Opinion issued August 6, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00447-CV
                           ———————————
               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

                         MEMORANDUM OPINION

      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


1
      The TEA revoked the Academy’s charter and ordered its closure in the fall of 2010.
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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.




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                                       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 was filed August 22, 2018, and

     no reporter’s record was filed. The Academy did not file its brief until January

     24, 2019.

            When an appellant has failed to timely file its brief, the appellate court may

     dismiss the appeal for want of prosecution unless the appellant provides a

     reasonable explanation for the delay and the appellee is not injured by the

     appellant’s failure to file a brief timely. TEX. R. APP. P. 38.8(a)(1). Rule 38.8 is,

     by its own terms, discretionary. See id. Although the Academy has not provided

     an explanation for the delay in filing its brief, Tritico and the firm have not

     asserted that any injury resulted from that delay and did not request dismissal

     until both parties had briefed the merits of the appeal. Under these circumstances,

     the interest of judicial economy weighs in favor of addressing the appeal on the

     merits.


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II.    Summary Judgment Standard of Review

       We review the trial court’s summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a summary-

judgment motion, a movant has the burden of proving that he is entitled to judgment

as a matter of law and there is no genuine issue of material fact. TEX. R. CIV. P.

166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant

moves for summary judgment on an affirmative defense, such as a statute-of-

limitations bar, he must plead and conclusively establish each essential element of

his defense to defeat the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341;

Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied). In deciding whether a disputed, material fact issue

precludes summary judgment, we take evidence favorable to the non-movant as true,

and we indulge every reasonable inference and resolve any doubts in its favor. Nixon

v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

III.   Statute of Limitations

       The longest statute of limitations applicable to the Academy’s claims is four

years, which governs its causes of action for breach of fiduciary duty and fraud. TEX.

CIV. PRAC. & REM. CODE § 16.004(a)(4)–(5). The Academy filed its petition

approximately a month before the end of the four-year period applicable to those

claims. However, a timely-filed suit does not interrupt the running of the statute of


                                          5
limitations unless the plaintiff exercises due diligence in the issuance and service of

the citation. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). If the plaintiff

diligently effected service after the expiration of the statute of limitations, the date

of service relates back to the date of filing. Id.

       To obtain summary judgment on the ground that a plaintiff did not serve its

suit within the limitations period, a defendant must show that, as a matter of law, the

plaintiff did not exercise due diligence to effect service. See id. at 216. When the

defendant affirmatively pleads the statute-of-limitations defense and shows that the

plaintiff effected service after the expiration of the statute of limitations, the plaintiff

bears the burden to “explain the delay” in service. Id. The plaintiff must present

evidence regarding the efforts that it made to serve the defendant and to explain

every lapse in effort or period of delay. Id. The plaintiff’s explanation of its service

efforts may demonstrate a lack of diligence as a matter of law if the plaintiff fails to

explain one or more lapses between service efforts or the proffered explanations are

patently unreasonable. Id. However, if the plaintiff’s explanation for the delay raises

a material fact issue concerning the diligence of the plaintiff’s efforts, the burden

shifts back to the defendant to conclusively show why, as a matter of law, the

plaintiff provided an insufficient explanation. Id. In evaluating the plaintiff’s

diligence, “the relevant inquiry is whether the plaintiff acted as an ordinarily prudent

person would have acted under the same or similar circumstances and was diligent


                                             6
up until the time the defendant was served.” Id. We examine “the time it took to

secure citation, service, or both, and the type of effort or lack of effort the plaintiff

expended in procuring service.” Id.

      A.     The undisputed summary-judgment evidence shows that the
             Academy’s claims accrued more than four years before it
             requested citation be issued and served on Tritico and the firm and
             that the Academy failed to exercise due diligence to effect service
             as a matter of law.

      The Academy argues that summary judgment is improper because the

evidence fails to conclusively establish the date that its causes of action accrued.

With their summary-judgment motion, Tritico and the firm included Tritico’s

affidavit attesting that on July 14, 2009, he notified the Academy that he and the

firm would no longer represent the Academy and that in fact, no representation took

place after that date. The affidavit was accompanied by the firm’s letter to the

Academy of the same date, which contains the termination notice. The Academy’s

Fourth Amended Petition declares that, “[f]rom April 29, 2009 to May 29, 2009,

Defendants represented Plaintiffs in the matter retained for.” The undisputed

evidence thus shows that any representation by Tritico and the firm ended by no later

than July 14, 2009.

      The Academy did not seek service of citation on Tritico and the firm until

January 2018, more than four years after suit was filed and more than nine years

after the attorney-client relationship between the parties ended. The Academy’s


                                           7
response to Tritico and the firm’s summary-judgment motion does not make any

excuse for the delay in service. Because the Academy wholly failed to discharge its

burden to explain this lengthy delay in service, the trial court correctly concluded

that its claims are time-barred as a matter of law. See Proulx, 235 S.W.3d at 215.

      B.     The Academy’s contention that a two-year statute of limitations
             does not apply to some of its claims does not affect the propriety of
             the trial court’s ruling.

      The Academy contends that the trial court erred in applying a two-year statute

of limitations to its claims for breach of fiduciary duty, fraud, and breach of contract.

The record does not support this contention. The summary-judgment issue raised in

Tritico and the firm’s motion presumes that the four-year statute of limitations

applies to the Academy’s claims and points out that more than four years elapsed

between the claims’ accrual date and the date Tritico and the firm were served with

citation. In granting summary judgment, the trial court properly considered that the

passage of more than four years before service of citation would time-bar all claims

with a statute of limitations of four years or less. See TEX. CIV. PRAC. & REM. CODE

§ 16.004(a)(4)–(5).




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      C.     None of the defensive doctrines raised by the Academy raises a
             fact issue.

             1.     The Academy waived any argument concerning application
                    of the continuing-tort doctrine.

      The Academy argues that the trial court erred in granting summary judgment

based on limitations because the continuing-tort doctrine applies to extend the statute

of limitations on its claims. Because the Academy did not raise this argument in the

trial court, it is waived. See TEX. R. CIV. P. 166a(c); TEX. R. APP. P. 33.1.

             2.     The doctrines of misnomer and idem sonans do not apply.

      Proper issuance of citation upon the filing of a lawsuit is required to confer

jurisdiction upon the court and requires strict compliance with Texas Rule of Civil

Procedure 106. See Velasco v. Ayala, 312 S.W.3d 783, 797 (Tex. App.—Houston

[1st Dist.] 2009, no pet.). If someone other than the defendant named in the citation

is served, a court does not acquire jurisdiction over the named defendant. P & H

Transp. v. Robinson, 930 S.W.2d 857, 860 (Tex. App.—Houston [1st Dist.] 1996,

writ denied). For the same reason, a court does not acquire jurisdiction over a named

defendant based on service of a citation that names a different defendant; actual

notice without proper service is not sufficient. See Velasco, 312 S.W.3d at 797; P&H

Transp., 930 S.W.2d at 859; see also Greystar, LLC v. Adams, 426 S.W.3d 861,

867–68 (Tex. App.—Dallas 2014, no pet.) (finding trial court had no personal




                                           9
jurisdiction over entity because person who accepted service was not authorized to

accept service for entity).

      The Academy claims that the trial court erred by not applying the misnomer

rule, which, it contends, would allow the service of citation on Tritico and the firm

to relate back to the date service was effected on Tritico Rainey. A misnomer occurs

when a “party misnames itself or another party, but the correct parties are involved.”

In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex.

2009). The rule may apply when the defendant was actually served with process and

not confused or misled by the misnomer. Mansell v. Ins. Co. of W., 203 S.W.3d 499,

502 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

      The misnomer rule does not apply here. The May 2013 service of citation

named Tritico Rainey, which was named as one of three defendants in the lawsuit.

The petition named Tritico and Essmyer Tritico as the other two defendants but did

not ask for issuance of citation for them until more than four years later. The 2013

citation, which correctly named and was served on one defendant, cannot reasonably

be read to include the two remaining defendants whom it did not name. The trial

court properly refused to apply misnomer to relate the 2018 service of citation on

Tritico and the firm back to the 2013 service of citation on Tritico Rainey.

      For the first time on appeal, the Academy contends that Tritico and the firm

waived any challenge to their capacity to sue and invokes the related doctrine of


                                         10
idem sonans. The issue of capacity, however, does not affect the application of the

statute of limitations in this case, which serves as the basis for Tritico and the firm’s

motion and the trial court’s summary-judgment ruling. We therefore decline to

consider it. See TEX. R. APP. P. 33.1, 44.1.

IV.   The trial court did not err in failing to issue findings of fact and
      conclusions of law.

      Finally, the Academy contends that the trial court erred in failing to issue

findings of fact and conclusions of law in response to their request following the

summary-judgment ruling. However, a trial court has no duty to file findings of fact

or conclusions of law where there has been no trial. See IKB Indus. (Nigeria) Ltd. v.

Pro–Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); Kaminetzky v. Park Nat’l Bank

of Houston, No. 01–03–01079–CV, 2005 WL 267665, at *5 (Tex. App.—Houston

[1st Dist.] Feb. 3, 2005, no pet.) (mem. op.). Findings of fact and conclusion of law

thus “have no place in a summary judgment proceeding.” Linwood v. NCNB Texas,

885 S.W.2d 102, 103 (Tex. 1994).

      In a summary-judgment proceeding, judgment must be rendered as a matter

of law based on the legal grounds stated in the motion and response. IKB Indus., 938

S.W.2d at 441–42; see TEX. R. CIV. P. 166a. Because “there are no facts to find,”

requests for findings and conclusions following summary judgment “have no

purpose, should not be filed, and if filed, should be ignored by the trial court.” KB



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Indus., 938 S.W.3d at 442. As a result, the trial court did not err in failing to respond

to the Academy’s request for findings of fact and conclusions of law.2

                                   CONCLUSION

      We affirm the judgment of the trial court.




                                                Gordon Goodman
                                                Justice

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




2
      To the extent the Academy’s brief makes arguments unrelated to the propriety of
      the summary judgment, they are not properly before the court and we therefore
      decline to consider them.
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