks were not served until July 24, twelve days after Travelers had been
dismissed from the suit. See Tex. R. App. P. 38.1(g) (“In a civil case, the court will
accept as true the facts stated unless another party contradicts them.”). One week
later, the Koscelniks—represented by the same attorney who had represented
Travelers—filed their original answer, raising the affirmative defense of limitations.
Shortly thereafter, they filed a traditional motion for summary judgment, arguing that
Deloney had failed to diligently pursue service when she served them on July 24, more
than two months after limitations had expired. See Tex. Civ. Prac. & Rem. Code Ann.
§ 16.003(a). The Koscelniks attached evidence showing that the accident occurred on
May 12, 2017 (Deloney’s medical records and two notices of representation from
trial court granted Travelers’s motion on July 12. Travelers is not a party to this
appeal.
3
Deloney’s first and second retained counsel), as well as a March 4, 2019 letter from
Travelers to Deloney, advising her of the two-year limitations period.
Deloney waited until two days before the October 25, 2019 summary judgment
hearing to file her response to the motion, and the following day—one day before the
summary judgment hearing—she filed an amended response.5 In her summary
judgment response, to which no competent summary judgment proof was attached,6
Deloney asserted multiple times that she had diligently attempted to serve the
Koscelniks, including that
Plaintiff is not adding new case, just modification to fit purpose.
Plaintiff tried multiple times to serve Defendant. Through Traveler Ins.
Co. and Pro se to Attorney, Attorney intercept and answer Petition.
And now through constable for Defendant. Plaintiff has point to
reasonable afford and raise facts showing diligence serving Defendants.
5
The record does not contain Deloney’s original summary judgment response,
filed on October 23, 2019. However, at the hearing, Deloney said that she had filed
the amended response on October 24 because the first response had lacked a
signature page.
6
Deloney attached to her response her amended petition and 61 pages of
medical bills and records with no supporting affidavits. See Laidlaw Waste Sys. (Dallas),
Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (“Generally, pleadings are not
competent evidence, even if sworn or verified.”); Heirs of Del Real v. Eason, 374 S.W.3d
483, 488 (Tex. App.—Eastland 2012, no pet.) (“[U]nauthenticated or unsworn
documents do not constitute competent summary judgment evidence.”); cf. Tex. R.
Civ. P. 166a(f).
4
Deloney also alleged in her response that Travelers had “stated they will
contact their client the defendants of petition file on April 30, 2019.”7 Other than this
statement and her general statements that she used diligence in attempting service,
Deloney provided no other explanation for why she failed to serve the Koscelniks
until more than two months after limitations had expired, nor did she raise any other
defenses to limitations.
The Koscelniks’ attorney objected to Deloney’s response, complaining that it
had been “filed and responded to outside of the deadline necessary to respond to the
summary judgment,” and he moved to exclude her summary judgment evidence. The
trial court granted the summary judgment motion. In its order, the trial court stated
that the motion was granted “[a]fter considering the pleadings, the motion, the
evidence on file, and arguments of the parties.”
III. Discussion
In three issues, Deloney argues that (1) a fact issue regarding due diligence
precluded summary judgment, (2) the Koscelniks were equitably estopped from
asserting limitations, and (3) a special relationship between the Koscelniks and
Travelers existed that should have precluded summary judgment on limitations.
7
Deloney later relied upon this statement to argue that Travelers’s attorney had
agreed to “handle” service for the Koscelniks.
5
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). 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). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A
defendant is entitled to summary judgment on an affirmative defense if the defendant
conclusively proves all elements of that defense. Frost Nat’l Bank v. Fernandez, 315
S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). To accomplish this,
the defendant must present summary-judgment evidence that conclusively establishes
each element of the affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex.
2008).
B. The Summary Judgment Evidence
We must first address what was properly before the trial court as summary
judgment evidence. Deloney contends that her response should be considered as part
of the summary judgment record despite her failure to obtain leave when filing her
response fewer than seven days before the hearing. And, according to Deloney, if we
considered her response and the attachments thereto, we would find that she
6
“established due diligence” in effectuating service. We disagree with both
contentions.
To be timely, a summary judgment response must be filed and served at least
seven days before the hearing. See Tex. R. Civ. P. 166a(c). For an untimely response
to be considered by the court, leave of court is required. See id.; B.C. v. Steak N Shake
Operations, 598 S.W.3d 256, 259 (Tex. 2020). And if there is nothing in the record to
suggest that the trial court granted leave, then we “must presume that the trial court
did not consider [the untimely response].” INA of Tex. v. Bryant, 686 S.W.2d 614, 615
(Tex. 1985).
Deloney argues that the record suggests that the trial court considered her
response because it failed to rule on the Koscelniks’ objection to her late-filed
response at the summary judgment hearing. We reject this argument for three
reasons.
First, embracing Deloney’s argument would require us to reverse the
presumption articulated by INA and hold that because the record was silent, we
presume that Deloney’s late filed response was considered. See id.
Second, the record suggests just the opposite. At the hearing’s outset, both the
trial court and the Koscelniks’ counsel expressed surprise upon learning about the
amended response. And, after the trial court pointed out that the amended response
had not yet been entered into the computer filing system, the Koscelniks’ attorney
objected to the trial court’s consideration of it:
7
THE COURT: Okay. This was yesterday?
MS. DELONEY: Yes, I had to go back and sign --
....
THE COURT: Okay. Because it’s not in the Odyssey system yet.
It may have been -- did you just file-stamp it downstairs?
MS. DELONEY: I -- I did that yesterday . . . .
....
(A document was tendered to Appellees’ counsel.)
[Appellee’s counsel]: I would argue to the Court that in response,
if this is as presented by Plaintiff, a response to our summary judgment,
it was filed and responded to outside of the deadline necessary to
respond to the summary judgment. I would accordingly move th[e]
Court to exclude this as summary judgment evidence. However, it
doesn’t -- yeah, I’ve never seen this document before.
While Deloney is correct—the trial court did not rule on the Koscelniks’
objection—the trial court did at least suggest to Deloney that it would sustain the
objection:
THE COURT: Okay. Here’s a -- here’s a problem with
representing yourself: If you don’t know what you need to do, then you
get poured out at court. If you don’t know when things are due or what
you have to do to stay in court -- you know, you’ve got an attorney on
the other side of you. He’s probably done 25 more of these than you’ve
done, probably 25 more than I’ve done, okay?
MS. DELONEY: (Laughing) Yes, ma’am.
THE COURT: But I have to hold you to the very same standard.
You got to know what you’re doing. I’m looking at these; they’re not
even signed. I mean, that’s -- that was --
8
MS. DELONEY: That’s why I had to go back and -- that’s why I
had to go back and do a second amendment, to -- to make sure the
signed copy got in there.
THE COURT: Okay. Can I take a look at yours? I don’t know
if you -- you’re using it right now, but the one that --
[Appellees’ counsel]: (Overlapping) This? Yes.
THE COURT: Yeah, Because it’s not even in -- in Odyssey right
now. Okay?
There are time frames for everything in court . . . .
As to Deloney’s additional argument that the trial court’s failure to rule on the
Koscelniks’ objection waived any objection to the late-filed response, this argument
would turn Rule 166a(c) on its head. The objection was not necessary in the first
place. It was Deloney’s burden to obtain leave from the trial court to file her untimely
response, not the Koscelniks’ burden to raise an objection. See Tex. R. Civ. P.
166a(c); INA of Tex., 686 S.W.2d at 615.
And as to Deloney’s argument that the trial court’s order granting summary
judgment suggests that the trial court considered her late-filed response, again, the
judgment suggests just the opposite. Specifically, Deloney points to the recitation in
the judgment that the court considered “the pleadings, the motion, the evidence on
file, and arguments of the parties.” We disagree that the recitation supports her
position.
First, Deloney’s response fell within none of the four categories identified in
the order—it was not a pleading, a motion, evidence, or argument. It was a response.
9
See Tex. R. Civ. P. 166a(c) (providing that leave of court is required to file “opposing
affidavits or other written response” no later than seven days prior to the summary
judgment hearing date) (emphasis added). Thus, under a plain reading of the order,
there is no suggestion that Deloney’s response was considered.
Second, the omission of “response” from the list of documents that the trial
court specified it considered is a significant indicator that the trial court did not
consider the response. Because at the time the trial court signed the order, the trial
court was fully aware that Deloney had filed an untimely response, its exclusion from
the list of documents considered signals that the trial court deliberately did not
consider it in the decision-making process.
Accordingly, we will not consider Deloney’s amended response, or the
unsworn documents attached to it, as part of the summary judgment record.
C. Diligence
In her first issue, Deloney argues that the trial court erred by granting summary
judgment because she used due diligence in effectuating service upon the Koscelniks.
When a lawsuit is filed within the limitations period but the defendant is served
after limitations has expired, the date of service may relate back to the date of filing if
the plaintiff shows the exercise of due diligence in effectuating service. Gant v.
DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Flanigan v. Nekkalapu, No. 02-20-00024-CV,
2020 WL 6498525, at *3 (Tex. App.—Fort Worth Nov. 5, 2020, no pet. h.).
10
In a traditional summary judgment proceeding, once the defendant proves that
service occurred after the expiration of limitations, the burden shifts to the plaintiff to
explain the delay and to raise a fact question regarding diligence of service. Flanigan,
2020 WL 6498525, at *3; Butler v. Skegrud, No. 02-14-00168-CV, 2015 WL 4148474, at
*2 (Tex. App.—Fort Worth July 9, 2015, no pet.) (mem. op.). To raise a fact issue on
diligence, the plaintiff must explain “every lapse in effort or period of delay.”
Flanigan, 2020 WL 6498525, at *3 (quoting Proulx v. Wells, 235 S.W.3d 213, 216 (Tex.
2007)). And although the question of diligence is typically a fact question, it can be
resolved as a matter of law if “one or more lapses between service efforts are
unexplained or patently unreasonable.” Proulx, 235 S.W.3d at 216.
Personal injury suits are subject to a two-year limitations period. Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a). The summary judgment evidence here
establishes that Deloney was injured on May 12, 2017, starting a limitations period
that ended May 12, 2019, and that she served the Koscelniks on July 24, 2019, which
was more than two months after the limitations period had run. In light of her failure
to obtain leave to file her late response and its attached evidence, Deloney failed to
provide any summary judgment evidence to meet her burden of raising a fact issue in
explaining this two-month delay.
Even if we were to consider her late-filed response and its attachments, they
provide no support for her argument that Travelers promised to effectuate service on
the Koscelniks. Deloney attached her amended petition and some medical bills and
11
records, none of which raise a fact issue about whether the insurance company made
such a representation to her. See Laidlaw Waste Sys., Inc., 904 S.W.2d at 660 (stating
that pleadings are not competent summary judgment evidence). In the absence of any
summary judgment evidence of this fact, this argument fails. See Sharp v. Kroger Tex.
L.P., 500 S.W.3d 117, 121 & n.2 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(holding that when the plaintiff presented no evidence that the parties agreed to delay
service in order to resolve the case, nonmovant did not raise a fact issue regarding due
diligence). We overrule Deloney’s first issue.
D. Equitable Estoppel
In her second issue, Deloney brings a new argument on appeal: that the
Koscelniks were equitably estopped from asserting limitations because the insurance
company induced her into allowing the limitations period to pass before effectuating
service on the Koscelniks. Generally, we do not consider arguments raised for the
first time on appeal, as “[o]nly issues expressly presented to the trial court by written
motion, answer, or other response may be considered on appeal.” Roadside Stations,
Inc. v. 7HBF, Ltd., 904 S.W.2d 927, 930 (Tex. App.—Fort Worth 1995, no writ) (op.
on reh’g) (holding that appellant waived issue by failing to present it in summary
judgment response). But Deloney argues that because she raised the equitable
estoppel issue at the summary judgment hearing and in her summary judgment
response, the issue of equitable estoppel is properly before this court.
12
Equitable estoppel is an affirmative defense that is waived if it is not pleaded.
See Tex. R. Civ. P. 94; In re S.A.P., 156 S.W.3d 574, 576 (Tex. 2005). Here, Deloney
failed to plead equitable estoppel in her amended petition. For that reason alone, she
waived her equitable estoppel defense.
Furthermore, to defeat the Koscelniks’ summary judgment motion, Deloney
was required to submit summary judgment evidence to raise a fact issue on the
defense of equitable estoppel. See Cook v. Smith, 673 S.W.2d 232, 235 (Tex. App.—
Dallas 1984, writ ref’d n.r.e.). Again, even if we were to consider the attachments to
her late-filed response as proper summary judgment evidence (which we do not),
neither her medical bills and records nor her pleading provide evidence of this
defense. See Laidlaw Waste Sys., Inc., 904 S.W.2d at 660 (stating that pleadings are not
competent summary judgment evidence).
In the absence of any affidavits or other competent summary judgment
evidence, there is nothing to establish a fact issue. See Cook, 673 S.W.2d at 234–35
(stating that nonmovant’s uncontradicted affidavit regarding representations made by
insurance company was enough to establish fact issue); Frank v. Bradshaw, 920 S.W.2d
699, 701–03 (Tex. App.—Houston [1st Dist.] 1996, no writ) (holding that
nonmovant’s affidavits regarding insurance company’s representations were enough
to establish fact issue). We overrule Deloney’s second issue.
13
E. Special Relationship
In her third issue, Deloney brings a second new argument on appeal, that a
“special relationship” between Travelers and the Koscelniks precluded summary
judgment. The argument is not only new, it is also novel. She contends that because
she pleaded that the Koscelniks owned the insurance policy, that Travelers told her
“that they would contact their client regarding the Petition,” and that both Travelers
and the Koscelniks were represented by the same attorney, the issue of a special
relationship was properly before the trial court.8
But contrary to her assertions, Deloney pleaded neither that the Koscelniks
owned the insurance policy nor that Travelers had made any representation about
contacting the Koscelniks. In fact, Travelers is not mentioned at all in the amended
petition. While her allegations were included in her summary judgment response,9 a
8
In support of this proposition, Deloney cites to Kenyon v. Elephant Ins. Co., No.
04-18-00131-CV, 2020 WL 1540392, at *7 (Tex. App.—San Antonio Apr. 1, 2020,
pet. filed) (op. on reh’g en banc). However, in Kenyon, the court held that even though
the appellant did not use the phrase “special relationship,” based on the record in that
case, she still raised the issue in the trial court and adequately briefed the issue on
appeal. Id. at *7 & n.4 (noting that the opposing party “repeatedly demonstrated it
has understood Kenyon’s use of the term ‘common law negligence’ as referring to the
negligence claim based on the alleged special relationship”). Kenyon is easily
distinguishable from the facts here because Deloney wholly failed to present the issue
to the trial court at the summary judgment hearing or during any other phase of the
proceedings.
9
As discussed previously, we are not considering Deloney’s summary judgment
response because it was late-filed without leave of court.
14
summary judgment response is not a pleading. See Tex. R. Civ. P. 45(a); Elliott v.
Elliott, 797 S.W.2d 388, 392 (Tex. App.—Austin 1990, no writ) (stating that motion
and response to motion are not pleadings).
In the alternative, Deloney argues that even if she did not properly plead the
issue, the Koscelniks consented to her special-relationship issue by not objecting to
her argument regarding the special relationship at the summary judgment hearing.
The most glaring problem with this argument is that Deloney did not raise her special-
relationship argument at the hearing. Consequently, even assuming that we accepted
the premise of Deloney’s argument, there was no opportunity for the issue to be tried
by consent and nothing for the Koscelniks to object to. We overrule her third issue.
F. Waiver
Finally, Deloney repeatedly states in her brief that by answering the suit, the
Koscelniks waived any issues regarding service. And, at the end of her brief, Deloney
summarizes that “Appellees waited until limitations had run and then filed an answer.
Once the Koscelniks filed their answer, they waived any defects in the manner of
service. As such, the Koscelnik[s’] Motion for Summary Judgment should have been
denied.” In context, Deloney appears to argue that by filing an answer, the
Koscelniks waived any complaint as to lack of diligence in service and that, therefore,
their summary judgment motion should have been denied.
We agree that the general rule of law is that filing an answer to a lawsuit waives
any defects in the manner of service. Phillips v. Dall. Cnty. Child Protective Servs. Unit,
15
197 S.W.3d 862, 865 (Tex. App.—Dallas 2006, pet. denied). But Deloney cites to no
authority for extending this general rule into the realm of law regarding diligence in
service of citation after limitations has run. Nor does she advocate for the
modification or reversal of existing law. And, indeed, embracing such an argument
would require wholesale modification and reversal of existing law.
First, failure to use diligence in service is not a “defect in service” as that term
has been used in the law. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (noting
that substituted service that was not properly authorized is a defect in service); Chase
Manhattan Mortg. Co. v. Windsor, No. 2-05-427-CV, 2006 WL 1174209, at *1 (Tex.
App.—Fort Worth May 4, 2006, no pet.) (mem. op.) (stating that return of service not
filled out by service officer is a defect in service); Vespa v. Nat’l Health Ins., 98 S.W.3d
749, 752 (Tex. App.—Fort Worth 2003, no pet.) (holding that failing to strictly follow
the trial court’s instruction for substituted service is a defect in service); Keeton v.
Carrasco, 53 S.W.3d 13, 19 (Tex. App.—San Antonio 2001, pet. denied) (stating that
return receipt not signed by addressee is a defect in service).
Second, and more importantly, limitations is an affirmative defense that must
be pleaded to be invoked. See Tex. R. Civ. P. 94; Godoy v. Wells Fargo Bank, N.A, 575
S.W.3d 531, 536 (Tex. 2019) (quoting Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143,
155–56 (Tex. 2015)). Because the filing of any pleading—other than a plea to the
jurisdiction or motion to transfer venue—waives all defects in service, see Tex. R. Civ.
P. 121, if failing to use diligence after limitations has run is a defect in service subject
16
to waiver, then it could never be raised in the context of limitations. The act of
raising the limitations defense would automatically relieve the plaintiff of her burden
to demonstrate diligence in service. Cf. Butler, 2015 WL 4148474, at *2 (stating that
after defendant affirmatively pleads limitations, the plaintiff must present evidence to
raise a fact issue regarding diligence). In other words, by answering the lawsuit, which
a defendant is required to do to assert limitations, a defendant would simultaneously
waive the opportunity to prevail on its limitations defense. We cannot accept an
argument that would lead to such an absurd result.
In her reply brief, Deloney appears to retreat from this position by claiming
that the numerous waiver-of-defects-in-service-by-answering references in her brief
merely “factually noted that the filing of the answer mooted defects in service, not as
to limitations.” At any rate, to the extent that this argument has not been abandoned,
we overrule it.
IV. Conclusion
Having overruled all of Deloney’s issues, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: December 10, 2020
17